On appeal from the Superior Court of New Jersey, Chancery Division, Passaic County, Docket No. C-112-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano and Waugh.
Plaintiffs Deb Associates and Joseph Rolandelli appeal from the Chancery Division's order denying their motion to enforce, or alternatively vacate, a settlement agreement previously reached with defendants, Forever Young Medical Daycare, LLC (Forever Young), Maria Kipnis, Marina Nabutovskaya, Mariya Tolcheva, Svetlana Kestel, Joseph Rodrigues, the Estate of Dean Ricciardi and Susan Ricciardi (collectively, defendants).
On August 10, 2005, plaintiff*fn1 filed its complaint alleging an interest in Forever Young pursuant to an agreement previously reached with Dean Ricciardi and the subsequent investment of significant sums of money in the senior day care centers operated by defendants. Plaintiff sought declaratory relief recognizing its ownership interest in the centers, the creation of equitable and constructive trusts, injunctive relief to block any sale by an individual defendant of his or her interests, compensatory and punitive damages, and counsel fees based upon defendants' intentional and wrongful conduct. Two years later, plaintiff amended its complaint to include a request for an accounting.
Trial commenced in February 2008 before now-retired judge Joseph J. Riva. The parties reached a settlement that was orally placed on the record on March 3. The terms of the settlement, as explained by plaintiff's counsel, provided that plaintiff would be given "the functional equivalent . . . of [five] percent in Forever Young," with "that interest . . . coming exclusively from . . . [Tolcheva]." The first $400,000 in distributions to plaintiff would "be allocated to the payment of a loan in that amount without interest." Plaintiff's counsel then continued:
[Tolcheva] currently has a plan to open a new center in New Brunswick. And when that center is -- when the entity is established [Deb] will [be] given a 20 percent interest of that center without having to pay anything in exchange for that 20 percent.
It's acknowledged that . . . currently the proposed members of that center will be . . . [Tolcheva] and someone else whose identity has not been told to us.
In the event that it's determined that that center will not be established and opened for whatever reason, and . . . [Tolcheva] has full discretion to do it or not do it and . . . she cannot be deemed in breach for not doing it, in that event, [DEB] will be given a[n] interest on the same basis in whatever center she does open where she is going to be an active principal as a substitute for the New Brunswick center.
Counsel confirmed these and other terms of the agreement with plaintiff, who acknowledged that he understood, that he had been involved personally in negotiating the settlement, that he was satisfied with the services of his attorney and that he was voluntarily settling the case. Plaintiff then engaged in this exchange with his attorney and the judge:
Plaintiff: If this deal from New Brunswick falls apart or she never opens another center, do I have a right to come in[to] [court] on that? That that wasn't lived up to?
Counsel: If she never opens another center? Plaintiff: Yup.
Counsel: No. You're taking a chance that she will open ...