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Else v. O'Malley

February 19, 2008

CHARLES V. ELSE, JR., PLAINTIFF-APPELLANT,
v.
HARRY O'MALLEY, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-1949-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 22, 2008

Before Judges Lintner and Graves.

Plaintiff Charles V. Else, Jr., is the son of Charles V. Else, who died on August 13, 1994. The court appointed defendant, Harry O'Malley, an attorney, as the Temporary Administrator of the Estate of Charles V. Else on November 15, 1994. Plaintiff appeals from a summary judgment order dismissing his complaint because it was filed after the applicable six-year statute of limitations expired. See N.J.S.A. 2A:14-1. We affirm.

The material facts are not in dispute. After plaintiff's father died, plaintiff initiated litigation regarding the disposition of the Estate's assets. That litigation was resolved pursuant to a Consent Order of Settlement (Consent Order) signed by Judge Parrillo on October 15, 1997. The Consent Order provided that the Estate was to transfer certain real property to plaintiff. The Estate was also to transfer a valid liquor license to operate a tavern on one of the properties within ninety days. In return, plaintiff agreed to release all of his claims against the Estate.

Paragraphs two and three of the Consent Order provided as follows:

2. The Estate shall take all necessary steps to ensure that Charles V. Else, Jr. will receive good and marketable unencumbered title to all real property located in Falls Township, Bucks County, Pennsylvania, in which the Estate possesses an interest including: (a) the Tavern property, (b) the rental real estate, and (c) vacant land all located on Newportville Road, Levittown, Falls Township, Bucks County, Pennsylvania. Harry O'Malley, Esquire, Temporary Administrator of the Estate of Charles V. Else, deceased, or his successor shall prepare all documentation to affect the transfer of title.

3. The Estate shall take all necessary steps to ensure that Charles V. Else, Jr. will receive through transfer, a valid liquor license for use in the operation of the Newportville Road tavern formerly known as the Pointe After Tavern, as well as any rights to back rents from tenants and rights of former operators of a bar to the extent such rights are held by the Estate. The parties recognize and agree that there may be Liquor Control Board administrative delay, and that the Estate may be unable to immediately complete a renewal and transfer of the above-referenced liquor license to Charles V. Else, Jr. In the event, however, that the Estate is responsible for the denial or unexcused delay for more than ninety days, in completing the transfer, then in that event Charles V. Else, Jr. shall have the right to bring an action to compel transfer of the license or the Estate shall pay to Charles V. Else, Jr. the value of the liquor license which shall be no less than One Hundred Thousand Dollars ($100,000.00) nor greater than One Hundred Fifty Thousand Dollars ($150,000.00). The exact value within the stated range shall be determined by an appraisal prepared by an appraiser mutually acceptable to the Estate and Charles V. Else, Jr. with such appraisal to be paid for by the Estate and ordered within fifteen (15) days of the expiration of the above-referenced ninety (90) day period. Any payment shall be made from the fund to be created in accordance with the provisions of paragraph 10 below.

Paragraph ten of the Consent Order states:

10. The parties recognize and agree that at present the Estate has no fund with which to make payments. The parties and all counsel agree to await the creation of such a fund and to permit Harry O'Malley, Esquire, Temporary Administrator of the Estate of Charles V. Else, deceased, or his successor to use his best judgment in cooperation with Jo-Ann Else and her children to create a fund sufficient to satisfy the expenses associated with the Estate of Charles V. Else as outlined in this agreement. The parties understand that Estate assets including the Pennington farm (Block 37, Lot 19, known as 115 Route #31) may be sold, and agree that the Temporary Administrator shall have discretion to make all necessary decisions to effectuate this agreement within a reasonable period of time, which it is understood may take a period of a year or more.

On April 20, 2005, approximately seven and one-half years after the entry of the Consent Order, plaintiff filed a four- count complaint against defendant. In the first three counts of the complaint, plaintiff alleged defendant breached the Consent Order by failing to transfer the properties and liquor license to him, and defendant violated his fiduciary duty as administrator by allowing the properties to fall into a state of disrepair. The fourth count of plaintiff's complaint alleged legal malpractice.

Discovery revealed defendant was willing to comply with the Consent Order by transferring to plaintiff the properties and the liquor license he was entitled to receive. But plaintiff was unwilling to accept the properties unless they were restored to the condition they were in at the time of his father's death, or the Estate provided him with the funds ...


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