MARJAM SUPPLY COMPANY v. GRAVELEY BROTHERS ROOFING CORPORATION

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

MARJAM SUPPLY COMPANY,

Plaintiff-Appellant,

v.

GRAVELEY BROTHERS ROOFING

CORPORATION, its related trading

names, successors, and MICHAEL

GRAVELEY,

Defendants-Respondents.

____________________________________

July 19, 2016

Submitted April 4, 2016 Decided

Before Judges Fasciale and Nugent.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-1051-09.

LLM Law LLC, attorneys for appellant (Larry L. Miller, on the brief).

Silverang, Donohoe, Rosenzweig & Haltzman, LLC, attorneys for respondent (William C. Katz, on the brief).

PER CURIAM

Plaintiff Marjam Supply Company appeals from a February 6, 2015 order denying reconsideration of a December 5, 2014 order, which denied plaintiff's motion to enforce a settlement. The motion judge denied plaintiff's motion for reconsideration on the ground plaintiff had not met the standard for reconsideration. We agree and affirm.

Underlying plaintiff's motion for reconsideration was its dispute with defendant Graveley Brothers Roofing Corporation (Roofing Company) over whether plaintiff and the Roofing Company had entered into an enforceable settlement of plaintiff's breach-of-contract action. The facts are mostly undisputed. In 2008, plaintiff and the Roofing Company entered into an agreement whereby plaintiff would provide and deliver goods. When the Roofing Company did not pay for certain goods, plaintiff filed its complaint, seeking $83,393.15. Plaintiff named Gravely as a defendant, alleging Graveley had guaranteed the Roofing Company's debt. When defendants did not timely answer the complaint, default judgment was entered against them in the amount of $124,988.05. Two years later in November 2011, an additional default judgment was entered.

Defendants filed a motion to vacate the default judgment. Plaintiff filed a notice of cross-motion to enforce a purported settlement agreement. In support of the cross-motion, plaintiff's attorney averred he had been contacted by Benjamin Dunavent, a Senior Account Executive at Riverdale Funding, LLC. According to the attorney, "Dunavent represented that he was an authorized representative of the judgment debtors and held himself out as having authority to resolve [plaintiff's] judgments." Additionally, "Dunavent represented that Riverdale was refinancing [the Roofing Company's] property and, requested a pay-off for [plaintiff's] judgment." Plaintiff's attorney sent a letter to the Riverdale employee stating the pay-off was $260,910.96.

According to plaintiff's attorney's certification, less than one week later, the attorney was contacted by another Riverdale Account Executive, Jeff Jenkins. Jenkins made a settlement offer of $150,000. Two days later, Dunavent sent the following email

Good afternoon. I am reaching out to you for the last of my efforts to get this loan done and [plaintiff] paid. Looking at the hud I see there is 200K set aside for this settlement. I am proposing an idea. [Plaintiff] take 200K now and do a personal note for the remaining 60K (rough numbers). On that note [plaintiff] could collect 6% until paid off. I could then get this loan closed and wire funds to your account. I will let you see the hud with [plaintiff] listed. I understand that this settlement is [sic] been around for some time. I know that you are looking for the best interest of your client looking to get max return for the debt. With all that being said, I can't waste my time on this file any longer. Is this something that you think [plaintiff] could live with. I am trying to get both parties what they are looking for. Please advise if there is any movement at all on this settlement or if I am wasting my time and efforts. I would like to get this matter solved today if at all possible. Thanks for the time you have spent on this file.

Plaintiff's attorney responded to the email and accepted the proposal on behalf of plaintiff. In his response the attorney stated

Please confirm we have a commitment on this." Dunavent responded: "I wanted to make sure you were [okay] before I moved forward. If you want to draw up something for him to sign at closing or before closing that would be fine. If I need to have my [attorney] draw it up he will need to be in contact to make sure it's acceptable. Thanks for your understanding.

Plaintiff's attorney told Dunavent he would prepare a note and send it. Dunavent expected the closing date to be "[b]y the end of the month."

The attorney sent Dunavent a promissory note on October 28, 2014. On October 31, the attorney sent Jenkins an email inquiring as to whether the loan would close that day as indicated by Dunavent. Jenkins indicated that "everything has been sent to the [c]losing [attorney] [and] I don't believe they will be ready to get everything done to close today, should be first of the week." Jenkins' email also stated that Graveley, in his individual capacity, decided "that he wants to go ahead and pay the entire judgment amount at closing rather than the $200K and the promissory note for the balance."

