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Johnson Specialized Transportation, Inc v. Donald Metzger; Route 295 Burlington Land Trust; Bernie Enterprises

August 24, 2011

JOHNSON SPECIALIZED TRANSPORTATION, INC., PLAINTIFF-APPELLANT/ CROSS-RESPONDENT,
v.
DONALD METZGER; ROUTE 295 BURLINGTON LAND TRUST; BERNIE ENTERPRISES, INC.;*FN1 AND EDWARD H. GEORGE, INDIVIDUALLY, JOINTLY AND SEVERALLY, DEFENDANTS-RESPONDENTS/CROSS-APPELLANTS.



On appeal from the Superior Court of New Jersey, Chancery Division, Burlington County, Docket No. C-49-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 2, 2011

Before Judges Sapp-Peterson and Simonelli.

Plaintiff leases property owned by defendants. Plaintiff appeals from the trial court order denying its motion to enforce a settlement agreement. Defendants cross-appeal that portion of the trial court's March 25, 2010 order preventing plaintiff's eviction from the premises until defendants reimburse plaintiff for its cleanup costs. Plaintiff's response to the cross-appeal was untimely filed and no motion for leave to file out of time was ever filed. We now dismiss this appeal because it is an appeal from an interlocutory order and leave to appeal was never sought.

A recitation of the procedural background of this case is illustrative of why dismissal, rather than granting leave nunc pro tunc for interlocutory relief, is appropriate. In 2002, plaintiff entered into an agreement to lease defendants' property. In 2005, defendants initiated eviction proceedings in the Special Civil Part. The matter was transferred to the Chancery Division where, on June 28, 2005, the parties appeared before the court and reported they had reached a settlement. Plaintiff's counsel placed the terms of the settlement on the record. Those terms included: (1) dismissal of the eviction proceedings; (2) release of approximately $49,000 being held in escrow to defendants; (3) purchase of the property by plaintiff for $750,000, of which $100,000 would be set aside for plaintiff's cleanup of the property; (4) requiring defendants to obtain "a letter of no further applicability in connection with [Industrial Site Recovery Act (ISRA), N.J.S.A. 13:1K-6 to -14] issues"; and (5) closing on the sale of the property to occur within approximately 120 days. Additionally, plaintiff's counsel placed on the record that the settlement called for the cleanup and necessary certifications [to] be obtained within the 120-day period.

In the event that it needs to run over, the seller has agreed to allow the buyer to continue to rent at the increased rental of $6826.73[,] which is what the mortgage would be if there had been a closing, but the party's intent is to close within the 120 days or at the 120-day.

Further, the settlement required that plaintiff's attorney draft a contract of sale. Finally, plaintiff's counsel advised the court that "this is a complete settlement between the parties on all of the issues so that the case can be dismissed subject only to performance of these items that we've agreed to." The court accepted plaintiff's counsel's representations and advised that the matter would be "dismissed, but in the event that there's non-performance[,] it can be reinstituted." Plaintiff's counsel indicated that the parties wanted to submit a stipulation to the court but stated: "I know that you'll probably dismiss it from the docket today subject to a more specific stipulation[.]"

The court entered an order dismissing the matter through settlement the next day. The Stipulation of Dismissal was apparently not forthcoming, leading defense counsel to forward correspondence to plaintiff's attorney on August 17, 2005, directing "that all clean-up work is to cease and desist on this date, and there is to be no further work performed on the property until such time as the Stipulation of Settlement is submitted to us for our consent."

The parties, by consent, filed an "ORDER FOR DISMISSAL WITH STIPULATIONS" on August 7, 2007. The order contained all of the provisions that had been placed on the record by plaintiff's counsel on June 28, 2005, including the language of the court that "this case is dismissed subject to performance, but in the event of non-performance can be reinstituted[.]" The body of the order is dated August 7, 2005, but the filing date on the order is stamped "August 7, 2007."

In January 2009, plaintiff filed a motion to enforce the settlement and to compel defendants to sell the property. Defendants filed a cross-motion to terminate plaintiff's lease. The court conducted oral argument on the motion, during which plaintiff's counsel contended plaintiff had undertaken the remediation of the property in accordance with the agreement, was entitled to certain credits, and was also entitled to enforcement of the settlement agreement the parties had entered in August 2007.

Defense counsel argued that the purchase option was limited in time and that contrary to plaintiff's counsel's representation, the actual date of the order stipulating the dismissal of the action, with conditions, was August 7, 2005. Although the court advised counsel that it would reserve decision and issue a written decision, it did not do so. Rather, it entered an order, dated May 20, 2007, granting plaintiff's motion:

1. The Order of Judge Ronald E. Bookbinder dated August 7, 2007 is hereby enforced; and

2. Defendants shall immediately take steps to produce the ISRA letter of non-applicability as required by paragraph 4 of the Order ...


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