                                 NOT FOR PUBLICATION WITHOUT THE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 NOS. A-1115-16T2
                                                                    A-3246-16T2
                                                                    A-5523-17T1

BRIAN DELANEY, individually
and derivatively on behalf of
CC HOLDINGS, LLC, and
derivatively on behalf of CCSV,
LLC,

         Plaintiff-Appellant,

v.

OWEN DYKSTRA, DOUGLAS
DYKSTRA, and DIMITRIOS
PRASSAS,

         Defendants-Respondents,

and

CC HOLDINGS, LLC, and
CCSV, LLC,

     Nominal Defendants.
____________________________

DIMITRIOS PRASSAS,
individually and derivatively, and
CC HOLDINGS, LLC,
      Plaintiff-Respondents,

v.

BRIAN DELANEY,

      Defendant-Appellant,

and

OWEN DYKSTRA, P.E., and
DOUGLAS DYKSTRA,

     Defendants-Respondents.
_____________________________

OWEN DYKSTRA and CC
HOLDINGS, LLC,

      Plaintiffs-Respondents,

v.

BRIAN DELANEY,

     Defendant-Appellant.
_____________________________

            Argued April 1, 2019 – Decided August 12, 2019

            Before Judges Haas, Sumners and Mitterhoff.

            On appeal from the Superior Court of New Jersey,
            Chancery Division, Morris County, Docket No. C-
            000163-14.

            Peter R. Bray argued the cause for appellant (Bray &
            Bray, LLC, attorneys; Peter R. Bray, on the briefs).

                                                                   A-1115-16T2
                                     2
            Haralampo Kasolas and Jay R. McDaniel argued the
            cause for respondents (Brach Eichler, LLC, attorneys
            for respondent Dimitrios Prassas; and Weiner Law
            Group, LLP, attorneys for respondents Owen Dykstra,
            P.E., Douglas Dykstra, and CC Holdings, LLC;
            Haralampo Kasolas, of counsel and on the joint brief in
            A-1115-16 and A-3246-16, and of counsel and on the
            brief in A-5523-17; Jay R. McDaniel, of counsel and on
            the joint brief in A-1115-16 and A-3246-16, and on the
            brief in A-5523-17.

PER CURIAM

      We issue this single opinion for these three appeals, which were

consolidated for the purposes of oral argument only. The appeals arise from a

dispute between four members of CC Holdings, LLC (CCH), which owned and

developed a mixed-use development project in Sparta. Three of the members,

Owen Dykstra, Douglas Dykstra, and Dimitrios Prassas (collectively

respondents), removed member Brian Delaney because of his alleged hostile and

combative behavior towards them and his company's default on a loan from

CCH. This led to three separate lawsuits, which were consolidated.

      Prior to trial, the parties reached a settlement agreement, which was placed

on the record, detailing CCH's purchase of Delaney's interest. Subsequently, an

issue arose over the proper timing for payment to Delaney based upon approvals

of access permits by the New Jersey Department of Transportation (DOT). Over

Delaney's objection, the trial judge granted respondents' motion to enforce the

                                                                          A-1115-16T2
                                        3
settlement and determined a reasonable security for Delaney's buyout.

Litigation continued thereafter regarding the parties' respective efforts to rescind

or enforce the settlement.

      In A-1115-16, Delaney appeals an order denying his motion to vacate the

settlement agreement. In A-3246-16 and A-5523-17, Delaney appeals orders

denying his requests to rescind the settlement and granting respondents' requests

to enforce the settlement, and awarding attorneys' fees to respondents. For the

reasons that follow, we affirm.

                                         I

      CCH is the owner and developer of a mixed-use development project (the

Project) located on Route 15 in Sparta. The Project consists of residential units,

a hotel, and a commercial shopping center anchored by a Shop Rite, owned and

operated by Ronetco, Inc. CCH's membership interest was divided as follows:

Delaney (33.33%), Prassas (33.33%), Douglas 1 (16.67%), and Owen (16.67%).

CCH initially planned to manage the Project by purchasing the foreclosure

judgment held by Sovereign Bank on the property they intended to develop.

