Hagrish v. Olson

Page 133

254 N.J.Super. 133

603 A.2d 108

John HAGRISH, an individual, and Sally J. Sohigian (formerly "Hagrish"), an individual, Plaintiffs-Appellants, v. Edwin OLSON and Johanna Olson, husband and wife, the Estate of Johanna Olson, deceased, Michael F. Riccardelli, an individual, Frank W. Gasiorowski, an individual, and John D DeMassi, an individual, (f/k/a "Riccardelli, Gasiorowski &amp DeMassi"), Defendants-Respondents.

Superior Court of New Jersey Appellate Division.

Submitted Nov. 4, 1991.

Decided Feb. 25, 1992.

Donald P. Fedderly, Long Valley, attorney for appellants.

Howard C. Trueger, Parsippany, attorney for respondents Edwin Olson, Johanna Olson and the Estate of Johanna Olson; Voorhees & Acciavatti, Morris Plains, attorneys for respondents Riccardelli, Gasiorowski and DeMassi (Robert W. McAndrew, Morris Plains and Howard C. Trueger, Parsippany, of counsel and on the joint brief).

Before Judges PETRELLA, R.S. COHEN and ARNOLD M. STEIN.

The opinion of the court was delivered by

ARNOLD M. STEIN, J.A.D.

Plaintiffs appeal the Law Division's order denying their motion to enforce a claimed settlement with defendants. The trial judge concluded that there "never was a binding contract to settle this case...." We reverse and remand for entry of an order enforcing the settlement and dismissing the case.

Plaintiffs purchasers sued defendants sellers, the Olsons, and the Olsons' law firm, Riccardelli, Gasiorowski and DeMassi, seeking return of a $31,990 deposit they had made on the house sold them by defendants. The case went to trial and a jury returned a verdict in plaintiffs' favor, finding by special interrogatory that plaintiffs did not breach the real estate contract.

The trial judge set aside the verdict and granted defendants' motion for judgment notwithstanding the verdict pursuant to R. 4:40-2(b).

Before plaintiffs filed an appeal from this ruling, the attorneys for the parties exchanged communications which they and their clients obviously thought resolved the matter. The terms were simple: defendants would pay plaintiffs $7,000; in return, plaintiffs would abandon the appeal.

On June 25, 1990, plaintiffs' lawyer, Donald P. Fedderly, wrote defendants' lawyers (Robert W. McAndrew of Voorhees & Acciavatti for the lawyers and Howard C. Trueger for the Olsons):

This will confirm our settlement discussions of last week in which it was agreed that the captioned matter would be settled by your clients paying to John Hagrish the total sum of $7,000.00.

On June 26, Trueger responded to Fedderly:

This letter will confirm that the above referenced matter has been settled whereby defendants shall pay to the plaintiffs the sum of $7,000.00.

....

... We, Mr. McAndrew and I, will need general releases from Mr. Hagrish and Ms. Sohigian before disbursing the settlement funds.

Things then became a little testy. On the same day, Trueger wrote to the trial judge:

I understand that Donald P. Fedderly, Esq. has requested the Court not to execute the Order Directing the Clerk of the Superior Court of New Jersey to Disburse Funds on Deposit submitted to you by letter dated June 22, 1990, until he has received a letter from both Mr. McAndrew and me confirming the settlement amount. While the case has in fact been settled, I am of the opinion that Mr. Fedderly's request to the Court is improper, if not insulting. I hereby request that the Order be signed, filed, and a copy be sent to this office without regard to Mr. Fedderly's request. [emphasis added].

On July 2, McAndrew wrote Fedderly:

At this time, please be advised that I am in accord with the statements made in Mr. Trueger's letter of June 26, 1990 to the effect that we will require general releases from John Hagrish and Sally J. Sohigian in favor of Riccardelli, Gasiorowski and DeMassi, attorneys at law and Michael Riccardelli, an individual, Frank W. Gasiorowski, an individual, and John DeMassi, an individual. As soon as I have received properly executed releases, I will arrange with Mr. Trueger to forward the settlement draft directly to your attention made payable to John Hagrish and Sally J. Sohigian and Fedderly and Shaw, attorneys. [emphasis added].

In the meantime, on June 28, Fedderly had written Trueger and McAndrew:

I have drafted Releases for the signatures of Sally Sohigian and John Hagrish, and am in the process of obtaining same. Kindly prepare reciprocal Releases for your clients' execution so that we may exchange same sometime next week.

On July 16, McAndrew responded to Fedderly's letter with a copy to Trueger:

In making an order to settle this case on behalf of my clients, it was never contemplated that my clients would execute releases in favor of your clients. Therefore, I will not be asking them to execute releases in favor of your clients as any part of this settlement.

In November 1990, long after plaintiffs' time for appeal from the judgment notwithstanding the verdict had expired, Fedderly moved before the Law Division to enforce the $7,000 settlement. On November 27, Trueger wrote Fedderly, with copy to McAndrew:

We received your motion papers on November 23, 1990, more than five (5) months after we asked you for a simple general release from John Hagrish and Sally Sohigian. I have not received that release. There is no question that we always requested a release from the plaintiffs from the outset on behalf of Mr. Olson. If your clients cannot or will not provide a release, please let me know, in writing.

We do not think this case needs another motion.

If we do not receive the release from you by Wednesday, November 28, 1990, we will resist your motion.

We disagree with the trial judge's conclusion that there was never a binding contract of settlement. The parties had reached a settlement agreement with certain and specific terms: defendants would pay plaintiffs $7,000 and plaintiffs would not pursue their appeal of the judgment notwithstanding the verdict. The case would be over when the parties fulfilled these simple conditions. Absent unusual circumstances, the courts should enforce executory agreements to settle litigation....