GALLAGHER et al v. BOROUGH OF SEASIDE PARK et al

Filing 31

MEMORANDUM OPINION filed. Signed by Magistrate Judge Tonianne J. Bongiovanni on 12/14/2015. (kas, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
EDWARD GALLAGHER, et al.,

Civil Action No. 10-5811 (AET)

Plaintiffs,
v.

MEMORANDUM OPINION

BOROUGH OF SEASIDE PARK, et al.,
Defendants.

BONGIOVANNI, Magistrate Judge
1. Introduction
Before the Court is the Defendants’ Borough of Seaside Park, and others, (singularly, the
“Borough” and collectively, the “Defendants”) Motion to Enforce a Settlement.
No. 25].

[Docket Entry

The Defendants wish to enforce a settlement-agreement allegedly reached by the parties

between May of 2013 and October of 2013. The Plaintiffs, Edward Gallagher and Edith Gallagher
(collectively, the “Gallaghers” or “Plaintiffs”) oppose Defendants’ Motion, arguing that there was
no settlement-agreement reached between the parties.

[See Generally Docket Entry No. 27].

Alternatively, they argue if there was a settlement, the easement contained in the settlement cannot
be imposed on the Plaintiffs because it is barred by the Statute of Frauds.

[Docket Entry No. 27].

The Court considered the Motion without oral argument pursuant to L.Civ.R. 78.1. After
fully considering all papers submitted in support of, and in opposition to the Motion, and for the
reasons stated more fully below, Defendants’ Motion to Enforce a Settlement is hereby
GRANTED.
2. Procedural and Factual Background
1

The lawsuit underpinning the alleged settlement-agreement was filed on November 9, 2010
and concerns the Borough of Seaside Park’s allegedly illegal removal of “no-trespassing” signage
posted by the Plaintiffs on a piece of their riparian land running adjacent to the K Street bulkhead,
in the southeast corner of an alcove along the banks of the Barnegat Bay, in Seaside Park, New
Jersey. [See generally, Docket Entry No. 25.]

The riparian land owned by the Plaintiffs abuts

the southwest corner of the Plaintiffs’ home and attached marina, and runs the length of the
adjoined K Street bulkhead, for a distance of 1100 feet.

[Docket Entry No. 27, p.5].

The

Plaintiffs have owned their property in Seaside Park since 1994, prior to the development of the K
Street bulkhead.

[Docket Entry No. 27-8].

Also since 1994, the Plaintiffs began leasing the use

of their dock and boat slips to the owners of small boats and other watercraft.

[Docket Entry No.

27, p. 5].
However, in 2002, the Borough made improvements to the area of K Street contiguous
with the southern boundary of the Plaintiffs’ property.

[Docket Entry No. 27, p. 5].

Specifically, the Borough developed the residential area immediately south of K Street, and
purchased a piece of the Plaintiffs’ property, approximately 3 x 1100 feet in size, to install the K
Street bulkhead.

[Docket Entry No. 27, p.5].

After the completion of the improvements in

2003, the Plaintiffs alleged the public would regularly cast fishing lines and crab traps into the
riparian area along the K Street bulkhead, fouling the propellers of watercraft that were launched
from the Plaintiffs’ dock.

[Docket Entry No. 27, p.5].

To alleviate this problem, the Plaintiffs and the Borough entered into a temporary
agreement between June 26, 2003 and September 14, 2003 to curtail the public’s use of the K
Street bulkhead for fishing and crabbing.

[Docket Entry No. 27, ex. C].

The agreement

specified the Borough would only allow the public to fish and crab in the area between two non2

public “buffer zones.”

[Docket Entry No. 27, ex. C]. The first buffer zone extended 100 feet

outward from the endpoint of the Plaintiffs’ dock, and the second buffer zone extended 50 feet
inward from the West end of the K Street Bulkhead.

[Docket Entry No. 27, ex. C]. Similarly,

the Borough agreed to place the appropriate “no-fishing or crabbing” signage in these buffer zones
to notify the public of this restriction.

[Docket Entry No. 27, ex. C].

The Borough also

subjected the permissible fishing and crabbing area to an ordinance preventing fishing and
crabbing after 9:00 p.m. and before 9:00 a.m.

[Docket Entry No. 27, ex. C].