Instead, a new entity, CCSV, LLC (CCSV), which included all of CCH’s



1
   Because Owen and Douglas share a last name, for convenience we use their
first names; we mean no disrespect.
                                                                            A-1115-16T2
                                         4
members except Delaney, was formed to purchase the foreclosure judgment and

manage the operations.

      A dispute developed among the members of CCH over the failure of

Windsor Lake Construction LLC, (Windsor Lake) a company controlled by

Delaney, to repay a $1.1 million loan to CCH by the April 2014 deadline.

Delaney struck a deal with the members to repay the loan so that the proceeds

from the loan repayment could be used for the Project. Windsor Lake, however,

defaulted; increasing the discord within the CCH membership and leading to

discussions regarding the dissolution of CCH or buying out Delaney's interest.

      On October 21, respondents executed a written consent to remove Delaney

from CCH's management. A few days later, they notified CCH's corporate

counsel advising of Delaney's removal as a CCH manager and directing counsel

to cease any further communication with Delaney about CCH unless authorized

by the remaining members. The following reasons served as their basis for

Delaney’s removal:

            [i] Delaney's combative, hostile and reckless behavior
            towards the other members, the company's lender and
            prospective tenant; (ii) repeated material breaches of
            various agreements between himself and [the other
            members] regarding Dykstra Associates' engineering
            invoices and CCH's accounting and capital accounts;
            (iii) Delaney's relentless disagreement with the
            direction of the company and insistence on exercising a

                                                                       A-1115-16T2
                                      5
            minority veto; and (iv) his affiliate company [Windsor
            Lake's] default on the $1,100,000 loan CCH made to
            Windsor, coupled with Delaney's intentional failure to
            use "best efforts" to refinance that loan so CCH could
            use the funds.

Following Delaney's removal, litigation between him and respondents ensued.

      Initially, Delaney filed a complaint against respondents CCH and CCSV,

seeking relief for oppression and related claims. Prassas then filed a separate

complaint against Delaney, Owen, Douglas, and CCH seeking temporary

restraints against Delaney, individually and derivatively. CCH and Owen filed

the third complaint seeking similar relief.        The three complaints were

consolidated.

      One week before trial, the parties reached a settlement that was placed on

the record. On April 27, 2016, all the parties, with their attorneys present, were

sworn and questioned by the Chancery judge as to their understanding of the

terms and conditions of the agreement. The settlement terms were as follows:

            [] Delaney will be selling his interest [in] [CCH]. Its
            principals or it's designee as [CCH] may determine for
            the amount of $2,800,000 subject to the following terms
            and conditions.

            There is an initial payment of $400,000 that will be
            made within ten days of signing the definitive
            agreement. There is a payment due of $1,600,000
            which will be paid within sixty days of what the lease
            with the . . . key tenant describes as the go hard date.

                                                                          A-1115-16T2
                                        6
The go hard date is the date on which the tenant advises
that it's not going to exercise any of its outs of the lease.
That . . . is defined in the lease agreement and it will be
incorporated into the definitive documents between us.

[CCH] is going to exercise its best efforts to have
[Delaney] removed as a guarantor of the existing loan
facility with First Hope Bank. But in no event will []
Delaney retain any personal liability for any debt of the
company after the closing of any subsequent round of
financing. The balance of $800,000 will be payable in
three installments . . . , the first of which is due on or
before the one-year anniversary of the date on which
the go hard notice was given. And the subsequent
payments will be due on each anniversary thereafter.

The payments are $250,000 in the first year, $250,000
in the second year, $300,000 in the third year. The
balance of that $800,000 that's subject to the
installment payments will bear interest at the rate of
five percent per [annual] calculated from the date of the
go hard notice. The sellers are going to provide the
purchasers with a reasonable security that's agreeable
to both to secure the installment portion of the
payments.

If payment of the full $2.8 million is made on or sixty
days of the go hard date, then the purchaser is to receive
a discount of $50,000 for the early payment. . . . [I]n
that circumstance the total settlement would be
$2,750,000. . . . [T]here will be no penalties in the
agreement for early payment, which can be obviously
done without penalty.

