PAUL IZZO v. IZZO REALTY ASSOCIATES, L.P., et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5495-04T55495-04T5

PAUL IZZO,

Plaintiff-Appellant,

v.

IZZO REALTY ASSOCIATES, L.P.,

CAROL GUTTERMAN, LOUIS IZZO,

and ELEANOR EDELMAN,

Defendants-Respondents,

______________________________________________________________

 

Submitted February 16, 2006 - Decided March 8, 2006

Before Judges Parker and King.

On appeal from the Superior Court of

New Jersey, Law Division, Middlesex County,

Docket No. L-2086-04.

Mandel & Peslak, attorneys for appellant

(Arthur M. Peslak, on the brief).

Respondents did not file a brief.

PER CURIAM

In this unopposed appeal, plaintiff Paul Izzo challenges an order entered on May 13, 2005 enforcing the terms of a settlement agreement entered into by the parties on the eve of trial. We affirm.

This case involves a dispute among siblings in a family partnership, Izzo Realty Associates, L.P. The parties settled the litigation on February 15, 2005 with an agreement placed on the record. The record reflects the following:

The parties will dismiss the claim with prejudice. All counterclaims and cross-claims will also be dismissed with prejudice.

The parties have agreed to the appointment of J.L. Krinsky, K-r-i-n-s-k-y, & Company, Inc., to serve as the real estate manager for the partnership property pursuant to a proposal of August 19, 2004, which is modified at Paragraph 2, the capital - the manager's authority to pay for repairs and alterations at $5,000.

Any repair or alteration in excess of $5,000 requires the unanimous consent of all the parties. Any dispute regarding whether the consent has been properly or improperly withheld will be referred to binding arbitration before Honorable Richard Cohen, retired, or another third party. But if the parties cannot agree upon an arbitrator by virtue of this agreement, Judge Cohen will be appointed, the cost to be equally split. There is no other modification to the management agreement.

The manager is instructed to have a reserve account of $20,000. That means that there will be at no time less than $20,000 in the partnership checking account. Any funds received through by the partnership through rent or other source in excess of the 20,000 will be used to pay the management fee, common area charges, real estate taxes, and other expenses incidental to the operation of the business of the partnership, such as a post office box or paper supplies or toiletries, things of that nature.

The manager will be instructed to have a budget for the payment of the real property taxes. For example, if the property taxes are assessed annually, . . . a one-twelfth annual amount will be set aside and collected as a portion of the rent and . . . will not be subject to any distribution on a monthly basis. After a three-month period of time, that money will then be used to pay the real estate taxes accruing.

Any funds in excess of what I've just outlined will be distributed to the partners equally and simultaneously to the payment of the management fee, common area charges, or the other incidental expenses.

The parties agree that all prior distributions made of partnership funds are approved and shall remain the property of the partner that receives such money. We understand that best efforts will be used to appoint Mr. Krinsky this week and, in connection with that, the portion of Judge Pullen's ruling, which prohibits any distribution of funds from the partnership accounts prior to the appointment of the manager will be honored.

There are monies, apparently, in a separate partnership account, which . . . account will be closed and the monies will be deposited into the prior partnership account. An accounting of that will be made in the form of a copy of the bank statement showing the money in and the money out, which will e given to Counsel for Eleanor, who will distribute the same to all the parties.

The parties specifically reserve all rights that they have with respect to other partnership matters, including the sale of the partnership property to the current proposed buyer. With that, I have nothing to add to the settlement.

. . . .

The parties do agree that Eleanor shall receive a fee classified as a management fee in the amount of $20,000, that Paul shall receive a fee classified as a manager's fee, in the amount of $7,500, that Louis and Carol jointly will receive a disbursement in the amount of $7,500 as a reimbursement for legal expenses, the monies to be paid at the time - at the earlier of the sale of the property or January 15, 2006.

Defendants Carol Gutterman and Louis Izzo moved to enforce the settlement agreement. They were represented by counsel who argued that "[t]here is no basis to deny the settlement," because plaintiff did not assert "fraud, coercion or undue influence"; rather, he "just want[s] to expand the terms of the agreement."

Plaintiff appeared pro se and argued that (1) defendants had breached the settlement agreement; (2) the settlement should be vacated and there should be a "full blown trial;" and (3) "the court could rule that the monies and this sticking point could be settled right now and that this money that's due the four people could be issued and paid."

Edelman also appeared pro se and stated:

The rent roll will not support that $35,000 award. $18,000 and change comes in on a monthly basis. $35,000 is due. They want all monies given out except the $20,000. Well, when only 18 comes in, you can't pay 35 out. It's a very simple math issue.

But Edelman presented no evidence to support her claim. She wanted the matter resolved that day because she had been burdened with "going back and forth to the management company several times with the books and records of the financial papers, and . . . took care of the banking issues." After hearing the arguments, the trial court concluded that the settlement agreement should be enforced.

In this appeal, plaintiff maintains that defendants Carol Gutterman and Louis Izzo did not comply with the settlement because they failed to sign the management agreement which plaintiff insists is integral to the disbursement of monies pursuant to the settlement agreement. Rather than seeking to enforce the settlement agreement by compelling them to sign the management agreement, however, he opposed defendants' motion to enforce and now seeks to have the agreement vacated and the matter proceed to trial.

As best we can determine from the record, the total amount in issue is $35,000. Plaintiff has not presented us with evidence of fraud or any other compelling basis upon which to vacate the settlement agreement. Indeed, it appears that plaintiff is actually seeking to enforce the agreement. Moreover, Edelman's assertion that the business does not generate sufficient funds to budget $20,000 per month in accordance with the agreement is not supported by any evidence. Absent such a showing, "there is a clear public policy in this state favoring settlement of litigation." Herrera v. Twp. of S. Orange Vill., 270 N.J. Super. 417, 424 (App. Div. 1993), certif. denied, 136 N.J. 28 (1994).

We have carefully considered the record in light of plaintiff's arguments and the applicable law, and we are satisfied that plaintiff's arguments lack sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

 

 

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A-5495-04T5

March 8, 2006