RELEASEE 1 AND RELEASEE 2 VS. N.G. (L-8821-16, BERGEN 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NOT FOR PUBLICATION WITHOUT THE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-4522-16T2

RELEASEE 1 and RELEASEE 2,1

Plaintiffs-Respondents,

v.

N.G.,

Defendant-Appellant.
_____________________________

Submitted November 26, 2018 – Decided December 4, 2018

Before Judges Sabatino and Haas.

On appeal from Superior Court of New Jersey, Law
Division, Bergen County, Docket No. L-8821-16.

Guaglardi & Meliti, LLP, attorneys for appellant (Jason
S. Nunnermacker, on the briefs).

McCarter & English, LLP, attorneys for respondent
Releasee 1 (Natalie S. Watson, of counsel and on the
brief).

1
Pursuant to a stipulation executed by the parties, plaintiff Releasee 2 was
dismissed as a party to this appeal with prejudice.
PER CURIAM

Defendant N.G.2 appeals from the Law Division's June 1, 2017 order

enforcing a pre-litigation settlement agreement negotiated between, and

consummated by, the attorneys for plaintiffs Releasee 1, Releasee 2, and

defendant. Prior to issuing that order, Judge James DeLuca conducted an

evidentiary hearing, made detailed credibility determinations, and rendered a

twenty-five-page written decision concluding that defendant's counsel had

apparent authority to enter into a binding settlement agreement with plaintiffs.

On appeal, defendant alleges that the record developed at the hearing does

not support the judge's decision. As she did before the trial court, defendant

claims that the settlement should not be enforced because: (1) it was not in

writing; (2) she specifically instructed her attorney not to settle the case; and (3)

the parties' conduct after the settlement was allegedly completed indicated they

believed the matter had not actually been resolved.

2
In the Law Division, the parties agreed that the underlying facts of the dispute
between the parties would be kept confidential and that plaintiffs' identities
should not be disclosed. Therefore, plaintiffs were referred to as "Releasee 1"
and "Releasee 2," and we adopt those designations here when referring to
plaintiffs individually. For reasons that are not clear, defendant's identity was
not similarly protected. In this opinion, however, we will refer to defendant and
the witnesses who testified at the hearing by their initials to preserve the
confidentiality the parties originally sought.
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 After reviewing the record in light of the contentions advanced on appeal,

we conclude that defendant's arguments are without merit, and we affirm

substantially for the reasons set forth in Judge DeLuca's thoughtful and thorough

decision.

The underlying procedural history and facts of this case, as developed at

the hearing, are fully set forth in Judge DeLuca's decision, where he extensively

detailed the parties' negotiations on a day-by-day, and sometimes on a minute-

by-minute, basis. In light of the comprehensive nature of the judge 's findings,

only a brief summary is necessary here.

The factual dispute between the parties involved circumstances that

occurred during a trip plaintiffs took with defendant in February 2016. On

March 10, 2016, defendant retained an attorney, A.D., to represent her in a

possible lawsuit against plaintiffs. A.D. testified that he advised defendant that

they should attempt to settle the dispute for a monetary payment agreeable to

both sides prior to filing a complaint. A.D. also told defendant that plain tiffs

would reasonably insist that the terms of the settlement be kept confidential.

During April and May, A.D. and plaintiffs' attorney, G.R. exchanged a

series of telephone calls, emails, and text messages in an effort to settle the

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matter.3 During this period, A.D. kept defendant apprised of the negotiations.

Defendant expressed satisfaction with the progress and agreed with A.D. that

the matter should be settled because she did not "want to be dragged" through a

trial and "want[ed] it to be over." At all times, A.D. represented to G.R. that he

had defendant's permission to negotiate and agree upon a settlement.

The negotiations drew to a close in June. A.D. and G.R. exchanged

settlement figures. A.D. and defendant discussed plaintiffs' offer and she told

A.D. to attempt to get some more money from them. A.D. testified that he and

A.D. agreed that if he could get a specific sum from plaintiffs, A.D. could settle

the case.

On June 16, G.R. proposed to A.D. that the parties settle the case by

splitting the difference between their current offers. Because the resulting figure

was within the range defendant desired, A.D. called G.R. and told him that

defendant "had instructed him to relay that she would settle" for that amount.

G.R. advised that he would check with plaintiffs and get back to A.D.

3
Releasee 2 was represented by his own attorney, but that attorney agreed to
let G.R. take the lead in negotiating a settlement for both plaintiffs.
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 The next day, G.R. emailed A.D. and told him, "I think we have a

settlement" for the sum they had discussed. G.R. told A.D. he would call him

on Monday to confirm.

