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Kustka v. Batz

Decided: November 6, 1989.

WILLIAM F. KUSTKA AND SHARON KUSTKA, HIS WIFE, PLAINTIFFS-APPELLANTS,
v.
ROBERT J. BATZ, INDIVIDUALLY AND TRADING AS BLAINE TERMITE CONTROL; ABRAHAM J. FELDMAN AND ANNELIESE FELDMAN, HIS WIFE; HOUSE CHEK, INC. AND JOHN MULLER, DEFENDANTS, AND WEICHERT REALTORS, DEFENDANT-RESPONDENT



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County.

Antell, Bilder and Ashbey. The opinion of the court was delivered by Bilder, J.A.D.

Bilder

On this appeal we are asked to examine the relationship between settlement, comparative negligence and the principles of joint and several liability. Also involved is the effect of a judgment entered on the record by the court on a form of negligence judgment prepared by counsel which does not in haec verba provide for joint and several liability.

The discovery of termites in their newly purchased home led plaintiffs William and Sharon Kustka to litigation which eventuated in a jury verdict of negligence apportioned as follows: Defendant Blaine Termite Control and its principal Robert Batz (Blaine) 60%; defendant Weichert Realtors (Weichert) 20%; defendant House Chek, Inc. and its principal John Muller (House Chek) 20%. Damages had been stipulated to be $112,500, thus the proportionate shares were defendant Blaine $67,500; defendant Weichert $22,500; and defendant House Chek $22,500. During trial, defendant Blaine settled for $110,000. The remaining defendants' liability for their full $22,500 share was unaffected. See Rogers v. Spady, 147 N.J. Super. 274, 277, (App.Div.1977).

Although R. 4:47 requires that the clerk enter the judgment, plaintiffs' counsel prepared a form of order which set forth the

individual judgments without any reference to joint and several liabilities. It was entered by the court without objection. Shortly thereafter, an amended order was entered that, as relevant here, repeated the same judgments. As a result of appeals and cross-appeals, the judgments were, for the nonce, given little more thought.

After we affirmed the trial result, plaintiffs sought to collect on their judgments. Defendant Weichert offered its $22,500 together with accumulated interest. Because the judgment against defendant House Chek was apparently uncollectible, plaintiffs demanded twice that amount from Weichert, claiming they were entitled to do so by virtue of N.J.S.A. 2A:15-5.3, which creates joint and several liability. They therefore sought to modify the orders for judgment entered by the trial judge some two years before so as to explicitly provide for joint and several liability.

First plaintiffs unsuccessfully sought to correct the judgment pursuant to R. 1:13-1. Their effort was rebuffed on the ground the order had been entered by the trial judge -- it was not a "clerical error." Then they sought to amend the judgment pursuant to R. 4:50-1.

Weichert successfully resisted, contending that applications for relief from mistakes, R. 4:50-1(a), must be made within one year, R. 4:50-2. Moreover, it claimed it had assumed from plaintiffs' form of judgment they were waiving their right to claim joint and several liability and that it made strategic appellate decisions based upon that belief. The trial judge found Weichert was not prejudiced. Nonetheless, he denied the relief, ruling, in reliance upon Baumann v. Marinaro, 95 N.J. 380, 395 (1984), that relief for the mistake contained in the entered judgment was available only pursuant to R. 4:50-1(a) and was barred by the one-year limitation of R. 4:50-2. An order was entered permitting Weichert to pay the $22,500 plus accumulated interest to the clerk of the court and to thereupon have the judgment against it marked satisfied. Plaintiffs appeal

from an order denying their motion to file an amended judgment setting forth joint ...


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