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Willingboro Mall, Ltd., A New Jersey Limited Partnership v. 240/242 Franklin Avenue

August 9, 2011

WILLINGBORO MALL, LTD., A NEW JERSEY LIMITED PARTNERSHIP,
PLAINTIFF-APPELLANT/ CROSS-RESPONDENT,
v.
240/242 FRANKLIN AVENUE, L.L.C., A NEW YORK LIMITED LIABILITY COMPANY; COLONIAL COURT APARTMENTS, L.L.C., A DELAWARE LIMITED LIABILITY COMPANY; FESTIVAL MARKET AT WILLINGBORO, L.L.C., A NEW JERSEY LIMITED LIABILITY COMPANY; ROY LUDWICK; AND NAMIK MARKE, DEFENDANTS-RESPONDENTS/CROSS-APPELLANTS.



On appeal from the Superior Court of New Jersey, Chancery Division, Burlington County, Docket No. F-12840-05.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued: February 3, 2011

Before Judges Cuff, Simonelli and Fasciale.

The opinion of the court was delivered by CUFF, P.J.A.D.

Plaintiff, Willingboro Mall, Ltd., appeals from an order enforcing a settlement reached during a mediation session conducted pursuant to Rule 1:40-4. It argues that the rule precludes enforcement of an oral settlement reached at a non-binding mediation session. It also contends the alleged settlement was the product of coercion by the mediator. We hold that a settlement reached during a Rule 1:40 mediation session may be enforced, when the parties, as in this case, waived the confidentiality provisions of the Uniform Mediation Act, N.J.S.A. 2A:23C-1 to -13, specifically, N.J.S.A. 2A:23C-4 and Rule 1:40-4(d). In this case, the record compiled over the course of a four day evidentiary hearing clearly supports enforcement of the oral settlement agreement reached at the mediation session. We, therefore, affirm.

Plaintiff and defendants 240/242 Franklin Avenue, L.L.C. (Franklin); Colonial Court Apartments, L.L.C. (Colonial); Festival Market at Willingboro, L.L.C. (Festival); Roy Ludwick; and Namik Marke are commercial real estate entities and persons involved in management of these entities. On February 2, 2005, plaintiff agreed to sell property designated Lot 7.01, Block 2 on the Tax Map of Willingboro Township to Festival, which transferred the property to Franklin and Colonial as tenants-in-common. Along with the contract of sale, Festival, Franklin and others executed an indemnification agreement in which they agreed to certain obligations. Among those obligations were certain fines and penalties imposed on the property by Willingboro Township. On August 22, 2005, plaintiff filed a foreclosure complaint based on the alleged default by defendants to satisfy the municipal fines and penalties. In their answer, defendants asserted the alleged default had not occurred; therefore, plaintiff was not entitled to foreclosure.

The parties were referred to mediation by the General Equity judge. The parties selected a retired Superior Court Judge as mediator, and attended a mediation session with their attorneys at the office of defendants' attorney on November 6, 2007. After several hours, the parties agreed to a settlement. On November 9, 2007, counsel for defendants wrote a letter to the General Equity judge to inform him that the parties had reached a settlement. The letter also related the following terms of the settlement:

1. Defendants, Festival Market, LLC (Festival) and/or 240/242 Franklin Avenue, LLC (Franklin) and/or Colonial Court Apartments, LLC (Colonial) jointly agree to pay plaintiff, Willingboro Mall, LTD., the sum of $100,000.00 in full and final settlement of the foreclosure matter . . . ;

2. Defendants, Festival, Franklin, Colonial, Roy Ludwick, . . . and Namik Marke agree to execute a general release in favor of plaintiffs, Willingboro Mall, LTD., Allen Plapinger and Scott Plapinger for consideration of One ($1.00) Dollar;

3. Scott Plapinger, Allen Plapinger, Willingboro Mall, LTD. and Willingboro Mall GP LLC agree to execute a general release in favor of Festival, Franklin, Colonial, Roy Ludwick, . . . and Namik Marke for consideration of One Hundred Thousand ($100,000.00) Dollars;

4. Willingboro Mall Ltd agrees to execute and file of record Discharge of Mortgage to discharge its mortgage of record on Lot 7.01, Block 2, on the township Map of Willingboro, more particularly described in the attached schedule A;

5. Willingboro Mall Ltd agrees to mark cancelled the Mortgage, Note and Indemnification Agreement between the parties;

6. Counsel in the above captioned foreclosure matter will execute a Stipulation of Dismissal with Prejudice and file of record upon tender of fully executed releases in exchange for the ...


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