Each side will bear its own cost in attorney's fees. We
are going to exchange release except for there is a
matter that is pending between [] Dykstra individually


                                                                A-1115-16T2
                             7
              and [] Delaney individually in Sussex County on an
              unrelated matter that will not be included in this.

              Now, with regard to CCSV there . . . were some claims
              made [in] a case that were dismissed on [s]ummary
              [j]udgment. We are agreeing that we are releasing all
              of the claims that were in the case or which could have
              been brought in the case. This agreement does not
              govern or in any way restrict rights or remedies as to
              the relationships of the parties within CCSV going
              forward. So, that's just going to basically be the status
              quo.

The settlement terms were later memorialized in writing by the respective

counsel.

      Shortly after the settlement was reached, an issue arose regarding the "go

hard" date for the execution of the Shop Rite lease because the DOT issued a

letter on May 3, listing a number of conditions that would have to be satisfied

before it issued the access permits. And when the access permits were not

obtained, CCH's landlord approvals of May 31, 2016 – the "go hard" date –

could not be met and an extension followed.

      On July 27, Prassas filed a motion in aid of litigants' rights under Rule

1:10-3 against Delaney to compel enforcement of the settlement agreement, and

to determine the "reasonable security" for Delaney's buyout under the

settlement.



                                                                          A-1115-16T2
                                         8
      On October 14, the judge granted the motion to enforce the settlement and

required respondents to offer "security to Delaney in the form of personal

guaranties, a promissory note" for his 33.33% interest, and attorneys’ fees for

Prassas. Two weeks later, Prassas filed a motion to secure the appointment of a

special court agent under Rule 4:59-2(a) to execute the settlement agreement on

Delaney's behalf because he refused to sign the document.

      On December 1, a different Chancery judge entered an order granting

Prassas' motion to appoint a special court agent, "in light of [Delaney's] refusal

to move forward with [the] settlement" agreement, and allowing him to submit

a request for attorney fees. The special court agent was vested with the power

"to execute any and all documents on Delaney's behalf related to the [s]ettlement

[a]greement and the [c]ourt's October 14, 2016 [o]rder . . . ." About four months

later, an order was entered on March 16, 2017, awarding Prassas attorney’s fees

for $5,916.44.

      On March 24, respondents were granted two orders to show cause (OTSC)

with temporary restraints discharging two lis pendens that Delaney filed against

the Project. On March 27, the Law Division, Sussex Vicinage, denied Delaney's

motion for a stay of the temporary restraints. The next day, this court denied




                                                                          A-1115-16T2
                                        9
Delaney's motion for emergent stay of the March 24 orders to show cause with

temporary restraints.

      On April 7, the trial court entered an order: (1) maintaining the temporary

restraints against Delaney; (2) preliminarily enjoining him from filing further

liens or encumbrances against CCH's Project; (3) enjoining him from interfering

with CCH's business or Project; (4) staying the Sussex action until adjudication

of this appeal; and (5) transferring the Sussex action to the Chancery Court.

      In July, Delaney renewed his efforts to curtail the settlement agreement

by filing a motion to, among other things, enjoin the selling or encumbering of

the Project without providing him thirty days' notice or, in the alternative,

maintain the Project's status quo. Prassas cross-moved seeking, among other

things, to sanction Delaney for filing a frivolous motion and be awarded attorney

fees and court costs. On August 25, the judge entered orders denying all of the

parties' motions.

      While the parties' unsuccessful motion practice continued in the Sussex

action, Delaney, on December 12, moved to stay the October 14, 2016 and

December 1, 2016 orders in anticipation of respondents completing his buyout

under the settlement agreement.     In turn, respondents filed an OTSC with

temporary restraints seeking specific performance to finalize the settlement


                                                                         A-1115-16T2
                                      10
agreement with the execution of closing documents to terminate Delaney's CCH

membership with the $2.8 million buyout. Temporary restraints were denied

and the OTSC was converted to a cross-motion.