At oral argument on the motion and cross-motion, defendants argued the default judgment was void because New Jersey did not have personal jurisdiction over them. Plaintiff argued the emails in their entirety created a binding settlement agreement and plaintiff reasonably believed Dunavent and Jenkins had apparent authority from defendants to settle.

The judge denied defendants' motion to vacate the default judgment, a decision not at issue on this appeal. The judge also denied plaintiff's cross-motion to enforce the emails as a settlement agreement. She stated

I don't see in those [emails] that there is any specific communication that [Graveley] or [Roofing Company] set forth with respect to the settlement.

And, therefore, with respect to the settlement, I'm going to deny that motion to enforce the settlement. I find that the [emails] do [not] constitute complete and satisfactory settlement agreement that would warrant this [c]ourt to enforce it. There's no indication that the party had authority to enter into that settlement and finalize the settlement on behalf of the defendants.

The judge held oral argument on plaintiff's motion for reconsideration in February 2015. Plaintiff sought discovery and to depose Graveley. Specifically, plaintiff argued it should have been given the opportunity to obtain documents from the Roofing Company and Riverdale. The judge denied the motion on the basis that plaintiff should have sought discovery prior to filing the cross-motion to enforce the settlement.

We agree with the motion judge's conclusion that plaintiff did not establish Riverdale or its agents bound defendants to the settlement agreement based on the doctrine of apparent authority. "Apparent authority arises when a principal 'acts in such a manner as to convey the impression to a third party that the agent has certain power which he may or may not possess'" Lobiondo v. O'Callaghan, 357 N.J. Super. 488, 497 (App. Div.) (quoting Rodriguez v. Hudson Cty. Collision Co., 296 N.J. Super. 213, 220 (App. Div. 1997)), certif. denied, 177 N.J.224 (2003). For that reason, "a conclusion that a party has acted with apparent authority must rest upon the actions of the principal, not the alleged agent." Ibid.

When a court is confronted with an issue of apparent authority, "[t]he factual question is whether the principal has by his voluntary act placed the agent in such a situation that a person of ordinary prudence, conversant with business uses, . . . is justified in presuming that such agent has the authority to perform the particular act in question." Alicea v. New Brunswick Theological Seminary, 244 N.J. Super. 119, 129 (App. Div. 1990) (alterations in original) (quoting Wilzig v. Sisselman, 209 N.J. Super. 25, 35 (App. Div.), certif. denied, 104 N.J. 417 (1986)), aff'd, 128 N.J. 303 (1992). The party claiming apparent authority must prove three things: (1) the appearance of authority was created by the principal's conduct, as it cannot alone and solely be established by proof of the agent's conduct; (2) the third party relied on "the agent's apparent authority to act for [the] principal"; and (3) "reliance was reasonable under the circumstances." Mercer v. Weyerhaeuser Co., 324 N.J. Super. 290, 318 (App. Div. 1999).

We can discern from the motion record no proof that the appearance of Dunavent's and Jenkins' authority was created by defendant. Consequently, we reject plaintiff's argument that the court erred by denying the motion to enforce the settlement.

Plaintiff filed a motion for reconsideration, which the court denied. We find no abuse of discretion in the court's decision. A motion for reconsideration is addressed to the "sound discretion of the [c]ourt to be exercised in the interests of justice." Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996) (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)). Reconsideration is reserved for "cases which fall into that narrow corridor" where the prior decision was "based upon a palpably incorrect or irrational basis," or failed to consider or appreciate "probative, competent evidence," or where a "litigant wishes to bring new or additional information to the [c]ourt's attention which it could not have provided on the first application." D'Atria, supra, 242 N.J. Super. at 401.

Here, the court did not fail to consider or appreciate any of plaintiff's arguments. Nor did plaintiff present anything new on the motion for reconsideration that could not have been presented on the original motion. We therefore conclude that the judge's denial of the reconsideration motion was an appropriate exercise of his discretion.

Plaintiff's remaining arguments are without sufficient merit to warrant further discussion. R. 2:11-3(e)(1)(E).

Affirmed.