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Tashjian v. Trapini

July 23, 2009

ANDREW TASHJIAN, PLAINTIFF-APPELLANT,
v.
ANTHONY TRAPINI AND FRANCES TRAPINI, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Chancery Division, Bergen County, Docket No. C-183-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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." ...


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