The agreement

last specified that the Plaintiffs: 1.) Were not to post their own signage; 2.) Would remove any
pilings or poles placed in the riparian area; 3.) Would receive a $450.00 reimbursement for the
survey costs to demarcate the buffer zones; and 4.) Would generally cooperate with the Borough
to maintain the bulkhead and adjoining areas through the duration of the agreement.

[Docket

Entry No. 27, ex. C].
Although this temporary agreement was intended to end on September 14, 2003, the terms
of the agreement apparently continued to be enforced.

[Docket Entry No. 27, ex. D].

On

November 8, 2007 the Plaintiffs wrote the Borough a letter complaining that the temporary
agreement had not fully solved the fouling of propellers, and introduced three additional concerns.
[Docket Entry No. 27, ex. D].

Specifically, the Plaintiffs complained that: 1.) They had seen men

urinating into the bay; 2.) Crabbing and fishing activities were occurring during the hours
prohibited by the ordinance; and 3.) The public was using the bulkhead area as a park, and allowed
their children to litter in the bay.

[Docket Entry No. 27, ex. D].

To remedy the problem, the

Plaintiffs requested the Borough eliminate the bulkhead area for crabbing and fishing use
altogether, and/or to move these public uses to a nearby marina area, away from the Plaintiffs’
property.

[Docket Entry No. 27, ex. D].

Between November 8, 2007 and May 27, 2010, the
3

Plaintiffs continued to have problems and sought redress from the Borough council, met with
Councilman David Meyer and Police Chief Dickson, and called the police on multiple occasions.
[Docket Entry No. 27, ex. D].

Additionally, the Plaintiffs placed “no trespassing” signage and

purportedly cut fishing and crab lines in the buffer area. [Docket Entry No. 27, ex. D]. This
allegedly caused the relationship with the Borough to become antagonistic, punctuated by the
Borough’s filing of a formal objection to the Plaintiffs’ application to expand their dock with the
New Jersey Department of Environmental Protection.

[See Docket Entry No. 27, ex. F, no(s). 7,

16]. On May 27, 2010, the Borough first became aware of the signage posted on the Plaintiffs’
property, and on May 31, 2010 entered the Plaintiffs’ property and removed it.

[See Docket Entry

No. 27, ex. F].
This act caused the Plaintiffs to file the instant November 9, 2010 lawsuit, alleging federal
civil rights violations, as well as supplemental state law tort claims. [Docket Entry No. 27, ex.
G].

Following a lengthy discovery period, the Honorable Magistrate Judge Tonianne J.

Bongiovanni held a settlement conference on May 17, 2013. [Docket Entry No. 25]. During
that settlement conference, counsel for the parties conferred and reached a tentative settlement,
pending client approval.

[Docket Entry No. 25]. Thereafter, on June 12, 2013, the Defendants

wrote to the Plaintiffs “confirm[ing] that the Defendants […] agree to a full and final settlement
of the above matter, as discussed at the May 17, 2013 Settlement Conference.” [Docket Entry
No. 25, ex. A].

Specifically the Defendants proposed,

The parties will enter into a settlement agreement that provides as follows,
1. The public would be prohibited from crabbing or fishing in the Gallaghers’ tideland area
along K Street beginning at the western bulkhead and extending west for a period of 250
feet measured from the western end of the Gallaghers’ longer dock. Representatives from
the parties will meet on the site to delineate the area. The public will be permitted to use
the adjoining upland area, adjacent to K Street, for walking, sitting, etc.
2. The public will be permitted to crab and fish along K Street for its remaining length to
4

the west of the 250 foot area noted in paragraph 1 above. The Plaintiffs will not interfere
with the public’s use of this area.
3. The Borough of Seaside Park will post signage delineating the no fishing/crabbing area.
4. In the area where fishing and crabbing is permitted, fishing and crabbing will be
regulated by Borough Ordinance, which at present provides that those 12 years of age and
older require a beach badge for fishing and crabbing during the hours when beach badges
are offered for sale, and allows fishing and crabbing between the hours of 9 a.m. and 9 p.m.
5. The Borough of Seaside Park will advise DEP in writing that the Borough no longer
objects to the Gallaghers’ pending application for a waterfront development permit
authorization for legalization of existing dock and extension of dock, installation of two jet
ski ramps.
6. The Agreement will be binding on the parties, their heirs and assigns. The Gallaghers
will record a deed notice in a form acceptable to the Borough acknowledging that fishing
and crabbing is prohibited in the 250 foot area described in paragraph 1 above and
permitted in the remaining area described in paragraph 2 above. See, e.g., N.J.S.A. 13:8B1 et seq.
7. The parties will exchange mutual general releases, including, but not limited to all claims
for money damages, legal fees and litigation costs.
Please confirm whether this is acceptable and I will prepare a final Settlement Agreement
and deed notice. [Docket Entry No. 25, ex. A].

