                                 NOT FOR PUBLICATION WITHOUT THE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-2280-17T1

MARKO MILETIC and
MILENA MILETIC,

           Plaintiffs-Appellants,

v.

SERGIO PEREZ, HILDA PEREZ,
Individually and doing business as
JUGENDOES APRENDEMOS
CHILD CARE CENTER,

     Defendants-Respondents.
______________________________

                    Submitted February 6, 2019 – Decided September 5, 2019

                    Before Judges Nugent and Mawla.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Hudson County, Docket No. L-2645-11.

                    Marko Miletic and Milena Miletic, appellants pro se.

                    Respondents have not filed a brief.

PER CURIAM
      Following a plenary hearing, Judge Joseph A. Turula enforced a

settlement agreement between plaintiffs, Marko Miletic and Milena Miletic, and

defendants, Sergio Perez and Hilda Perez. Plaintiffs appeal from the ensuing

order dismissing the case with prejudice. For the reasons that follow, we affirm.

      Plaintiffs owned a West New York, New Jersey apartment building.

Defendants owned an adjacent building, which they used for a day care center.

Without plaintiffs' authorization, defendants painted one wall of plaintiffs'

building—which was made of brick and stucco—yellow. Plaintiffs sued. The

parties settled the case and signed a Stipulation of Settlement, which included

the following terms:

                   2.    No later than August 31, 2015, the
            [d]efendants shall remove all of the paint (i.e., no paint
            may remain) on [p]laintiffs' wall, down to the brick and
            stucco. The work shall be performed by a fully licensed
            and insured ($1,000.000.00 liability coverage)
            contractor. Defendants shall provide the name, address
            and license information of the contractor to [p]laintiffs
            seven (7) days before work may commence, via e-mail,
            . . . . The [d]efendants must obtain all permits as
            required by law. The [d]efendants shall not cause any
            damage to [p]laintiffs' property and shall indemnify the
            [p]laintiffs as to the same. Defendants shall also
            indemnify [p]laintiffs for any damages that might arise
            to [p]laintiffs or any third party related to the paint
            removal work.

                  ....


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                                        2
                  4.    Upon payment of said $15,000, completion
            of work set forth in paragraph [two] and the execution
            of mutual releases, [p]laintiffs will file a stipulation of
            dismissal, with prejudice, with the court.

                   5.    In the event of [d]efendants' default in
            removing the paint, the [p]laintiffs shall be permitted to
            hire a contractor of their choice to complete the work.
            Defendants shall have no input into the hiring decision.
            Defendants shall reimburse the [p]laintiffs for this cost
            within [thirty] days of presentation of an invoice. Such
            invoice shall be considered presented once it is mailed
            via certified mail.

                   6.    In the event of [d]efendants' default, and if
            said default is not cured within seven (7) days of same,
            [d]efendants agree that [p]laintiffs shall be entitled to
            judgment against the [d]efendants for $25,000.00 and
            the cost to [d]efendants to remove the paint, plus
            attorneys' fees, interest and costs, giving the
            [d]efendants credit for any and all payments made.
            Notice shall be given to [d]efendants' counsel by
            certified mail, return receipt requested and first class
            mail.

      When a dispute arose over whether defendants had complied with the

settlement terms, plaintiffs filed a motion to enforce the settlement. Defendants

filed a cross-motion seeking an order of dismissal with prejudice. Unable to

resolve the dispute on the motion papers, Judge Turula conducted a plenary

hearing. The parties presented the following evidence at the hearing.

      According to plaintiff Marko Miletic, rather than removing the yellow

paint, defendants repainted the wall "a gray color[.]" He testified he never told

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                                        3
defendants to paint the wall gray. Miletic presented a photograph of the wall,

painted gray, and testified the wall remained in that condition as of the date of

the hearing.

      Defendants presented the testimony of a man who worked on the sprinkler

system (the sprinkler worker) at defendant's day care center. He testified he

helped the contractor who was removing the yellow paint. The sprinkler worker

testified that on the day the paint removing contractor was finishing up, Marko

Miletic came to the jobsite. The sprinkler worker knew him from other jobs.

Miletic pointed to yellow paint on an electrical conduit pipe and said he wanted

it removed. All the yellow paint was removed. The sprinkler worker identified

photographs of the wall with the yellow paint removed.

      The sprinkler worker also testified the paint removal had left the wall

"looking kind of beat up," so Miletic suggested they cover the whole wall "so

there would be no water protruding through the wall in case it rained heavy."

According to the sprinkler worker, Miletic made the comments in front of the

paint removal contractor and another man.

      Defendants also presented the testimony of the paint removal contractor.

He identified photographs of the wall after the paint was removed. According




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                                       4
to him, there were no yellow areas of paint remaining on the wall, with the

exception of a small area at the very bottom of the wall.

