ANNETTE SMITH v. ELIZABETH B. GROVER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4720-04T14720-04T1

ANNETTE SMITH,

Plaintiff-Appellant,

v.

ELIZABETH B. GROVER,

Defendant-Respondent.

________________________________________________

 

Submitted March 8, 2006 - Decided March 27, 2006

Before Judges Stern and Fall.

On appeal from the Superior Court of New

Jersey, Law Division, Camden County,

Docket No. L-7050-01.

Powell & Baltimore, attorneys for appellant

(Wayne Powell, on the brief).

Chierici, Chierici & Smith, attorneys for

respondent (Donald R. Chierici, Jr., and

Patricia W. Holden, on the brief).

PER CURIAM

Plaintiff, Annette Smith, appeals from an "order to enforce settlement pursuant to R. 4:42-1," entered on April 1, 2005, which "compelled" plaintiff "to comply with the terms of the settlement" in this motor vehicle accident case. We affirm.

Following non-binding arbitration, plaintiff rejected an award of $30,000. The matter was listed for trial, and defendant thereafter increased the offer to $35,000. It is uncontested that plaintiff's attorney spoke with plaintiff and that she advised counsel to "do whatever you think is best." Thereafter, counsel for the plaintiff and defendant settled the case. Plaintiff subsequently refused to execute a release or to authorize the settlement, and defendant moved for its enforcement. The trial court granted defendant's motion.

At the hearing on the motion to enforce the settlement, defense counsel explained that plaintiff's attorney advised that the case was settled, and he thereupon "closed our file, dismissed our motions and proceeded with the closing process." In response, plaintiff's attorney stated:

Thank you, Judge. Judge, everything that [defense counsel] cites to the Court is actually accurate. I mean, at the end of our conversation, I had the same perception as did he.

When I contacted my client to let her know that, in fact, he settled the case, it was at that point that she indicated to me that the instruction that she had given me, do whatever you think is best, was not an instruction to settle.

And I certainly appreciate the position that the defendants are in, because, obviously, everybody wants some finality to this case. [Defense counsel] is right, Judge, the case has a very long history. We've been here for motions for summary judgment in the past. There was one motion, which was denied some time ago. There was a second motion filed because of things which were indicated in the medical records, which the defendants apparently overlooked on the first occasion.

But my problem here, Judge, is that in order for a settlement to be binding, there has to be a meeting of the minds. And, clearly, there was a meeting of the minds between myself and [defense counsel] but I can act only as the agent for the plaintiff. And if the plaintiff's perception was that she never authorized us to settle, I don't see how we can settle the case.

The judge concluded that it was "clear from the record that [plaintiff] gave [her attorney] permission to settle for the amount, that [he] settled it, and now she's chosen to back off, . . . [and] there was a meeting of the minds and the settlement will be enforced for [$]35,000."

On this appeal plaintiff contends "the trial court's order granting defendant's motion to enforce settlement was error where plaintiff's counsel was not specifically authorized by the client to settle the case." She asserts there should have been a "factual hearing on the disputed facts" and that "the trial court failed to articulate and apply the proper legal standard in granting defendant's motion." In the brief, plaintiff asserts that she was not told the exact amount of the settlement to approve, and did not expressly authorize it. However, the record presented to us contains no certification to that effect, and there does not appear to be any dispute of material fact that she told her attorney to "do whatever you think is best."

Accordingly, the order is affirmed.

 

Neither the motion nor the order is contained in the appendix. However, a copy of the order was appended to a copy of plaintiff's case information statement.

Although neither the motion nor any accompanying certification has been presented to us, the facts taken from the briefs and oral argument are not contested. The plaintiff's appendix contains only a motion and order relating to the denial of summary judgment for failure to satisfy the "verbal threshold."

Apparently, an expert report received after the settlement was supportive of plaintiff's claim and she was encouraged not to settle by the doctor.

No issue of conflict by the plaintiff's counsel who represents her on this appeal is raised or noted. We do not address it in any way.

(continued)

(continued)

4

A-4720-04T1

March 27, 2006