The Plaintiffs corresponded to this letter on August 8, 2013. [Docket Entry No. 25, ex. B]
as follows:
Please let this correspondence serve as Plaintiff’s counter to resolve all claims as to all
parties. I will refer to the enumerated items in yours dated June 12, 2013 for ease of
reference.
1. Plaintiff agrees with this term. We propose that a surveyor be utilized for delineation of
the “no fishing and crabbing zone” at Seaside Park’s expense.
2. We agree to this term.
3. We agree to this term.
4. We agree to this term. Law enforcement should be instructed to enforce this badge
provision throughout the entire duration of the 12 hour period whereby fishing and
crabbing is permitted. In the past, police have not enforced the badge requirement set forth
in the Ordinance after the beaches are closed and badges are not available to the public for
purchase.
5. We agree to this term.
6. We agree to this term.
7. We agree to this term.
The Plaintiff hereby demands these terms to be part of the agreement:
1. A lump sum payment of $5,000.
2. An (sic) proposed amendment to the Borough Ordinance referenced in the number 4 of
your June 12, 2012 letter should be raised and considered during a council meeting. The
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proposed amendment should state that no commercial fishing or crabbing may take place
in the water adjacent to the K Street bulkhead and that, with respect to crabbing, only five
traps may be dropped in the water simultaneously at a time by any individual participating
in the activity.
3. An agreement that the K Street channel be swept for debris and stray traps annually.
Please present this proposal to the powers that be at the Borough and inform us of the
decision. Thank you for your time.
[Docket Entry No. 25, ex. B].
Thereafter on September 6, 2013, the Plaintiffs wrote to Judge Bongiovanni stating:
“Please be advised that the parties have resolved this case, but wish to continue with this
afternoon’s teleconference to discuss the terms of the settlement with the Court and to request that
the appropriate 60 Day Order be entered. Thank you for your time.”
C].

[Docket Entry No. 25, ex.

Pursuant to this letter, a 60 Day Order was entered by the Honorable Anne E. Thompson on

September 11, 2013 which stated:
“It appearing that it has been reported to the Court that the above-captioned matter has been
settled, It is on this 11th day of September 2013, ORDERED that this action be and is
hereby dismissed, without costs and without prejudice to the right, upon good cause shown
within 60 days, to reopen the action if the settlement is not consummated. The Court shall
retain jurisdiction over this matter for the purpose of enforcing the settlement.” [Docket
Entry No. 25, ex. D].
Thereafter on October 8, 2013 the Defendants sent the Plaintiffs a packet of settlement
materials containing four documents: 1.) A Settlement Agreement and Release (the “Release”);
2.) A draft letter to the New Jersey Department of Environmental Protection withdrawing the
Borough’s formal objection to the expansion of the Plaintiffs’ dock; 3.) A proposed Conservation
Restriction/Easement (the “Easement”), and; 4.) An enclosed letter stating:
Enclosed herewith please find a Settlement Agreement and Release and a Conservation
Restriction/Easement in the above matter. If acceptable, please have the Settlement
Agreement and Release signed by the Gallaghers and witnessed; please have the
Conservation Restriction/Easement signed and notarized. Please return both documents to
me, which I will hold in escrow pending delivery of the $5,000.00 settlement payment.
[Docket Entry No. 25, ex. E].
6

The Release set forth nine terms of settlement.

[Docket Entry No. 25, ex. E].

Specifically, it incorporated the aforementioned seven enumerated points, a provision giving the
Plaintiffs’ the $5,000.00 lump sum payment they demanded in their August 8, 2013 letter, and a
stipulation that the Plaintiffs’ lawsuit would be dismissed.

[Docket Entry No. 25, ex. E].

