STATE OF NEW JERSEY v. FRANK A. DELUCCA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3129-10T1

STATE OF NEW JERSEY, by the

COMMISSIONER OF TRANSPORTATION,

Plaintiff-Respondent,

v.

FRANK A. DELUCCA and ANNA JEAN

DELUCCA,

Defendants-Appellants,

and

BOROUGH OF LINDENWOLD,

a municipal corporation of New

Jersey,

Defendant.

____________________________________

July 16, 2012

 

Submitted February 27, 2012 - Decided

 

Before Judges Grall and Alvarez.

 

On appeal from Superior Court of New

Jersey, Law Division, Camden County,

Docket No. L-4893-04.

 

Drinkwater & Goldstein, LLP, attorneys

for appellants (Stanley N. Drinkwater, III,

on the brief).

 

Jeffrey S. Chiesa, Attorney General,

attorney for respondent (Melissa H. Raksa,

Assistant Attorney General, of counsel;

Nonee Lee Wagner, Deputy Attorney General,

on the brief).

PER CURIAM

Defendants Frank A. and Anna Jean DeLucca own a residential corner lot situated at the intersection of United States Avenue and Egg Harbor Road in Lindenwold. In connection with a project to construct a new bridge in Lindenwold, the New Jersey Department of Transportation (DOT) filed a complaint and order to show cause under the Eminent Domain Act of 1971, N.J.S.A. 20:3-1 to -50, seeking to condemn a 583-square-foot portion of the DeLuccas' property and an easement affecting the remainder.

The DeLuccas initially opposed the taking and the amount of compensation, but the parties subsequently settled the matter with three agreements that collectively state the DeLuccas' consent to the taking, fix their monetary compensation for the property DOT acquired at $3000 and establish DOT's obligation to perform work to realign the driveway on the property as necessitated by the taking. The first of the agreements was signed in January, the second in March and the third in December 2005.

DOT completed the work in 2006 but not to the DeLuccas' satisfaction. While the record does not clearly indicate when the DeLuccas first alleged the work was deficient, there is no question that they had done so by September 2008.

This is the DeLuccas' appeal from the denial of a motion they filed in August 2010 to enforce the settlement; they alleged that DOT's work was not done in accordance with agreed-upon plans or in a workmanlike manner and sought the cost of correcting the deficiencies. The trial court determined that a provision of the March agreement, which is memorialized as paragraph six of the consent judgment fixing compensation, barred the DeLuccas' claims. Because the several agreements do not permit that interpretation, we reverse and remand for further proceedings.

The first of the three agreements, executed on January 11, 2005, provides:

1. The parties agree that this settlement addresses all issues of challenge to the Order to Show Cause by the property owner.

 

2. Property owner withdraws the challenge to the Order to Show Cause. . . . Assignment Judge agrees to proceed with entering the Order Appointing Commissioners.

 

3. The DOT agrees to submit a plan prepared by Jeffrey Konrad of Buchart Horn to the property owner to be reviewed by Frank Seney of Remington & Vernick. This plan will be a driveway schematic to realign the two remaining driveways on the property, will allow for additional landscaping plans, and close the remaining driveway access on United States Avenue.

 

4. The DOT will construct, plan, develop, be responsible for all costs, and all liabilities set forth in the right of entry.

 

5. The DOT will make available, after property owner approves the driveway schematic, personnel from the Bureau of Landscaping Architect Design to add a landscaping design.

 

6. The property owner agrees to execute with the DOT a supplemental right of entry setting forth the additional metes and bounds descriptions of the site mitigation parcel, costs to be paid by DOT, construction to be performed by DOT, and all liabilities set forth.

 

7. As of the date of this settlement, possession rests in the [DOT] of the taking filed on September 13, 2004[,] in Camden County Superior Court.

 

Three months later, the assignment judge issued an order appointing commissioners of compensation pursuant to N.J.S.A. 20:3-12(b), as contemplated by paragraph two of the settlement. But before the commissioners acted, the parties executed a consent order fixing just compensation, recognizing the DeLuccas' entitlement to funds and directing payment. The consent judgment, entered on March 18, 2005, awards and directs payment of $3000 to defendants with interest calculated as specified. Paragraph six of the order addresses other issues as follows:

6. This judgment resolves all issues raised in the complaint or claimed by defendants which arose or will arise out of this action, except as to any issues related to contamination, hazardous materials or solid waste, existing as of the date of vesting of title and possession pursuant to N.J.S.A. 20:3-19 . . . .

