David Andrews v. III (2009)

MEMORANDUM OF DECISION ON PLAINTIFF'S MOTION TO ENFORCE AGREEMENT

This matter has a long history of motions, hearings, stipulations and orders by various judges.   On or about July 20, 2009, the plaintiff moved the court to enforce a “settlement agreement.”

The motion does not appear in the clerk's file, but counsel has provided the court with a copy which is hereby ordered to be filed by the clerk.

A hearing was held on the motion at which the parties were ably represented by counsel, presented evidence and numerous exhibits, including transcripts of prior hearings.

The parties filed briefs on December 15, 2009, in which they advanced their respective arguments.

The defendant argues that Judge Hendel's order for the dissolution of their various business entities and the appointment of a receiver has been triggered by the failure of the parties to have a closing on their transaction on or before July 15, 2009.   Such a closing would have required the plaintiff to have had in hand releases from several lenders, which the credible evidence shows were not on hand.   In support of that argument the defendant also points to the transcript of the July 2nd 2009, hearing (Plaintiff's exhibit 4).

The plaintiff, on the other hand, has offered evidence that he was in the process of obtaining such releases, and further, that the defendant who was unrepresented at the time, did not respond to his attempts to contact him about arrangements for a closing.

The court finds that the evidence supports the argument advanced by the defendant.   The releases required were not at hand on July 15, 2009.   No closing took place.   Judge Hendel's order was triggered.

The plaintiff's motion is denied.

This matter did not involve a hearing on the defendant's motion to appoint a receiver.

No order will be entered in that regard.

Robert C. Leuba, JTR

Leuba, Robert C., J.T.R.