Similarly, the “Representations, Warranties and Covenants” paragraph of the Release likewise
stated “Plaintiffs and Defendant further represent, warrant, and covenant to each other that the
execution and delivery of this Agreement has been duly authorized by Plaintiffs and Defendant
and that no other action is requisite to the validity, binding execution and delivery of this
Agreement.” [Docket Entry No. 25, ex. E].
The Easement stated that Plaintiffs’, were to be the Grantors of a “conservation restriction”
as defined by the New Jersey Conservation Restriction and Historic Preservation Restriction Act
N.J.S.A 13:8B-1, et seq, restricting public access to the 250 buffer area.
ex E, ex. B].

[Docket Entry No. 25,

Similarly, “the easements, covenants, and restrictions” set forth in the document

were “to run with the land and are binding upon the Grantor, its agents, representatives, successors,
heirs, assigns and all parties having or acquiring any right, title or interest in the Property, or any
part thereof.” [Docket Entry No. 25, ex. E, ex. B].

The Easement concluded that the Defendant

was to “have and to hold, for its successors and assigns forever. The covenants […] imposed with
this Conservation/Restriction Easement shall not only be binding upon the Grantor but also its
agents, representatives, assigns and all successors to it in interest, and shall continue as a servitude
running in perpetuity with the land referred to herein as the Property.”

[Docket Entry No. 25 ex.

E, ex. B.]
However, the Plaintiffs never signed this packet of settlement materials. Instead, on
January 14, 2014, 98 days after the informing the Court that a settlement had been reached, the
7

Plaintiffs wrote a letter to Judge Bongiovanni explaining that, although the time period in which
to reopen the case had expired, the October 8, 2013 Release contained uncertain language as to the
length of time of the easement in question and which party would in fact be the grantor of the
easement. [Docket Entry No. 25 ex. C].

Following an unproductive telephone conference on

January 24, 2014, of which a transcript is not available, the Defendants filed the instant motion,
on May 5, 2015.
3.

Analysis
Federal courts look to state contract law when determining whether an enforceable

settlement agreement has been reached. See Dep’t of Pub. Advocate v. N.J. Bd. of Pub. Util., 206
N.J. Super. 523, 527-28 (App. Div. 1985); Excelsior Ins. Co. v. Pennsbury Pain Ctr., 975 F.Supp.
342, 348-49 (D.N.J. 1996) (holding that “state law governs the construction and enforcement of
settlement agreements in federal court.”).

Under New Jersey state law, “[a]n agreement to settle

a lawsuit is a contract which, like all contracts, may be freely entered into[,] and which a court,
absent a demonstration of ‘fraud or other compelling circumstances,’ should honor and enforce as
it does other contracts.”

Pascarella v. Bruck, 190 N.J. Super. 118, 124-25 (App. Div. 1983)

(internal quotations omitted).

[P]arties may orally, by informal memorandum, or by both[,] agree

upon all the essential terms of the contract and effectively bind themselves thereon, if that is their
intention, even though they contemplate the execution later of a formal document to memorialize
their undertaking.

Bistricer v. Bistricer, 231 N.J. Super. 143, 147 (Ch. Div. 1987) (quoting

Kupper v. Barger, 33 N.J. Super. 491, 494 (App. Div. 1955)).

So long as the basic essentials [of

the settlement] are sufficiently definite, any gaps left by the parties should not frustrate their
intention to be bound.”

Bistricer, 231 N.J. Super. at 148.

“Indeed, as long as those essential

terms are agreed to, ‘the settlement will be enforced notwithstanding the fact that a writing does
8

not materialize because a party later reneges.’”
575, 596 (App. Div. 1993)).
policy of New Jersey.

Id. (quoting Lahue v. Pio Costa, 263 N.J. Super

Additionally, the settlement of litigation ranks high in the public

See Lahue v. Pio Costa, 263 N.J.Super. 575, 581 (App. Div. 1993).

Therefore “Courts will strain to give effect to the terms of a settlement whenever possible.”

