On appeal from the Superior Court of New Jersey, Chancery Division, General Equity Part, Sussex County, C-15-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: February 27, 2007
Before Judges Kestin and Weissbard.
This dispute arises from a partnership between plaintiff, Robert Petrich, and defendant, John O'Donnell, for the purchase of a parcel of real estate in 1998, and relationships between them since that time. Litigation ensued and, on May 3, 2005, plaintiff made an offer of judgment pursuant to Rule 4:58, which contained three alternative proposals. One of those alternatives--transfer of title to plaintiff for $100,000--was accepted by defendant on June 10, 2005. Ten days later, plaintiff acknowledged receipt of the acceptance but stated, additionally, seven conditions for the effectuation of the offer of judgment. Defendant responded that he had accepted the offer as stated without any of the conditions. Motions from both parties ensued, and an order was entered on February 8, 2006, requiring plaintiff to pay defendant $100,000, according to the terms of the offer.
Plaintiff appeals from that order and from two April 13, 2006 orders denying his motion to vacate the February 8, 2006 order and adjudging him in violation of litigant's rights for having attempted to impose unauthorized conditions on a payment previously ordered by the court. The latter April 13 order also required payment by plaintiff of $90,654.51, the amount determined to be due after the application of certain credits in plaintiff's favor which the court found to be appropriate. Judge MacKenzie explained the reasons for his rulings in written opinions appended to the orders on each date.
The February 8 order had enforced the offer of judgment in its terms, requiring plaintiff to make payment subject to certain conditions established by the court in a discharge of its equitable powers. The essence of the issue presented has been whether the trial court was correct to order enforcement of the offer of judgment in its terms, with its own conditions, or whether plaintiff is entitled to have the benefit of the conditions he established after the offer was transmitted and accepted. On appeal, plaintiff argues that the trial court erred in determining that defendant's acceptance of the offer of judgment was timely, that the offer was unconditional, and that it was not subject to an implied covenant of good faith and fair dealing that defendant failed to meet. Plaintiff also argues that the trial court erred on several bases when it directed payment without giving appropriate weight to conduct attributable to defendant during several years preceding the date of the offer of judgment.
We have examined the record in the light of the written and oral arguments advanced by the parties and prevailing legal standards, and are in substantial agreement with the reasons for decision articulated by Judge MacKenzie in each of his written opinions.
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