Litigant Compelled to Sign Mutual Releases Previously Agreed to in Open Court
This appeal arose out of probate litigation over the estate of Wicker W. Doornbosch, who died in 2016. The parties reached a settlement in open court. Counsel for appellant Farash put the terms on the record. Farash swore under oath that he understood and agreed he was entering into a binding settlement, and that by accepting it he would have no further interest in the estate, not be entitled to an accounting, have no right to challenge commissions, and have no right to seek legal fees from the estate. He also agreed that there would be income tax consequences in connection with his receipt of an IRA.
Farash’s counsel insisted on a written agreement and mutual releases when the settlement was placed on the record. Adverse counsel (for the administrator of the estate) did not object, so long as the agreement did not vary from the terms on the record. In response to a specific question from his counsel, Farash agreed the parties would exchange mutual releases.
In the months that followed, Farash refused to execute releases, and the estate refused to pay the settlement funds without them. Farash objected to a term in the agreement making him responsible for all penalties and interest related to the IRA.
The trial judge denied Farash’s motion to enforce the settlement agreement pursuant to Rule 1:10-3 without prejudice, finding it premature as Farash had not contacted the financial institution to have his share of the IRA paid out to him and thus had no idea as to whether there would be any interest and penalties. The judge further ordered that once Farash received the IRA funds, the administrator should calculate the balance due and send a check in that sum to Farash’s counsel, to be held in escrow pending Farash’s execution of the releases.
Several months later, the administrator moved to enforce the settlement and for attorneys’ fees, claiming Farash refused to execute the releases. Farash opposed the motion and cross-moved for his fees. By that time Farash’s counsel (his third attorney) had withdrawn; Farash argued the motions on his own behalf.
The trial judge rejected Farash’s arguments. Farash signed the release in court. The trial judge denied fees to both parties.
Farash appealed two orders, arguing the trial judge abused his discretion in failing to remove the executor and in denying Farash’s request for fees and costs for the administrator’s violation of the settlement agreement.
The Appellate Division affirmed. The probate judge’s decision as to whether to award attorneys’ fees was a matter committed to his sound discretion and would be disturbed only on the rarest of occasions, and then only because of a clear abuse of discretion.
The appeals court also affirmed the trial judge’s denial of Farash’s motion to enforce the settlement agreement while Farash refused to execute the IRA forms, the settlement agreement and the mutual releases; his motion was both speculative and premature. There was thus no basis for an award of fees to Farash on a Rule 1:10-3 motion he lost. Moreover, since Farash had no counsel by the time of the motion, he incurred no counsel fees. He was not entitled to attorney fees for representing himself on the motion.
Finally, the Appellate Division rejected Farash’s complaints about the probate judge’s failure to remove the administrator, especially since he settlement of the probate litigation precluded his re-litigation of claims that either were raised or could have been raised in that proceeding.