On appeal from the Superior Court of New Jersey, Atlantic County, Law Division, L-3508-94.
Before Judges King, Lisa and Kimmelman.
The opinion of the court was delivered by: Lisa, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This appeal raises a novel issue: Does the entire controversy doctrine bar a post-judgment motion to enforce an order, where the party seeking enforcement has brought a prior post-judgment motion to enforce some other aspect of the same order, and where the party seeking enforcement knew about both alleged violations of the order when the first motion was filed? The motion judge concluded the doctrine applied and granted summary judgment dismissing appellants' motion for relief in aid of litigant's rights. We reverse.
The parties are adjoining commercial landowners in Atlantic City. Plaintiffs are the Irish Pub and its owners, Richard and Cathy Burke (Burke). The Irish Pub is located on St. James Place. Defendant is Rachelle Stover, who maintains The Brunswick Hotel (The Brunswick), a rooming house also on St. James Place. The Brunswick is located behind a parking lot maintained by Burke.
Since 1994, various disputes have arisen between the parties, with each side making allegations of business and property interference by the other. These allegations, not relevant here, led to a lawsuit, commenced in 1994, and resolved by a consent order in 1996. In 1998, continuing disputes prompted both parties to move for enforcement of provisions in the consent order. R. 1:10-3. The parties again resolved the matter, resulting in the entry of a revised consent order in 1999. Both orders provided that the court would retain jurisdiction for enforcement.
On April 11, 2001, Burke filed a motion in aid of litigant's rights claiming Stover violated a provision in the consent order, which prohibited both parties from making complaints to any governmental agency without first notifying the other party. The parties amicably resolved this dispute and in August 2001, Burke's attorney advised the court the motion was withdrawn.
On October 31, 2001, Burke filed another motion, seeking redress for the alleged violation of a provision in the current order pertaining to a sign located at the rear of The Brunswick. The order required Stover to change within twenty days the language on the sign to read"Enter on" St. James Place and eliminate the words"Come to." The order provided for attorney's fees and a $150 per day fine for a violation of the sign provision.
Burke moved for and was granted post-judgment discovery under Rule 4:24-3. Stover moved for summary judgment to dismiss Burke's motion for relief in aid of litigant's rights, asserting various grounds, including waiver or satisfaction and accord (because of the terms of the August 2001 settlement), laches, equitable estoppel and the entire controversy doctrine. The motion judge granted Stover's motion, dismissing Burke's motion to enforce the sign provision. The judge based his decision solely on the entire controversy doctrine, stating"I think that the spirit of the entire controversy doctrine is such that parties who have claims against each other are required to bring them in one proceeding. And, that they can't separate them out and decide to bring one claim and another claim at another time."
The judge recognized there were no cases applying the entire controversy doctrine to post-judgment proceedings. He said:
Here it's clear that Mrs. Burke knew that there was a violation of the agreement with respect to the sign 20 days after the agreement was entered into. I suspect that [Burke's counsel] is probably right that maybe she didn't think it was such a big deal... at that point. And, they had just finished litigation and... they had gone through years of this. I'll call it silliness, but they've gone through years of this silliness and maybe she just didn't want to start up again.
But certainly she knew in April of 2001 that the sign issue was out there. And, I disagree with the... proposition that knowing that that issue was there that she has the right to say well I'm not going to assert that one now. There's another one that I want to do first and then I'll do the sign issue later. I think that that clearly violates the... spirit of ...