On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. 1892-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 22, 2008
Before Judges Sabatino and Alvarez.
The City of Camden ("the City"), the Camden Redevelopment Agency ("the CRA"), and several individuals affiliated with the CRA each appeal*fn1 a judgment of the Law Division ordering the transfer of certain realty in Camden to Curtis Britt, d/b/a Sunshine Liquors ("Britt" or "plaintiff"). The judgment enforced an alleged settlement of a long-standing dispute between Britt, the City and the CRA.
Because the property conveyances were not voted on and duly approved in a valid manner by the governing bodies of the public entities, we vacate the judgment and remand for further proceedings. The judgment also must be vacated because there is inadequate proof of mutual agreement on all material terms of the putative settlement.
Britt, a former Camden firefighter, owns Sunshine Liquors, at 314 South 3rd Street in Camden. In 2002, Britt sought to purchase from the CRA vacant property adjacent to his store, hoping to create additional parking and possibly open a take-out restaurant. The property in question consists of six vacant lots on the south side of Stevens Street, between 3rd and 4th Streets.
A contract for the six parcels, signed by Britt on April 24, 2002, and by the CRA on June 14, 2002, listed the purchase price as $7600 for the entire property. The CRA Board had previously adopted a resolution in October 2001, which purported to authorize the sale of the property to Britt. However, the sale was never consummated because, at some point after Britt and the CRA signed the contract, it came to light that the property was owned by the City, rather than by the CRA.
Britt claims that, upon learning this, he contacted the City's Department of Planning and Development, whose staff allegedly told him that the City did not own the property. Britt contends that the ownership of the property was disputed over the next two years, with neither the CRA nor the City claiming ownership. The City denies this allegation, and contends that its ownership of the property was never disputed.
In the meantime, Britt went ahead with plans to expand his business by filing an application for a zoning permit to operate a restaurant on the property in October 2002, and filing for use and bulk variances with the Zoning Board of Adjustment in February 2003. The variances were granted on the condition that Britt acquire the property.
Britt contends that the CRA "repeatedly represented" to him that it was taking steps to acquire title to the property so that it could execute the sale. In April 2003, Britt sent a letter to the Bureau of City Properties, offering to buy the property for $5000 and enclosing a $500 deposit. He claims that he received no response from the City.
Britt then filed a complaint in the Law Division in March 2004. His complaint named as defendants the CRA, its individual officers and board members, and the City, as well as the Mayor of Camden and individual members of the City Council. The complaint was later amended to designate CRA Chairman Melvin R. Primas, who was already an individual defendant, in his additional capacity as the Chief Executive Officer of the City. The amended version of the complaint also named defendant Arijit De, the CRA's Executive Director, in his additional capacity as the City's Director of Development and Planning.
The complaint principally alleged breach of contract, arising out of the City's failure to convey the property to the CRA and the CRA's concurrent failure to execute the sales contract it had entered with Britt. The complaint also alleged that defendants Primas and De had engaged in discriminatory acts by causing the public entities to refuse to sell the property to Britt, supposedly because he is African-American, in violation of the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -49, and a provision of the federal Civil Rights Act, 42 U.S.C.A. § 1981. Britt requested specific performance of the contract, as well as money damages.
Negotiations between Britt and the CRA continued while the lawsuit was pending. On November 29, 2006, the CRA's attorney sent a letter to Britt offering, by way of settlement, to convey the property to him "with the express understanding that the CRA retains an option and right of first refusal to purchase the [property] from [p]laintiff or his estate at a fixed price . . . ." The CRA also proposed to pay Britt the sum of $107,000 "for all lost profits alleged in his expert and supplemental expert report." In turn, Britt would have to agree to "dismiss the litigation with prejudice."
The relevant portion of the letter stated:
I am writing to confirm the terms of a settlement offer that the solicitor for the CRA . . . is willing to propose to the [CRA] Board [m]embers for their vote at the caucus meeting scheduled on Thursday, November 30, 2006. It is necessary to know if [Britt] is or is not willing to accept these settlement terms . . . . If he is, they will be presented to the CRA Board [m]embers for vote.
Britt's attorney sent a reply letter on the morning of November 30, 2006, stating that his client accepted the proposed settlement terms. In the course of that letter, Britt's counsel stated to the CRA's attorney, "[i]f the CRA Board of Commissioners votes to approve the settlement, I assume that you will prepare the general releases."
The matter was brought before the CRA Board at its regularly scheduled caucus meeting later that evening, November 30. Although the CRA's brief on appeal concedes that the Board members at the meeting "opined in favor of" the settlement terms with Britt, the CRA maintains that there was never a formal vote by the CRA Board to agree to the settlement. Britt's attorney, conversely, has asserted that "the CRA Board . . . voted at a duly convened and noticed open public caucus meeting [on November 30, 2006] to approve the settlement . . . ."*fn2
The events of the following day, December 1, 2006, are the subject of major disagreement. It is apparent that a flurry of telephone calls and discussions took place that day among the attorneys for the three parties: Morris G. Smith for Britt, Gene R. Mariano for the CRA, and Assistant City Attorney Mark Cieslewicz for the City. Their respective accounts of the conversations vary substantially.
Smith alleges that Mariano called early in the morning of December 1 to inform him that the CRA had agreed to the settlement terms, and that "there would be no need to appear in court" for a hearing scheduled later that day on a pretrial motion that had been filed by the CRA. Smith then allegedly contacted Lewis Wilson, the City Attorney and Cieslewsicz's supervisor, to inform him that Britt and the CRA had settled.
In his own certified account of the events, Cieslewicz recalls that, when he arrived at his office at 10:00 a.m. on December 1, Wilson informed him that Smith had called to discuss a settlement with the City. Smith advised Wilson that Britt wanted a monetary contribution from the City defendants to settle his separate claims against them. Wilson then allegedly instructed Cieslewicz that the City would not settle with Britt. Cieslewicz also spoke with Mariano that morning, who confirmed that "the CRA had reached an agreement to settle with [Britt]."
During an ensuing telephone conference that morning among counsel for all parties, the City's and the CRA's representatives supposedly informed Smith that the settlement terms that his client had agreed to with the CRA were intended to resolve the entire dispute, and that there would be no settlement unless it also included the City. Specifically, Smith was allegedly told that the City would not pay any money to settle the case.
It was at this point in the attorneys' three-way conversation that Cieslewicz evidently stated that the "properties were the City's contribution to the settlement." Smith construed this statement to mean that the City agreed to convey the property to the CRA as part of the settlement. However, in his later certification, Cieslewicz maintains that he did not intend his statement to counsel about the City's "contribution" to constitute a formal offer. Rather, Cieslewicz contends that he had made the comment under the mistaken belief that the CRA had already obtained approval from the City to transfer the properties to the CRA. On this significant point, Cieslewicz certified that, "[a]t no time during the pendency of this case did I ever seek authorization to try and settle this matter by offering to transfer [the property] . . . nor was such authority ever extended to me."
Later on the morning of December 1, Britt agreed to what he perceived to be a "global settlement" offer, and, through his attorney Smith, he informed Mariano of his acceptance. Mariano, in turn, communicated this to Cieslewicz. Smith and Mariano also informed the trial court that a settlement had been reached. Smith claims that the settlement was placed on the record, but the CRA ...