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Schiavo v. Baron

October 16, 2009

CHARLES SCHIAVO, PLAINTIFF-APPELLANT,
v.
JEFFREY I. BARON, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Chancery Division, Burlington County, Docket No. C-141-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 22, 2009

Before Judges Wefing, Grall and LeWinn.

Plaintiff appeals from a trial court order granting summary judgment to defendant and dismissing plaintiff's complaint with prejudice. After reviewing the record in light of the contentions advanced on appeal, we affirm.

This litigation has its genesis in plaintiff's unsuccessful efforts to develop a parcel of land more than thirteen acres in size in Mount Laurel. It is necessary to set forth the history of those efforts to understand the context in which this appeal arose.

The parcel in question was originally owned by Thomas Patsaros. Plaintiff and Patsaros formed New Jersey Star Properties ("NJ Star"), a limited liability company, for the purpose of developing the land. Schiavo, Patsaros and NJ Star entered into a joint venture agreement under which the property would be held for the benefit of the joint venture.

The relationship between Schiavo and Patsaros eventually deteriorated to the point that Schiavo commenced suit, naming Patsaros and NJ Star as defendants and filing a lis pendens against the property. Schiavo contended that Patsaros was not making the appropriate financial contributions to the joint venture, and in his complaint, Schiavo sought authorization to pursue the approvals necessary to develop the site and to prevent Patsaros and NJ Star from interfering with his efforts. Patsaros and NJ Star opposed Schiavo's efforts in this regard and filed a counterclaim against him. This litigation naturally brought development efforts to a halt.

On November 26, 2003, the trial court entered an order in that litigation which recited that it had "concluded that the parties have reached a dead lock [sic] which jeopardizes the potential value of the subject real estate and the economic return to the parties" and that the appointment of a Special Master "would advance the interests of all the parties...." The order appointed defendant Jeffrey Baron, a New Jersey attorney who concentrated his practice in the area of land use law, as that Special Master and authorized him "to file the necessary applications, procure the necessary development plans, reports, studies, investigations, etc. from the professional engineer and other professionals originally utilized by [NJ Star]...."

The order also contained the following provisions:

Any third party offers to purchase the Property shall be submitted to the Special Master. The parties are encouraged to obtain offers from third parties to maximize the ultimate financial gain to the parties. The Special Master shall review any offers, conduct any negotiations deemed necessary in the Special Master's opinion, consult with the attorneys for the parties as to the various offers and, if appropriate, pursue a written agreement of sale for the purchase of the Property. Any such agreement of sale shall be submitted to this Court for approval so as to permit the parties an opportunity to comment upon or object to any proposed purchase of the Property.

If a willing third party purchaser submits a written offer on terms and conditions recommended by the Special Master and accepted by the parties, the Property shall be sold and each party shall be entitled to reimbursement from the proceeds of the sale for the costs and expenses allowed by the Court after reviewing the accountings and the parties' one-half (1/2) expenditure of expenses and fees pursuant to this Order. Following the sale of the Property, each party shall be entitled to apply to this Court for such reimbursement of expenses. The balance of the purchase price for the Property, after the aforementioned reimbursement of expenses pursuant to this Order, shall be escrowed in an interest-bearing trust account for the interests of the parties as determined by a final adjudication of the Court in this matter.

In addition, the order specifically authorized defendant to remove the lis pendens that plaintiff had filed.

Prior to Baron's appointment, plaintiff had filed an application with the Mount Laurel Planning Board for major subdivision approval of the property. In December 2003, shortly after Baron's appointment, the municipal planning board determined that the application was incomplete as submitted and thus could not be considered. In addition, the Burlington County Planning Board in January 2004 rejected the application plaintiff had filed with it for approval because it was deemed technically ...


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