39 UNION SQUARE CONDOMINIUM ASSOCIATION, INC v. BLAIRE KITROSSER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

39 UNION SQUARE CONDOMINIUM

ASSOCIATION, INC.,

Plaintiff-Respondent,

v.

BLAIRE KITROSSER,

Defendant-Appellant.

___________________________

January 10, 2017

Argued November 16, 2016 Decided

Before Judges Simonelli and Carroll.

On appeal from the Superior Court of New Jersey, Chancery Division, Bergen County, Docket No. F-49603-10.

Blaire Kitrosser, appellant, argued the cause pro se.

David J. Byrne argued the cause for respondent (Ansell Grimm & Aaron PC, attorneys; Mr. Byrne and Breanne M. DeRaps, on the brief).

PER CURIAM

Defendant Blaire Kitrosser appeals from the August 21, 2015 Law Division order, which denied her motion to vacate a consent order entered on March 12, 2012. Defendant also appeals from the October 21, 2015 order, which denied her motion for reconsideration. For the following reasons, we affirm both orders.

We derive the following facts from the record. Plaintiff 39 Union Square Condominium Association, Inc. (Association) is a condominium association located in Hackensack. The Association is responsible for management of the common elements on the property. Kitrosser owns a condominium unit within the Association. The Master Deed and By-Laws required her to pay fees to the Association for maintenance, repair, replacement, administration and operation of the common elements (the maintenance fees). According to Kitrosser, her maintenance fees were $285 per month.

Kitrosser failed to pay her maintenance fees. As a result, on October 8, 2010, the Association filed a complaint for foreclose lien against her. Kitrosser had also failed to pay her mortgage, and the mortgage lender instituted a foreclosure action against her.

Kitrosser did not file an answer to the Association's complaint, and default was entered against her. The parties ultimately settled the litigation by consent order entered on March 12, 2012. Kitrosser acknowledged and agreed therein that she owed the Association a total of $18,055.02. She assigned to the Association all rights to occupancy of and possession in the unit, including, but not limited to

[t]he Association's ability to enter in, and take possession of the [u]nit, including taking immediate operating control and management of the [u]nit, the ability to collect, transfer and/or receive and/or utilize all rents and profits, revenues, security deposits or proceeds of the [u]nit and/or identify and/or install a tenant(s) into the [u]nit.

Kitrosser also agreed that she would not interfere with the Association's rights under the consent order subsequent to its execution. In turn, the Association "completely absolve[d] and indemnifie[d] [Kitrosser] from any and all liability with regard to the [u]nit" and "waive[d] any rights it may have vis a vis [Kitrosser] with regard to [her] duties as set forth in the . . . Master Deed and/or By-Laws." The consent order also absolved Kitrosser of any liability "for any existing or future assessments, charges and/or costs." In essence, Kitrosser was able to walk away from the unit with no liability whatsoever to the Association. Kitrosser consented to the form and entry of the consent order and signed it.

In accordance with the consent order, the Association began renting Kitrosser's unit. On February 7, 2014, the Association's complaint was dismissed without prejudice for lack of prosecution.

On August 8, 2014, a final judgment of foreclosure was entered in the mortgage lender's foreclosure action. For reasons not clear from the record, a sheriff's sale of the unit did not occur; however, there was no evidence that the Association was responsible for delaying the sheriff's sale. Apparently realizing that a sheriff's sale had not occurred, on July 8, 2015, Kitrosser filed a motion to vacate the consent order, claiming that she signed it under duress because she was behind in paying her maintenance fees and the Association was threatening to sue her. She argued that she only agreed to the consent order because she did not want to get sued or be the cause of another foreclosure in the Association. She also argued that the consent order was inequitable because there was no limit on the amount of time the Association could rent her unit, and she did not intend for the Association to have control of her unit forever. In addition to vacating the consent order, Kitrosser requested an accounting of lease payments the Association received from 2012 to the present and payment of any excess monies the Association received over $18,055.02. She claimed that the Association rented the unit for $1500 per month and collected $54,000 as of July 2015.

