ORTHOPEDIC SPORTS MEDICINE v. ANTHONY BONETTI

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4033-10T1

ORTHOPEDIC SPORTS MEDICINE,

Plaintiff-Appellant,

v.

ANTHONY BONETTI, a/k/a

TONY BONETTI,

Defendant-Respondent.

________________________________________________________________

September 23, 2011

Submitted September 13, 2011 - Decided

Before Judges Messano, Yannotti and Espinosa.

Onappeal fromSuperior Courtof NewJersey,

LawDivision, EssexCounty, DocketNo. L-4952-09.

O'Brien and Taylor, attorneys for appellant (Jerome F. O'Brien, on the brief).

Piro Zinna Cifelli Paris & Genitempo, P.C., attorneys for respondent (Richard A. Grodeck, on the brief).

PER CURIAM

Plaintiff Orthopedic Sports Medicine Associates appeals from an order that enforced a settlement of its lawsuit for unpaid fees against defendant Anthony Bonetti. We affirm.

The lawsuit in this matter sought payment of $74,095 for medical services rendered between November 2006 and May 2007. However, at his deposition, Ira Esformes, M.D., the principal of defendant, acknowledged that the actual amount sought was $44,000. With a March 30, 2011 trial date approaching, the parties engaged in settlement discussions. By faxed letter dated February 24, 2011, plaintiff's counsel presented an offer of settlement to defendant's counsel as follows:

This is to confirm the voice mail message of earlier today. My client's present settlement position is that it will accept $30,000.00, to be paid at the rate of $550.00 per month. This is conditioned upon a Stipulation of Settlement being filed with the Court which provides that in the event of default, Judgment will be entered for $44,095.00, minus any payments made pursuant to the Stipulation of Settlement.

In evaluating the entire situation, I believe this position is more than fair. We have been negotiating based on the principal amount, without consideration of interest. The services were provided for the most part in late 2006 and no payment has been made to date. If this proceeds to trial and plaintiff prevails using the ninety-fifth percentile for approximately $44,000.00, if pre-Judgment interest was awarded at the Court rate, it would amount to over $10,000.00. Assuming the Court accepted the defendant's position and used the fiftieth percentile, the balance would be roughly fifty percent or approximately $22,000.00. If pre-Judgment interest was awarded on that amount, it would be $5,060.00, which would bring the award up to over $27,000.00.

It is most likely that the Court will come out somewhere in between those two numbers and if that is the case and pre-Judgment interest is awarded, we would be well over the $30,000.00 that plaintiff is willing to accept at this time.

Moving forward, although the present Court rate including the two percent added in Law Division cases would be only 2.5% per year, on $30,000.00 that would be interest of approximately $750.00 per year. Based on the monthly payment your client wants to make, it would take almost five years to make payment.

It is undisputed that defense counsel called plaintiff's counsel later that day and stated the offer was acceptable, before the offer expired. Defendant's counsel stated in a certification that "[i]t subsequently came to [his] attention that Ira Esformes, M.D., the principal of plaintiff, would not accept the payout over four years unless there was a lien on real estate." As a result, counsel then sent a letter to defendant's attorney, dated February 28, 2011, which states in part:

This is to confirm the voice-mail I left for you this morning.

It has come to my attention that Dr. Esformes only authorized the payout on the settlement at the rate of $550.00 per month with the understanding that there would be a lien against the real estate.

It is our understanding that your client owns [a certain property in] Washington Township and we are requesting as a part of the settlement, that a lien be placed on that property. If we are mistaken as to that being the home address, the lien is requested on whatever real estate Mr. Bonetti owns in New Jersey.

Please confirm that we can resolve this matter on that basis.

Thereafter, defendant filed a motion to enforce a settlement based upon the offer contained in the letter of February 24, 2011. In opposition, plaintiff submitted certifications from himself and his counsel. In his certification, plaintiff stated that he "never authorized [his] attorney to settle the matter based on a payout that would take over four years without having the benefit of the lien." In his certification, plaintiff's counsel stated that he "apparently missed" this condition during his conversation with plaintiff and that, if he had realized that the lien was a requirement, he would have included it in his February 24 letter. He stated further:

Based upon my subsequent conversations with Dr. Esformes, it appears that I did not fully understand his instructions and therefore I did not have authority to commit to the settlement of the matter based on payment at the rate of $550.00 per month when I sent the fax to [defendant's counsel].

The trial court granted the motion to enforce the settlement, finding that, "as of 2-24-11, there was a meeting of the minds as to all settlement terms which were then altered by [plaintiff]." In this appeal, plaintiff argues that there was no settlement because there was no meeting of the minds and that consent of the client is necessary to have an enforceable settlement. After carefully reviewing the record and briefs, we are satisfied that neither of these arguments has merit.

In furtherance of the strong policy of enforcing settlements, "our courts 'strain to give effect to the terms of a settlement wherever possible.'" Brundage v. Estate of Carambio, 195 N.J. 575, 600 (2008) (internal citation omitted). Therefore, an agreement to settle a lawsuit will be honored and enforced in the absence of fraud or other compelling circumstances. Pascarella v. Bruck, 190 N.J. Super. 118, 124-25 (App. Div. 1983). "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. 1993). "[T]he party seeking to set aside the settlement agreement has the burden of proving . . . extraordinary circumstance sufficient to vitiate the agreement[,]" Jennings v. Reed, 381 N.J. Super. 217, 227 (App. Div. 2005), by clear and convincing evidence. Smith v. Fireworks by Girone, Inc., 380 N.J. Super. 273, 291 (App. Div. 2005), certif. denied, 186 N.J. 243 (2006).

The argument that there was no meeting of the minds here is based upon plaintiff's contention that his attorney did not accurately convey his instructions regarding the settlement offer to defendant. In asserting that its attorney lacked authority, plaintiff bears "a heavy burden" to establish that his attorney "acted without any kind of authority." Jennings, supra, 381 N.J. Super. at 230-31. Plaintiff has failed to meet this burden.

"[W]here the client by words or conduct communicated to the adverse attorney, engenders a reasonable belief that the attorney possesses authority to conclude a settlement, the settlement may be enforced." Amatuzzo v. Kozmiuk, 305 N.J. Super. 469, 475-476 (App. Div. 1997). Although plaintiff now states that the terms contained in its counsel's letter were incomplete, it is not disputed that plaintiff authorized a settlement offer to be made. Therefore, plaintiff's conduct provided a basis for defendant's reasonable belief that plaintiff's counsel possessed authority to settle the matter according to the terms set forth in the February 24, 2011 letter, resulting in an enforceable settlement.

A