 

The judgment does not reference the work DOT agreed to do or the right of entry referenced in paragraphs three through six of the parties' January settlement agreement.

Nevertheless, the right of entry, the third agreement, was executed on December 29, 2005, nine months after entry of the consent judgment. By that time the DeLuccas' engineer, Frank Seney of Remington & Vernick, had reviewed DOT's plans for the work in accordance with paragraph three of the January settlement. Moreover, at that point the parties knew that the bridge project that DOT was undertaking would entail elevation of one of the two roads abutting the DeLuccas' property, which would make it more difficult for storm water to drain from their property. The right of entry incorporates the plans for the work. In pertinent part, the right of entry provides:

In cooperation with the State, the Owner grants permission to enter upon the listed parcel(s) for the purpose of reconfiguring of the driveways due to a taking of the property owner's driveway in condemnation. This includes tree removal, removal of existing landscape boundary and construction of new landscape boundary, repaving, resodding, minimal landscaping, and anywork associated with theattached plan. The Owner hereby acknowledges that it was already paid the condemnation award and that no further payment of funds will be made to the property owner concerning the condemnations proceedings.

 

Subject to the provisions of the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 et seq. and the availability of funds, [DOT] will be responsible for personal injuries and property damage caused by the negligent acts of [DOT] its employees and officials which occur on the property identified in this agreement. Any claim for such personal injury or property damage must be filed in accordance with N.J.S.A. 59:8-1 et seq.

 

. . . .

 

[(Emphasis added).]

 

DOT completed the work in 2006. According to a certification Mr. DeLucca submitted on this enforcement motion, DOT did not do the work in accordance with the agreed-upon plans and that noncompliance prevented proper drainage of water from his property. He alerted DOT to the water problem and DOT obtained "as-built" plans that it provided to the DeLuccas in December 2008. DOT submitted the as-built plan on its motion, but neither party has provided any document that we can identify as the as-built plan on appeal. The DeLuccas assert the as-built plan shows that the work was not completed as planned. DOT takes the opposite position.

As noted above, the DeLuccas filed their motion to enforce their agreement with DOT in August 2010. Some confusion about an adjournment of the return date led to entry of an order granting the motion as unopposed, which the court reconsidered on DOT's motion. The trial court then heard argument and delivered an oral decision granting reconsideration and denying the DeLuccas' enforcement motion. The trial court did not address the merits because it determined that the enforcement claim was barred by paragraph six of the March 2005 judgment, providing that the "judgment resolves all issues raised in the complaint or claimed by defendant which arose or will arise out of this action . . . ."

In interpreting a settlement agreement and the legal consequences flowing from it, we owe no "special deference" to the trial court's determination. Isetts v. Boroughof Roseland, 364 N.J. Super. 247, 253 (App. Div. 2003) (quoting Manalapan Realty,L.P. v. Twp. Comm.of Manalapan, 140 N.J. 366, 378 (1995)). A settlement agreement is a contract, and the "interpretation and construction of a contract is a matter of law for the court subject to de novo review." Kaur v. Assured LendingCorp., 405 N.J. Super. 468, 474 (2009) (quoting Spring Creek HoldingCo. v. Shinnihon U.S.A.Co., 399 N.J. Super. 158, 190 (App. Div.), certif. denied, 196 N.J. 85 (2008)).

The court's role in construing a contract is to discern the intent of the parties as demonstrated by "the conduct and language of the parties and the surrounding circumstances." Lawrencev. Tandy & Allen, 14 N.J. 1, 8 (1953) (quoting Atlantic NorthernAirlines, Inc. v.Schwimmer, 12 N.J. 293, 304 (1953)). Where parties have made several written agreements in connection with one subject or transaction, they are properly read as one with separate components that explain and amplify one another. Lawrence, supra, 14 N.J. at 6.

That approach is necessary here. The agreement the parties reached to settle this condemnation action had more than one component. Their solution to this dispute includes not only a monetary award for the section of the DeLuccas' property and the easement DOT acquired but also includes compensation of a different sort the work DOT would perform to address the "taking of the property owner's driveway in condemnation" acknowledged in the right of way. These distinct components of the settlement were addressed in three separate documents: the January settlement of DOT's condemnation complaint, which references the necessary work and right of entry as well as the compensation; the March consent judgment fixing compensation; and the December right of entry, which refers to the plans and work mentioned in the January settlement.

