DANIEL R. HEWITT v. KINGDOM BUILDERS SERVICES, INC.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

DANIEL R. HEWITT,

Plaintiff-Respondent,

v.

KINGDOM BUILDERS SERVICES, INC., and JASON BLUESTEIN, individually,

Defendants-Appellants.

__________________________________

December 16, 2015

Submitted May 4, 2015 Decided

Before Judges Lihotz and Rothstadt.

On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Burlington County, Docket No. DC-007905-13.

Angela Vidal, attorney for appellants.

Thatcher, Passarella & Thatcher, P.C., attorneys for respondent (Steven T. Passarella, of counsel and on the brief).

The opinion of the court was delivered by

ROTHSTADT, J.A.D.

Defendant Kingdom Builders Services, Inc. and its owner, defendant Jason Bluestein, appeal from the Law Division's order denying their motion to vacate a settlement agreement entered into with plaintiff Daniel R. Hewitt.1 We affirm.

The settlement arose from the parties' dispute relating to services performed by defendants for plaintiff in installing a heating and air conditioning system in plaintiff's house. The parties entered into a written settlement agreement resolving their claims after a mediation conducted on the scheduled trial date. Defendants subsequently moved to vacate the settlement, maintaining they were coerced into accepting its terms as a result of their counsel's failure to adequately represent their interests. The motion judge denied defendants' application, as the parties were represented by counsel during the course of their negotiations. The judge suggested defendants seek redress for alleged problems regarding their counsel's representation "in other forums."

On appeal, defendants argue the trial court erred by failing to consider the "unfairness, inequity and unconscionability" of the settlement. In support of this position, they contend their assent to the settlement's terms was the product of "duress, undue pressure[,] . . . unconscionability," and "unilateral mistake" caused by their counsel's failure to render competent legal services. They also aver the court was obligated to conduct a hearing to determine defendants' state of mind at the time they accepted the settlement. Further, they assert the settlement should have been vacated as to the individual defendant because plaintiff never alleged an individual claim against him and no facts existed to support such a claim. Plaintiff argues defendants presented no evidence to demonstrate they were pressured into settling, and, contrary to defendants' contentions, the mediator advised the parties they were permitted to reject the settlement offer.

We have considered the parties' arguments in light of our review of the record and applicable legal principles. We affirm, finding defendants' arguments to be without merit.

Settlement of litigation through written agreements is favored by New Jersey's public policy. See Willingboro Mall, Ltd. v. 240/242 Franklin Ave., L.L.C., 215 N.J. 242, 253-54 (2013) ("Public policy favors the settlement of disputes. Settlement spares the parties the risk of an adverse outcome and the time and expense -- both monetary and emotional -- of protracted litigation. . . . [It] preserves precious and overstretched judicial resources." (citation omitted)). For that reason, "[o]ur court system encourages mediation as an important means of settling disputes." Ibid.

"Consequently, our courts have refused to vacate final settlements absent compelling circumstances. In general, settlement agreements will be honored absent a demonstration of fraud or other compelling circumstances. Before vacating a settlement agreement, our courts require clear and convincing proof that the agreement should be vacated."

[Kaur v. Assured Lending Corp., 405 N.J. Super. 468, 475 (App. Div. 2009) (citation omitted) (quoting Nolan v. Lee Ho, 120 N.J. 465, 472 (1990)).]

A change of heart after accepting a settlement offer is not a basis to set aside the agreement. See Zuccarelli v. State Dep't of Envtl. Prot., 326 N.J. Super. 372, 381 (App. Div. 1999) (holding that "'[a] party is bound to the contract it made at the time, even if it turns out to be a poor deal'" (quoting N.J. Mfrs. v. O'Connell, 300 N.J. Super. 1, 7 (App. Div.), certif. denied, 151 N.J. 75 (1997)), certif. denied, 163 N.J. 394 (2000). Neither is a claim that a party to the settlement was unhappy with his or her counsel's performance.2 As the motion judge determined, such claims must be aired in a different action against the attorney. See Guido v. Duane Morris LLP, 202 N.J. 79, 96 (2010) (addressing a client's malpractice claim arising from his dissatisfaction with counsel's advice regarding accepting a settlement agreement's terms); Gere v. Louis, 209 N.J. 486, 505 (2012) ("The assessment of [a] settlement's fairness and reasonableness must account for [a client's] allegation that [his or her attorney's] failure to engage in meaningful discovery severely hampered the ability of [the client's] successor attorney to establish [his or] her claim . . . .").

Finally, defendants' claim that the company's owner could not be held liable under plaintiff's complaint is factually and legally incorrect. The original complaint asserted, among other claims, an allegation that both defendants violated New Jersey's Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -20. "In light of the broad remedial purposes of the CFA and the expansive sweep of the definition of 'person,' it is clear that an individual who commits an affirmative act or a knowing omission that the CFA has made actionable can be liable individually." Allen v. V & A Bros., Inc., 208 N.J. 114, 131 (2011). The potential for this individual liability provided sufficient reason for the court to deny vacating the settlement agreement as to the individual defendant.3

To the extent we have not specifically addressed any of defendants' remaining arguments, we find them to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

1 Plaintiff initially filed a motion to enforce the settlement, and defendants cross-moved to vacate. The court entered an order reinforcing the settlement; directing defendants to make payments in accordance with its terms; and denying both plaintiff's motion to enter judgment and defendants' motion to vacate. The issues on appeal solely concern the portion of the order denying defendants' application to vacate.

2 Defendants' argument to the contrary, relying on our holding in Hernandez v. Baugh, 401 N.J. Super. 539 (App. Div. 2008), is inapposite to the issues raised on appeal. In that legal malpractice action, we reviewed the Law Division's dismissal of a complaint as premature under Rule 4:6-2. In doing so, we noted plaintiff could have made a viable claim for professional negligence based upon his attorney's alleged lack of preparation in reaching a settlement agreement. We stated, "[c]ertainly at this stage of the proceedings, plaintiff was entitled to have [a] sentence [in the settlement agreement indicating his approval] interpreted to mean that he considered the settlement reasonable in light of the apparent weaknesses in his case, and not that he considered [the settlement amount] a fair and reasonable estimate of his [claim]." Id. at 542-43. We did not, as plaintiff argues, find that his claim supported a motion to vacate the settlement in the underlying action.

3 We note that the individual defendant signed the agreement without limiting its obligation only to the corporate entity only. To the contrary, the agreement by its terms was enforceable against both defendants in the event of a default.