DI LI v. GUO CHEN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6630-04T26630-04T2

DI LI,

Plaintiff-Appellant,

v.

GUO CHEN,

Defendant-Respondent.

____________________________________

 

Submitted May 15, 2006 - Decided August 8, 2006

Before Judges C.S. Fisher, Yannotti and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Chancery Division, Somerset County, General Equity, Docket No. C-12018-04.

Joseph & Smargiassi, attorneys for appellant (John Smargiassi, on the brief).

Berkowitz & Raiken, attorneys for respondent (Darlene D. Steinhart, on the brief).

PER CURIAM

Plaintiff commenced this action in General Equity seeking a resolution of their competing claims to real property in Basking Ridge. Because of the procedural setting in which we find this case, we need not discuss, except cursorily, the factual and legal contentions of the parties. Instead, because of the matter's procedural posture, we remand for clarification as to what the parties intended to accomplish by way of the October 31, 2005 consent order and the settlement agreement placed on the record on August 18, 2005.

On March 9, 2004, plaintiff commenced this action in General Equity seeking partition of a home in Basking Ridge, in which she, Dennis Lu, their children, and the defendant -- Dennis Lu's mother -- once resided. The convoluted circumstances surrounding the purchase of the home generated factual disputes concerning whether or to what extent defendant Guo Chen held a legal or equitable interest in the property. Guo Chen filed an answer and counterclaim disputing plaintiff's claims, the extent to which they contributed toward the purchase of the property, and the manner in which the property ought to be distributed.

The Basking Ridge property was sold on September 15, 2004, and the net proceeds of $575,000 were placed in escrow. The parties' disputes thereafter centered on how the net proceeds should be divided. Plaintiff moved for both a declaration of the legal standards to be applied at trial and, also, leave to file an amended complaint, which would add Waylon International, Inc., a New Jersey corporation, as a plaintiff. In an order entered on July 8, 2005, the trial judge denied plaintiff's motion, but also issued a written opinion declaring the parties to be tenants in common with equal ownership and holding that the principles described in Baird v. Moore, 50 N.J. Super. 156 (App. Div. 1958) and Esteves v. Esteves, 341 N.J. Super. 197 (App. Div. 2001) would contribute toward the ultimate disposition of the net proceeds. In addition, the trial judge rejected plaintiff's request for leave to amend her complaint despite plaintiff's contention that Waylon International had provided funds for the purchase of the Basking Ridge property.

Plaintiff filed a notice of appeal on August 22, 2005, seeking our review of the July 8, 2005 order. Plaintiff recognized that the July 8, 2005 order was interlocutory, as prominently mentioned in the body of her notice of appeal. However, she stated in her notice of appeal that the "remaining issues were disposed of by stipulation between counsel on August 12, 2005." We observe that the record on appeal contains a transcript of proceedings that occurred in open court on August 18, 2005, not August 12, 2005, but we assume this is the stipulation to which plaintiff referred in her notice of appeal.

The transcript contains the following relevant discussion that occurred in open court:

MR. SMARGIASSI: . . . The issues presented in the instant matter are settled as follows:

Number one, the escrow funds from the sale of [the Basking Ridge property] shall be split equally between the plaintiff and defendant.

Number two, this settlement is made with the understanding and condition that plaintiff has the right to appeal the July 8th, 2005 order and decision in this matter, and defendant agrees not to object to plaintiff's right to file said appeal.

Number three --

THE COURT: They're not waiving their right to file a responding brief. I want to be clear.

MR. BERKOWITZ: Just for the -- just procedural, your Honor.

THE COURT: Okay.

MR. SMARGIASSI: Number three, the parties further agree that the escrow funds shall remain in escrow pending any decision or outcome of the appeal, or if the time to appeal expires and no appeal was perfected, then said fund shall be released.

Number four, the time to file the appeal shall start from today.

MR. BERKOWITZ: Put the date on the record.

MR. SMARGIASSI: Which is August 12th, 2005.

THE COURT: I mean I can't control that. If you agree to that, I would think it would run from today. But if the Appellate Division says otherwise, they will say otherwise. I would think -- since it's interlocutory in a settlement, it works, but I can't say I know appellate procedure that well.

MR. SMARGIASSI: It is my understanding that prior to today that this was an inter-locutory order.

THE COURT: That's my understanding also.

MR. SMARGIASSI: And now the numbers are concluded, and there are no further issues --

THE COURT: Yes. I can't control the Appellate Division. That's all I'm saying.

MR. SMARGIASSI: And, number five, the appeal is limited to the record existing at the time of the decision on July 8th, 2005.

THE COURT: Okay. Anything else?

MR. BERKOWITZ: I agree with those terms, your Honor.

The proceeding ended shortly thereafter without any further discussion of the terms of the settlement.