The trial court did not read these obviously related components of the transaction together, as required by the well-settled principles of contract interpretation set forth above. Instead, the court relied on one clause in the March judgment without considering its intended meaning in view of the other agreements "[t]his judgment resolves all issues raised in the complaint or claimed by defendant which arose or will arise out of this action." In effect, the court's reading negated DOT's obligation to realign the driveway and do landscaping in accordance with a plan agreeable to the DeLuccas, a promise critical to DOT's acquiring their agreement to the taking.

Moreover, the trial court's reading is not required by the language of paragraph six. The March judgment was entered in the portion of the condemnation action concerning the fixing of compensation for the taking. Thus, the clause is best understood to resolve any claim that defendants might later make for compensation beyond what they had agreed to accept. What the court overlooked is the related agreements indicating that what the DeLuccas agreed to accept included not only the $3000 but also the work DOT had agreed to do.

The court's interpretation of paragraph six is also inconsistent with the parties' conduct following entry of the March judgment. DOT did not walk away after the DeLuccas accepted $3000 for the taking in March. Instead, DOT undertook to complete the plans to do the work necessary to reconfigure the driveway and repair the site as it had agreed to do in January by working with the DeLuccas to develop an agreeable plan and by negotiating a right of entry. Those efforts continued until December when the right of entry was executed, and those efforts were followed by DOT's tender of performance.

In short, the DeLuccas' enforcement motion was not a new claim for additional compensation barred by paragraph six of the March judgment fixing compensation. It rested upon their allegation that DOT failed to live up to part of the bargain i.e., that DOT paid the money due but did not perform the work promised. In view of the several agreements and the parties' subsequent conduct, the language of paragraph six cannot be understood to leave the DeLuccas without the same right to enforce DOT's obligation to do the work as they would have to enforce DOT's obligation to pay the $3000 plus interest. See Isetts, supra, 364 N.J. Super. at 253-55.

In sum, the trial court's conclusion that paragraph six of the March judgment barred the DeLuccas' motion to enforce cannot be sustained. They are entitled to enforce DOT's promises to do work on the property in accordance with the plans to which they agreed and the terms of the subsequently drafted right of entry. Accordingly, we reverse and remand for a decision on the merits of that claim following such further proceedings as the trial court deems appropriate.1

In order to avoid any confusion based on an argument DOT raised in the trial court and again in modified form on this appeal, the provision of the right of entry referencing the Tort Claims Act (TCA) has no application to the prosecution of this motion to enforce a settlement concerning compensation due a property owner for a taking. GreenwayDevelopment Co., Inc. v.Borough of Paramus, 163 N.J. 546, 557 (2000) (so holding in a case involving inverse condemnation). The foundation for the rule stated in Greenway is the Just Compensation Clause of the Fifth Amendment. "That amendment provides that 'private property [shall not] be taken for public use, without just compensation'"; it "is self-executing, in the sense that such claims arise independently of the TCA." Id. at 557-58. Moreover, "'statutes [cannot] abrogate constitutional rights.'" Id. at 558 (quoting Lerman v. City ofPortland, 675 F. Supp. 11, 15 (D. Me. 1987), aff'd, 879 F.2d 852 (1st Cir.), cert.denied, 493 U.S. 894, 110 S. Ct. 243, 107 L. Ed. 2d 193 (1989)). Greenway's rationale is equally applicable to this claim for enforcement of an agreement concerning compensation for a taking and precludes DOT's reliance on the Contractual Liability Act, N.J.S.A. 59:13-1 to -10.

Reversed and remanded. We do not retain jurisdiction.

1 This decision should not be understood as expressing any opinion on the merits. The record provided on appeal does not permit us to state one based on an exercise of original jurisdiction pursuant to Rule 2:10-5, because it does not include the as-built plan that DOT submitted to the trial court or a self-explanatory plan describing the agreed-upon work. We note that there are apparent deficiencies in the documents defendants submitted on the motion. For example, defendants rely on an opinion of their engineer stated in a letter rather than in the form required by Rule 1:6-6. Those are matters the trial court can address on remand in considering whether to accept additional briefing and materials to reach a decision on the merits.