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MER-L-001616-22 12/15/2023 Pg 1 of 6 Trans ID: LCV20233641739
John P. Campbell, Esq. (ID#020442001)
SCHENCK, PRICE, SMITH & KING, LLP
220 Park Avenue
P.O. Box 991
Florham Park, New Jersey 07932-0991
(973) 539-1000
Attorneys for Plaintiff
Raymond Faust
RAYMOND FAUST, SUPERIOR COURT OF NEW JERSEY
Plaintiff, LAW DIVISION: MERCER COUNTY
v. DOCKET NO.: MER-L-001616-22
CROOK & MARKER LLC, CIVIL ACTION
Defendants. ORDER DENYING DEFENDANT’S
MOTIONS TO STAY AND VACATE THE
CONSENT JUDGMENT AND DENYING
PLAINTIFF’S CROSS MOTION FOR
SANCTIONS AND FEES
THIS MATTER having come before the Court on upon Crook & Marker’s Motion to
Stay Execution of the Consent Judgment filed on September 28, 2023 [LCV20232972611] and
Crook & Marker’s Motion to Vacate the Consent Judgment filed on October 3, 2023
[LCV20233027591] as well as Plaintiff Raymond Faust’s Cross Motion for Sanctions and Fees
pursuant to Rule 1:10-3; and the Court having considered the papers filed herein; and for the
reasons set forth in the Statement of Reasons below; and for good cause shown;
IT IS, on this 15th day of December 2023,
ORDERED:
1. Crook & Marker’s Motion to Stay Execution of the Consent Judgment filed on
September 28, 2023 [LCV20232972611] is DENIED;
2. Crook & Marker’s Motion to Vacate the Consent Judgment filed on October 3, 2023
[LCV20233027591] is DENIED; and
MER-L-001616-22 12/15/2023 Pg 2 of 6 Trans ID: LCV20233641739
3. Plaintiff Raymond Faust’s Cross Motion for Sanctions and Fees pursuant to Rule
1:10-3 is DENIED.
/s/ R. Brian McLaughlin
Hon. R. Brian McLaughlin, J.S.C.
(X) Opposed
( ) Unopposed
STATEMENT OF REASONS
In September of 2022, Plaintiff Faust filed suit against Defendant C&M asserting,
among other things, action on a promissory note and breach of contract. In December of 2022,
the parties executed a Settlement Agreement in which C&M agreed to pay Faust in two
installments. The first installment was paid by C&M upon the execution of the Settlement
Agreement. The second installment was due by August 31, 2023. Defendant C&M did not pay
the second installment. On August 31, 2023, C&M filed a separate but related action against
Faust alleging breach of the Settlement Agreement under docket number MER˗L˗001683˗23. On
September 18, 2023, Faust filed the Consent Judgment in the instant action seeking execution by the
Court. On September 28, 2023, C&M filed its Motion to Stay Case. On September 27, 2023, the Court
signed the Consent Judgment, which was not uploaded to eCourts until October 2, 2023. C&M filed its
Motion to Vacate on October 3, 2023. In response, Faust filed his Cross Motion to Pay Counsel Fees
on October 12, 2023.
The Court heard oral argument regarding this matter on December 8, 2023. The Court reserved
its ruling pending a review of the entire Settlement Agreement. Following that review, the Court: (1)
denies C&M’s Motion to Stay Case; (2) denies C&M’s Motion to Vacate; and (3) denies Faust’s Cross
Motion to Pay Counsel Fees.
I. The Court Denies Defendant C&M’s Motion to Stay Case.
“[T]he power to stay proceedings is incidental to the power inherent in every court to
control the disposition of the causes on its docket with economy of time and effort for itself,
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for counsel, and for litigants. How this can best be done calls for the exercise of judgment,
which must weigh competing interests and maintain an even balance.” Landis v. N. Am. Co.,
299 U.S. 248, 254–55 (1936) (citing Kansas City Southern R. Co. v. United States, 282 U.S.
760, 763 (1931). “The granting of a stay is discretionary with the trial court and ‘limited only
by special equities showing abuse of discretion in that injustice would be perpetrated on the
one seeking the stay, and no hardship, prejudice or inconvenience would result to the one
against whom it is sought.’” Granata v. Broderick, 446 N.J. Super. 449, 469 (App. Div. 2016),
aff'd, 231 N.J. 135 (2017) (quoting Gosschalk v. Gosschalk, 48 N.J. Super. 566, 579 (App.