Dept.

of Public Advocate v. N.J. Bd. Of Public Utility, 206 N.J.Super. 523, 528 (App. Div. 1985).
Applying these principles it is evident that the parties reached an enforceable settlement
agreement. Even assuming no oral agreement was reached during the May 27, 2013 settlement
conference, the Plaintiffs affirmatively expressed their intent to be bound to the seven enumerated
points in the Defendants’ June 12, 2013 letter. Specifically, in their August 8, 2013 reply to the
Defendants, the Plaintiffs stated they “agreed” to the seven aforementioned terms, which is no
different from stating the Plaintiffs intended to be bound by these terms. Similarly, the Plaintiffs’
intent to be bound is further evidenced by the Plaintiffs’ September 6, 2013 letter to this Court
stating that the case had been resolved.
The Plaintiffs argue that instead of manifesting their intent to be bound, the August 8, 2013
response to the Defendants was a counter-offer. A counter-offer operates as a rejection because it
implies that the offeree will not consent to the terms of the original offer and will only enter into
the transaction on the terms stated in the counteroffer.

Berberian v. Lynn, 355 N.J. Super. 210,

217 (App. Div. 2002); quoting 1 Willinston on Contracts § 5.3 (4th ed. 1990). “A counteroffer
terminates the power of acceptance when it relates to the same matter as the original offer and
proposes a “substituted bargain differing from that proposed by the original offer.” Berberian 355
N.J. Super at 217; quoting Restatement (Second) of Contracts § 39(2), comment a (1981).
Although the Plaintiffs argue their August 8, 2013 correspondence was a counter-offer, it is clear
that the Plaintiffs corresponded with the intent to be bound because the Plaintiffs did not attempt
9

to substitute a bargain by changing the actual substance of the aforementioned seven terms nor did
Plaintiffs make the acceptance of the original terms conditioned upon the acceptance of the
additional terms he proposed. Although Plaintiffs proposed three additional terms, they did not
state in the correspondence or during the subsequent settlement conference, that the Plaintiffs’
acceptance of the whole agreement was conditioned upon the acceptance of their proposed three
additional terms.

In short, were Plaintiffs’ correspondence intended by the Plaintiffs to operate

as a counter-offer, that a counter-offer would be viewed as a rejection of the Defendants’ June 12,
2013 letter and, in the absence of another offer from the Defendants and acceptance by the
Plaintiffs, then no agreement would have been reached.

If so, then Plaintiffs would not and

should not have represented to the Court that the case had settled.
In addition to the affirmation of their intent to be bound, the Plaintiffs had ample
opportunity to notify the District Court that the Plaintiffs did not intend to be bound, or that a
settlement had otherwise not been reached. Neither party has indicated in the briefing that the
Plaintiffs balked at the terms of settlement at any point between the May 17, 2013 settlement
conference and the September 6, 2013 telephone conference. The Plaintiffs likewise failed to
request an extension of the 60-day period as set forth in the 60 Day Order, or otherwise report that
the settlement was not agreed to in the month between the time they received the settlement
agreement packet on October 9, 2013, and the expiration of the 60 day time period on November
11, 2013. If the Plaintiffs had no intention to be bound by the negotiated terms, they should have
made this fact known to the Court instead of knowingly remaining silent while the 60 day time
period set by the District Court’s September 11, 2013 Order ran out.

An objection to the

settlement is notably omitted in the Plaintiffs’ January 14, 2014 correspondence to this Court. In
that correspondence, the Plaintiffs again had the opportunity to state no agreement had been
10

reached but instead, the Plaintiffs only requested the Court’s guidance in how to proceed regarding
alleged vagueness in the terms contained in the Release.
Additionally, the Court finds questionable the concerns contained within Plaintiffs’
January 14, 2014 correspondence about vagueness in the language of the Release. While the
Release only stated “Plaintiffs will execute Deed Notice in the form attached hereto as Exhibit B,”
the Release specifically incorporated the Easement by reference, which was sent concomitantly
with the Release. The Easement fully explains both who will be granting the easement, and how
long the easement will last. Specifically, the attached Easement stated that Plaintiffs’, were to be
the Grantors of the easement and that “the easements, covenants, and restrictions set forth in the
document were to run with the land and are binding upon the Grantor, its agents, representatives,
successors, heirs, assigns and all parties having or acquiring any right, title or interest in the
Property, or any part thereof” and that the […] [t]he covenants […] [i]mposed with this
Conservation/Restriction Easement shall not only be binding upon the Grantor but also its agents,
representatives, assigns and all successors to it in interest, and shall continue as a servitude running
in perpetuity with the land referred to herein as the Property.” [DE 25 ex. E ex. B.] Therefore, the
Court finds that the essential terms of the contract were clear, and that at the time of the settlement
both parties had an intent to be bound. The Court finds, in sum, the Plaintiffs hesitations are not a
symptom of a lack of intent to be bound, but rather dissatisfaction with the deal after having ample
time to reflect on its terms.
Plaintiffs argues that even if the Court finds that the parties intended to be bound, creating
an enforceable agreement, that the Court cannot impose the Easement contained in the Defendants’
October 8, 2013 settlement packet, because the Easement does not comply with the Statute of
Frauds.
11

