                        NOT FOR PUBLICATION WITHOUT THE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-3952-15T3

ROBERT RODANO,

        Plaintiff-Respondent/
        Cross-Appellant,

v.

LAURA KOUSMINE,

        Defendant-Appellant/
        Cross-Respondent.


              Submitted September 6, 2017 – Decided October 2, 2017

              Before Judges Alvarez and Gooden Brown.

              On appeal from the Superior Court of New
              Jersey, Law Division, Cape May County,
              Docket No. L-0279-14.

              Laura     Kousmine,           appellant/cross-
              respondent, pro se.

              Richard M. King, Jr., attorney                 for
              respondent/cross-appellant.

PER CURIAM

        Defendant Laura Kousmine appeals from an April 7, 2016

order      denying     reconsideration      of    an   earlier     decision

enforcing a settlement agreement between her and plaintiff
Robert   Rodano.     Rodano   cross-appeals   the    denial       of   two

applications for attorney fees.         We now affirm denial of

reconsideration, but remand to the trial court the issue of

attorney fees.

     This litigation has a lengthy history.                The dispute

initially arose from the need for access easements over

Kousmine's lot. The lot is located at the base of a peninsula

which protrudes into a back bay in West Wildwood.                 Rodano

owns the lot located at the tip.        See Rodano v. Craig, No.

A-0863-09 (App. Div. May 17, 2011), cert. denied, 208 N.J.

338 (2011).   The Craigs, predecessors in Kousmine's chain of

title, were ordered to construct a bulkhead pursuant to

specific   plans,   effectively   incorporated      into    the    trial

judge's order.      The plans were approved by the New Jersey

Department of Environmental Protection (DEP).          The bulkhead

along the seawall of the lots protects the easement area on

Kousmine's lot from natural erosion. For reasons not relevant

to this appeal, the owner of the lot was ordered to install

the bulkhead so as to maintain the easement for the benefit

of Rodano and the prior owners of a lot located between

Rodano's lot and Kousmine's lot.

     Kousmine purchased the property at a sheriff's sale,

with full knowledge of the easement and the obligation on the

                                    2                                   A-3952-15T3
property's owner to construct the bulkhead.      She acquired

title on March 31, 2014.

     By verified complaint, signed June 24, 2014,1 Rodano

sought enforcement of litigant's rights, namely, the prior

order requiring the installation of the bulkhead.      The Craigs

had discharged the judgment in bankruptcy, and, therefore,

the obligation ran solely with the land.   The cost increased

over the years from an estimated $84,247.97 to approximately

$110,000.    The complaint sought enforcement of the original

order, as well as counsel fees pursuant to R. 1:10-3.

     On September 19, 2014, the parties settled the matter.

The agreement provided as follows:

            1. Servient Estate (by and through the
            current owner, Laura Kousmine) shall
            construct   a  bulkhead   and   easement
            pursuant to and in conformance with a
            Department of Environmental Protection
            Permit Number 0513-06-0006.2 (and Plans
            incorporated therein), and the bulkhead
            construction is to be completed by G & G
            Marine pursuant to and in conformance
            with a proposal dated July 18, 2014 and
            the remaining improvements required by
            the   existing    Permit   (and    Plans
            incorporated therein) shall be completed
            by the Servient Estate in a workmanlike
            manner.

            2.   Construction of the above improve-
            ments   shall   commence  as  soon   as

1
  No filed copy was included in the Appendix.       See R. 2:6-
1(b).

                                 3                             A-3952-15T3
          reasonably possible, but with urgency and
          no later than October 15, 2014, and be
          completed in a reasonable manner and
          time. It is agreed and understood that
          delay caused by natural disaster, acts
          of God, or such other unforeseeable and
          uncontrollable       impediments       to
          performance shall not be held against the
          Servient Estate unless such delay is
          caused by the actions or neglect of the
          Servient Estate (referred to herein as
          "Impediments"). The actual completion of
          the driveway (as opposed to the physical
          bulkhead), may be delayed until January
          15, 2015, but not later (subject to
          Impediments as defined above), so as to
          allow for necessary and appropriate
          coordination of said work due to the
          potential burying of any electric lines
          in the new easement driveway by Atlantic
          Electric.

          3. All costs relating to said engi-
          neering and construction of the bulkhead
          and driveway are to be borne by the
          Servient Estate.

               . . . .

          5.   The temporary easement in the rear
          of the Servient Estate shall remain open
          to be utilized as has been the past
          practice, until such time as the easement
          described above is completed and ready
          for use.

    By   February   2015,   Kousmine   completed   the   bulkhead,

however, she did not adhere to the plans referred to in the

settlement.   Unsurprisingly, on Rodano's motion to enforce

the agreement, compliance was ordered to take place within



                                  4                             A-3952-15T3
90 days of the decision.      Counsel fees were denied without

explanation.

