February 29, 2008
HEATHERS REALTY, L.L.C., PLAINTIFF-RESPONDENT,
STONINGTON COURT ASSOCIATES; HORIZON MANAGEMENT CO.; STONINGTON COURT APARTMENT ASSOCIATES, LLC, DEFENDANTS, AND COOLIDGE STONINGTON COURT, LLC, AND JAC 718 LLC, DEFENDANTS-APPELLANTS.
On appeal from Superior Court of New Jersey, Law Division, Camden County, No. L-2037-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 19, 2007
Before Judges Wefing, Parker and R. B. Coleman.
Coolidge Stonington Court, LLC and JAC 718, LLC ("appellants") appeal from a trial court order entered on March 9, 2007, enforcing the terms of a settlement. After reviewing the record in light of the contentions advanced on appeal, we affirm.
Plaintiff and appellants own adjoining apartment complexes separated by a retaining wall. A dispute developed between the parties as to the maintenance of this wall. Plaintiff contended that appellants (or their predecessors in title) had not maintained the wall as they were obligated to do and because of that, its property had been damaged. This litigation resulted. The attorneys then negotiated a settlement under the terms of which appellants would convey an easement to plaintiff, permitting them to enter upon their property, together with the sum of twenty-five thousand dollars, and plaintiff would assume responsibility for maintaining the wall.
Appellants, however, failed to execute the settlement documents, and plaintiff filed a motion to enforce the settlement. The parties appeared before the trial court on January 19, 2007, in connection with plaintiff's motion. According to the transcript of those proceedings, the trial court carried the matter to permit the parties a final opportunity to conclude the matter privately. When they were unsuccessful, they returned to the trial court on March 9, 2007. After hearing from counsel, the trial court entered an order enforcing the settlement but denying plaintiff's request for counsel fees. This appeal followed.
We reject appellants' contention that the trial court was obligated to conduct a plenary hearing before deciding the matter. A review of the e-mails exchanged between counsel clearly demonstrated that an enforceable agreement had been reached.
On November 8, 2006, appellants' then-attorney sent the following e-mail to plaintiff's attorney:
Larry: This will confirm our discussion wherein I advised that my client has approved the terms of the Easement document which you forwarded subject only to minor tweaking of mistakes per our discussion (ie. prevailing party is awarded legal fees as opposed to responsible to pay legal fees), therefore it is my understanding that your client will respond to my clients proposal to add $5000 to the Easement in full settlement of the litigation.
Plaintiff's attorney responded on November 9, 2006, with the following e-mail:
Peter: This will confirm that we resolved the case this morning for the Easement and Settlement Agreement I sent to you on November 2nd as referenced below, and a lump sum payment by your clients to Heathers Realty, LLC in the amount of $25,000.
On November 13, 2006, plaintiff's attorney sent appellant's attorney the following e-mail:
Peter: Attached are the Easement and the Settlement Agreement each containing the minor "tweaking." I also added to ¶12 of the Settlement Agreement the $25,000 payment by your clients. Please review both documents and (i) advise of any additional "tweaking" you feel is necessary, or (ii) advise that they are ready for signature. In view of the changing weather and the upcoming holidays, let's wrap this up as soon as possible.
Appellants opposed plaintiff's motion to enforce the settlement, contending that there had been no agreement because it later developed that they required the approval of their mortgagee. We concur with the trial court that the necessity of obtaining lender approval to a transaction cannot fairly be characterized as "minor tweaking."
Appellants have pointed to Bistricer v. Bistricer, 231 N.J. Super. 143 (Ch. Div. 1987), to support their position that the trial court erred in enforcing this settlement. We agree with plaintiff, however, that this case rather supports the order the trial court entered. In that case, the court stated:
The policy of our court system is to encourage settlements and the court should "strain" to uphold such settlements. Here the parties agreed to the essential terms of a settlement. Plaintiffs' objections are basically either "afterthoughts" or pertain to implementation of the settlement. Setting aside the settlement under these circumstances would allow plaintiffs to avoid a fair agreement duly entered into to resolve pending and burdensome litigation. This would be unfair to defendants.
[231 N.J. Super. at 151 (citations omitted).]
The order under review is affirmed.
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