JOHN BROWNE BROWNE TRUCKING RIGGING LUCY BROWNE v. POLY CHEM SYSTEMS INC (2011)

Plaintiffs John P. Browne d/b/a J.P. Browne Trucking & Rigging and Lucy Browne ¹ appeal from the June 15, 2009 Law Division order denying their motion to reinstate their complaint to the active trial calendar, and granting defendant Poly-Chem System Inc.'s (Poly-Chem) cross-motion to confirm a settlement between the parties.   We affirm.

Poly-Chem purchased used industrial equipment from Sun Chemical.   It hired J.P. Browne Trucking to remove the equipment from Sun Chemical's facility in Newark and deliver it to a site Poly-Chem specified.   For reasons unclear from the record, J.P. Browne Trucking retained possession of some of the equipment.

J.P. Browne Trucking filed a pro se complaint in the Special Civil Part against Roland E. Stefandl d/b/a Poly-Chem, seeking damages for breach of contract.   On August 17, 2005, the court dismissed the complaint with prejudice as to Stefandl.   On March 27, 2006, J.P. Browne filed a motion to extend its time to file an appeal from that order.   We denied the motion, and our Supreme Court denied J.P. Browne Trucking's petition for certification.

In October 2006, plaintiffs, represented by an attorney, filed a new complaint in the Law Division, naming Stefandl d/b/a Poly-Chem as the defendant.   Prior to filing an answer, Stefandl filed a motion to dismiss the complaint with prejudice.   The court granted the motion based on res judicata and collateral estoppel.   The court also amended the complaint to name Poly-Chem as the defendant, and permitted Poly-Chem to file a responsive pleading.   Poly-Chem filed an answer and counterclaim, seeking damages for breach of contract, malicious and intentional interference with Poly-Chem's business relationship with Sun Chemical, and conversion.

Plaintiffs did not file an answer to the counterclaim.   As a result, the court entered default against them on July 16, 2007.   Plaintiffs remained in default when the matter proceeded to binding arbitration in December 2007.   Poly-Chem rejected the arbitrator's decision and demanded a trial de novo in January 2008.

On September 18, 2008, plaintiffs sought to file an answer to the counterclaim without leave of court.   The court clerk would not file the answer, prompting plaintiffs to file a motion to vacate the default and file an answer out of time.   The motion was initially returnable November 7, 2008, and adjourned to December 5, 2008.   Trial was scheduled for December 8, 2008.

The court never considered the motion and the trial never occurred because on the day of trial, plaintiffs' attorney represented to the court verbally and in writing that the matter had settled.   That same day, Poly-Chem's attorney forwarded a settlement agreement to plaintiffs' attorney, reflecting the parties' agreement to dismiss the complaint and counterclaim with prejudice and without costs, and for Poly-Chem to release any rights in or claim to the equipment plaintiffs had retained (the settlement agreement).   On December 9, 2008, the court entered an order of disposition dismissing the case.

On December 11, 2008, plaintiffs demanded a release from Stefandl as part of the settlement.   Poly-Chem refused, arguing that Stefandl was not a party to the action, and that he had no lawful claim to the subject equipment.

On December 15, 2008, Poly-Chem's attorney received the December 9, 2008 order of dismissal.   Although the order indicated that the court had sent it to both parties, Poly-Chem's attorney nevertheless served a copy on plaintiffs' attorney on December 18, 2009.

No further communication between the parties or their attorneys occurred until May 12, 2009, when Poly-Chem's attorney received a copy of plaintiffs' motion to reinstate the matter to the active trial calendar.   Plaintiffs claimed that no settlement had occurred because the parties could not agree on an individual release from Stefandl.

Poly-Chem filed a cross-motion to enforce the settlement, arguing that plaintiffs' motion was untimely, a settlement had been reached on December 8, 2009, plaintiffs' attempt to have Stefandl sign a release was an improper ex post facto modification, and it had been unduly prejudiced by the delay.   Poly-Chem's attorney submitted a detailed certification indicating that she and plaintiffs' attorney discussed the settlement several times prior to December 8, 2008, plaintiffs' attorney had represented to her that he had conferred with plaintiffs and received authority to settle on the terms contained in the settlement agreement, and the parties had reached a formal, binding, settlement on or before December 8, 2008.