New Jersey Statues Annotated (“N.J.S.A.”) 25:1-13, otherwise known as the Statute of
Frauds, governs agreements to transfer an interest in real estate. An interest in real estate includes
an easement. N.J.S.A. 25:1-10.
an interest in real estate.

Id.

A transfer of an interest in real estate includes the creation of
Therefore, because the proposed deed notice would create an

easement in favor of the Defendants, it is a transfer of an interest in real estate and therefore must
comply with the Statute of Frauds. The Statute of Frauds provides in relevant part that an
agreement to transfer an interest in real estate shall not be enforceable unless: (a) a description of
the real estate sufficient to identify it, the nature of the interest to be transferred, the existence of
the agreement, and the identity of the transferor and transferee are established in a writing signed
by or on behalf of the party against whom enforcement is sought; or (b) a description of the real
estate sufficient to identify it, the nature of the interest to be transferred, the existence of the
agreement and the identity of the transferor and the transferee are proved by clear and convincing
evidence.

N.J.S.A. 25:1-13.

While the Statue of Frauds generally requires a signed writing, “[c]ourts will permit[] the
enforcement of an oral agreement to sell an interest in real estate.” Morton v. 4 Orchard Land
Trust, 180 N.J. 118, 125 (2004).

“The focus of inquiry in a situation involving an agreement for

the sale of an interest in real estate should be whether an agreement has been made between the
parties by which they intended to be bound.” Morton, 180 N.J. at 125. In determining whether
the parties intended to enter into a binding agreement, Courts may examine: (1) the circumstances
surrounding a transaction; (2) the nature of the transaction; (3) the relationship between the parties;
(4) the parties' contemporaneous statements; and (5) the parties' prior dealings.

Id. at 126.

When the agreement has not been reduced to writing a high standard of proof must be met to
establish that intent…specifically, clear and convincing evidence.
12

Id.

Evidence is clear and

convincing when it “produce[s] in the mind of the trier of fact a firm belief or conviction as to the
truth of the allegations sought to be established.”

Loder v. Neppl, WL 4118310, at *4 (N.J. Super.

Ct. App. Div. Nov. 21, 2007); citing In re Purrazzella, 134 N.J. 228, 240 (1993).
The Plaintiffs cite the case of Prant v. Sterling, 332 N.J. Super. 369, 378 (ch. Div. 1999),
aff’d o.b. 332 N.J. Super. 292 (App. Div. 2000) to support their contention that the Plaintiffs
intended to be bound only by a formal writing, and that no formal writing exists to satisfy the
Statue of Frauds.

Prant is distinguishable from the instant case for several reasons. In Prant, the

trial court granted summary judgment in favor of the seller-defendant, finding that the parties did
not enter into an oral contract of sale of an interest in real estate.

Prant, 332 N.J. Super. at 380.

The first critical difference is that the property held in trust in Prant was subject to a 50% control
stake of two co-trustees, and one trustee did not agree to sell the property. Specifically, the second
co-trustee, Fleet Bank, required their Real Estate Administration Committee (REAC) to approve
all sales of trustee property; and this pre-requisite approval was clearly indicated to the plaintiff.
Although the plaintiff stated the REAC’s representative’s diary entry that the deal “was definite”
and that the other co-trustee was in agreement was clear and convincing evidence to satisfy the
Statute of Frauds, the Court stated that the REAC was simply not bound to follow the
representative’s word.

