D.S. VS. PASTOR R.L.S. (L-1937-15, OCEAN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-3663-17T4

D.S.,

Plaintiff-Appellant,

v.

PASTOR R.L.S., and THE ESTATE
OF PASTOR R.L.S.,

Defendants,

and

REVEREND J.M.E., ST. THOMAS
LUTHERAN CHURCH, NEW JERSEY
SYNOD, and EVANGELICAL
LUTHERAN CHURCH IN AMERICA,

Defendants-Respondents.
__________________________________

Argued telephonically May 23, 2019 – Decided June 6, 2019

Before Judges Fisher and Geiger.

On appeal from Superior Court of New Jersey, Law
Division, Ocean County, Docket No. L-1937-15.

D.S., appellant, argued the cause pro se.
 Sean Patrick O'Mahoney argued the cause for
respondents New Jersey Synod and Evangelical
Lutheran Church in America (Weber Gallagher,
attorneys; Joseph Goldberg and Sean Patrick
O'Mahoney, on the brief).

Reverend J.M.E., pro se respondent, join in the brief of
respondents New Jersey Synod and Evangelical
Lutheran Church in America.

Diana Lynne Anderson, attorney for respondent St.
Thomas Lutheran Church, join in the brief of
respondents New Jersey Synod and Evangelical
Lutheran Church in America.

PER CURIAM

Plaintiff D.S. appeals from Law Division orders: (1) enforcing the

settlement agreement reached by plaintiff and defendants New Jersey Synod and

Evangelical Lutheran Church in America (collectively defendants); (2) denying

plaintiff's motion for reconsideration; and (3) denying plaintiff's motion to

disqualify the trial judge. We affirm.

I.

This case arose from plaintiff's claim that defendant Pastor R.L.S., an

ordained Lutheran minister, sexually abused and molested him about twelve

times during 1980-1981, when plaintiff was approximately eleven or twelve

years old. Plaintiff is now fifty years old.

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 Plaintiff retained an attorney to represent him in his claims against

defendants. The retainer agreement provided, in relevant part:

Medicare: If you received Medicare payments, you
may be responsible for the repayment of the Medicare
amount. The Medicare Secondary payer provisions of
the statute 42 U.S.C. 1395y(b)(2), preclude Medicare
from paying for a beneficiary's medical expenses when
payment "has been made or can reasonably be expected
to be made under an automobile or liability insurance
policy or plan (including a self-insured plan) or under
no-fault insurance." However, Medicare may pay for a
beneficiary's covered medical expenses when the third
party payer does not pay promptly, conditioned on
reimbursement to Medicare from proceeds received
from a third party liability settlement, award, judgment
or recovery. If it is needed to get authorization for a
Medicare lien, set aside and/or dispute the lien amount,
the client will be billed separately and hourly for such
service at applicable attorney rates.

Liens: The undersigned hereby agrees to satisfy any
and all liens or encumbrances which may apply to any
settlement amount which may be received with respect
to this matter. If the client has incurred any unpaid
medical treatment and doctor has a Notice of Physician
Lien to secure payment of medical bills relating to
injury, client understands that it is his/her responsibility
to satisfy lien amount out of any settlement proceeds.
Attorney is not responsible for payment of any
outstanding doctor liens, Social Security liens,
Medicare/Medicaid liens, etc.

Plaintiff was thus on notice of his responsibility for any Medicare or medical

provider liens.

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 Plaintiff filed an eleven count, sixty-page personal injury complaint

against Pastor R.L.S.; St. Thomas Lutheran Church, the church where Pastor

R.L.S. was assigned and plaintiff was a congregant; and defendants. The

complaint alleged the following causes of action: sexual battery (count one);

assault (count two); battery (count three); delayed discovery – equitable estoppel

(count four); intentional infliction of emotional distress (count five); negligent

hiring, supervision, and retention (count six); negligent entrustment, breach of

fiduciary duty, and respondeat superior (count seven); negligence – condition of

land (count eight); general negligence (count nine); sexual abuse (count ten);

and false imprisonment (count eleven).

