July 23, 2009
ANDREW TASHJIAN, PLAINTIFF-APPELLANT,
ANTHONY TRAPINI AND FRANCES TRAPINI, DEFENDANTS-RESPONDENTS.
On appeal from Superior Court of New Jersey, Chancery Division, Bergen County, Docket No. C-183-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 3, 2009
Before Judges Axelrad and Lihotz.
Plaintiff Andrew Tashjian appeals from a November 21, 2008 order enforcing a purported settlement of boundary disputes with adjoining property owners, Anthony and Frances Trapini. Plaintiff also appeals from a subsequent order denying reconsideration of the initial determination. Plaintiff argues the document relied upon by the trial court was not a settlement but a non-binding arbitration recommendation, which he rejected, necessitating review of all issues by the court in a plenary hearing. We reject plaintiff's contentions and affirm.
Over the years, multiple disputes arose between these neighbors regarding alleged boundary encroachments. Both properties are situated on the western side of Bogart Road, River Edge, Bergen County. Ultimately, plaintiff filed an equity action seeking to enjoin defendants from interfering with plaintiff's survey of and marking his property and his installation of a fence. Defendants filed a counterclaim for damages resulting from bamboo growth on their property that emanated from plaintiff's property, damage to their aged blue spruce tree cause by plaintiff's surveyors, and trespass by plaintiff's surveyors.
On March 18, 2008, the date scheduled for trial, the parties reached a resolution of all issues. The terms of settlement were placed on the record in the presence of the litigants, who each testified he or she understood the settlement, voluntarily accepted its terms as fair and reasonable, agreed to be bound by those terms, and waived the right to proceed to trial. Without passing on its substance or fairness, Judge Contillo accepted the settlement as the parties' voluntary resolution of all claims.
An Order for Judgment was entered on May 29, 2008, which provided, in part, that prior to "cutting any growth overhanging the common property line," or in the event a future dispute arises "regarding the interpretation or implementation of any provision of this [settlement]. . . the parties shall submit the matter to non-binding arbitration in the first instance before David C. Russo, Esq." Further, if arbitration proved unsuccessful, the matter would be submitted to the court for determination. In any such proceeding "the recommendation of the arbitrator may be submitted to and considered by the [c]court[.]"
As anticipated, a dispute arose regarding defendants' removal of a fence to allow plaintiff's construction of a new fence. In accordance with the terms of settlement, the parties, and their respective attorneys, met with Russo and a surveyor/engineer at the property line for two hours on August 26, 2008. That same day, Russo transmitted to the parties and their counsel his correspondence, which begins: "Confirming our conference at the property, it has been agreed that . . . . " The letter then details the actions to be followed by the parties to implement plaintiff's installation of a fence and concrete boundary monuments, and to trim defendants' blue spruce and dogwood trees.
Almost one month later, defendants' counsel wrote to Russo regarding plaintiff's commencement of the tree trimming and fence installation, pursuant to the August 26 agreement. Because plaintiff had yet to submit the dates he planned to start the fence work, Russo wrote to plaintiff's counsel in an effort to move the matter forward. Plaintiff did not respond. Another month passed without plaintiff's response, and defendants' attorney wrote a second letter demanding plaintiff's compliance. Again, plaintiff was unresponsive.
On November 5, 2008, plaintiff moved for modification of the Judgment. In his supporting certification, plaintiff stated the parties met with Russo, as required, who "made some recommendations orally[,] which he embodied in a letter on August 26, 2008." Plaintiff cited three disagreements he sought to be resolved by a plenary hearing. Defendants opposed plaintiff's motion and filed a cross-motion to enforce the agreement. Following oral argument, Judge Contillo determined Russo's letter did, in fact, represent the terms of an agreement reached by the parties and did not constitute mere recommendations for resolution.
The court denied plaintiff's motion and granted defendants' cross-motion. Subsequently, the court denied plaintiff's motion for reconsideration and this appeal ensued.
On appeal, plaintiff suggests the terms of Russo's letter allowed defendants to maintain a fence on and permitted branches and roots of defendants' blue spruce tree to encroach plaintiff's property. Citing the Statute of Frauds, plaintiff contends such a transfer of an "interest in real estate" cannot be enforced unless it is a written agreement signed by the parties. We quickly dispense with this issue.
