January 24, 2008
A.C. MOORE, INC., A CORPORATION OF THE STATE OF DELAWARE, PLAINTIFF-APPELLANT,
NEW BROOK, LLC, A NEW JERSEY LIMITED LIABILITY COMPANY AND PHILLIP VINCH, INDIVIDUALLY, DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Chancery Division, Camden County, Docket No. C-1-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 3, 2007
Before Judges Graves and Alvarez.
This appeal is taken from an order which enforces a prior settlement between the parties. It is hereby reversed and remanded in part and affirmed in part.
On February 25, 2004, plaintiff, A.C. Moore, Inc., and defendants, New Brook, LLC. (New Brook), a New Jersey Limited Liability Company, and Phillip Vinch, individually, placed a settlement of their pending lawsuit on the record. Plaintiff had filed the Chancery Division action to compel, among other things, completion of the industrial park project where plaintiff intended to maintain its main warehouse distribution facility and offices. Plaintiff purchased the site for its warehouse and office location from defendant New Brook, the industrial park developer. Plaintiff later acquired the land on which the project was situated. The settlement agreement provided that plaintiff would assume responsibility for the completion of all improvements related to its business, including installation of an access road which crosses over New Brook's land. The agreement states that: "A.C. Moore will assume all cost and responsibility for the completion of the roadwork, other off-site improvements, and any and all items without limitation necessitated by any revised plans in the future, or any future governmental requirements." The access road was finished by March 2004.
In July 2006, New Brook filed a motion to enforce the settlement, alleging that plaintiff's contractors had dumped debris from the completion of the access road on defendants' land. In fact, the debris resulted in legal action against New Brook by the New Jersey Department of Environmental Protection (DEP) and Winslow Township. Apparently, New Brook was subjected to fines and penalties.
New Brook contends that the settlement agreement required plaintiff to properly dispose of all waste generated by construction of the access road and the motion court agreed. The court granted the enforcement motion without conducting a hearing, despite plaintiff's claim that Vinch, New Brook's principal, had authorized it to dump the material on New Brook's lands. The plaintiff also raised other theories in defense of the action. This appeal followed. We are constrained to remand the matter for a plenary hearing on the question of authorization.
In opposition to the motion to enforce, plaintiff filed a certification by a former employee. It claimed that in February 2004, the month of the settlement, Vinch suggested that the waste material be dumped on New Brook's property, as Vinch believed he could use it as fill for other projects. The former employee also claimed that Vinch actually saw the accumulated material soon after it was moved. After that purported conversation, it was not until approximately eleven months later that, for the first time, New Brook complained of the dumping of debris.
The standard of review on a motion to enforce a settlement is as suggested in plaintiff's brief:
[A] hearing is to be held to establish the facts unless the available competent evidence, considered in a light most favorable to the non-moving party, is insufficient to permit the judge, as a rational factfinder, to resolve the disputed factual issues in favor of the non-moving party. [Amatuzzo v. Kozmiuk, 305 N.J. Super. 469, 474-75 (App. Div. 1997).]
In this case, considering the evidence in the light most favorable to the plaintiff, there is a material factual dispute which cannot be fairly resolved without a hearing. Given defendants' estimate of the cost of removal at $94,000, not to mention potential claims for reimbursal of any fines and penalties, the plaintiff should be afforded an opportunity to present its defense that Vinch authorized the dumping.
Plaintiff raised three additional defense theories which the motion judge found to be not "compelling and common sense." We agree. First, plaintiff claimed that removal of the debris was not a part of the settlement. This theory is not commonsensical, as cleanup is ordinarily included in the completion of any construction project. Plaintiff's second theory is that the entire controversy doctrine precludes any further judicial relief as defendants and the municipality engaged in litigation which included the question of the disposition of the debris. This argument is simply inapposite. The third theory is the doctrine of laches, which is inapplicable because the time lapse here has not caused a change in condition which would make it inequitable for defendants to seek enforcement of the settlement. See Nw. Covenant Med. Ctr. v. Fishman, 167 N.J. 123, 141 (2001).
Reversed and remanded for further proceedings consistent with this opinion.
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