DANIELLE D. POTE v. PINE HILL MUNICIPAL UTILITIES ASSOCIATION

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

DANIELLE D. POTE,

Plaintiff-Appellant,

v.

PINE HILL MUNICIPAL

UTILITIES ASSOCIATION,

Defendant-Respondent.

________________________________________________________________

Argued May 15, 2013 Decided

Before Judges Grall, Simonelli and Koblitz.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-5545-09.

George R. Szymanski argued the cause for appellant.

John Philip Maroccia argued the cause for respondent.

PER CURIAM

Plaintiff Danielle D. Pote appeals the trial court's February 3, 2012 denial of her motion to enforce settlement, March 16, 2012 denial of reconsideration and the April 9, 2012 judgment of no cause. We affirm.

On December 6, 2007, plaintiff went to defendant Pine Hill Municipal Utilities Association (Pine Hills MUA) to pay her water bill. She slipped on ice in the parking lot and sustained injuries to her back, incurring more than $83,000 in medical bills. On November 4, 2009, plaintiff initiated this premises liability action.

The attorneys for the parties attended a settlement conference in court November 2011 during which plaintiff conveyed a demand of $70,000 and defendant offered $50,000. A month later, plaintiff's counsel sent a letter to defense counsel requesting that he place the last offer in writing. On December 26, 2011, defense counsel responded, "Please be advised that the offer to settle this matter is $50,000.00 subject to any and all acceptance. Please get back to me as the time is running short." On January 12, 2012, plaintiff's counsel wrote a letter to his adversary stating "plaintiff accepts your offer of $50,000.00, as tendered in your letter to me of December 26, 2011."

The following day defense counsel replied that there was no settlement. Defense counsel wrote:

You asked recently me [sic] about an offer and I responded on December 26, 2011 by advising that same was subject to approval by the adjuster and the JIF MEL fund. I am enclosing a copy of same for your reference.

I recently told you that the adjuster did not approve of my offer and, therefore, the conditions for the offer are not met. I have always told you that I had no authority but would recommend to adjustor. I did that and my offer was not approved.

I, therefore, request that you prepare for trial as that is what I am doing.

Plaintiff then filed an unsuccessful motion to enforce the settlement. The following colloquy occurred during oral argument of that motion:

THE COURT: Doesn't Pine Hill MUA need -- need, pursuant to ordinance, a resolution, authority to accept? Didn't we discuss this back in chambers? As a matter of fact, we discussed when the next date of the meeting was going to be [so] that [defense counsel] can supply this information.

So, I agree with you, there was a $50,000 conveyance --

[PLAINTIFF'S COUNSEL]: Right.

THE COURT: -- upon approval of Pine Hill.

[PLAINTIFF'S COUNSEL]: Yeah, I -- I don't --

THE COURT: That's what this [December 26] letter says.

[PLAINTIFF'S COUNSEL]: Yeah, I -- I don't -- I don't -- I frankly do not remember that.

Following plaintiff's unsuccessful motion to reconsider the denial of the motion to enforce a settlement, the case was tried. The jury returned a verdict of no cause of action.

On appeal, plaintiff argues that the judge should have granted her motion to enforce the settlement. 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 Bistricer v. Bistricer, 231 N.J. Super. 143, 145 (Ch. Div. 1987)), certif. denied, 134 N.J. 477 (1993).

Generally, "unless an attorney is specifically authorized by [a] client to settle a case, the consent of the client is necessary." Amatuzzo v. Kozmiuk, 305 N.J. Super. 469, 475 (App. Div. 1997). An "attorney's words or acts alone are insufficient to cloak the attorney with apparent authority." Id. at 476. The burden of proving that the parties have entered into a settlement agreement is upon the party seeking to enforce the settlement. Id. at 475. A trial judge's factual findings and conclusions concerning a settlement agreement are unassailable, as long as they are supported by the record. Lahue, supra, 263 N.J. Super. at 595-97. Our review of a trial judge's findings is a limited one. Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963). We will defer to the trial judge's factual findings that are well-supported by competent evidence in the record. Brunson v. Affinity Fed. Credit Union, 199 N.J. 381, 397 (2009).

More specifically, in the context of municipal entities, "[i]t is elementary that municipalities can ordinarily act only by adoption of an ordinance or resolution at a public meeting." City of Jersey City v. Roosevelt Stadium Marina, Inc., 210 N.J. Super. 315, 327 (App. Div. 1986), certif. denied, 110 N.J. 152 (1988)). We have held that "it would seem to be belaboring the obvious to observe that formal governmental action was required to approve a settlement." Id. at 320. "This is without regard to whether experienced counsel knew or should have known that formal approval of a governing body is required." Id. at 322 n.4. Additionally, there is no need for defendant to present evidence that the municipality rejected the alleged settlement or that there was a resolution to that effect. Id. at 324. See also N.J.S.A. 40A:5-17(a).

Plaintiff's counsel indicates that he viewed the phrase "subject to any and all acceptance" in the December 26 letter to mean plaintiff's acceptance. Defense counsel argues convincingly that an offer is not conditioned on acceptance of the other party and could only be conditioned here on the acceptance of the municipality. The judge indicated that the necessity of this approval was discussed previously in chambers in her presence, and defense counsel certified that he had mentioned the approval requirements many times to plaintiff's counsel. Even if plaintiff's counsel forgot these discussions, as he indicated to the judge, a settlement contract, like any enforceable contract, requires a meeting of the minds. Pinto v. Spectrum Chems. & Lab. Prods., 200 N.J. 580, 600 (2010). No such meeting of the minds occurred here. Plaintiff failed to satisfy her burden of demonstrating that the parties entered into a settlement. Amatuzzo, supra, 305 N.J. Super. at 475.

Affirmed.