Following completion of substantial discovery and after consulting with

his attorney, plaintiff "reluctantly accepted the settlement offer of $70,000 on

July 22, 2016" in settlement of all of his claims. Plaintiff signed a "General

Agreements of Settlement and Release" (Agreement) in August 2016. Pertinent

to this appeal, the Agreement stated:

1. RELEASE

It is hereby agreed and settled that RELEASOR, for and
in consideration of the sum of SEVENTY THOUSAND
DOLLARS ($70,000.00), does hereby remit, release,
and forever discharge RELEASEES and all of their
employees, agents, insurers, and/or assigns,
predecessors, successors, partners, from any and all

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manner of action(s) and cause(s) of action, suits, debts,
accounts, bonds, covenants, contracts, agreements,
judgments, claims and demands whatsoever, in law or
in equity, related to the Legal Action described herein,
which against the said RELEASEES RELEASOR ever
had, now has, or which his heirs, agents, executors,
administrators, successors or assigns, or any of them,
hereafter can, shall or may have for, or by reason of any
cause, matter or thing whatsoever, from the beginning
of the world to the present.

2. INDEMNIFICATION AGAINST LIENS, CLAIMS
OR DEMANDS

RELEASOR agrees to satisfy any liens, claims or
demands submitted against the proceeds of this
settlement, including, but not limited, to any lien, claim
or demand asserted as a result of the alleged injury
injuries, or damages sustained or incurred by
RELEASOR arising from, or in any way connected
with the Legal Action described herein.

RELEASOR agrees to defend, indemnify and hold
harmless the RELEASEES from any claim, demand or
suit made in connection with any lien, claim, demand
and suit brought by any other entity including, but not
limited to, any health care providers, Workers'
Compensation insurer/carrier, any person and/or entity
seeking compensation and/or reimbursement for
services and/or payments provided to RELEASOR
arising from, or in any way connected with the Legal
Action described herein.

RELEASOR agrees and acknowledges that it is his sole
and exclusive obligation to satisfy all liens, conditional
payments, debts, rights of subrogation, and/or any other
claims or actions asserted against them and/or the
proceeds of this settlement, whether now known or

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 unknown, including, but not limited to any liens by any
medical provider, or any Workers' Compensation
insurer. Medicaid or Medicare resulting from the
payment of compensation, expenses from hospital or
other care and treatment of RELEASOR arising from,
or in any way connected with the Legal Action
described herein.

RELEASOR further agrees to release the RELEASEES
from any liens, debts, rights of subrogation, and/or any
other claims or actions asserted against them and/or the
proceeds of this settlement by anyone claiming by,
through, or under RELEASOR, whether now known or
unknown, including any Workers' Compensation,
Medicaid or Medicare liens resulting from the payment
of compensation and/or expenses for hospital, medical,
mental health and/or other care and treatment of
RELEASOR arising from, or in any way connected
with the Legal Action described herein.

It is not the purpose of this Agreement to shift
responsibility for medical care to the Medicare
program. Instead, this Agreement is intended to resolve
a dispute between RELEAS[OR] and the RELEASEES
in a manner that takes into account the interests of
Medicare and that complies with the Medicare
Secondary Payer Act, 42 U.S.C. § 1395y(b)(2)(A).
The parties have attempted to resolve this matter in
compliance with both state and federal law and it is
believed that the settlement terms adequately consider
and protect Medicare's interest in the circumstances
presently known.

The Agreement clearly and unambiguously confirmed plaintiff's sole

responsibility for any charges or liens asserted by Medicare or medical

providers.

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 When an issue was subsequently raised by plaintiff regarding

responsibility for liens asserted by Medicare for treatment or therapy,

defendants drafted a revised General Agreement of Settlement and Release

(Revised Agreement). The Revised Agreement contained virtually identical

language regarding indemnification against liens, claims, or demands, except it

added the following additional paragraph:

RELEASOR and his counsel represent that
RELEASOR is a Medicare beneficiary as of the date of
this Agreement. RELEASOR and his counsel represent
that RELEASOR has not received any Medicare
benefits with respect to any injuries in any way
connected to the Legal Action. RELEASOR expressly
represents and warrants that no conditional payments
have been made by Medicare on his behalf with respect
to injuries claimed to be as a result of or in any
connected to the Legal Action. RELEASOR further
warrants that any Medicare, Medicaid, or Workers'
Compensation liens, whether now known or unknown,
resulting from the payment of compensation or
expenses for any medical, hospital, or mental health
care and/or treatment of RELEASOR's injuries and/or
damages, will be fully satisfied by the RELEASOR
from the settlement proceeds or otherwise, which is a
material condition of this Agreement.

