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Fresh Pond, L.L.C. v. Whitlock Mills


October 6, 2009


On appeal from the Superior Court of New Jersey, Chancery Division, Hudson County, C-13-05.

Per curiam.


Argued September 21, 2009

Before Judges Rodríguez and Reisner.

Plaintiff Fresh Pond, L.L.C. appeals from two orders dated July 7, 2008 and August 11, 2008, enforcing a settlement with defendant Whitlock Mills, L.P. We affirm.


This case arose from a dispute between two owners of commercial property on Lafayette Street in Jersey City. Fresh Pond, whose lot is surrounded by Whitlock's land, has a deeded access easement and an easement for fifty parking spaces on Whitlock's property to be provided at Fresh Pond's expense. In 2005, Fresh Pond filed a complaint alleging that Whitlock, which was building affordable housing units, was blocking Fresh Pond's access to its own land. The complaint also sought a declaratory judgment resolving a dispute over the location and cost of the fifty parking spaces to be built on Whitlock's property. Whitlock filed a counterclaim alleging breach of the easement agreement; that Fresh Pond had refused to pay for the cost of fifty parking spaces in a parking garage that Whitlock was constructing; and seeking a declaratory judgment concerning the parties' rights under the easement.

The parties resolved the ingress and egress dispute prior to the trial, after Whitlock constructed paved roads through its property. Further, it was clear from counsel's opening statements at the original trial on March 27, 2006, that the parties' dispute concerned parking. Fresh Pond asserted its right to surface parking spaces, while Whitlock wanted to provide the parking spaces in a garage it was already building, and wanted Fresh Pond to contribute $700,000 toward the cost of the garage. Additionally, Fresh Pond contended that Whitlock had built an encroachment ten feet onto its property; however, in his opening statement Whitlock's counsel unequivocally agreed that his client would remove the encroachment if Fresh Pond demanded its removal. Before hearing the first witness testify, the judge allowed the parties to engage in settlement negotiations. Toward the end of the afternoon on March 27, 2006, the parties advised Judge Olivieri that they had settled the parking space dispute for $275,000. Accordingly, the judge entered an order dismissing the case as settled and adjourned the trial.

However, during the course of subsequent efforts to reduce the settlement to writing, Fresh Ponds contended that the parties had not really arrived at a settlement. As a result, Whitlock filed a motion to enforce what it contended was a settlement of the litigation. Concluding that there were material factual disputes, Judge Olivieri conducted a plenary hearing.

At the plenary hearing, Wallace L. Scruggs, a partner in the Whitlock organization, testified that during the settlement negotiations, the parties reached an agreement that Fresh Pond would pay Whitlock $275,000 within ninety days. In return, Whitlock would construct fifty parking spaces "in the surface area closely approximating to [Fresh Pond's] building." Fresh Pond insisted on surface parking spaces, because they were much less expensive to build than garage spaces. According to Wallace, although construction access was not an issue in the lawsuit, while they were settling the parking issue the parties also agreed to negotiate the details of Fresh Pond's right of access in the future when it began rehabilitating the building on its property.

Wallace clarified that Fresh Pond's original complaint concerned blockage of access for the day-to-day operations of its warehouse on its property; allegedly Whitlock's construction activities were blocking Fresh Pond's access to its loading dock. According to Wallace, Judge Olivieri had resolved that initial access dispute by issuing an order early in the litigation. The complaint did not concern Fresh Pond's right to construction access, because Fresh Pond was not engaging in any construction at the time. In the settlement negotiations, however, the parties were trying to address Fresh Pond's eventual need for construction access, to avoid possible future disputes and litigation.*fn1 At the end of the March 27, 2006 trial day, Wallace understood that the parties had settled the litigation over the parking. He also believed they had settled the construction access issue, even if they still had to work out some of the specific details.

In his testimony, Jeffrey Herrmann, who was Whitlock's attorney in the underlying litigation, confirmed that all issues in that case, other than parking, had been resolved before the parties began their mid-trial settlement negotiations. He also confirmed that during those negotiations, the parties agreed on the essential terms of the parking settlement, including the amount plaintiff would pay, the time payment was due, and the location of the parking spaces adjacent to plaintiff's building.

He testified that the parties resolved the construction access issue by agreeing that when Fresh Pond began rehabilitating its building, it could use the future parking lot as a temporary staging area to park equipment and store building materials. He further testified that the parties agreed that Fresh Pond would have to provide insurance during the construction and limit the hours of construction so as not to interfere with Whitlock's tenants. Significantly, however, Herrmann denied that the settlement of the parking litigation was contingent on the parties' ability to settle other issues. According to Herrmann, at the end of the court day, the attorneys reported to Judge Olivieri that the case was settled.