Div.), aff'd, 28 N.J. 73 (1958)).
Here, C&M argues that a stay of this case is appropriate because “C&M will
undoubtedly be harmed if the Court enters the Consent Judgment before: (1) the parties
conduct discovery in the Second Action; and (2) there is a final decision on the merits related
to Faust’s alleged material breach of the Settlement Agreement.” C&M Brief in Supp. at 9.
However, the Settlement Agreement already provides C&M with an avenue to remedy the
said harm resulting from Faust’s alleged breach. Section 9(c) of the Settlement Agreement
states,
In addition to or in lieu of any other remedy set forth herein, if any Party fails to
perform an obligation under this Release, a cause of action for the enforcement
of such obligation must be brought in the Superior Court of New Jersey, Law
Division, Civil Part, Mercer County.
Here, the parties have agreed that if one party fails to perform an obligation under the
Settlement Agreement, the other party may bring a cause of action to enforce the obligation in
the Mercer County Superior Court. Defendant C&M has exercised this right by filing its
action against Faust alleging breach of the Settlement Agreement under docket number
MER˗L˗001683˗23. Thus, the Court declines to stay this case because C&M is pursuing a
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remedy agreed upon in the Settlement Agreement, which can be achieved without Plaintiff
Faust being prejudiced by non-payment of the settlement award.
Accordingly, Defendant C&M’s Motion to Stay Case is DENIED.
II. The Court Denies C&M’s Motion to Vacate the Consent Judgment Entered
on October 2, 2023.
The standard articulated by the New Jersey Supreme Court for vacating settlement
agreements is as follows:
A settlement agreement between parties to a lawsuit is a contract. Pascarella v.
Bruck, 190 N.J.Super. 118, 124 (App.Div.), certif. denied, 94 N.J. 600 (1983).
“Settlement of litigation ranks high in our public policy.” Jannarone v. W.T. Co.,
65 N.J.Super. 472, (App.Div.), certif. denied, 35 N.J. 61 (1961). Consequently,
our courts have refused to vacate final settlements absent compelling
circumstances. In general, settlement agreements will be honored “absent a
demonstration of ‘fraud or other compelling circumstances.’” Pascarella, supra,
190 N.J.Super. at 125 (quoting Honeywell v. Bubb, 130 N.J.Super. 130, 136
(App.Div.1974)). Before vacating a settlement agreement, our courts require
“clear and convincing proof” that the agreement should be vacated. DeCaro v.
DeCaro, 13 N.J. 36 (1953).
Like other contracts, when a settlement is obtained by fraud, the injured party
may seek rescission. When there is a breach of a material term of an agreement,
the non-breaching party is relieved of its obligations under the
agreement. Stamato & Co. v. Borough of Lodi, 4 N.J. 14, 71 A.2d 336 (1950).
Nolan by Nolan v. Lee Ho, 120 N.J. 465, 472 (1990). Moreover, “[i]f a settlement agreement
is achieved through coercion, deception, fraud, undue pressure, or unseemly conduct, or if one
party was not competent to voluntarily consent thereto, the settlement agreement must be set
aside.” Brundage v. Est. of Carambio, 195 N.J. 575, 601 (2008) (quoting Peskin v. Peskin,
271 N.J. Super. 261, 276 (App. Div. 1994)).
Here, C&M’s moving papers do not present clear and convincing proof that the
Settlement Agreement was achieved through coercion, deception, fraud, undue pressure, or
unseemly conduct. Rather than allege fraud or some other compelling circumstance, C&M
argues that Faust breached the non-disparagement provision within the Settlement Agreement.