Defendants stood ready, willing, and able to remit the settlement proceeds upon

receipt of the executed Revised Agreement.

Plaintiff refused to sign the Revised Agreement. Instead, he filed an ethics

grievance against his former attorney with the District Ethics Committee (DEC).

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The DEC dismissed the grievance five months later, finding no evidence of

unethical conduct. Plaintiff appealed the dismissal to the Disciplinary Review

Board (DRB). The DRB dismissed the appeal, also finding no evidence of

unethical conduct.

In addition to refusing to execute the Revised Agreement and filing the

ethics complaint, plaintiff fired his attorney, and proceeded thereafter without

counsel. Plaintiff challenged the validity of the settlement agreement, claiming:

(1) his attorney did not provide adequate representation; (2) his attorney and

defense counsel colluded to have the settlement enforced; (3) several individuals

affiliated with the DEC omitted evidence and delayed an investigation int o the

alleged collusion; and (4) the DRB improperly dismissed plaintiff's ethics

grievances in order to protect the DRB, the DEC, his former attorney, and

defense counsel.

Defendants moved to enforce the settlement. The trial court issued an oral

decision and order granting the motion. Plaintiff was ordered to execute the

revised settlement release that defendant transmitted to plaintiff's attorney on

August 31, 2016. Plaintiff did not comply with the order.

Defendants then moved to dismiss the complaint with prejudice based on

plaintiff's non-compliance. The court declined to dismiss the complaint,

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entering an order that: (1) declared the case was settled for $70,000; (2) directed

defendants to deposit a $70,000 settlement draft made payable to plaintiff and

his former attorney with the court; (3) directed plaintiff's former attorney to

petition the court to recover any unpaid fees and costs prior to issuance of the

settlement funds; (4) declared defendants fully discharged and released from

plaintiff's claims; and (5) declared defendants were not responsible for any past

or future medical expenses or liens, including Medicare or Medicaid, incurred

by plaintiff "as subject to the terms of the settlement."

Plaintiff moved for reconsideration and to disqualify the trial judge. The

trial court issued oral decisions and orders denying both applications. Plaintiff

then sought a stay of the orders pending appeal. The trial court granted the stay

but permitted defendants to deposit the settlement draft with the court . This

appeal followed.

Plaintiff argues: (1) the trial court ignored evidence, which showed

plaintiff's former attorney abandoned him after the initial consultation and failed

to make key corrections to the complaint, because it wanted to protect plaintiff's

former attorney (not raised below); (2) the settlement agreement incorrectly

stated plaintiff was neither a Medicare or Social Security recipient to protect

plaintiff's former attorney (not raised below); (3) plaintiff subsequently learned

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he would be responsible for reimbursing Medicare for future therapy related to

his injuries from the settlement proceeds (not raised below); (4) plaintiff's

former attorney colluded with defense counsel to have the settlement agreement

enforced; (5) the DEC investigator lied, omitted evidence from and intentionally

delayed her investigation (not raised below); (6) the DEC secretary altered

plaintiff's attorney ethics grievance to protect plaintiff's former attorney (not

raised below); (7) the DEC chair delegated his decisional authority and allowed

the investigation to lapse to protect plaintiff's former attorney (not raised

below); and (8) the DRB dismissed all grievances against the DEC investigator

and representatives to protect the DRB, the DEC, and plaintiff's former attorney

(not raised below).

II.

New Jersey has a "strong public policy in favor of the settlement of

litigation." Gere v. Louis, 209 N.J. 486, 500 (2012) (citing Brundage v. Estate

of Carambio, 195 N.J. 575, 601 (2008); Continental Ins. v. Honeywell, 406 N.J.

Super. 156, 195 n.31 (App. Div. 2009)). "A settlement agreement between

parties to a lawsuit is a contract." Cumberland Farms, Inc. v. N.J. Dep't of Envtl.

Prot., 447 N.J. Super. 423, 438 (App. Div. 2016) (quoting Nolan v. Lee Ho, 120

N.J. 465, 470 (1990)). Thus, enforcement of the agreement "is 'governed by [the

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general] principles of contract law.'" Globe Motor Co. v. Igdalev, 225 N.J. 469,

482 (2016) (alteration in original) (quoting Brundage, 195 N.J. at 600-01).

