ELIZABETH CSAKI /Cross- v. ANTHONY MOCCI and NU-IMAGE BUILDERS, INC /Cross-

 
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The status of this decision is

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(NOTE: The status of this decision is unpublished.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1324-0T21324-04T2

ELIZABETH CSAKI,

Plaintiff-Respondent/Cross-Appellant,

v.

ANTHONY MOCCI and NU-IMAGE

BUILDERS, INC.,

Defendants-Appellants/Cross-Respondents.

____________________________________________________

 

Submitted July 19, 2005 - Decided

Before Judges Fuentes and R. B. Coleman.

On appeal from the Superior Court of New Jersey, Chancery Division, Middlesex County,

C-252-02.

Convery, Convery & Shihar, attorneys for plaintiff (Bernard H. Shihar, of counsel and on the brief).

Jaffe & Falk, attorneys for respondents (Kenneth B. Falk, of counsel and on the brief).

PER CURIAM

Defendants Anthony Mocci and Nu-Image Builders, Inc. appeal from an order of the Chancery Division entered on October 8, 2004, enforcing a settlement agreement reached between the parties in connection with a joint construction venture involving several parcels of land. Plaintiff Elizabeth Csaki cross-appeals from the court's refusal to enforce certain aspects of the settlement agreement dealing with counsel fees and allocation of costs for the completion of certain construction projects. We affirm the order to enforce the settlement, but we reverse the portion of the order that denies counsel fees and costs.

Defendant Mocci does not dispute that he violated the settlement in a variety of ways. Rather, defendants argue that the violations were not material and were caused, at least in part, by plaintiff's refusal to vacate the lis pendens on one of the properties, which was unreasonable and frustrated defendants' efforts to secure the financing needed to complete the job. The trial judge found that defendants breached the parties' settlement agreement in several ways. He made the following findings: (1) defendant Anthony Mocci failed to turn over the security (i.e., the deeds and mortgages to various properties) in a timely manner; (2) Mocci improperly mortgaged the property for which he gave Csaki deeds; (3) Mocci improperly transferred some of the properties to his wife (before the settlement agreement was entered into); (4) Mocci failed to deliver the deed to the Christopher Street property to his attorney in a timely manner, finding that it was not executed and placed in escrow until the summer of 2004; (5) Mocci breached the settlement agreement by not transferring a fifty percent interest in the Deans Lane lots to Csaki in a timely manner and by failing to timely place a deed for Mocci's interest in the Deans Lane property in escrow. Accordingly, the court rejected defendants' argument that they had not materially breached the settlement agreement.

The settlement agreement did not require that plaintiff release the lis pendens. As defendants themselves note in their brief on appeal, "the parties could have easily conditioned release of the lis pendens on a certain act, but they did not." The court may not make a better contract for the parties than they themselves agreed to. Temple v. Clinton Trust Co., 1 N.J. 219, 225 (1948); Schenck v. HJI Associates, 295 N.J. Super. 445, 450 (App. Div. 1996).

We agree with Judge Messina's determination that defendants' breaches were indeed material. For example, the failure to submit documentation to the accountant selected by the parties to monitor the projects' expenditures goes directly to a central issue in the original lawsuit, to wit, defendant Mocci's allegedly clandestine and unauthorized diversion of partnership funds for his own personal use.

The scope of our review on appeal is limited. We must defer to the factual findings of the trial judge and will only decide whether the findings could have been reached on sufficient or substantial credible evidence present in the record. State v. Locurto, 157 N.J. 463, 470-71 (1999); In re Taylor, 158 N.J. 644, 656-57 (1999); Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974). The facts establishing the breaches in this case are not disputed. The sole dispute is the materiality of the breaches, on which we agree with the trial judge.

We hold a different view with respect to the cross-appeal. We believe that Judge Messina took an extremely narrow and unwarranted reading of the settlement agreement's counsel fees provision. In the settlement agreement placed on the court record on August 27, 2003, the parties agreed:

If the defendants shall fail to make the required payments hereunder and the plaintiff shall retain counsel to collect such sums, then all other sums hereunder shall be accelerated and immediately due and payable and the defaulting party shall be required to pay in addition to all other sums due the legal fees and costs of such collection.

A suit to compel compliance with the settlement agreement is a form of collection action. We are satisfied this is, indeed, a collection matter, as contemplated by the terms of the parties' settlement agreement.

Finally, we see no rational basis to deny plaintiff her right to force Mocci to pay the entire cost of financing construction and sale of the Deans Lane lots. The language of the agreement appears clear on this issue. As plaintiff points out, permitting defendants after the settlement to increase the debt secured by the property would have the effect of shifting to plaintiff one-half of that cost. If done, that was a result not intended nor reasonably implied by the settlement agreement.

We affirm on the issues raised by defendants' direct appeal, and reverse for further proceedings on plaintiff's cross-appeal for attorneys fees and costs, if any, incurred as a result of defendants' breach of the settlement agreement. We do not retain jurisdiction.

 

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A-1324-0T2

December 23, 2005