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MER-L-001616-22 12/15/2023 Pg 5 of 6 Trans ID: LCV20233641739
Even if C&M provided the Court with clear and convincing proof that Faust breached the
Settlement Agreement, breach of contract is not contemplated by the Supreme Court as a
prerequisite for vacating a settlement agreement. C&M argues that “In the event of ‘a breach
of a material term of an agreement,’ as is [what is alleged] here, ‘the non˗breaching party is
relieved of its obligations under the agreement.’” C&M Brief. in Supp. at 6-7 (quoting Nolan
by Nolan, 120 N.J. at 472)). However, the Supreme Court in Nolan explained that the trial
court vacated the settlement agreement in question because the plaintiffs deliberately
concealed evidence during discovery. See Nolan by Nolan, 120 N.J. at 469–70. Breach of the
settlement agreement was not at issue in Nolan. C&M does not cite to a New Jersey case
where the court vacated a settlement agreement under a theory of breach of contract.
Additionally, the Court agrees with Plaintiff Faust and finds that even if Faust
breached the Settlement Agreement by violating the non-disparagement clause, C&M still
would not be excused from its $250,000 payment obligation. Faust Brief in Opp. at 22-23.
Section 3 of the Settlement Agreement states in relevant part,
Crook & Marker shall have no defense to Faust's motion for entry of Judgment
other than (1) proof of timely payment of the defaulted amount in accordance
with this Release; or (2) proof of improper calculation of the proposed judgment
amount.
This provision outlines two limited circumstances in which C&M could be relieved of its
payment obligations -- none of which have occurred here.
Accordingly, Defendant C&M’s Motion to Vacate is DENIED.
III. The Court Denies Plaintiff Faust’s Cross Motion to Pay Counsel Fees
Section 8 of the parties’ Settlement Agreement states,
The Parties shall bear their own attorneys’ fees and costs incurred in prosecuting
and defending this litigation, including any fees and costs incurred negotiating
and reaching this Settlement Agreement and Release. Furthermore, the Parties
shall bear their own attorneys’ fees and costs incurred in prosecuting and
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defending any future action to enforce the terms and conditions of this Settlement
Agreement and Release, including any and all fees and costs associated with the
filing of the Consent Judgment.
Here, the Settlement Agreement speaks for itself. The parties have agreed to bear their
own attorneys’ fees and costs incurred in prosecuting and defending this litigation, including
any fees and costs incurred in prosecuting and defending future actions to enforce the terms
and conditions of the Settlement Agreement.
Accordingly, Plaintiff Faust’s Cross Motion to Pay Counsel Fees is DENIED.
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Preview
MER-L-001616-22 12/15/2023 Pg 1 of 6 Trans ID: LCV20233641739 John P. Campbell, Esq. (ID#020442001) SCHENCK, PRICE, SMITH & KING, LLP 220 Park Avenue P.O. Box 991 Florham Park, New Jersey 07932-0991 (973) 539-1000 Attorneys for Plaintiff Raymond Faust RAYMOND FAUST, SUPERIOR COURT OF NEW JERSEY Plaintiff, LAW DIVISION: MERCER COUNTY v. DOCKET NO.: MER-L-001616-22 CROOK & MARKER LLC, CIVIL ACTION Defendants. ORDER DENYING DEFENDANT’S MOTIONS TO STAY AND VACATE THE CONSENT JUDGMENT AND DENYING PLAINTIFF’S CROSS MOTION FOR SANCTIONS AND FEES THIS MATTER having come before the Court on upon Crook & Marker’s Motion to Stay Execution of the Consent Judgment filed on September 28, 2023 [LCV20232972611] and Crook & Marker’s Motion to Vacate the Consent Judgment filed on October 3, 2023 [LCV20233027591] as well as Plaintiff Raymond Faust’s Cross Motion for Sanctions and Fees pursuant to Rule 1:10-3; and the Court having considered the papers filed herein; and for the reasons set forth in the Statement of Reasons below; and for good cause shown; IT IS, on this 15th day of December 2023, ORDERED: 1. Crook & Marker’s Motion to Stay Execution of the Consent Judgment filed on September 28, 2023 [LCV20232972611] is DENIED; 2. Crook & Marker’s Motion to Vacate the Consent Judgment filed on October 3, 2023 [LCV20233027591] is DENIED; and MER-L-001616-22 12/15/2023 Pg 2 of 6 Trans ID: LCV20233641739 3. Plaintiff Raymond Faust’s Cross Motion for Sanctions and Fees pursuant to Rule 1:10-3 is