On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-2864-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman and Simonelli.
Plaintiffs John P. Browne d/b/a J.P. Browne Trucking & Rigging and Lucy Browne*fn1 appeal from the June 15, 2009 Law Division order denying their motion to reinstate their complaint to the active trial calendar, and granting defendant Poly-Chem System Inc.'s (Poly-Chem) cross-motion to confirm a settlement between the parties. We affirm.
Poly-Chem purchased used industrial equipment from Sun Chemical. It hired J.P. Browne Trucking to remove the equipment from Sun Chemical's facility in Newark and deliver it to a site Poly-Chem specified. For reasons unclear from the record, J.P. Browne Trucking retained possession of some of the equipment.
J.P. Browne Trucking filed a pro se complaint in the Special Civil Part against Roland E. Stefandl d/b/a Poly-Chem, seeking damages for breach of contract. On August 17, 2005, the court dismissed the complaint with prejudice as to Stefandl. On March 27, 2006, J.P. Browne filed a motion to extend its time to file an appeal from that order. We denied the motion, and our Supreme Court denied J.P. Browne Trucking's petition for certification.
In October 2006, plaintiffs, represented by an attorney, filed a new complaint in the Law Division, naming Stefandl d/b/a Poly-Chem as the defendant. Prior to filing an answer, Stefandl filed a motion to dismiss the complaint with prejudice. The court granted the motion based on res judicata and collateral estoppel. The court also amended the complaint to name Poly-Chem as the defendant, and permitted Poly-Chem to file a responsive pleading. Poly-Chem filed an answer and counterclaim, seeking damages for breach of contract, malicious and intentional interference with Poly-Chem's business relationship with Sun Chemical, and conversion.
Plaintiffs did not file an answer to the counterclaim. As a result, the court entered default against them on July 16, 2007. Plaintiffs remained in default when the matter proceeded to binding arbitration in December 2007. Poly-Chem rejected the arbitrator's decision and demanded a trial de novo in January 2008.
On September 18, 2008, plaintiffs sought to file an answer to the counterclaim without leave of court. The court clerk would not file the answer, prompting plaintiffs to file a motion to vacate the default and file an answer out of time. The motion was initially returnable November 7, 2008, and adjourned to December 5, 2008. Trial was scheduled for December 8, 2008.
The court never considered the motion and the trial never occurred because on the day of trial, plaintiffs' attorney represented to the court verbally and in writing that the matter had settled. That same day, Poly-Chem's attorney forwarded a settlement agreement to plaintiffs' attorney, reflecting the parties' agreement to dismiss the complaint and counterclaim with prejudice and without costs, and for Poly-Chem to release any rights in or claim to the equipment plaintiffs had retained (the settlement agreement). On December 9, 2008, the court entered an order of disposition dismissing the case.
On December 11, 2008, plaintiffs demanded a release from Stefandl as part of the settlement. Poly-Chem refused, arguing that Stefandl was not a party to the action, and that he had no lawful claim to the subject equipment.
On December 15, 2008, Poly-Chem's attorney received the December 9, 2008 order of dismissal. Although the order indicated that the court had sent it to both parties, PolyChem's attorney nevertheless served a copy on plaintiffs' attorney on December 18, 2009.
No further communication between the parties or their attorneys occurred until May 12, 2009, when Poly-Chem's attorney received a copy of plaintiffs' motion to reinstate the matter to the active trial calendar. Plaintiffs claimed that no settlement had occurred ...