It was not until October 31, 2005, however, that this settlement was memorialized in an order -- more than two months after the filing of the notice of appeal. The order indicates, as the transcript quoted above reveals, that the parties would equally divide the net proceeds but that the right to appeal was preserved and the proceeds would not be divided until our decision on appeal. The decretal paragraphs of the October 31, 2005 order state, in their entirety:

1. The escrow funds from the sale of [the Basking Ridge property] shall be split equally between the plaintiff and defendant.

2. This settlement is made with the understanding and condition that plaintiff has the right to appeal the July 8, 2005 order and decision in this matter, and defendant agrees not to object to plaintiff's right to file said appeal. Defendant is not waiving [her] right to file a responding brief.

3. The parties further agree that the escrow funds shall remain in escrow pending any decision or outcome of the appeal, or if the time to appeal expires and no appeal was perfected, then said funds shall be released.

4. The time to file the appeal shall start from the date of this order.

5. The appeal is limited to the record existing at the time of the decision on July 8, 2005.

6. This consent order settles the outstanding issues of the July 8, 2005 interlocutory order in this matter.

The August 18, 2005 settlement agreement and the October 31, 2005 order do not disclose what would occur upon our disposition of the appeal -- a silence pregnant with possibilities that may very well impact upon whether we should ultimately entertain this appeal on its merits. This silence compels our decision to remand for the limited purpose of having the scope and meaning of the settlement agreement clarified.

It is not mere curiosity that generates our decision. The nature of the settlement agreement directly impacts upon the appealability of the July 8, 2005 order. For example, we are uncertain about the meaning of paragraph 6 of the October 31, 2005 order because it would appear to indicate that the parties have finally and fully resolved the issues that the parties would have us review on appeal. Since the October 31, 2005 order contains the parties' agreement to equally divide the net proceeds, we are unclear as to what impact any decision we may issue regarding the July 8, 2005 order would have and whether the parties seek merely an academic or advisory opinion. In short, we are uncertain about what the parties intended to have occur following our disposition of this appeal. Do the parties have some other or additional agreement that has not been disclosed that would generate a different disposition of the net proceeds than is set forth in the October 31, 2005 order? In other words, does the parties' agreement to equally divide the net proceeds bind the parties regardless of the outcome of this appeal or is there some other agreement that turns on the outcome of this appeal? Or, did the parties agree to an equal division of the net proceeds in order to give the matter the appearance of finality in the trial court, while still harboring an intention to continue to litigate their disputes about this property should we reverse on the merits? Because we cannot clearly ascertain the nature of this settlement agreement and the parties' intentions, we remand for the limited purpose of clarifying this agreement and the October 31, 2005 order.

On remand, the trial judge should direct the parties to appear and clearly set forth on the record all the facets of their settlement agreement and their intentions regarding what was previously disclosed in open court on August 18, 2005 and in the consent order of October 31, 2005. The parties must declare what they anticipated would be their remaining rights and obligations following our disposition of the merits of the appeal. An order should be entered that memorializes these additional terms of the settlement agreement. These proceedings, culminating in the entry of the aforementioned order, must be completed within 45 days.

Following entry of the trial court's order, the parties shall file supplemental briefs addressing (1) whether all issues as to all parties have been finally resolved in the trial court; (2) whether the issues surrounding the July 8, 2005 order have been rendered moot by the parties' settlement, or, if not, why not; (3) whether, if all issues have not been finally resolved in the trial court, plaintiff requires our leave to appeal the July 8, 2005 order; and (4) if finality has not been achieved in the trial court, if the appeal has not been rendered moot by the settlement and if our leave to appeal is required, whether we should permit leave to appeal "as within time," R. 2:4-4(b),, R. 2:4-4(b), or deny leave and dismiss the appeal. The parties shall not address in these supplemental briefs the merits of the appeal except to the extent that such a discussion directly impacts upon the questions we have posed. Plaintiff shall file a supplemental brief no later than 30 days after entry of the trial court's order on remand; defendant shall file a responding brief no later than 20 days after the filing and service of plaintiff's brief. The parties will be advised whether oral argument will be required.

Remanded. We retain jurisdiction.

 

It is conceivable that the transcript erroneously set forth the date of the proceeding as August 18, 2005 since the parties, during this proceeding, referred to the date of the hearing as August 12, 2005. Although apparently trivial, this circumstance should be clarified on remand.

The potential obstacle to our consideration of this appeal presented by the fact that the October 31, 2005 order was entered at a time when the trial court did not have jurisdiction over this matter, see R. 2:9-1, is obviated by our remand to the trial court.

The Supreme Court recently declared that the Latin phrase "nunc pro tunc" should no longer be used in this context, and that the relief referred to in R. 2:4-4(b) should hereafter be referred to as leave to appeal "as within time." State v. Molina, __ N.J. __, __ n.1 (July 12, 2006).

(continued)

(continued)

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A-6630-04T2

August 8, 2006