      On January 24, 2018, the judge entered an order denying Delaney's motion

for a stay of the October 14, 2016 and December 1, 2016 orders. On February

2, the judge entered an order granting respondents' motion to compel the closing

of Delaney's buyout from CCH according to the settlement agreement through

the special court agent, and awarding respondents attorney's fees and costs. The

judge also denied all pending motions in the Sussex action.

      On July 6, the judge entered an order and placed his decision on the record

awarding attorney's fees and costs of $10,017.16 to Prassas and $7,977.90 to

CCH, Owen and Douglas.

      Delaney appeals the October 14, 2016, December 1, 2016, March 16,

2017, January 24, 2018, February 2, 2018, and July 6, 2018 orders.

                                       II

      We begin with the acknowledgement that our state has a strong public

policy in favor of settlements. Brundage v. Estate of Carambio, 195 N.J. 575,

601 (2008).     Thus, "settlement agreements will be honored 'absent a

demonstration of fraud or other compelling circumstances.'" Nolan v. Lee Ho,


                                                                         A-1115-16T2
                                      11
120 N.J. 465, 472 (1990) (internal quotation marks omitted) (quoting Pascarella

v. Bruck, 190 N.J. Super. 118, 125 (App. Div. 1983)).

      Essentially, a settlement agreement is a contract. See Nolan, 120 N.J. at

472 (citing Pascarella, 190 N.J. Super. at 124). "As a general rule, courts should

enforce contracts as the parties intended." Pacifico v. Pacifico, 190 N.J. 258,

266 (2007) (citations omitted). "[P]arties may orally, by informal memorandum,

or by both agree upon all the essential terms of a contract and effectively bind

themselves thereon, if that is their intention, even though they contemplate the

execution later of a formal document to memorialize their undertaking."

Comerata v. Chaumont, Inc., 52 N.J. Super. 299, 305 (App. Div. 1958).

However, when parties contemplate that terms of a preliminary agreement will

later be reduced to a formal written contract, whether the preliminary agreement

is binding is a matter of the parties' intent. Morales v. Santiago, 217 N.J. Super.

496, 501 (App. Div. 1987).

      "Absence of essential terms from a preliminary agreement is persuasive

evidence that the parties did not intend to be bound by it." Id. at 502. It is well

settled that "[a] contract arises from offer and acceptance, and must be

sufficiently definite 'that the performance to be rendered by each party can be

ascertained with reasonable certainty.'" Weichert Co. Realtors v. Ryan, 128 N.J.


                                                                           A-1115-16T2
                                       12
427, 435 (1992) (quoting Borough of W. Caldwell v. Borough of Caldwell, 26

N.J. 9, 24-25 (1958)). If the parties agree on the essential terms and agree to be

bound by those terms, they have created an enforceable contract. Ibid.

      "On a disputed motion to enforce a settlement," a trial judge must apply

the same standards "as on a motion for summary judgment[.]" Amatuzzo v.

Kozmiuk, 305 N.J. Super. 469, 474 (App. Div. 1997). Thus, the judge "cannot

resolve material factual disputes upon conflicting affidavits and certifications."

Harrington v. Harrington, 281 N.J. Super. 39, 47 (App. Div. 1995). When a

judge is faced with disputed material facts in a motion to enforce a settlement,

a hearing must be conducted "to resolve the disputed factual issues in favor of

the non-moving party." Amatuzzo, 305 N.J. Super. at 474-75. However, this

court has stressed that not every factual dispute on a motion requires a plenary

hearing; a plenary hearing is only necessary to resolve a genuine issue of

material fact. See Eaton v. Grau, 368 N.J. Super. 215, 222 (App. Div. 2004);

Harrington, 281 N.J. Super. at 47; Adler v. Adler, 229 N.J. Super. 496, 500

(App. Div. 1988).

      We owe no deference to the "trial court's interpretation of the law and the

legal consequences that flow from established facts." Manalapan Realty, L.P.

v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) (citations omitted).


                                                                          A-1115-16T2
                                       13
And we consider de novo, the trial court's "interpretation of a contract." Kieffer

v. Best Buy, 205 N.J. 213, 222 (2011).