Fresh Pond's attorney, Jack Jay Wind, also testified. According to Wind, on March 27, 2006 the parties did not reach a settlement, and did not tell Judge Olivieri that they had settled the case. On cross-examination, he agreed that at the end of the negotiations on March 27, the parties had agreed on fifty surface parking spaces and had agreed "in principle . . . where those 50 were going to be," i.e., adjacent to Fresh Pond's building. They also agreed that Fresh Pond would pay Whitlock $275,000, although he denied that the parties agreed it would be paid in ninety days. He testified that his client wanted to delay the final paving of the parking spaces until after it had finished its own construction, because otherwise its construction equipment might damage the parking area.

On June 9, 2008, Judge Olivieri placed an oral opinion on the record. He found that by the time the underlying trial started, the only remaining issues were the location of the fifty parking spaces and how much Fresh Pond would pay for them. He also found that the parties recognized that "the specific [parking] spots could not be really designated back in March of '06, because at that time the area had not been paved and specific spaces had not had lines drawn." However, the judge concluded that the parties agreed on the essential terms needed to settle the litigation:

This agreement, that the plaintiff would pay this $275,000 and that the parking spaces would be located adjacent to the building, and [would be] surface spots as opposed to being in a garage, resolved the issues that were to be tried.

The judge further ruled that even if plaintiff's principal, Mr. Sethi, did not specifically agree to pay within ninety days, the court would infer an agreement to pay within "a reasonable period of time." The judge therefore declared the case settled and ordered Fresh Pond to pay the $275,000.

The judge memorialized his ruling in a written order dated July 7, 2008. He ordered plaintiff to pay the $275,000 by August 1, 2008, ordered defendant to grant plaintiff the fifty surface parking spaces in reasonable proximity to Fresh Pond's building, and ordered defendant to "remove the encroachment to the extent requested by the plaintiff." The order further provided that if Fresh Pond failed to make timely payment, "then a judgment shall be entered in such amount" and interest would begin to accumulate. Both sides consented to the form of the July 7 order. Consistent with that order, when Fresh Pond failed to make payment, the court entered a judgment in favor of Whitlock for $275,000 on August 11, 2008.


Our review of Judge Olivieri's decision is limited to determining whether it is supported by substantial credible evidence and is consistent with applicable law. Rova Farms Resort, Inc. v. Investors Ins. Co. of America, 65 N.J. 474, 483-84 (1974). We owe particular deference to his factual findings following a plenary hearing, because he had a firsthand opportunity to judge the credibility of the witnesses. See Twp. of West Windsor v. Nierenberg, 150 N.J. 111, 132 (1997). "[W]e do not disturb the factual findings and legal conclusions of the trial judge unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Fagliarone v. Twp. of No. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963).

On this appeal, Fresh Pond contends that the trial court erred in concluding that the parties had reached a settlement, or, in the alternative, that the August 11, 2008 judgment should be amended to compel Whitlock to remove the encroachment. Having reviewed the record, we find Judge Olivieri's decision is supported by substantial credible evidence, R. 2:11-3(e)(1)(A), and Fresh Pond's appellate contentions are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add the following comments.

Crediting the testimony of Scruggs and Herrmann, as the judge obviously did, on the first day of the underlying trial, the parties agreed on the essential terms of a settlement concerning the only issues left in the litigation. Having resolved the parking dispute, the parties also tried to forestall future litigation by agreeing on construction access for Fresh Pond when and if it began rehabilitating its building. However, the parking space settlement was not contingent on the parties' ability to resolve the issue of future construction access.

"The settlement 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). And where the parties have agreed on the essential terms, the settlement is binding and the court may infer additional reasonable terms needed to enforce the settlement. See Hagrish v. Olson, 254 N.J. Super. 133, 137 (App. Div. 1992); Berg Agency v. SleepworldWillingboro, Inc., 136 N.J. Super. 369, 377 (App. Div. 1975); Bistricer v. Bistricer, 231 N.J. Super. 143, 152 (Ch. Div. 1987). We find no error in the trial judge concluding that the parking case was settled and inferring a ninety-day time limit for payment.

We also find no merit in Fresh Pond's arguments concerning the encroachment. Not only did Whitlock's attorney agree on the record that his client would remove the encroachment, but the court also entered an order on July 7, 2008 directing his client to do so "to the extent requested by the plaintiff." That issue was resolved, and no further judgment was required. Had Fresh Pond made a demand for removal of the encroachment, and had Whitlock failed to remove it, Fresh Pond could have filed a motion in aid of litigant's rights to enforce the July 7 order. See R. 1:10-3.


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