A.D. testified that, over the weekend, defendant expressed some hesitancy

in going ahead with the settlement because her father thought she could get more

money. However, defendant did not tell him to withdraw the offer, and A.D.

did not advise G.R. that defendant had changed her mind or was having any

doubts.

At 8:05 a.m. on June 21, G.R. sent an email to A.D. accepting defendant's

settlement offer. G.R. also gave A.D. a draft confidential settlement agreement

and release setting forth the terms of the settlement they had discussed. G.R.

testified that he believed throughout the negotiations that A.D. was fully

authorized to tender the settlement offer and resolve the case on defendant's

behalf. When asked to explain why, G.R. stated:

Well[,] we had been negotiating at that point for two
months. As I mentioned, during the phone calls we
would say we're going to speak to [our] respective
clients, the numbers changed over time, which gave me
the understanding that he had spoken and came back
with different numbers. But absolutely, and you can
see it reflected in some of the emails too. Let's go back
and speak with our clients. I mean that's what attorneys
do when you engage in settlement negotiations.

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 A.D. also testified that he believed that defendant had authorized him to

negotiate on her behalf and to settle the matter within the parameters she gave

him. Thus, he was surprised when defendant did not respond to his text

messages after June 21. On July 1, defendant terminated A.D.'s representation

and directed him to give her file to her new attorney, B.G.

On that same date, B.G. emailed G.R., who was on vacation, and told him

that he was preparing to file a complaint against plaintiffs on defendant's behalf.

Before doing so, however, B.G. said he wanted to give G.R. the opportunity to

meet with him. When G.R. got home on July 11, he called B.G., expressed

surprise at the contents of the email, and told B.G. that he had already settled

the case with A.D. G.R. testified that B.G. just kept talking over him during the

call. Because he wanted to make sure that B.G. did not proceed with filing a

complaint, G.R. agreed to meet with him on July 13. He again told B.G. that

the case was already settled, but B.G. continued to ignore him.

Plaintiffs then filed a declaratory judgment action against defendant and

sought an order enforcing the settlement G.R. consummated with A.D. on June

21. Plaintiffs also obtained an order restraining defendant from disclosing any

of the facts surrounding the trip she took with them that formed the basis of the

parties' underlying dispute.

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 At the evidentiary hearing, defendant claimed that she never authorized

A.D. to finalize a settlement on her behalf. She also asserted that A.D. never

informed her that a confidentiality agreement would have to be part of any final

settlement. B.G. testified that G.R. never alleged that the matter had already

been settled during any of their conversations.

As correctly framed by Judge DeLuca, the issue to be resolved by him was

whether A.D. possessed actual or apparent authority to consummate a settlement

with G.R. on defendant's behalf. As the judge explained, the legal principles

governing the proper adjudication of that issue are well established.

Our system strongly values the settlement of litigation, and we "strain to

give effect to the terms of a settlement whenever possible." Brundage v. Estate

of Carambio, 195 N.J. 575, 601 (2008) (quoting Dep't of Pub. Advocate v. N.J.

Bd. of Pub. Utils., 206 N.J. Super. 523, 528 (1985)). "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. 1993). The

burden to prove a settlement agreement is borne by the party seeking to enforce

it. Amatuzzo v. Kozmiuk, 305 N.J. Super. 469, 475 (App. Div. 1997).

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 "[A]n attorney for a private party may settle a lawsuit based on actual or

apparent authority to do so." Seacoast Realty Co. v. W. Long Branch Borough,

14 N.J. Tax 197, 202-03 (Tax 1994). Actual authority may be express or

implied. Newark Branch, N.A.A.C.P. v. W. Orange Twp., 786 F. Supp. 408,

423 (D.N.J. 1992). Implied authority exists when "an agent is authorized to do

what he [or she] may reasonably infer the principal desires him [or her] to do in

light of the principal's manifestations and facts as he [or she] knows or should

know them when he [or she] acts." Lampley v. Davis Mach. Corp., 219 N.J.

Super. 540, 548-49 (App. Div. 1987). "The focus is on the agent's reasonable

perception of the principal's manifestations toward him" or her. Newark Branch,

N.A.A.C.P., 786 F. Supp. at 424.

Apparent authority arises when "the client's voluntary act has placed the

attorney in a situation wherein a person of ordinary prudence would be justified

in presuming that the attorney has authority to enter a settlement, not just

negotiations, on behalf of the client." Amatuzzo, 305 N.J. Super. at 475; see

also LoBiondo v. O'Callaghan, 357 N.J. Super. 488, 497 (App. Div. 2003)

(stating that creation of apparent authority is based on "the actions of the

principal, not the alleged agent"). Thus, implied actual authority depends on the

agent's reasonable perceptions of the principal's actions; apparent authority

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depends on a third-party's perceptions. An attorney is presumed to possess the

authority to act on behalf of a client, a presumption which the client has a heavy

burden of overcoming. Jennings v. Reed, 381 N.J. Super. 217, 231 (App. Div.