Plaintiff mischaracterizes the New Jersey Statute of Frauds, N.J.S.A. 25:1-10 to -15, which was amended in 1995. In revising the statute, the Legislature at N.J.S.A. 25:1-13(b) changed the centuries's old tenet requiring a writing and "permitted enforcement of an oral agreement to sell an interest in real estate." Morton v. 4 Orchard Land Trust, 180 N.J. 118, 125 (2004). The statute now provides:
An agreement to transfer an interest in real estate or to hold an interest in real estate for the benefit of another shall not be enforceable unless:
a. a description of the real estate sufficient to identify it, the nature of the interest to be transferred, the existence of the agreement, and the identity of the transferor and transferee are established in a writing signed by or on behalf of the party against whom enforcement is sought; or
b. a description of the real estate sufficient to identify it, the nature of the interest to be transferred, the existence of the agreement and the identity of the transferor and the transferee are proved by clear and convincing evidence.
"'[T]he focus of inquiry in a situation involving an agreement for the sale of an interest in real estate . . . should be whether an agreement has been made between the parties by which they intend to be bound.'" Morton, supra, 180 N.J. at 126 (quoting New Jersey Law Revision Commission, Report and Recommendations Relating to Writing Requirements for Real Estate Transactions, Brokerage Agreements and Suretyship Agreements 2, 10 (1991)).
Russo's letter provides a precise and deliberate delineation of the parties, their rights, and responsibilities. The description of the property rights subject to the terms transcribed is unmistakable. We concur with Judge Contillo that Russo's letter does not run afoul of N.J.S.A. 25:1-13. An oral agreement is binding if it is shown by clear and convincing evidence that the parties intended to be bound by those terms. Morton, supra, 180 N.J. at 125-26.
Next, plaintiff maintains he never agreed to the terms expressed by Russo, despite his silence following receipt of the August 26 letter. Alternatively, he challenges the court's denial of his right to a hearing to contest Russo's recommendations made in "a non-binding arbitration." We reject this argument.
Silence alone does not ordinarily manifest assent. Weichert Co. Realtors v. Ryan, 128 N.J. 427, 435-36 (1992). Nevertheless, depending on the circumstances presented, it may signify acceptance of the terms of an agreement "by conduct, creating a contract implied-in-fact." Id. at 436. "[W]here the particular circumstances reasonably impose . . . a duty to speak if the offer is rejected[,]" silence may signify acceptance. Johnson & Johnson v. Charmley Drug Co., 11 N.J. 526, 539 (1953).
Here, the parties met at the property boundary, as required by the Judgment. Considering their prior dealings and contentious relationship, the purpose of the discussion was to attempt to avoid litigation. That same day, Russo memorialized the agreement terms in writing. Russo's letter was not presented as a list of suggestions or a report of the parties' positions. Rather, it was a detailed multi-page letter, which employs phrases such as, "all parties agree and understand," to introduce each express term. The word "agree" is stated eight times throughout the body of the correspondence and the language is neither ambiguous nor necessitates further inquiry.
There is no evidence to support plaintiff's argument that he believed the process was a non-binding arbitration. Moreover, plaintiff did not act timely to reject the determination or seek further review in accordance with the provisions of Rule 21A-7(b)(1). We also find that contrary to plaintiff's assertion, the judgment did not grant him the right to a plenary hearing. In the event arbitration was unsuccessful, plaintiff could seek a court determination, which he did. The Judgment allows the court to review and consider the recommendation of the arbitrator, which it did.
In his review on reconsideration, Judge Contillo reiterated:
This was a settlement that was reached by the parties in the presence of their counsel and an engineer at the site. And it is memorialized in Mr. Russo's letter of August 26th, where he states in the first sentence, "Confirming our conference at the property, it has been agreed that plaintiff will now install his white picket fence . . . ."
In reviewing terms discussed, the court continued to quote the language of Russo's letter, and concluded "there [was] no mistake about whether or not we were memorializing an agreement[.]" The court further noted, Russo's letter and the two by defendants' counsel, seeking compliance with the agreed terms, were met with unexplained silence. Judge Contillo bluntly concluded:
you cannot undo an agreement . . . by simply saying I didn't agree. . . . Second thoughts on the appropriate of an agreement that you reach is entitled to no support from the court. No one else supports the illusion that Mr. Russo was making recommendations. No one else supports the illusion that somehow this was an arbitration proceeding that has a certain number of days where you can appeal that non-binding determination[.]
We are satisfied these findings by the judge are binding on appeal, as they are supported by adequate, credible evidence in the record. Cesare v. Cesare, 154 N.J. 394, 412 (1998) (citing, Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). Consequently, we have no basis to disturb them. We conclude there was no error in ordering compliance with the Russo agreement without benefit of a plenary hearing and in denying the request for reconsideration.
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