ALAN LONGSTREET VS. COUNTY OF MERCER (DIVISION OF WORKERS' COMPENSATION)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3631-15T3

ALAN GRECO,

Plaintiff-Appellant,

v.

TWINN CEDARS, INC., FRANK
NIGRO and DAVID G. PAULUS,

Defendants-Respondents.

_______________________________

Submitted April 24, 2017 – Decided May 2, 2017

Before Judges Nugent and Haas.

On appeal from Superior Court of New Jersey,
Law Division, Special Civil Part, Ocean
County, Docket No. DC-6962-15.

Kelly Law, P.C., attorneys for appellant
(Charles P. Kelly, of counsel and on the
brief; Bradley Latino, on the brief).

Heagen, Pagano & Associates, attorneys for
respondents (Anthony M. Pagano, on the brief).

PER CURIAM

Plaintiff Alan Greco appeals from a March 22, 2016 Law

Division order dismissing his complaint and enforcing a purported

settlement among the parties. When the court dismissed the
complaint, it did not "find the facts and state its conclusions

of law" as required by Rule 1:7-4(a). For that reason, we vacate

the order and remand this matter to the trial court for further

proceedings.1

The record on appeal discloses the following procedural

history. On July 20, 2015, plaintiff filed a six-count Special

Civil Part complaint. In the complaint, he alleged defendants

Frank Nigro and David G. Paulus were the owners of defendant Twinn

Cedars, Inc., a registered home improvement contractor with whom

he contracted to construct improvements to his house in Toms River.

According to plaintiff, defendants did not complete the work, and

the work they did complete they performed in a shoddy and

unworkmanlike manner. Plaintiff also alleged that after he

retained counsel, defendants agreed to make a lengthy list of

repairs but never made them.

Defendants answered the complaint, asserted affirmative

defenses, and plead a counterclaim. The following month,

defendants moved to enforce a prior settlement allegedly executed

by the parties in February 2015.

1 On the same day the trial court dismissed the complaint, it
denied as moot plaintiff's motion seeking sanctions for
defendants' failure to make discovery. That order is also vacated
as the matter is no longer moot.

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 In a supporting certification from defense counsel, he

averred he was "familiar with the facts and circumstances noted

herein."2 He certified he and plaintiff's counsel "agreed upon

the terms of a settlement" after "quite a bit of negotiating." He

also certified that, though the settlement agreement was reduced

to writing and executed by plaintiff, it was never consummated

because plaintiff failed to show up on the agreed upon date to

discuss the extent of the repair work. Defense counsel certified

plaintiff never rescheduled.

Plaintiff opposed the motion. He disputed defendant's

assertions about why defendants did not perform as obligated by

the settlement agreement. He apparently filed no certifications,

but made the factual assertions in his letter brief.

The court did not initially decide defendants' motion but

instead requested supplemental submissions from the parties. The

parties complied, submitting supplemental letter briefs alleging

additional factual assertions. The parties also attached email

chains and correspondence to support their respective positions.

On the return date of the motion, the court urged the parties

to settle their dispute. When they were unable to do so, the

2 "If a motion is based on facts not appearing of record or not
judicially noticeable," Rule 1:6-6 requires "affidavits made on
personal knowledge, setting forth only facts which are admissible
in evidence to which the affiant is competent to testify[.]"

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court granted defendants' motion. Without finding any facts or

making any legal conclusions, the court dismissed the complaint,

stating:

after reviewing all of the circumstances and
having had counsel with counsel about this
matter and exhausting the attempts to try to
settle it between the parties so that they
could reach some sort of agreement suitable
to move on, the [c]ourt is going to grant the
motion and dismiss the [c]omplaint.

The court entered a memorializing order and defendants appealed.