2005).

Based upon the evidence presented at the evidentiary hearing, Judge

DeLuca concluded that defendant failed to satisfy that "heavy burden" here. In

so ruling, the judge found that the testimony offered by A.D. and G.R.

concerning the settlement negotiations was credible, while the accounts

provided by defendant and B.G. were not.

The judge found that A.D. had the apparent authority to settle the case on

defendant's behalf. As the judge explained, defendant admitted that she

"understood and directed" A.D. to discuss settlement with G.R. During those

negotiations, A.D. and defendant discussed "various settlement scenarios" on

numerous occasions. Defendant never told A.D. to stop discussing settlement

with G.R., and acknowledged in early June 2016 that she and A.D. "had 'already

made the decision' to settle the matter out of court."

Judge DeLuca also found that on June 16, defendant and A.D. agreed upon

a settlement amount that A.D. should relay to G.R. This settlement proposal

included a confidentiality agreement and the judge found that defendant's

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contrary allegation was not credible. The judge determined that defendant's

"voluntary actions placed [A.D.] in a situation where a person of ordinary

prudence, namely, [G.R.], would be justified in presuming that [A.D.] had the

authority to enter into a settlement and not just negotiations on behalf of the

client." Thus, when G.R. accepted A.D.'s offer on June 21, the settlement was

consummated and became enforceable, despite the fact that defendant later

refused to execute a written settlement agreement.

The judge rejected defendant's claim that G.R. acknowledged that the

matter had not been settled when he agreed to meet with B.G. after defendant

terminated A.D. The judge found that G.R. credibly testified that he repeatedly

told B.G. that the matter was settled, and that he only met with B.G. to seek to

stop him from filing a complaint. 4

In sum, Judge DeLuca found that A.D., on behalf of defendant, made a

settlement offer to G.R. on June 17, 2016. A.D. "had the apparent authority to

4
Because he found that A.D. had the apparent authority to consummate the
settlement, Judge DeLuca stated it was not necessary to "reach the issue of
whether [A.D.] had actual authority to settle the matter." However, the judge
noted that if defendant was "of the view that [A.D.] exceeded his authority, [she]
was free to pursue whatever claims she deem[ed] appropriate against" A.D. and
his law firm. Releasee 1 states in his appellate brief that defendant subsequently
brought an action against A.D. in the Law Division, but the record does not
reveal the outcome of that proceeding.
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make that offer. The offer on behalf of [defendant] was never revoked. On June

21, 2016, at 8:05 a.m., [p]laintiffs accepted the settlement offer when [G.R.]

transmitted the Settlement Agreement to [A.D.] which incorporated the material

terms discussed." Accordingly, the judge concluded "that a settlement exists

and should be enforced." This appeal followed.

As already noted, defendant raises the same arguments on appeal as she

did before Judge DeLuca. We discern no basis for disturbing the judge's

rejection of these claims.

Our review of a trial court's fact-finding in a non-jury case is limited.

Seidman v. Clifton Sav. Bank, S.L.A., 205 N.J. 150, 169 (2011). "The general

rule is that findings by the trial court are binding on appeal when supported by

adequate, substantial, credible evidence. Deference is especially appropriate

when the evidence is largely testimonial and involves questions of credibility."

Ibid. (quoting Cesare v. Cesare, 154 N.J. 394, 411-12 (1998)). The trial court

enjoys the benefit, which we do not, of observing the parties' conduct and

demeanor in the courtroom and in testifying. Ibid. Through this process, trial

judges develop a feel of the case and are in the best position to make credibility

assessments. Ibid. We will defer to those credibility assessments unless they

are manifestly unsupported by the record. Weiss v. I. Zapinsky, Inc., 65 N.J.

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Super. 351, 357 (App. Div. 1961). However, we owe no deference to a trial

court's interpretation of the law, and review issues of law de novo. Mountain

Hill, L.L.C. v. Twp. Comm. of Middletown, 403 N.J. Super. 146, 193 (App. Div.

2008).

Applying these standards, we conclude that Judge DeLuca's factual findings

are fully supported by the record and, in light of those facts, his legal conclusions are

unassailable. We therefore affirm substantially for the reasons that the judge expressed

in his well-reasoned opinion.

Affirmed.

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