NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 26, 2012.
On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Bergen County, Docket No. L-065-12.
Jesse T. Wilkins argued the cause for appellant (Preston, Wilkins & Martin, LLC, attorneys; Mr. Wilkins, on the brief).
Allan Yallof, respondent, argued the cause pro se.
Before Judges Graves and Guadagno.
Plaintiff Edward Dingler appeals from a March 2, 2012 order dismissing his December 29, 2011 complaint against defendant Allan Yallof. For the reasons that follow, we reverse and remand.
On February 12, 2008, the parties entered into a settlement agreement to resolve all outstanding claims relating to their joint business venture. Under the agreement, defendant promised to pay plaintiff $90, 000 pursuant to a specific payment schedule. In addition, defendant executed a confession of judgment in favor of plaintiff, which provided in pertinent part as follows:
In the event that any of these payments are/were not made in a timely manner, as call[ed] for by schedule set forth in the agreement, then the defendant has authorized plaintiff to file this confession of judgment for $90, 000.00, together with interest from the date of the settlement agreement, and reasonable attorney fees.
When defendant defaulted on the required payments, plaintiff filed a complaint on February 1, 2010, to enforce the settlement agreement and confession of judgment. The complaint was dismissed for lack of prosecution on February 22, 2011, when plaintiff failed to appear for trial.
Plaintiff filed a second complaint against defendant dated June 17, 2011, again demanding the sum owed under the settlement agreement and confession of judgment. Defendant filed an answer together with a motion to dismiss the complaint. In a certification in support of his motion, defendant said plaintiff's first complaint was dismissed "for lack of prosecution, " and plaintiff's second complaint was barred by "the doctrine of res judicata and the entire controversy doctrine." Plaintiff's second complaint was dismissed on November 4, 2011. Although the order stated the motion was unopposed, it did not explain why the complaint was dismissed.
Plaintiff's third complaint, filed on December 29, 2011, also sought to enforce the parties' settlement agreement. Defendant filed an answer and counterclaim on February 1, 2012, together with a motion to dismiss plaintiff's complaint. Defendant asserted that plaintiff's complaint was barred by duress, fraud, unclean hands, estoppel, waiver, laches, accord and satisfaction, the entire controversy doctrine, collateral estoppel, and res judicata.
During oral argument on March 2, 2012, plaintiff's counsel explained that due to an "office failure, " he was not aware of the motion to dismiss plaintiff's second complaint until a decision "had already been rendered." In addition, plaintiff's counsel emphasized there was never a decision on the "underlying merits" of plaintiff's case. Following argument, the court granted ...