In response, plaintiffs' attorney submitted a letter blaming the delay in filing the motion on his absence from the State from late December, 2008 to April 8, 2009;  however, he provided no reason for his absence.   Counsel also did not dispute Poly-Chem's attorney's statement about the settlement.

The trial judge denied plaintiffs' motion, granted Poly-Chem's cross-motion, and enforced the settlement.   The judge concluded that the parties had reached a settlement with plaintiffs' consent;  that plaintiffs represented to the court on December 8, 2008 that the matter had settled;  that plaintiffs received a copy of the December 9, 2008 order dismissing the case and a copy of the settlement agreement, and inexcusably delayed in filing their motion;  and that requiring Stefandl to provide an individual release was not a basis to overturn the settlement.

On appeal, plaintiffs contend that the judge erred in denying their motion without a hearing on the disputed issue of whether a settlement occurred, and that the judge erred in finding there was a settlement.   We disagree.

A settlement of a legal claim between parties is a contract like any other contract, Nolan v. Lee Ho, 120 N.J. 465, 472 (1990), which “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.), (quoting Honeywell v. Bubb, 130 N.J.Super. 130, 136 (App.Div.1974)), certif. denied, 94 N.J. 600 (1983).   That the agreement was oral, instead of written, is of no consequence.  Id. at 124.  “Where the parties agree upon the essential terms of a settlement, so that the mechanics can be ‘fleshed out’ in a writing to be thereafter executed, the settlement will be enforced notwithstanding the fact the writing does not materialize because a party later reneges.”  Lahue v. Pio Costa, 263 N.J.Super. 575, 596 (App.Div.) (quoting Bistricter v. Bistricter, 321 N.J.Super. 143, 145 (Ch. Div.1987)), certif. denied, 134 N.J. 477 (1993).

The burden of proving that the parties had entered into a settlement agreement is upon the party seeking to enforce the settlement.  Amatuzzo v. Kozmiuk, 305 N.J.Super. 469, 475 (App.Div.1997).

On a disputed motion to enforce a settlement, as on a motion for summary judgment, a hearing is to be held to establish the facts unless the available competent evidence, considered in a light most favorable to the non-moving party, is insufficient to permit the judge, as a rationale factfinder, to resolve the disputed factual issues in favor of the non-moving party.  Id. at 474-75.

However, not every factual dispute on a motion requires a plenary hearing;  a plenary hearing is only necessary to resolve a genuine issue of a material fact.  Eaton v. Grau, 368 N.J.Super. 215, 222 (App.Div.2004);  Harrington v. Harrington, 281 N.J.Super. 39, 47 (App.Div.), certif. denied, 42 N.J. 455 (1995);  Adler v. Adler, 229 N.J.Super. 496, 500 (App.Div.1988).

We are satisfied there are no material issues of fact requiring a plenary hearing.   The competent, undisputed facts as stated by Poly-Chem's attorney permitted the judge, as the rationale factfinder, to conclude there was a settlement, the essential terms of which are contained in the settlement agreement to which plaintiffs consented.

Plaintiffs' remaining contentions that the judge employed the wrong legal standard to enforce the settlement, and that the judge unduly gave dispositive weight to plaintiffs' attorney's delay in filing the motion, are without sufficient merit to warrant discussion in a written opinion.   R. 2:11-3(e)(1)(E).

Affirmed.

FOOTNOTES

FN1. We shall refer to John P. Browne and Lucy Browne as “plaintiffs” and J.P. Browne Trucking & Rigging as “J.P. Browne Trucking.”.  FN1. We shall refer to John P. Browne and Lucy Browne as “plaintiffs” and J.P. Browne Trucking & Rigging as “J.P. Browne Trucking.”

PER CURIAM