THE HOUSING AUTHORITY CITY OF NEW BRUNSWICK v. FREDERICK W. HALELUK

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3536-03T53536-03T5

THE HOUSING AUTHORITY OF THE

CITY OF NEW BRUNSWICK, Acting

as Redevelopment Agency,

Plaintiff-Respondent,

v.

FREDERICK W. HALELUK,

Defendant-Appellant,

and

UNITED TRUST BANK, formerly

known as UNITED NATIONAL BANK;

NEW MILLENNIUM BANK; THE CITY

OF NEW BRUNSWICK; AMERICAN TAX

FUNDING, LLC; THE STATE OF NEW

JERSEY; MR. ICE BUCKET, INC.,

possibly d/b/a SHELTON WARE;

VINYL MAID SWIMMING POOLS; and

PAPERWORKS,

Defendants.

_______________________________________

 

Argued December 14, 2005 - Decided January 20, 2006

Before Judges Fall, Parker and Grall.

On appeal from Superior Court of New

Jersey, Law Division, Middlesex County,

L-2542-02.

John J. Reilly argued the cause for appellant (Farer Fersko, attorneys; Mr. Reilly, of counsel and on the brief).

Marvin J. Brauth argued the cause for

respondent (Wilentz, Goldman & Spitzer,

attorneys; Mr. Brauth and Yvonne Marcuse,

of counsel and on the brief).

PER CURIAM

Defendant Frederick W. Haleluk appeals from a final judgment in a condemnation case and an order denying his motion for a new trial. The judgment requires plaintiff, the Housing Authority of the City of New Brunswick, to pay $795,000 as just compensation for the condemned property. He also appeals from a post-judgment order entered on limited remand from this court. That order memorializes the trial judge's finding that plaintiff and the defendants (Frederick W. Haleluk and his business entities) reached an enforceable agreement settling their disputes related to the condemnation while this appeal was pending.

Because the post-judgment determination is supported by substantial credible evidence in the record and is consistent with controlling legal principles, we affirm and remand for enforcement of the agreement. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974). That disposition moots defendant's appeal from the final judgment and the order denying his motion for a new trial.

The procedural history and facts relevant to the issue we address on appeal are as follows. On March 6, 2002, plaintiff filed a complaint commencing proceedings to condemn defendant's property, which is located at the corner of Jersey Avenue and Handy Street in New Brunswick. By order dated August 5, 2002, the Law Division approved the condemnation and appointed commissioners. On December 11, 2002, the commissioners fixed just compensation at $640,000. Defendant appealed to the Law Division, and the matter was tried to a jury, which fixed just compensation at $795,000. Final judgment was entered on January 22, 2004. On February 20, 2004, the trial judge denied defendant's motion for a new trial. Defendant filed a notice of appeal on March 5, 2004.

On April 22, 2004, the parties participated in a settlement conference. By letter dated June 4, 2004, defendant's attorney advised this court that defendant and plaintiff had reached a "global settlement" and asked to dismiss his appeal.

On June 11, 2004, defendant's attorney sent a proposed consent order incorporating the parties' agreement to plaintiff's attorney. Under the terms of that order, plaintiff waived all claims against defendant for rent and any costs of environmental investigation or remediation related to the property. Plaintiff also agreed to pay defendants an additional $105,000 in "relocation assistance and payments as a result of the Housing Authority's acquisition" of the property. The additional compensation was to be paid within thirty-five days of entry of the order, and the proposal provided for interest at the rate of four percent if payment was not made within the time specified.

On June 17, 2004, plaintiff's attorney responded with proposed revisions to the consent order. The revisions were limited to the following: a reference to defendant Frederick W. Haleluk personally as one of the Haleluk defendants whose claims would be settled by payment of $105,000; inclusion of the City of New Brunswick and plaintiff's redeveloper as entities against whom the Haleluk defendants' claims for "relocation assistance and payments" would be resolved; and an agreement to sign a release.

On July 6, 2004, defendants' attorney opposed the addition of the City of New Brunswick and the redeveloper as entities against whom the Haleluk defendants' claims for "relocation assistance and payments" would be resolved and proposed to shorten the time for payment from the thirty-five days defendants initially proposed to ten days. Plaintiff subsequently withdrew its demand to include the City of New Brunswick within the terms of the consent order and release and proposed payment within fifteen days. Thereafter, negotiations over the form of the consent order broke down.

Defendant Haleluk moved to reinstate his appeal, and plaintiff opposed that motion asserting that the matter had been settled. We reinstated the appeal and remanded the matter to the trial judge for a determination as to whether the parties had reached a settlement.

On December 3, 2004, Judge Hurley heard argument and reviewed the draft consent orders and correspondence the parties had exchanged prior to the breakdown of negotiations. Based upon findings and legal conclusions set forth in a letter decision dated December 17, 2004, Judge Hurley determined that the parties had reached an enforceable agreement to settle this case.

Judge Hurley found that the parties had resolved all issues related to plaintiff's acquisition of defendants' property, including all disputes about compensation, relocation assistance, rent and environmental costs. He further found, based upon the initial proposed order submitted by defendant's attorney, that the settlement included claims by and against the plaintiff's redeveloper. Based upon plaintiff's admission, Judge Hurley found that the agreement did not extend to any claims that defendants might have against the City of New Brunswick. He further found that execution of the release plaintiff requested, as modified to eliminate reference to matters involving the City, was implicit in the agreement.

Judge Hurley determined that defendants could not avoid the agreement because of disputes that arose during the process of reducing it to a consent order. Relying upon Lahue v. Pio Costa, 263 N.J. Super. 575, 595 (App. Div.), certif. denied, 134 N.J. 477 (1993), he reasoned that the parties had agreed upon the essential terms of a settlement that was enforceable. The judge's findings are supported by the record and we affirm. R. 2:11-3(e)(1)(A).

We add only that defendant's claim that time was a material term upon which the parties could not agree is belied by the terms of the initial proposed consent order that was circulated by his attorney. The initial proposal by defendants provided for payment within thirty-five days of entry of the order and specified receipt of interest as defendants' only remedy for delay in payment.

 
The determination that the parties reached an enforceable agreement is affirmed, and the matter is remanded for enforcement. We do not retain jurisdiction.

Defendant Haleluk is the only defendant who filed an appeal.

(continued)

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A-3536-03T5

January 20, 2006