In opposition, the Association argued that the motion was procedurally defective because its complaint had not been reinstated. The Association also argued that the consent order was a valid and enforceable contract that Kitrosser did not sign under duress and which allowed her to walk away from the unit free and clear of all liability to the Association. The Association emphasized that it gave up significant rights to collect what Kitrosser owed plus any future assessments, charges, and/or costs related to the unit, and it took a substantial risk in entering into the consent order because the mortgage lender could have foreclosed on the unit at any time, thus foreclosing the Association's ability to recoup the total amount due from Kitrosser. The Association noted that a final judgment of foreclosure was entered on August 8, 2014, and thus, a sheriff's sale of the unit was likely imminent. The Association also emphasized that Kitrosser could have taken the same action the Association took to find a tenant and rent the unit to pay down her debt, but chose instead to let the Association bear that burden and risk.

In an August 21, 2015 written opinion, the motion judge found that the motion was procedurally defective because: the Association's complaint was dismissed without prejudice for lack of prosecution pursuant to Rule 4:64-8; Kitrosser did not file a motion to reinstate the complaint, as required by Rule 4:64-8; and Kitrosser failed to show good cause for reinstatement.

Addressing the merits, the judge found that the consent order memorialized a settlement agreement, the settlement was not the result of fraud, inadequacy of consideration, or duress, and the settlement was enforceable. The judge reasoned as follows

Kitrosser had all of her debts to the Association relieved, and was afforded the opportunity to walk away from the [u]nit without having the Association foreclose on the [u]nit. In return, the Association gave up its rights to seek any payment from Kitrosser for maintenance fees owed, and was given the opportunity to recoup funds by renting the [u]nit for as long as it could before the [mortgage lender] foreclosed on the Association's interest in the [u]nit.

. . . .

Kitrosser admit[ted] to signing the [consent order] because she did not want to get sued. The pressure of a lawful and legitimate foreclosure action does not satisfy the threshold to vacate a [c]onsent [o]rder because the court does not find that it was so oppressive so as to constrain Kitrosser's free will. In fact, Kitrosser got exactly what she bargained for by signing the [c]onsent [o]rder because the Association gave up its rights to sue Kitrosser for her deficient [common expenses] fees and cleared Kitrosser of any liability in relation to those fees. . . .

Kitrosser sets forth no competent evidence for vacation of the [c]onsent [o]rder, and since public policy favors settlements and their subsequent enforcement, the [c]onsent [o]rder remains valid and enforceable. The [settlement] agreement was not unconscionable at the time it was made. Hindsight may show it was not as favorable for [Kitrosser] as other options may have been, but that provides no basis to set aside the [settlement] [a]greement.

Kitrosser filed a motion for reconsideration.1 From our review of her appendix on appeal, she raised the same arguments that she previously raised, and also raised new arguments and legal authority that she could and should have raised in the original motion. The motion for reconsideration was denied. On appeal, Kitrosser argues that she was still the legal owner of the unit; the Association unfairly profited from the delay in the mortgage lender's foreclosure action; perpetual contracts are not favored by the law; and the profit the Association was making off her unit is "grossly shocking to the conscience."

A decision to vacate a judgment or order lies within the sound discretion of the trial judge, guided by principles of equity. Hous. Auth. of Morristown v. Little, 135 N.J. 274, 283 (1994). We will reverse the trial court's decision on a motion to vacate where there is an abuse of discretion. Ibid.; see also Mancini v. E.D.S. ex rel. N.J. Auto Full Ins. Underwriting Ass'n, 132 N.J. 330, 334 (1993). An "abuse of discretion only arises on demonstration of 'manifest error or injustice[,]'" Hisenaj v. Kuehner, 194 N.J. 6, 20 (2008) (quoting State v. Torres, 183 N.J. 554, 572 (2005)), and occurs when the trial judge's "'decision [was] made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" United States ex rel. U.S. Dep't of Agric. v. Scurry, 193 N.J. 492, 504 (2008) (alteration in original) (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002)).