Second, due to the complexity of the three million dollar transaction in

Prant, the evidence clearly demonstrated that the parties intended to be bound only by a formal
contract. Specifically, the parties in Prant negotiated the essential terms of the contract over the
course of five months and exchanged proposals and counter-proposals over seven times. With each
of these proposals and counter-proposals, the essential terms of the contract changed, namely the
price point and how many acres of land were to be purchased. While, during the final round of
proposals and counter proposals, counsel for the defendants prepared the draft contract in
13

accordance with the plaintiffs' term sheet and forwarded it to the defendants’ attorneys, co-trustees,
and the family; that contract was accompanied by a letter stating that the draft contract had not
been reviewed by defendants and was subject to their review. Thereafter, the attorneys for both
parties continued to discuss objections to the essential terms of the contract until the defendant
decided to sell the property to another buyer entirely.
In the instant case, the Plaintiffs clearly demonstrated the intent to be bound. As previously
emphasized, the seven aforementioned essential terms of the contract remained identical and the
Plaintiffs did not seek to substantially alter those terms in any way shape or form in their counter
proposal. Additionally, the Plaintiffs’ August 8, 2013 correspondence stated, “the Plaintiffs agree
to this term,” suggesting that the Plaintiffs had already formed the intent to be bound on those
terms, and were simply notifying the Defendants of that fact.
The Defendants cite to McBarron v. Kipling Woods, LLC, 365 N.J. Super, 114, 11516(2004) to support their position that clear and convincing evidence exists to prove the parties’
intention to be bound by something other than a formal writing, and that this satisfies the Statute
of Frauds.

This Court finds the Defendants’ case instructive. In McBarron, the Appellate

Division of New Jersey reversed the trial court's grant of summary judgment in favor of a seller,
who had withdrawn from an oral agreement for sale of property, finding a trier of fact could find
by clear and convincing evidence that the seller had the intent to be bound when making verbal
assurances that the parties “had a deal.”

McBarron, 365 N.J. Super at 118-19.

The plaintiffs in

McBarron were husband and wife buyers who claimed that an oral agreement to purchase property
for $185,000 was formed during telephone conversations with Barry Jost, who was representing
the seller, Kipling Woods, LLC.

Id. at 118.

The telephone conversations were the culmination

of a long course of dealings between the parties that began in 1998.
14

Id. at 117.

On November

2, 2001, Jost called the husband at work and told him that the purchase price of the lot was
$185,000. Id. at 118.

The husband accepted and asked if the transaction was a “done deal,” to

which Jost replied, “definitely,” and represented that the seller's attorney would “draw up” an
agreement.

Id.

In subsequent phone calls between Jost and the plaintiffs, Jost acknowledged

many times that that they “had a deal” and he would “honor it,” but gradually began to renege on
the plaintiffs after Jost received a significantly higher offer by a corporate entity.

Id.

The

plaintiffs tape-recorded the conversation during which Jost repeatedly confirmed that they had a
deal.

Id. at 118–19.

The Appellate Court noted that “the mere anticipation of a written

memorialization of an oral agreement,” provided that all the elements of a contract are present,
“does not as a matter of law vitiate an oral contract.”

Id. at 116.

The Court concluded that the

buyers' proofs, specifically the multitude of oral assurances that the parties had in fact reached a
deal, if credited by a trier of fact, would support by clear and convincing evidence a finding that
the parties had entered into an oral contract for the sale of the lot.

Id. at 119.

The instant case has more compelling evidence that the parties intended to be bound than
McBarron, as there is written correspondence from the Plaintiffs indicating their intent.
Specifically, the Plaintiffs demonstrated their intent to be bound by agreeing to the seven terms of
settlement proposed by the Defendants in their June 12, 2013 letter. The Plaintiffs also
demonstrated their intent to be bound by the deed notice when they stated they agreed to paragraph
6 of the June 12, 2013 letter. Moreover, the Plaintiffs last demonstrated their intent to be bound by
indicating to the District Court that the case had settled on September 6, 2013, intended to be
bound.
Consequently, this Court finds the parties had the intent to be bound and this satisfies the
Statute of Frauds and that the Plaintiffs are bound by the conservation easement contained in the
15

October 8, 2013 settlement packet.
4.

Conclusion
For the reasons set forth above, Defendants’ Motion to Enforce Settlement is GRANTED.

An appropriate Order follows.
Dated: December 14, 2015.
s/Tonianne J. Bongiovanni
TONIANNE J. BONGIOVANNI
UNITED STATES MAGISTRATE JUDGE

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