      A-1115-16

      Delaney contends the October 14, 2016 order enforcing the settlement

agreement was unenforceable because: (1) it lacked essential terms; (2) it was

fraudulently induced; (3) respondents breached the agreement prior to the

enforcement hearing; and (4) a plenary hearing was required. We find no merit

to these contentions.

      Delaney maintains the following essential terms were undiscussed when

the parties agreed to settle, and therefore make the settlement agree ment

unenforceable:

            1. What is the disposition of the $400,000 payment in
            the event that [t]he [s]upermarket [l]ease does not "[g]o
            [h]ard" and no further payments are made to Delaney?
            Is it subject to return? Is it to be kept and, if so, is it
            treated like an option payment or does CCH get credit
            for it?

            2. How long would Delaney remain a [m]ember of
            CCH, and what distribution does he get?

            3. What happens to Delaney's interest in CCH in the
            event [t]he [s]upermarket [l]ease does not "[g]o
            [h]ard"?




                                                                          A-1115-16T2
                                       14
            4. What happens to the parties' claims in the event that
            [t]he [s]upermarket [l]ease does not "[g]o [h]ard" and
            no additional payments are made?

      Delaney asserts the terms of the agreement fail to provide remedies for

some "very substantial issues . . . – particularly the gap left by not dealing with

the consequences attending a failure of the [g]o [h]ard [c]ontingency, which

leaves the purchase unconsummated and Delaney without the promised

payment." Relying upon Sachau v. Sachau, 206 N.J. 1, 9 (2011) and Karl's Sales

and Serv., Inc. v. Gimbel Bros., Inc., 249 N.J. Super. 487, 493 (App. Div. 1991),

he adds "the [t]rial [c]ourt could not step-in and supply [the] omitted essential

terms."   Consequently, he asserts that a plenary hearing was necessary to

determine the missing pieces to their settlement agreement.

      Based upon our review of the record, we find no reason to upset the

Chancery judge's order that the parties reached a binding settlement that was

placed on the record. We agree with the judge's reasoning that:

                  All the questions were asked. The parties
            themselves were sworn in. I asked them questions. The
            one and only issue that came up during the course of
            the proceeding that . . . the mechanics of a guarantee
            was not proposed.

                   I asked if this matter was fully settled.
            Everybody including [] Delaney said yes, [j]udge, it is
            except for this one issue. That's what he said at the end.
            I said you know you are giving up your right to a trial,

                                                                           A-1115-16T2
                                       15
            yes, I know that [j]udge. Not his attorney, him, himself
            under oath said that.

                  Could the agreement include[] additional terms?
            Well, I guess it could have. Any agreement can always
            include additional terms. But the essential elements of
            the agreement, everybody agreed on the record were
            there with one exception. That's it.

                  It was . . . in my view, very carefully done. I have
            been through too many of these when people say oh
            [j]udge it's settled and then . . . they leave, and then all
            of a sudden everybody disagrees. That didn't happen
            here. Everybody was here a week ahead of time. No
            pressure for trial they still had a week and an agreement
            was placed on the record.

            So, the matter is concluded. I will grant the application
            of . . . defendant for what seems to me an extremely
            reasonable approach to the guaranty issue.

In the case at hand, the parties' intent is clear and it was reflected in the

settlement agreement.

      As for the agreement's "go hard" date being unspecified, it was tied to the

unknown date that the DOT would approve the access permits. The parties were

fully aware of the uncertainty regarding the "go hard" date at the time they

reached their agreement because it was beyond their control.               Delaney’s

contention that this uncertainty undermines the settlement agreement is

unfounded, and because there were no essential settlement terms missing or

material facts in dispute, a plenary hearing was not necessary.

                                                                             A-1115-16T2
                                       16
      As for Delaney's contentions that there was fraudulent inducement and the

agreement was breached prior to the enforcement hearing, neither were made

before the trial judge. Accordingly, we do not address these contentions now as

they do not "go to the jurisdiction of the trial court or concern matters of great

public interest." Zaman v. Felton, 219 N.J. 199, 226-27 (2014) (quoting Nieder

v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)).

