March 27, 2008
RICHARD D. ZOCHOWSKI, AS FIFTY PERCENT SHAREHOLDER IN ZACHMAR, INC., PLAINTIFF-RESPONDENT,
T. ROBERT ZOCHOWSKI, AS FIFTY PERCENT SHAREHOLDER IN ZACHMAR, INC. AND ZACHMAR, INC., A NEW JERSEY CORPORATION, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Monmouth County, Docket No. C-349-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 14, 2008
Before Judges Payne and Messano.
Defendant T. Robert Zochowski and his brother, plaintiff Richard D. Zochowski, own equal shares of all the stock in Zachmar, Inc. (Zachmar), the owner of certain real property located in Hammonton. Defendant appeals from the March 16, 2007 order that, among other things, granted plaintiff "full and sole authority to negotiate and execute all papers on behalf of Zachmar  in connection with the sale of the Hammonton  property to any potential buyer," and specifically "confirm[ed] plaintiff's authority to have executed a contract for sale" of the property with Pyramid Equities (Pyramid). We have considered the arguments raised in light of the record and applicable legal standards. We affirm most of the order under review; however, as to the confirmation of plaintiff's authority to enter into the specific contract with Pyramid, we reverse and remand to the trial court for further proceedings consistent with this opinion.
We need not go into the tortuous history of the litigation in great detail. It suffices to say that Zachmar was a family real estate corporation started by the parties' grandparents and parents that owned two assets--real estate in Florida where the parties' parents resided and the Hammonton property. Plaintiff commenced this litigation seeking dissolution of the corporation after disputes arose with defendant regarding the disposition of the properties.
On March 4, 2004, an order of settlement was entered. In pertinent part, it provided that plaintiff "shall be permitted to place all of the property owned by Zachmar  located in Hammonton  for sale . . . for a period of six  months from the date of this Order for the sum of $1.5 million dollars[.]" It further provided that "[i]n the event there is no agreement between the parties on a sale price under the agreed price of $1.5 million for the Hammonton [p]roperty, the parties may file a renewed [c]omplaint in this matter[.]"
Thereafter, various applications resulted in interim orders, and appeals were taken therefrom, but they are not particularly relevant to our consideration of the issues now presented. On July 22, 2005, the chancery judge entered an order that granted plaintiff "full and complete authority to solely execute all papers on behalf of Zachmar  in connection with the sale of the Hammonton  property to Matzel Inc. at Hammonton, LLC" (Matzel), and further restrained defendant from any interference with that sale.*fn1 On August 1, 2005, a contract for sale was signed with Matzel in the amount of $1.5 million dollars.
During the due diligence period of the contract, however, it was discovered that the Hammonton property contained more designated wetlands than originally believed, and, on October 13, 2005, Matzel cancelled the contract. In January 2006, plaintiff began negotiations for the sale of the property with Pyramid and obtained a letter of intent to purchase.
When he was advised of this development, defendant contacted the broker involved and claimed that many terms and conditions of the sale needed to be discussed before the proposed purchase agreement was accepted. In a faxed memorandum dated February 2, 2006, defendant advised his brother that "I will represent Zachmar with regard to this matter," and reiterated his belief that "the contract will need the approval of both of us in order . . . to be valid."
Concerned that defendant's correspondence was a harbinger of his intent to impede any sale to Pyramid, plaintiff moved to modify the July 22, 2005 order to permit him to negotiate the sale of the property to any potential purchaser. Before the motion was heard, on May 23, 2006, plaintiff executed a contract for sale of the Hammonton property with Pyramid. By order dated June 9, 2006, the chancery judge granted plaintiff the "full and complete authority to solely negotiate and execute all papers on behalf of Zachmar  in connection with the sale of the Hammonton  property to any potential buyer." (Emphasis added.)
However, defendant appealed from that order and successfully argued before us that he never received proper notice of the hearing on plaintiff's motion. We reversed and vacated the June 9, 2006 order. Zochowski v. Zochowski, No.A-5930-05 (August 1, 2007).
In the interim, on February 12, 2007, plaintiff again moved to modify the July 22, 2005 order and requested the following relief: full and complete power to "negotiate and execute all papers on behalf of Zachmar  in connection with the sale of the Hammonton  property to any potential buyer"; confirmation of his "authority to have executed a contract for sale of the Hammonton property with Pyramid"; a finding that defendant was in violation of litigant's rights; the "sole authority to operate [Zachmar]"; entry of restraints upon defendant from conducting any business on behalf of Zachmar or interfering with its daily operations; entry of an order requiring that all funds defendant held on behalf of Zachmar be forwarded to plaintiff; the closure of all accounts defendant maintained on behalf of Zachmar; reimbursement from defendant of closing costs incurred in the sale of the Florida property; and counsel fees. The parties appeared for oral argument before the chancery judge on March 16, 2007.
