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Sharon Fordi Dawidowicz, Administratrix of the Estate of Zenon E. v. Zenon E. Dawidowicz

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 22, 2011

SHARON FORDI DAWIDOWICZ, ADMINISTRATRIX OF THE ESTATE OF ZENON E. DAWIDOWICZ, PLAINTIFF-RESPONDENT,
v.
ZENON E. DAWIDOWICZ, JR. AND MARIA DAWIDOWICZ, DEFENDANTS-APPELLANTS.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-4838-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 4, 2011

Before Judges A.A. Rodriguez and LeWinn.

Defendants, the son and daughter-in-law of decedent, Zenon E. Dawidowicz, appeal from the July 21, 2009 consent order they entered into with plaintiff, decedent's widow and administratrix of his estate, in which they agreed to transfer ownership of 5940 shares of United Parcel Service (UPS) stock to the estate according to a timetable set forth in the order. Plaintiff contends defendants' appeal is moot, as they appeal a consent order they voluntarily signed. We concur; to put this matter to rest, however, we address defendants' contention that the trial judge erred in "including terms contrary to the settlement agreement placed on the record."

The pertinent factual background may be summarized as follows. There is no dispute that the estate is entitled to the UPS stock shares. Nonetheless, plaintiff was compelled to initiate litigation when defendants refused to turn over the stock voluntarily.

A settlement agreement resolving the litigation was placed on the record on April 27, 2009. All parties were represented by counsel. Plaintiff's attorney summarized the settlement as follows:

The defendants . . . have agreed to transfer to the plaintiff/estate 5940 shares . . . of UPS, United Parcel Service stock over a period of ten years, in equal amounts, i.e., 594 shares per year, beginning September 1, 2009, and continuing each succeeding year on September 1

If there's a default in the transfer of any of these share amounts, the plaintiff will be entitled to enter judgment for the . . . total number of shares, which is 5940, . . . at the value of UPS shares as of the date of death of the decedent, which was May 4, 2005, and that value was $71.61, less a credit for . . . the value of any shares transferred up to that point, pursuant to the settlement.

The complaint and counterclaim in this matter shall be dismissed with prejudice.

Plaintiff's attorney thereafter sent a stipulation of settlement as well as a consent order to defendants' attorney. Those two documents set forth the settlement placed on the record in open court, and included language obligating defendants to transfer the stock shares "and any future [s]tock split(s) associated with those shares . . . ." Defendants objected to this language, contending they were only obligated to turn over 594 shares of stock per year for ten years.

Plaintiff filed a motion to enforce the settlement. Judge Maurice J. Gallipoli held a hearing on June 30, 2009. During oral argument, the judge commented that defendants had received a benefit from the ten-year timetable, rather than having to transfer immediately the entire 5940 shares to which the estate was entitled; the judge stated that "the deferral of the payment was to benefit [defendants]. . . . [T]hey shouldn't be getting two benefits." The judge added:

A deferral over ten years where they keep all the dividends, and they also keep the splits that come when the stock should . . . have been in the hands of the estate a long time ago. This makes absolutely no sense to me the argument that's being made.

The judge noted that the estate was "supposed to have" all 5940 shares "by virtue of the settlement[,] on the date of death, so that [the estate] would basically be entitled to reap the benefit of the splits that occurred."

Defendants thereupon withdrew their objection to the language regarding the stock splits. They signed the stipulation of settlement, which was filed on July 21, 2009. Their attorney signed the consent order, which was filed on the same date.

In light of this record, we are satisfied that defendants' contention is not cognizable on appeal. "It is . . . clear that an 'order . . . consented to by the attorneys for each party . . . is . . . not appealable.'" N.J. Sch. Constr. Corp. v. Lopez, 412 N.J. Super. 298, 308 (App. Div. 2010) (quoting Winberry v. Salisbury, 5 N.J. 240, 255, cert. denied, 340 U.S. 877, 71 S. Ct. 123, 95 L. Ed. 638 (1950)). "This is because the rule allowing an appeal as of right from a final judgment contemplates a judgment entered involuntarily against the losing party." Id. at 308-09.

Defendants withdrew their objection to the stock-split provision in the stipulation of settlement and the consent order. They did not, therefore, reserve their right to appeal that provision. Id. at 309. See Pressler & Verniero, Current N.J. Court Rules, comment 2.2.3 to R. 2:2-3 (2011) ("[i]f . . . the consent judgment reserves a single issue for appeal, the settlement of all other issues will not preclude appeal of the trial court's order on the reserved issue").

The appeal is dismissed as moot.

20110722

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