DENIED. /s/ R. Brian McLaughlin Hon. R. Brian McLaughlin, J.S.C. (X) Opposed ( ) Unopposed STATEMENT OF REASONS In September of 2022, Plaintiff Faust filed suit against Defendant C&M asserting, among other things, action on a promissory note and breach of contract. In December of 2022, the parties executed a Settlement Agreement in which C&M agreed to pay Faust in two installments. The first installment was paid by C&M upon the execution of the Settlement Agreement. The second installment was due by August 31, 2023. Defendant C&M did not pay the second installment. On August 31, 2023, C&M filed a separate but related action against Faust alleging breach of the Settlement Agreement under docket number MER˗L˗001683˗23. On September 18, 2023, Faust filed the Consent Judgment in the instant action seeking execution by the Court. On September 28, 2023, C&M filed its Motion to Stay Case. On September 27, 2023, the Court signed the Consent Judgment, which was not uploaded to eCourts until October 2, 2023. C&M filed its Motion to Vacate on October 3, 2023. In response, Faust filed his Cross Motion to Pay Counsel Fees on October 12, 2023. The Court heard oral argument regarding this matter on December 8, 2023. The Court reserved its ruling pending a review of the entire Settlement Agreement. Following that review, the Court: (1) denies C&M’s Motion to Stay Case; (2) denies C&M’s Motion to Vacate; and (3) denies Faust’s Cross Motion to Pay Counsel Fees. I. The Court Denies Defendant C&M’s Motion to Stay Case. “[T]he power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, 2 MER-L-001616-22 12/15/2023 Pg 3 of 6 Trans ID: LCV20233641739 for counsel, and for litigants. How this can best be done calls for the exercise of judgment, which must weigh competing interests and maintain an even balance.” Landis v. N. Am. Co., 299 U.S. 248, 254–55 (1936) (citing Kansas City Southern R. Co. v. United States, 282 U.S. 760, 763 (1931). “The granting of a stay is discretionary with the trial court and ‘limited only by special equities showing abuse of discretion in that injustice would be perpetrated on the one seeking the stay, and no hardship, prejudice or inconvenience would result to the one against whom it is sought.’” Granata v. Broderick, 446 N.J. Super. 449, 469 (App. Div. 2016), aff'd, 231 N.J. 135 (2017) (quoting Gosschalk v. Gosschalk, 48 N.J. Super. 566, 579 (App. Div.), aff'd, 28 N.J. 73 (1958)). Here, C&M argues that a stay of this case is appropriate because “C&M will undoubtedly be harmed if the Court enters the Consent Judgment before: (1) the parties conduct discovery in the Second Action; and (2) there is a final decision on the merits related to Faust’s alleged material breach of the Settlement Agreement.” C&M Brief in Supp. at 9. However, the Settlement Agreement already provides C&M with an avenue to remedy the said harm resulting from Faust’s alleged breach. Section 9(c) of the Settlement Agreement states, In addition to or in lieu of any other remedy set forth herein, if any Party fails to perform an obligation under this Release, a cause of action for the enforcement of such obligation must be brought in the Superior Court of New Jersey, Law Division, Civil Part, Mercer County. Here, the parties have agreed that if one party fails to perform an obligation under the Settlement Agreement, the other party may bring a cause of action to enforce the obligation in the Mercer County Superior Court. Defendant C&M has exercised this right by filing its action against Faust alleging breach of the Settlement Agreement under docket number MER˗L˗001683˗23. Thus, the Court declines to stay this case because C&M is pursuing a 3 MER-L-001616-22 12/15/2023 Pg 4 of 6 Trans ID: LCV20233641739 remedy agreed upon in the Settlement Agreement, which can be achieved without Plaintiff Faust being prejudiced by non-payment of the settlement award. Accordingly, Defendant C&M’s Motion to Stay Case is DENIED. II. The Court Denies C&M’s Motion to Vacate the Consent Judgment Entered on October 2, 2023. The standard articulated by the New Jersey Supreme Court for vacating settlement agreements is as follows: A settlement agreement between parties to a lawsuit is a contract. Pascarella v. Bruck, 190 N.J.Super. 118, 124 (App.Div.), certif. denied, 94 N.J. 600 (1983). “Settlement of litigation ranks high in our public policy.” Jannarone v. W.T. Co., 65 N.J.Super. 