Defendant noted that the purchase price in the contract for sale with Pyramid, ostensibly $1,628,000 was actually calculated as a per acre price based upon a stated amount of "developable acres." The agreement provided that the sales price would be adjusted if Pyramid's due diligence revealed "more or less than the aforesaid developable acres." Pyramid agreed to 1) pay a minimum purchase price of $1,284,800 dollars regardless of the developable area; or 2) cancel the contract. Defendant argued that the contract was not in compliance with the settlement agreement because it could result in a purchase price less than the $1.5 million he agreed to.
The motion judge, whose understandable exasperation with the litigation was obvious from a review of the transcript of the hearing, never addressed defendant's argument in this regard. Nonetheless, he entered an order granting most of plaintiff's requested relief, specifically confirming his authority to enter into the contract for sale with Pyramid, granting plaintiff the sole authority to negotiate the sale of the Hammonton property with any buyer, and granting plaintiff the sole authority to operate Zachmar. The judge did require plaintiff to "account monthly to defendant for the operations of the company and the progress and the status of the sale." This appeal ensued.
We find much of defendant's argument to be of insufficient merit to warrant significant discussion in this opinion. R. 2:11-3(e)(1)(E). We add these brief comments in that regard.
Defendant argues plaintiff's motion was untimely, pursuant to Rule 4:49-2, and otherwise failed to comply with the requirements of Rule 4:50-1. This, however, misapprehends plaintiff's application because it was neither 1) a motion seeking to amend a judgment or order nor 2) a motion for relief from a final judgment. It was, rather, a motion to enforce litigant's rights based upon allegations of defendant's interference with efforts to sell the property and thus was not subject to the procedural infirmities defendant now cites.
Defendant also argues that he was denied his property rights in violation of constitutional guarantees of procedural due process because the order was entered "without any meaningful adjudication." We fail to find any obvious constitutional violation, and, if defendant is really asserting that a plenary hearing was required, we cannot agree based upon the record provided. It is clear that the judge, who had handled the case since its inception, was fully familiar with all the allegations on both sides and reached his conclusions based upon the documents provided without the need to take testimony. We find no error in this regard.
However, in his reply brief, defendant argues, as he did at the hearing below, that the contract with Pyramid violated the settlement agreement. Specifically, the settlement provided that the agreed sale price for the Hammonton property was $1.5 million dollars, and, "[i]n the event there is no agreement between the parties on a sale price under the agreed price of $1.5 million . . . , the parties may file a renewed [c]omplaint in this matter." Because the ultimate amount of developable acreage may result in the adjustment of the sales price below the agreed upon $1.5 million, and since he does not consent, defendant claims plaintiff must file a new complaint.
"A settlement agreement between parties to a lawsuit is a contract." Nolan v. Lee Ho, 120 N.J. 465, 472 (1990)(citation omitted). Since the "[s]ettlement of litigation ranks high in our public policy," Jannarone v. W.T. Co., 65 N.J. Super. 472, 476 (App. Div.), certif. denied, 35 N.J. 61 (1961)(citation omitted), "settlement agreements will be honored 'absent a demonstration of fraud or other compelling circumstances.'" Nolan, supra, 120 N.J. at 472 (quoting Pascarella v. Bruck, 190 N.J. Super. 118, 125 (App. Div.), certif. denied, 94 N.J. 600 (1983)).
Unless there is "an agreement to the essential terms" by the parties, however, there is no settlement in the first instance. Mosley v. Femina Fashions, Inc., 356 N.J. Super. 118, 126 (App. Div. 2002), certif. denied, 176 N.J. 279 (2003). We have noted in other contexts that when a motion to enforce a settlement is disputed, the court should hold a hearing unless the available competent evidence is such that the judge can 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).
We agree with defendant that a question of fact exists as to whether the contract with Pyramid complies with the settlement order reached in 2004. The motion judge never inquired into the various contingencies expressly stated in the contract that directly affect the ultimate purchase price for the property. Nor did he ever make the factual findings required by Rule 1:7-4(a) or conclude that the agreement in fact complied with the settlement order he entered in 2004.
Since we cannot determine on the record that exists whether the contract complies with the settlement agreement, we must reverse and vacate paragraph two of the order that confirmed plaintiff's authority to execute the contract of sale with Pyramid. At oral argument before us, plaintiff advised that Pyramid has been conducting its due diligence and that indeed the parties may be closer to determining the total developable acreage and therefore the final purchase price. We therefore remand the matter to the chancery judge to conduct a hearing on the issue of whether the contract with Pyramid complies with the 2004 settlement order or not. We leave to the sound discretion of the judge the exact contours of the hearing and whether testimony will be necessary to resolve the issue.
As to the balance of the order under review, we affirm. The July 22, 2005 order provided plaintiff with the sole authority to sell the Hammonton property to Matzel and it restrained defendant from interfering with the sale of the property. Defendant never appealed from that order. Therefore, we affirm paragraph one of the order under review granting plaintiff the sole authority to sell the property and continue the restraints upon defendant from interfering with any sale because in this regard defendant's appeal is simply too late. As to paragraphs four through eight of the order, we find no basis to reverse.
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.