      Yet, even considering Delaney's claim of fraudulent inducement, we are

unpersuaded.    To prove equitable fraud, one must show: (1) a material

misrepresentation; (2) the misrepresentation was "made with intent that it be

relied on;" and (3) actual detrimental reliance. Nolan, 120 N.J. at 472. Delaney

has not presented any proof of being defrauded into entering the settlement

agreement. He has not demonstrated that respondents' belief that the DOT

would issue the access permit within a month of the April 27, 2015 settlement

agreement was a fraudulent misrepresentation, as opposed to their opinion based

on their dealing with the DOT. Delaney has not shown that the May time frame

was made to induce him to enter into the settlement, nor that he relied on that

time frame to his detriment.




                                                                          A-1115-16T2
                                       17
      A-3246-16

      Delaney challenges the December 1, 2016 and March 16, 2017 orders

regarding the enforcement of the settlement agreement. He argues the Chancery

judge: (1) abused his discretion by prematurely appointing a special court agent

to execute the settlement agreement on his behalf; (2) made material changes to

the settlement, which diminished his rights as a CCH member; and (3) should

not have required him to pay Prassas' attorney fees because he did not breach

the agreement. We are unpersuaded.

      Rule 1:10-3 "allow[s] for judicial discretion in fashioning relief to

litigants when a party does not comply with a judgment or order." North Jersey

Media Grp., Inc. v. State, Office of Governor, 451 N.J. Super. 282, 296 (App.

Div. 2017) (alteration in original) (quoting In re N.J.A.C. 5:96 & 6:97, 221 N.J.

1, 17-18 (2015)). "The particular manner in which compliance may be sought

is left to the court's sound discretion."        Ibid. (quoting Bd. of Educ. of

Middletown v. Middletown Twp. Educ. Ass'n, 352 N.J. Super. 501, 509 (Ch.

Div. 2001)).

      In addition to the mechanism of Rule 1:10-3, Rule 4:59-2(a) provides

related support for assisting a litigant in securing relief:

             If a judgment or order directs a party to perform a
             specific act and the party fails to comply within the time

                                                                          A-1115-16T2
                                        18
            specified, the court may direct the act to be done at the
            cost of such defaulting party by some other person
            appointed by the court, and the act when so done shall
            have like effect as if done by the defaulting party.

"[T]he Chancery Division has discretion in appointing a receiver or special

fiscal agent." New Jersey Realty Concepts, LLC v. Mavroudis, 435 N.J. Super.

118, 123 (App. Div. 2014) (citing Ravin, Sarasohn, Cook, Baumgarten, Fisch &

Rosen, P.C. v. Lowenstein Sandler, P.C., 365 N.J. Super. 241, 249 (App. Div.

2003); Roach v. Margulies, 42 N.J. Super. 243, 246 (App. Div. 1956)). We

review the court's decision under an abuse of discretion standard. In re Alleged

Violations of Law by Valley Road Sewerage Co., 154 N.J. 224, 239 (1998).

      We review a trial court's enforcement of litigant's rights under Rules 1:10-

3 and 4:59-2 (a), based upon an abuse of discretion standard. Wear v. Selective

Ins. Co., 455 N.J. Super. 440, 458-59 (App. Div. 2018) (citing Barr v. Barr, 418

N.J. Super. 18, 46 (App. Div. 2011)); Valley Road Sewerage Co., 154 N.J. at

239. "An abuse of discretion occurs when a decision was 'made without a

rational explanation, inexplicably departed from established policies, or rested

on an impermissible basis.'" Id. at 459 (quoting Flagg v. Essex Cty. Prosecutor,

171 N.J. 561, 571 (2002)).

      We take no issue with the judge's application of these two rules to appoint

a special court agent to execute documents on Delaney's behalf because he failed

                                                                          A-1115-16T2
                                      19
to adhere to the order enforcing the settlement agreement. The judge stated in

his oral decision:

             Delaney refused to execute the documents, [and]
             claimed there was no settlement. Well, that . . .
             argument is not . . . made; it’s at least alluded to that
             there were problems with the settlement – and I’m not
             suggesting the settlement is perfect, but the case is
             settled and now the parties are battling over what . . .
             documents must be executed in order to finalize this to
             get [] Delaney his security and to permit the parties to
             move forward to buy him out.

