PAUL MOSCATELLO v. ESTHER LENA DICKINSON

NOT FOR PUBLICATION WITHOUT THE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-4167-15T1


PAUL MOSCATELLO,

        Plaintiff-Respondent,

v.

ESTHER LENA DICKINSON AND
SUSAN GLADECK,

     Defendants-Appellants.
______________________________

              Submitted December 11, 2017 – Decided February 9, 2018

              Before Judges Ostrer and Whipple.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Salem County,
              Docket No. FM-17-0079-10.

              Esther Lena Dickinson           and   Susan    Gladeck,
              appellants pro se.

              LaVan Law, attorneys for respondent (Julie
              Anna LaVan, on the brief).

PER CURIAM

        Defendants Lena Dickinson and Susan Gladeck, Lena's mother,

(collectively defendants) appeal from an April 14, 2016 consent

order.      We dismiss the appeal as improper.
     Defendants' submissions detail the history of a lengthy and

complicated litigation in the Family Part stemming from a personal

home loan.    In January 2011, the trial court issued an order and

opinion, under the consolidated Docket No. FM-17-0079-10, finding

plaintiff Paul1 and defendant Lena jointly and severally liable

for a judgment in favor of defendant Susan for $79,443.   The court

also denied Lena's claim for fraud against Paul, palimony, and

partnership in Paul's business.      Susan was to provide a more

detailed certification with regards to attorney's fees within

thirty days, at which time the exact amount of fees would be

determined.

     In March 2011, Susan appealed the January 2011 order.          By

letter dated March 22, 2011, we notified Susan her appeal was

interlocutory, and she subsequently withdrew it.    In April 2015,

Susan sought payment for the judgment from Paul.     In May 2015,

Paul paid the judgment in the total amount of $87,528.21.2

     In April 2015, Paul filed a complaint, under Docket No. C-5-

15, in the Chancery Division seeking contribution from Lena,

arguing she was jointly and severally liable for the judgment.



1
    We refer to the parties by their first names for ease of
reference, and in doing so, we mean no disrespect.
2
   This payment included the final judgment of $79,443 plus post-
judgment interest of $8,085.21.

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     On August 27, 2015, Lena filed an answer and counterclaim,

alleging fraud and other affirmative defenses.      On that same day,

Susan   filed   a   third-party   action   requesting   $34,309.61       in

attorney's fees from Paul, under Docket No. FM-17-0079-10.

     In December 2015, the Chancery Division granted Paul's motion

to consolidate the matters for trial, under Docket No. FM-17-0079-

10, and dismissed Lena's counterclaims with prejudice.           However,

on March 30, 2016, the parties entered into a settlement agreement,

which was memorialized in a consent order dated April 14, 2016,

disposing of all of the claims before the court.

     The settlement agreement provided that Paul would dismiss his

claim for contribution against Lena, and Susan would withdraw her

motion for attorney's fees against Paul.      In exchange, Paul would

pay Susan a total of $27,000 in three monthly installments, and

if he failed to do so, a confession of judgment would be entered

against him for $32,209 plus costs.

     The   settlement   agreement   also   contained    mutual   general

releases, in which Lena, Paul, and Susan each agreed to:

           unconditionally release[] [the other parties]
           from any claims, demands, and causes of
           action, damages, costs, expenses, losses and
           liability of every kind and nature, whether
           at law or in equity, whether known or unknown
           that were or could have been asserted in these
           "Actions" before this court.



                                    3                             A-4167-15T1
"Actions" was defined as "the matters consolidated under Docket

No. FM-17-0079-10."       Any breaching party would be responsible for

the reasonable attorney's fees and costs of the other parties,

including    those     incurred   in    defending   the     released    claims.

Furthermore, the agreement superseded "all prior negotiations,

agreements, and understandings," and was "executed without reliance

on   any    promise,      understanding,      inducement,      warranty,       or

representation by any party."

     In May 2016, defendants appealed the January 2011 order,

under Docket No. FM-17-0079-10, which was made final for appeal

purposes by the April 14, 2016 consent order that disposed of the

issue of attorney's fees.

     On appeal, defendants argue the trial court in Docket No. FM-

17-0079-10 erred finding Paul did not commit fraud and Lena was

jointly and severally liable for the judgment.               Paul argues the

present appeal is a breach of the universal settlement agreement

because it contained clauses releasing the parties from all claims.

We dismiss because the appeal is from a consent order.

     An    agreement    to   settle    litigation   is    "governed    by   [the

general] principles of contract law."         Globe Motor Co. v. Igdalev,


225 N.J. 469, 482 (2016) (quoting Brundage v. Estate of Carambio,


195 N.J. 575, 600-01 (2008)) (alterations in original).               Normally,

whether a settlement agreement, containing a release of claims

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clause, was breached by the filing of additional litigation would

be a matter of contract interpretation – a question of law.              See

Hess Corp. v. ENI Petroleum US, LLC, 
435 N.J. Super. 39, 46 (App.

Div. 2014) (citation omitted).

       Here, however, the settlement agreement was memorialized by

a consent order, and our courts have long held that a consent

order is not appealable.       Janicky v. Point Bay Fuel, Inc., 
410 N.J.   Super.   203,   207   (App.   Div.   2009)   (citing   Winberry    v.

Salisbury, 
5 N.J. 240, 255 (1950)).          "This is because the rule

allowing an appeal as of right from a final judgment contemplates

a judgment entered involuntarily against the losing party."            N.J.

Sch. Constr. Corp. v. Lopez, 
412 N.J. Super. 298, 308-09 (App.

Div. 2010) (citation omitted).       We disapprove of the practice even

where the consent judgment expresses the desire of the parties to

reserve appellate rights. Lopez, 
412 N.J. Super. at 309 (citations

omitted).    Only where "parties to a consent judgment reserve the

right to appeal an interlocutory order by providing that the

judgment would be vacated if the interlocutory order were reversed

on appeal" should an appeal be permitted.            Ibid.; Janicky, 
410 N.J. Super. at 207.

       Here, the settlement agreement did not contain such a specific

reservation, or any reservation of rights at all.             Instead, it

contained standard clauses unconditionally releasing the other

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parties "from any claims, demands, and causes of action, damages,

costs, expenses, losses and liability of every kind and nature,

whether at law or in equity, whether known or unknown that were

or could have been asserted in these 'Actions' before this court."

     All of the claims brought in this appeal could have been

brought in the identified "Actions," and are therefore covered by

the release of claims clauses.      Thus, the consent order and

settlement agreement preclude defendants' appeal.    Accordingly,

the appeal is dismissed.

     We decline to address Paul's assertion that the appeal itself

is a breach of the settlement agreement because that is an issue

that may be determined by the trial court upon an application in

that court.

     All additional arguments introduced by defendants are without

sufficient merit to warrant discussion in a written opinion.      R.

2:11-3(e)(1)(E).

     Dismissed.




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