ROBERT BUCKINGHAM v. MICHAEL J. SAVIANO, JR

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                        SUPERIOR COURT OF NEW JERSEY
                                        APPELLATE DIVISION
                                        DOCKET NO. A-0189-16T1

ROBERT BUCKINGHAM,

        Plaintiff-Appellant,

v.


MICHAEL J. SAVIANO, JR.,

     Defendant-Respondent.
___________________________________

              Argued April 18, 2018 – Decided May 2, 2018

              Before Judges Nugent and Geiger.

              On appeal from Superior Court of New Jersey,
              Law Division, Monmouth County, Docket No. L-
              2187-15.

              Richard B.       Gelade    argued    the    cause    for
              appellant.

              Elias   Abilheira   argued  the   cause   for
              respondent (Abilheira & Associates, PC,
              attorneys; Elias Abilheira, on the brief).

PER CURIAM

        Plaintiff Robert Buckingham appeals from an August 5, 2016

order releasing escrowed funds to defendant Michael Saviano, Jr.

We affirm.
     The parties' eight-year dispute began in August 2009 when

they formed 3
411 Route 9, LLC, to purchase real estate on Route 9

North (the Property) in Freehold.      The parties obtained financing

secured by a mortgage for most of the purchase price and were each

to pay an equal share of the balance.      Each party owned a business:

Buckingham owned Freehold Auto Body, LLC, and Saviano owned MJS

Automotive, Inc.      Freehold Auto Body and MJS Automotive each

entered into a lease with 3
411 Route 9, LLC, to operate a business

on the property.

     The venture was doomed from the start.         Buckingham did not

pay his share of the balance of the purchase price.            It does not

appear either lessee remained current on the rent, yet the parties

paid their real estate taxes and managed to keep the mortgage from

going into foreclosure.    In February 2015, when the parties were

required to obtain refinancing or a new mortgage, they were unable

to amicably resolve their dispute.           Saviano filed a summary

dispossess   action   against   Freehold   Auto   Body   and   listed   the

Property for sale.     Buckingham responded by filing an order to

show cause and verified complaint against Saviano, seeking to

preclude him from taking any further steps to sell the Property

and prosecute the summary dispossess action.

     In July 2015, the parties dismissed the pending litigation

and entered into a "Stipulation of Settlement and Release" (the

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Stipulation).     In one of the Stipulation's prefatory paragraphs,

the parties declared:

                Through this Agreement, the Parties have
           fully compromised and settled all known claims
           and claims which should have been known
           between the Parties and those individuals also
           named in the Action. All Parties agree that
           all disputes between the Parties have been
           resolved per the terms of this agreement.

     The   Stipulation's   provisions     concerning     the   sale    of   the

property are not relevant to this appeal.             The parties included

provisions concerning adjustments to be made at settlement to

equalize   past   arrearages   incurred    by   the    parties   and     their

businesses.     In the Stipulation's tenth paragraph, the parties

agreed to the amount of rent and member contributions due 3
411 Route 9, LLC, from the parties' respective businesses.            Following

the specification of those amounts, the paragraph continued:

           Said amounts remain due and owing to the
           company, less a credit for any amounts paid
           by the members towards the monthly mortgage,
           tax and interest payments made by the members.
           An adjustment at closing will be made to the
           amount due to each member for any over/under
           payment in the total rents due without and
           [sic] interest adjustments or penalties
           applied to the rent over/under payments. This
           term shall be void upon breach of this
           agreement.

     The parties do not appear to dispute that the word "and" in

the phrase "without and interest adjustments or penalties" is a

typographical error.

                                   3                                   A-0189-16T1
       The Stipulation's thirteenth paragraph identified the amount

the parties contributed toward "litigation costs and acquisition

costs       to    purchase     the   [P]roperty"       and     characterized      the

contributions as loans to 3
411 Route 9, LLC. The specified amounts

were "subject to an accounting for the exact sums loaned."                        The

last sentence of paragraph thirteen stated, "[s]aid loans were

made at an interest rate of 8%, to be paid back by the company to

the members at closing, or at refinancing."                    The last paragraph

subject to this appeal, paragraph fifteen, states:

                      The parties shall select a neutral
                 accountant, agreed to by both parties, to
                 perform an accounting for the company and
                 adjustments of rents and amounts due to/from
                 the company in accordance with the terms of
                 this agreement and file the Company's 2015 tax
                 returns and any amended tax returns as may be
                 required.

       In    addition     to    some    intervening         motion    practice    and

litigation over the settlement agreement that is not relevant to

this    appeal,       Buckingham     challenged      the    neutral    accountant's

accounting.          Specifically,     he       contested    two   aspects   of   the

accounting:         first, the accountant compounded the eight percent

designated in paragraph thirteen as the interest rate on the

purchase money loans.            Buckingham argued the accountant should

have computed simple, not compound, interest.                  Second, Buckingham

claimed the accountant should have computed the interest not on


                                            4                                A-0189-16T1
the   loans    stipulated   in   the   same   paragraph,    subject   to   the

accounting, but rather on the difference by which the loans

exceeded other offsets, such as those for past due rent from the

parties' businesses.

      The trial court determined the accountant should compute

interest as simple interest, not compound interest, but also found

the accountant should compute interest on the amount of the

purchase money loans, without reducing the loans by any offsets.

Buckingham appealed from the implementing order.                 On appeal,

Buckingham raises a single point:

              WHETHER THE TRIAL COURT'S FAILURE TO MAKE
              FINDINGS OF FACT REGARDING THE PARTIES'
              UNDERSTANDING AND INTENT HOW INTEREST WAS TO
              BE CALCULATED PURSUANT TO THE JULY, 2015
              STIPULATION   OF   SETTLEMENT  AND   RELEASE
              CONSTITUTED REVERSIBLE ERROR.

      Having carefully considered this argument in view of the

submissions of the parties, the record, and controlling legal

principles,     we   have   determined     the   argument   to   be   without

sufficient merit to warrant discussion in a written opinion.                 R.

2:11-3(e)(1)(E).     We add only that the plain, unambiguous language

of paragraph thirteen identifies the amount of the "loans" and

states the loans were made at an interest rate of eight percent.

Nothing in the paragraph suggests the interest rate should be

calculated on some differential derived from an amalgam that


                                       5                              A-0189-16T1
disregards   the   existence   of   separate   legal   entities   of   the

individuals, 3
411 Route 9, LLC, and businesses owned by the

individuals.

     "[O]ur courts have refused to vacate final settlements absent

compelling circumstances.      In general, settlement agreements will

be honored 'absent a demonstration of fraud or other compelling

circumstances.'"     Nolan v. Lee Ho, 
120 N.J. 465, 472 (1990)

(quoting Pascarella v. Bruck, 
190 N.J. Super. 118, 125 (App. Div.

1983) (citation omitted)).      The parties settled their dispute by

vesting authority in a jointly selected and acceptable, neutral

accountant, to make the appropriate adjustments in accordance with

the Stipulation.    This is precisely what the accountant did.

     Affirmed.




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