      The contractor confirmed his men were in the final stages of removing the

paint when Marco Miletic came to the jobsite. Miletic suggested they put

cement on the wall to finish it after removing the yellow paint. On the day the

conversation took place, the contractor had removed most of the paint, but there

remained a small part where there were some metal pipes covering phone cables.

The contractor confirmed that Miletic asked that the paint be removed from

those tubes, or pipes.

      Defendant Hilda Perez testified she went to the day care center daily. 1 She

witnessed plaintiff Marco Miletic, the sprinkler worker, and the paint removal

contractor talking on a day after the yellow paint had been removed from the

wall. During cross-examination, Perez testified the covering on the wall was

gray cement, not gray paint.

      Ms. Perez's son also testified. He oversaw the day-to-day operation of the

property his mother owned, including the day care center operated at the

location. Her son testified that one day when he was at the day care center, he



1
  Defendant Hilda Perez's husband, defendant Sergio Perez, had died before the
hearing began.
                                                                          A-2280-17T1
                                        5
saw plaintiff, Marco Miletic. This was after the parties had entered into the

stipulation of settlement. Miletic said the entire matter would be resolved if

defendants paid him $10,000. Defendant's son became furious and said he had

already paid the settlement money. Miletic said he would never be happy, and

the son replied Miletic was extorting his mother. Miletic just shook his head

and walked away.

      The son testified that after their paint removal contractor removed the

yellow paint, the contractor called him and said Miletic would prefer to have a

cement wash or some type of protective barrier put on the wall. Defendants

accommodated Miletic and added the cement wash.

      Based on the foregoing testimony and exhibits, including the photographic

evidence, Judge Turula found in favor of defendants and dismissed the

complaint with prejudice. The judge found that defendants had complied with

the settlement agreement by removing the yellow paint.

      Judge Turula rejected plaintiff Marko Miletic's testimony—that he in no

way, shape, or form asked for anything to be done to the wall other than the

removal of the yellow paint—as not credible.         The judge explained that

defendants performed in accordance with the terms of the stipulation of

settlement, but the addition of the coating, which the witnesses referred to as a


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                                       6
cement coating or gray paint, was outside the scope of the stipulation of

settlement.   The court found it "inconceivable" that defendants' son, a

businessman, "would shake up the bee's hive" by adding the coating after

removing the paint if Marko Miletic did not want the grey coating added. The

court noted the son wanted to be done with this issue.

      Judge Turula concluded the stipulation of settlement had been complied

with and the extra coating had been applied to protect the building from water

intrusion. The judge also found the application of the coating was authorized

by Mr. Miletic. We note that Judge Turula found the testimony not only of

defendants' son, but the sprinkler worker as well, to be credible. The judge

dismissed the complaint with prejudice. Plaintiffs filed this appeal.

      Our review of the decision of a judge who has conducted a hearing without

a jury is limited in scope. "[W]e do not disturb the factual findings and legal

conclusions of the trial judge unless we are convinced that they are so manifestly

unsupported by or inconsistent with the competent, relevant and reasonably

credible evidence as to offend the interests of justice." In re Forfeiture of Pers.

Weapons & Firearms Identification Card Belonging to F.M., 225 N.J. 487, 506

(2016) (quoting Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of Am., 65 N.J. 474,

484 (1974)). The court's findings of fact are "binding on appeal when supported


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                                        7
by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394,

41-12 (1998) (citation omitted).

      We also give "due regard" to the judge's ability to determine

credibility. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965); De Angelo v.

Alsan Masons, Inc., 122 N.J. Super. 88, 89–90 (App. Div. 1973). Deference

must be given to those findings of the trial judge that are substantially influenced

by the opportunity to hear and see witnesses and to have the feel of the

case. State v. Johnson, 42 N.J. 146, 158–59 (1964). "When the reviewing court

is satisfied that the findings meet this criterion, its task is complete and it should

not disturb the result, even though it has the feeling it might have reached a

different conclusion were it the trial tribunal." Id. at 162.

      Plaintiffs argue that the trial court erred by failing to properly interpret

the settlement agreement. Plaintiffs also argue the court erred by finding a

novation rather than a modification, and the court should have awarded plaintiffs

liquidated damages, although they did not raise these arguments at the hearing.

      We affirm, substantially for the sound reasons expressed by Judge Turula

in his oral opinion following the hearing. Judge Turula's fact and credibility

findings are amply supported by the record. They are not at all inconsistent with

the competent, relevant, and reasonably credible evidence so as to offend the


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                                          8
interests of justice. Accordingly, we affirm the order dismissing plaintiffs'

complaint with prejudice.

     Affirmed.




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