      The judge properly rejected Delaney's argument that he could refuse to

sign over his interest in CCH until he was given his $2 million payment.

However, as the judge found, "the settlement clearly anticipates Delaney's sale

of his ownership interest. And it is fair to construe the settlement that Delaney

will act and comport himself in such a way that it will be possible for the other

parties to . . . purchase his interest."

      The judge reasoned:

             Now, I did quiz the parties on, you know, what . . . this
             escrow [means]. And it was explained to me that
             Delaney will execute the assignment of his one-third
             interest to the . . . other parties . . . however, the
             assignment would be of no effect until he gets his . . .
             money . . . so then in the interim the assignment will be
             held in escrow and of no legal force and effect, other
             than to keep him from participating. But it would not
             be a final act of conveyance until such time as the
             assignment would be then released to the other parties

                                                                         A-1115-16T2
                                           20
            when . . . Delaney has his money and that one-third
            interest will then continue as security against the
            payment of the $800,000.

            So I think that’s all within the penumbra of the
            settlement. And, without that, the settlement would
            never go forward and – so I conclude that over
            Delaney’s continued resistance to all of this that it’s
            necessary to appoint an agent to execute the necessary
            documents to see to it that this . . . settlement can go
            forward and . . . this case can finally . . . be resolved.

            [(Emphasis added)]

      The judge did not abuse his discretion. The record supports his sound

reasoning for the appointment of a special court agent. Moreover, Delaney fails

to establish a reason for his delay in signing the necessary documents. The

parties, with the advice of counsel, all agreed to the provisions of the settlement

on the record; and in order to move forward with the settlement, Delaney must

relinquish his ownership interest in CCH in consideration for $2.8 million.

      Likewise, we see no abuse of discretion in the order awarding attorney

fees to Prassas related to his enforcement of the settlement agreement following

the order declaring that the parties reached a binding agreement and they had to

abide by it. Rule 1:10-3 allows "[t]he [trial] court in its discretion may make an

allowance for counsel fees to be paid by any party to the action to a party

accorded relief."


                                                                           A-1115-16T2
                                       21
      A-5523-17

      Largely, the issues raised in this appeal mirror those raised in the other

two appeals and require a similar analysis. That said, Delaney appeals the

January 24, 2018, February 2, 2018, and July 6, 2018 orders, which: deny a stay

of the October 14, 2016 and December 1, 2016 orders enforcing the settlement

agreement; require the transfer of Delaney's interest in CCH to respondents to

be carried out by a special court agent; and award attorney fees and costs to

respondents totaling $17,995.06.

      In brief, we conclude there is no merit to Delaney's contention that the

judge erred in denying his stay of the three orders as he failed to demonstrate a

substantial likelihood of success on the merits of any proposed appeal, and did

not address any of the other factors that must be considered before a stay pending

appeal can be issued. See Crowe v. De Gioia, 90 N.J. 126, 132-34 (1982).

      We agree with the judge's oral decision findings that Delaney did not

demonstrate any irreparable harm because there was no evidence that his interest

in CCH would be impaired or destroyed if the orders were not stayed. The three

orders put Delaney in the position he bargained for when he entered the

settlement agreement – a buyout of his interest in CCH for $2.8 million.

Moreover, there was credible evidence supporting the judge's finding that not


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proceeding with the buyout would endanger the project and cause financial ruin

to all parties involved. Accordingly, it was necessary to order the special court

agent to execute any documents required to consummate the buyout, and thereby

enable the project to move towards fruition.

      Finally, for the same reasons noted earlier, we discern no reason to disturb

the judge's award of attorney fees and costs; there was no abuse of discretion.

Delaney's continuous ill-fated challenges to the settlement agreement caused his

estranged business partners' attorney's fees and costs for which he was held

accountable.

      Affirmed.




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