As for the denial of a motion for reconsideration, we have determined,

[r]econsideration itself is a matter within the sound discretion of the [c]ourt, to be exercised in the interest of justice[.] It is not appropriate merely because a litigant is dissatisfied with a decision of the court or wishes to reargue a motion, but should be utilized only for those cases which fall into that narrow corridor in which either 1) the [c]ourt has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the [c]ourt either did not consider, or failed to appreciate the significance of probative, competent evidence.

[Palombi v. Palombi, 414 N.J. Super. 274, 288 (App. Div. 2010) (citations omitted) (internal quotation marks omitted).]

Notably, and of considerable significance here, a party is not permitted to use a motion for reconsideration as a basis for presenting facts or arguments that could have been provided in the original motion. Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996). We will not disturb a trial judge's denial of a motion for reconsideration absent an abuse of discretion. Id. at 389.

We discern no abuse of discretion in the denial of Kitrosser's two motions. As the motion judge correctly found, the motion to vacate the consent order was procedurally defective because the Association's foreclosure complaint was dismissed pursuant to Rule 4:64-8; Kitrosser did not file a motion to reinstate the complaint, as required by the rule; and Kitrosser failed to show good cause for reinstatement.

Nevertheless, we have considered Kitrosser's arguments in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons the motion judge expressed in his well-reasoned August 21, 2015 written opinion. However, we make the following brief comments.

The consent order memorialized a settlement agreement between the parties of the Association's foreclosure action. A settlement agreement between parties to a lawsuit is a contract that, if freely entered into, should be honored and enforced by the courts like any other contract. Pascarella v. Bruck, 190 N.J. Super. 118, 124-25 (App. Div.), certif. denied, 94 N.J. 600 (1983). The court should set aside a settlement agreement only if it "is achieved through coercion, deception, fraud, undue pressure, or unseemly conduct, or if one party was not competent to voluntarily consent thereto[.]" Jennings v. Reed, 381 N.J. Super. 217, 227 (App. Div. 2005).

A party seeking to be relieved of his or her obligation under a settlement agreement must provide "clear and convincing proof" of "fraud or other compelling circumstances." Nolan v. Lee Ho, 120 N.J. 465, 472 (1990) (citation omitted). "In determining whether a contracting party is entitled to be absolved from his [or her] contractual obligations due to duress, the court must therefore look to the condition of the mind of the person subjected to coercive measures." Shanley & Fisher, P.C. v. Sisselman, 215 N.J. Super. 200, 212 (App. Div. 1987). "The question is whether consent was coerced; that is, was the person complaining 'induced by the duress or undue influence to give his [or her] consent, and would not have done so otherwise.'" Rubenstein v. Rubenstein, 20 N.J. 359, 366 (1956) (quoting Williston on Contracts 1604 (rev. ed.)).

The record amply supports the judge's findings that the settlement was enforceable and was not the result of fraud, inadequacy of consideration, or duress. There is no proof, let alone clear and convincing proof, of duress to undermine Kitrosser's voluntariness in entering the settlement. Rather, the record confirms that Kitrosser voluntarily entered into the consent order to relieve herself of all liability to the Association at a time when she was facing the potential sale of her unit as a result of the two foreclosure proceedings.

In addition, Kitrosser consented to the form and entry of the consent order and signed it, see Rule 4:42-1(d), and the consent order did not reserve any issues. An order entered into with the consent of the parties is ordinarily not appealable for the purpose of challenging its substantive provisions. See Winberry v. Salisbury, 5 N.J. 240, 255, cert. denied, 340 U.S. 877, 71 S. Ct. 123, 95 L. Ed. 638 (1950).

Affirmed.

1 The judge denied the motion for the reasons set forth on the record on October 21, 2015. In an order entered on December 23, 2015, we granted Kitrosser's motion to proceed with the appeal without transcripts.