472, (App.Div.), certif. denied, 35 N.J. 61 (1961). Consequently, our courts have refused to vacate final settlements absent compelling circumstances. In general, settlement agreements will be honored “absent a demonstration of ‘fraud or other compelling circumstances.’” Pascarella, supra, 190 N.J.Super. at 125 (quoting Honeywell v. Bubb, 130 N.J.Super. 130, 136 (App.Div.1974)). Before vacating a settlement agreement, our courts require “clear and convincing proof” that the agreement should be vacated. DeCaro v. DeCaro, 13 N.J. 36 (1953). Like other contracts, when a settlement is obtained by fraud, the injured party may seek rescission. When there is a breach of a material term of an agreement, the non-breaching party is relieved of its obligations under the agreement. Stamato & Co. v. Borough of Lodi, 4 N.J. 14, 71 A.2d 336 (1950). Nolan by Nolan v. Lee Ho, 120 N.J. 465, 472 (1990). Moreover, “[i]f a settlement agreement is achieved through coercion, deception, fraud, undue pressure, or unseemly conduct, or if one party was not competent to voluntarily consent thereto, the settlement agreement must be set aside.” Brundage v. Est. of Carambio, 195 N.J. 575, 601 (2008) (quoting Peskin v. Peskin, 271 N.J. Super. 261, 276 (App. Div. 1994)). Here, C&M’s moving papers do not present clear and convincing proof that the Settlement Agreement was achieved through coercion, deception, fraud, undue pressure, or unseemly conduct. Rather than allege fraud or some other compelling circumstance, C&M argues that Faust breached the non-disparagement provision within the Settlement Agreement. 4 MER-L-001616-22 12/15/2023 Pg 5 of 6 Trans ID: LCV20233641739 Even if C&M provided the Court with clear and convincing proof that Faust breached the Settlement Agreement, breach of contract is not contemplated by the Supreme Court as a prerequisite for vacating a settlement agreement. C&M argues that “In the event of ‘a breach of a material term of an agreement,’ as is [what is alleged] here, ‘the non˗breaching party is relieved of its obligations under the agreement.’” C&M Brief. in Supp. at 6-7 (quoting Nolan by Nolan, 120 N.J. at 472)). However, the Supreme Court in Nolan explained that the trial court vacated the settlement agreement in question because the plaintiffs deliberately concealed evidence during discovery. See Nolan by Nolan, 120 N.J. at 469–70. Breach of the settlement agreement was not at issue in Nolan. C&M does not cite to a New Jersey case where the court vacated a settlement agreement under a theory of breach of contract. Additionally, the Court agrees with Plaintiff Faust and finds that even if Faust breached the Settlement Agreement by violating the non-disparagement clause, C&M still would not be excused from its $250,000 payment obligation. Faust Brief in Opp. at 22-23. Section 3 of the Settlement Agreement states in relevant part, Crook & Marker shall have no defense to Faust's motion for entry of Judgment other than (1) proof of timely payment of the defaulted amount in accordance with this Release; or (2) proof of improper calculation of the proposed judgment amount. This provision outlines two limited circumstances in which C&M could be relieved of its payment obligations -- none of which have occurred here. Accordingly, Defendant C&M’s Motion to Vacate is DENIED. III. The Court Denies Plaintiff Faust’s Cross Motion to Pay Counsel Fees Section 8 of the parties’ Settlement Agreement states, The Parties shall bear their own attorneys’ fees and costs incurred in prosecuting and defending this litigation, including any fees and costs incurred negotiating and reaching this Settlement Agreement and Release. Furthermore, the Parties shall bear their own attorneys’ fees and costs incurred in prosecuting and 5 MER-L-001616-22 12/15/2023 Pg 6 of 6 Trans ID: LCV20233641739 defending any future action to enforce the terms and conditions of this Settlement Agreement and Release, including any and all fees and costs associated with the filing of the Consent Judgment. Here, the Settlement Agreement speaks for itself. The parties have agreed to bear their own attorneys’ fees and costs incurred in prosecuting and defending this litigation, including any fees and costs incurred in prosecuting and defending future actions to enforce the terms and conditions of the Settlement Agreement. Accordingly, Plaintiff Faust’s Cross Motion to Pay Counsel Fees is DENIED. 6