On appeal, plaintiff maintains the parties' settlement

agreement is void for many reasons, including that it is

unconscionable and violates the Consumer Fraud Act. Plaintiff

also contends the settlement agreement is unenforceable because

defendants breached it and committed equitable fraud. Apart from

those allegations, plaintiff asserts defendants Nigro and Paulus

were not parties to the settlement agreement, thus the complaint

as to them should not have been dismissed. Lastly, plaintiff

argues the trial court granted the motion without making requisite

findings of fact and conclusions of law.

Defendants generally deny each of plaintiff's assertions

concerning the unenforceability of the settlement agreement. They

argue plaintiff's cause of action against them should fail based

upon the entire controversy doctrine. Lastly, they contend the

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trial court properly determined the settlement agreement is

enforceable.

Rule 1:7-4 mandates that a trial court, "by an opinion or

memorandum decision, either written or oral, find the facts and

state its conclusions of law thereon . . . on every motion decided

by a written order that is appealable as of right[.]" The

"[f]ailure to perform that duty constitutes a disservice to the

litigants, the attorneys and the appellate court." Curtis v.

Finneran, 83 N.J. 563, 569-70 (1980) (citation omitted).

The trial court must clearly state its factual findings and

correlate them with relevant legal conclusions so the parties and

appellate courts may be informed of the rationale underlying the

decision. Monte v. Monte, 212 N.J. Super. 557, 564-65 (App. Div.

1986). "In the absence of reasons, we are left to conjecture as

to what the judge may have had in mind." Salch v. Salch, 240 N.J.

Super. 441, 443 (App. Div. 1990). Furthermore, such an omission

"imparts to the process an air of capriciousness that does little

to foster confidence in the judicial system." Twp. of Parsippany-

Troy Hills v. Lisbon Contractors, Inc., 303 N.J. Super. 362, 367

(App. Div.), certif. denied, 152 N.J. 187 (1997). For these

reasons, the order dismissing the complaint in the case before us

must be vacated.

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 We note defendants did not cite in their Notice of Motion the

rule or authority under which they were proceeding. Such omissions

by attorneys are not uncommon. Nonetheless, we make the

observation because the appropriate standard of review will

ordinarily guide a trial court's determination. Here, for example,

defendants sought to dismiss the complaint, albeit under the theory

that the parties had entered into an enforceable settlement before

the complaint was filed. As the motion was not based upon

discovery violations, there were only a limited number of rules

under which defendants could have proceeded.

Two such rules are Rule 4:6-2(e) (failure to state a cause

of action upon which relief can be granted) and Rule 4:46 (summary

judgment). Under Rule 4:6-2(e), if "matters outside the pleading

are presented to and not excluded by the court, the motion shall

be treated as one for summary judgment and disposed of as provided

by R. 4:46, and all parties shall be given reasonable opportunity

to present all material pertinent to such a motion." Ibid. The

summary judgment standard requires denial of a summary judgment

motion if there exists a "genuine issue as to any material fact

challenged." R. 4:46-2(c). Moreover, summary judgment motions,

like all motions, must be supported by affidavits that comply with

R. 1:6-6.

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 Neither the parties nor the trial court should construe our

observations as requiring the trial court to merely make findings

of fact and conclusions of law on remand. Nor do we mean to imply

how defendants' motion should be decided. We suggest only that

the trial court has broad discretion on remand. If the record

before it is inadequate to resolve whether the parties' purported

settlement agreement can be enforced, then the motion should be

denied and the court should permit the parties to take discovery

and thereafter conduct an evidentiary hearing, if necessary. If

the trial court determines the existing record is adequate to

dispose of defendants' motion, then it should issue an opinion

that cites the appropriate standard of review and sets forth

findings of fact and conclusions of law.

On remand, the trial court should conduct a status conference

with counsel within thirty days to discuss and decide whether the

motion record should be supplemented and, if so, whether limited

discovery or a hearing is necessary. The parties shall then

proceed accordingly.

The March 22, 2016 order dismissing the complaint is vacated

and this matter is remanded for further proceedings consistent

with this opinion. We do not retain jurisdiction.

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