       Kousmine then sought reconsideration.       She submitted a

"survey" done by land surveyors in support of her position

that   a   reasonable   approximation   of   the   original   plans

satisfied the settlement agreement and complied with past

court orders.2   In denying the motion for reconsideration the

judge said:

            Defendant concedes that the bump out is
            short of the Plan, yet she contends that
            the shortfall has no effect on the
            functionality of Plaintiff's ability to
            ingress and egress the easement. Again,
            such contentions were already addressed
            in this Court's decision rendered on
            February 3, 2016, and Defendant fails to
            demonstrate that this Court "expressed
            its decision based upon a palpably
            incorrect   or  irrational   basis,   or
            [. . .] failed to appreciate the
            significance of probative, competent
            evidence."   See Cummings v. Bahr, 295
            N.J. Super. 374, 384 (App. Div. 1996).

            Thus, defendant is not        entitled to
            reconsideration pursuant to   R. 4:49-2 of
            this Court's Order entered     on February
            3, 2016, and Defendant is      required to
            comply with said Order.


2
  A cover letter accompanying the survey is dated August 3,
2016. We do not consider materials which the trial judge did
not view, absent a motion. See R. 2:5-4(a). Additionally,
Kousmine refers to a letter from the DEP, also obtained after
the judge's decision.      In the absence of a motion to
supplement the record, we will not consider either document.

                                  5                              A-3952-15T3
     As to the request for attorney fees on Kousmine's motion

for reconsideration, the judge said:

                 As to Plaintiff's cross-motion for
            attorney's fees, this [c]ourt finds that
            Plaintiff is not entitled to attorney's
            fees and costs pursuant to R. 1:10-3.
            The court has discretion to "make an
            allowance for counsel fees to be paid by
            any party to the action to a party
            accorded relief["] under R. 1:10-3. See
            Abbott v. Burke, 206 N.J. 332, 371
            (2011). "The scope of relief . . . is
            limited to remediation of the violation
            of a court order."        Ibid.     Here,
            Plaintiff is not entitled to fees for
            Defendant's attempt to show that she
            complied with the purpose of the DEP Plan
            and reconsideration of the same.

     Motions     for   reconsideration    rest    within    the    sound

discretion of the trial court.          Pitney Bowes Bank, Inc. v.

ABC Caging Fulfillment, 440 N.J. Super. 378, 382 (App. Div.

2015).    Such motions should be granted only if they fall into

the narrow corridor of decisions based on plainly incorrect

reasoning, failures to consider evidence, or the development

of some substantial new information that was unavailable at

the time of the initial decision.          Ibid.; Cummings, supra,

295 N.J. Super. 374, 384 (App. Div. 1996) (citing D'Atria v.

D'Atria, 242 N.J. Super. 392, 401-02 (Ch. Div. 1990)).

     In   this   case,   Kousmine   failed   to   meet     any    of   the

requirements.      She merely reiterated information already


                                    6                                   A-3952-15T3
provided to the court.          Specifically, she stated that the

bulkhead as constructed at the time of the initial decision

was a reasonable approximation of that which was required by

judicial decree.

     All of the information that Kousmine provided, including

the survey, was available to her at the time the initial

application for enforcement was made.               There was simply

nothing new about her contentions on reconsideration – they

were merely a restatement of the original arguments.

     The issue of attorney fees, however, is a different

matter.     We begin with two undisputed facts – that Kousmine

knew and understood her obligations, and concedes that the

bulkhead as constructed deviates from the original.                  Her

position is that a reasonable facsimile should suffice to

satisfy the settlement agreement.

     The    judge   did   not   explain    his   reasons   for   denying

attorney    fees    in    the   original   decision    enforcing     the

settlement agreement.       In all actions tried without a jury,

the judge must find the facts and state conclusions of law

on every motion decided by a written, appealable order.               R.

1:7-4(a).     New Jersey has a strong policy disfavoring the

shifting of attorney fees, which is embodied in the so-called

American Rule.      R. 4:42-9[1].    The allowance of counsel fees

                                      7                               A-3952-15T3
is a discretionary action required to be based on factual

findings and is reviewable under the standard of a clear

abuse of discretion.    Ibid.    But discretion can be exercised

to grant fees on motions to enforce litigants' rights.         A

statement of reasons was necessary.

     In addition, the judge's very brief exposition denying

attorney fees on the application for reconsideration was

unclear.    When the application was made, nothing had changed.

Kousmine merely expressed her disagreement with the original

decision.    She pursued her judicial remedies for that reason

alone.     Kousmine knowingly failed to comply with the letter

of the settlement agreement.      She understood her obligations

when she acquired the property, and she failed to articulate

the basis for her unilateral decision to alter the plans.

See Schochet v. Schochet, 435 N.J. Super. 542, 549-50 (App.

Div. 2014).      In rendering his decision, the judge should

consider these circumstances before making his determination.

     We anticipate that the judge will fully and fairly

revisit the applications.       We do not express an opinion on

the ultimate outcome.

     Affirmed, except that the orders denying attorney fees

are vacated and remanded for reconsideration and a fuller

statements of reasons.

                                    8                         A-3952-15T3
Affirmed in part; vacated and remanded in part.




                          9                       A-3952-15T3
