Willingboro Mall, LTD. v. 240/242 Franklin Avenue, L.L.C.

In 2007, Franklin Avenue, LLC forwarded a letter to the trial court judge and its opponent, Willingboro Mall, Ltd. announcing that the case had been "successfully settled" and outlined the purported terms of the settlement. Franklin's attorney sent a separate letter to Willingboro stating that he held $100,000 in his attorney trust account to fund the settlement, that Franklin had executed a release, and that the monies would be disbursed when Willingboro filed a stipulation of dismissal in the foreclosure action and delivered a mortgage discharge on the mall property. Willingboro rejected the settlement terms and refused to sign a release or to discharge the mortgage. Franklin filed a motion to enforce the settlement agreement and attached certifications from its attorney and the mediator that revealed communications made between the parties during the mediation. Willingboro did not move to dismiss the motion, or strike the certifications, based on violations of the mediation-communication privilege. Instead, in opposition to the motion to enforce, Willingboro requested an evidentiary hearing and the taking of discovery, and filed a certification from its manager. The trial court ordered the taking of discovery and scheduled a hearing to determine whether an enforceable agreement had been reached during mediation. The issues on appeal to the Supreme Court reduced to: (1) whether Rule 1:40-4(i) required a settlement agreement reached at mediation to be reduced to writing and signed at the time of mediation; and (2) whether plaintiff waived the privilege that protects from disclosure any communication made during the course of mediation. The Supreme Court concluded that Plaintiff expressly waived the mediation-communication privilege and disclosed privileged communications. The oral settlement agreement reached by the parties was upheld. Going forward, however, a settlement that is reached at mediation but not reduced to a signed written agreement will not be enforceable. View "Willingboro Mall, LTD. v. 240/242 Franklin Avenue, L.L.C." on Justia Law