"Absent compelling circumstances, settlement agreements are enforced by our

courts," Borough of Haledon v. Borough of N. Haledon, 358 N.J. Super. 289,

305 (App. Div. 2003) (citing Nolan, 120 N.J. at 472), because "[a] party who

enters into a contract in writing, without any fraud or imposition being practiced

upon him, is conclusively presumed to understand and assent to its terms and

legal effect." Kernahan v. Home Warranty Adm'r of Fla., Inc., 236 N.J. 301,

321 (2019) (alteration in original) (quoting Rudbart v. N. Jersey Dist. Water

Supply Comm'n, 127 N.J. 344, 353 (1992)).

"[A]n agreement to resolve a matter will be enforced as long as the

agreement addresses the principal terms required to resolve the dispute. The

addition of terms to effectuate the settlement that do not alter the basic

agreement will not operate to avoid enforcement of an agreement to settle a

litigated matter." Willingboro Mall, Ltd. v. 240/242 Franklin Ave., LLC, 421

N.J. Super. 445, 453 (App. Div. 2011), aff'd, 215 N.J. 242 (2013) (citations

omitted) (citing Bistricer v. Bistricer, 231 N.J. Super. 143, 145 (Ch. Div. 1987)).

"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

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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) (quoting Bistricer, 231 N.J. Super. at 145).

"Execution of a release is a mere formality, not essential to the formation of the

contract of settlement." Jennings v. Reed, 381 N.J. Super. 217, 229 (App. Div.

2005).

"On a disputed motion to enforce a settlement," a trial court must apply

the same standards "as on a motion for summary judgment." Amatuzzo v.

Kozmiuk, 305 N.J. Super. 469, 474-75 (App. Div. 1997).

Applying these guiding principles, we affirm substantially for the reasons

expressed by Judge Arnold B. Goldman in his comprehensive and well-reasoned

oral decisions. We find insufficient merit in plaintiff's arguments that were not

raised before the trial court to warrant discussion in a written opinion. R. 2:11-

3(e)(1)(E). We add the following brief comments.

In contrast to complex contractual and matrimonial disputes that typically

require detailed settlement terms, this case involved claims for personal injuries

arising from alleged tortious conduct. A simple, generic release of all claims,

including responsibility for any related liens by medical providers, in exchange

for stated consideration would suffice. The record demonstrates the settlement

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agreement reached by the parties contained the necessary terms required to

globally settle the dispute. Plaintiff agreed to those terms. He later reneged on

signing the revised release, claiming he did not know he may be responsible for

Medicare liens arising from treatment that was previously uncharged. The

Revised Agreement did not materially alter the terms of the settlement reached.

As between the parties, the settlement is enforceable. Plaintiff's remedy, if any,

is against his former attorney.

Plaintiff claims the trial judge erred by not recusing himself. A judge

"shall be disqualified . . . and shall not sit in any matter . . . when there is any

. . . reason which might preclude a fair and unbiased hearing and judgment, or

which might reasonably lead counsel or the parties to believe so." R. 1:12-1(g).

Similarly, Canon 3, Rule 3.17(B) of the Code of Judicial Conduct states "[a]

judge should disqualify himself or herself in a proceeding in which the judge's

impartiality might reasonably be questioned." "However, before the court may

be disqualified on the ground of an appearance of bias, the belief that the

proceedings were unfair must be objectively reasonable." State v. Presley, 436

N.J. Super. 440, 448 (App. Div. 2014) (quoting State v. Marshall, 148 N.J. 89,

279 (1997)). Following those principles, the Court adopted "the following

standard to evaluate requests for recusal: 'Would a reasonable, fully informed

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person have doubts about the judge's impartiality?'" State v. McCabe, 201 N.J.

34, 44 (2010) (quoting DeNike v. Cupo, 196 N.J. 502, 517 (2008)).

Motions for disqualification "are entrusted to the sound discretion of the

judge and are subject to review for abuse of discretion." Id. at 45 (citing Panitch

v. Panitch, 339 N.J. Super. 63, 66, 71 (App. Div. 2001)). "We review de novo

whether the proper legal standard was applied." Ibid. We find no factual or

legal basis for recusal. The denial of plaintiff's recusal motion was not an abuse

of discretion.

Affirmed.

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