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F.P.P.E. Consulting Engineers, Inc. v. Morda

February 25, 2009

F.P.P.E. CONSULTING ENGINEERS, INC., PLAINTIFF-RESPONDENT,
v.
LOUIS S. MORDA AND MARY LOUISE MORDA, DEFENDANTS-APPELLANTS, AND KEYSTONE BUSINESS PRODUCTS, INC., DEFENDANT.



On appeal from the Superior Court of New Jersey, Law Division, Salem County, Docket No. L-234-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 30, 2009

Before Judges C.L. Miniman and Baxter.

Defendants, Louis and Mary Louise Morda, appeal from a February 25, 2008 order that granted the cross-motion of plaintiff, F.P.P.E. Consulting Engineers, Inc., to enforce a settlement agreement, and at the same time denied defendants' motion to enforce the version of the settlement agreement they had proposed. Defendants also appeal from an April 11, 2008, order that denied their motion for reconsideration. At issue during the motion hearings was the question of whether, as plaintiff claimed, defendants had agreed to release any potential engineering malpractice claims against plaintiff, or whether, as defendants claim, the scope of the release was limited to dismissal of the specific claims that were contained in plaintiff's complaint and defendants' counterclaim. We reverse.

I.

On February 13, 2003, the parties entered into a contract in which plaintiff agreed to provide all engineering services necessary to enable defendants to obtain major subdivision approval of an eighty-eight acre parcel of property defendants owned in Pilesgrove Township. Although the estimated contract price was $120,000, defendants had paid plaintiff a total of $237,649 before terminating plaintiff's contract on May 19, 2006. After plaintiff was terminated, defendants hired new engineers to continue the engineering work begun by plaintiff.

Approximately two months later, on July 29, 2006, plaintiff filed a complaint in the Law Division demanding payment of $96,353 that plaintiff contended was still owed on the contract. Defendants filed a counterclaim alleging consumer fraud, breach of contract, common law fraud and slander of title. On March 21, 2007, the parties, each represented by counsel, participated in court-ordered mediation. Mediation was successful with each side agreeing to the dismissal of its claims against the other.

On March 23, 2007, a few days after the mediation was completed, defendants' counsel wrote to plaintiff's counsel confirming the settlement terms. We quote that letter in its entirety because that letter played a central, perhaps dispositive, role in the judge's decisions in plaintiff's favor. Defendants' counsel wrote:

This will confirm we had mediation this week on Tuesday[,] March 20, 2007. There was discussion at the mediation that both parties would waive their claims. There was also discussion as to the use of the existing CAD [computer assisted drawing] disk information. At the end of the mediation, we were told by the mediator, that your clients wanted 30 days to review the matter then they would let us know if they are going to dismiss the complaint or not.

You advised on the morning of March 23[,] 2007, that you and your clients were willing to dismiss the case. After that conversation, I talked to my client and he said he would be willing to dismiss it so long as he can use the engineering work that was done by [plaintiff]. My client has already [paid plaintiff] $200,000.00 and we do not want to have any "hang nails" on this case.

Accordingly, assuming your client is willing to allow my client to use the work that he had already paid for, my client is willing to dismiss any and all claims against your client and is willing to forego any concerns he might have had with your client as an engineer.

If that were [sic] acceptable to you, I would ask that you draft the releases and we move forward to settle this case.

Two months later, in approximately May 2007, plaintiff's counsel forwarded an eight-page proposed release and settlement agreement, which included a release by defendants of any future claims of engineering malpractice against ...


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