RICHARD J. BADOLATO, ETC. VS. CHARYSE MCMILLAN (DC-017383-16, ESSEX 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NOT FOR PUBLICATION WITHOUT THE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-5474-16T1

RICHARD J. BADOLATO,
COMMISSIONER OF THE
NEW JERSEY DEPARTMENT OF
BANKING AND INSURANCE,

Plaintiff-Respondent,

v.

CHARYSE McMILLAN,

Defendant-Appellant.
___________________________

Argued October 3, 2018 - Decided October 19, 2018

Before Judges Koblitz, Ostrer and Mayer.

On appeal from Superior Court of New Jersey, Law
Division, Special Civil Part, Essex County, Docket No.
DC-017383-16.

David Lustbader argued the cause for appellant (Philip
M. Lustbader and David Lustbader, PC, attorneys;
David Lustbader, on the brief).

William B. Puskas, Jr., Deputy Attorney General,
argued the cause for respondent (Gurbir S. Grewal,
Attorney General, attorney; Melissa Dutton Schaffer,
 Assistant Attorney General, of counsel; William B.
Puskas, Jr., on the brief).

PER CURIAM

Defendant Charyse McMillan appeals from a May 26, 2017 Special Civil

Part order granting the Commissioner of the Department of Banking and

Insurance's motion for summary judgment, finding that McMillan violated the

New Jersey Insurance Fraud Prevention Act (IFPA), N.J.S.A. 17:33A-1 to -34,

by falsely claiming that she was injured in a car accident while driving her

former boyfriend's car. In addition to imposing the statutory surcharge of $1000,

the court imposed the maximum civil penalty of $5000 and the entire requested

Attorney General counsel fees of $7946.50. McMillan also appeals from the

July 21, 2017 denial of her motion for reconsideration. McMillan asserts four

primary arguments. First, the motion court should have enforced the parties'

settlement agreement. Second, the motion court improperly granted summary

judgment. Third, the motion court improperly denied a request for oral

argument, at both the summary judgment and reconsideration stages. And

fourth, the motion court did not place its findings of fact and conclusions of law

on the record when deciding the motions. After our de novo review, we affirm

the grant of summary judgment, but remand for reconsideration of the penalty

and attorney fees imposed.

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 In January 2010, McMillan reported to New Jersey Manufacturers

Insurance Company (NJM) that she suffered personal injuries in an October

2009 car accident in Newark. In March 2010, McMillan submitted a no-fault

personal injury protection (PIP) insurance claim to NJM under her former

boyfriend's policy, which was denied by NJM.

McMillan filed a lawsuit against NJM that proceeded to arbitration . The

arbitrators awarded her $25,000 in damages, but the case proceeded to trial after

NJM rejected the award and requested a trial de novo. The jury found that

McMillan was driving her former boyfriend's car, but that no accident had

occurred. Because the jury reached a verdict of no cause of action, McMillan's

lawsuit was dismissed with prejudice in April 2014.

In December 2016, the Commissioner filed a complaint against McMillan,

alleging she knowingly provided false and misleading statements concerning

material information in her PIP claim, in violation of the IFPA. The court

granted the Commissioner's motion for summary judgment and determined that

McMillan violated that IFPA. Pursuant to the IFPA, the court imposed a

$13,946.50 penalty against McMillan, consisting of a $5000 civil penalty and

$7946.50 in attorneys' fees, N.J.S.A. 17:33A-5(b), as well as the $1000

mandatory statutory surcharge, N.J.S.A. 17:33A-5.1. The court also suspended

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McMillan's driving privileges for one year. N.J.S.A. 39:6A-15. At the bottom

of its order granting summary judgment, the court wrote: "Collateral Estoppel

Applies. Defendant not involved in the accident."

The court denied McMillan's motion for reconsideration, also without oral

argument, writing:

Moving [p]arty has not supplied any additional law or
facts to form the basis of a [r]ehearing of the prior
motion. Settlement [n]egotiations are not the basis for
[r]eopening the judgment nor is the ability to [p]ay.
Prior motion was opposed and the opposition, although
late, was considered.

I. Settlement

McMillan claims she had a settlement agreement with the Commissioner.

The enforceability of settlements is governed by contract law. GMAC

Mortgage, LLC v. Willoughby, 230 N.J. 172, 185 (2017). A settlement

agreement, like a contract, requires an offer and acceptance by the parties, and

it "must be sufficiently definite 'that the performance to be rendered by each

party can be ascertained with reasonable certainty.'" Weichert Co. Realtors v.

Ryan, 128 N.J. 427, 435 (1992) (quoting West Caldwell v. Caldwell, 26 N.J. 9,

24-25 (1958)). A legally enforceable contract "requires mutual assent, a meeting

of the minds based on a common understanding of the contract terms." Morgan

v. Sanford Brown Institute, 225 N.J. 289, 308 (2016). Once parties to a contract

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"agree on essential terms and manifest an intention to be bound by those terms,

they have created an enforceable contract." Weichert Co. Realtors, 128 N.J. at

435. Alternatively, if the parties do not agree to one or more essential terms,

their contract is ordinarily unenforceable. Ibid.

Here, McMillan argues that after "numerous telephone calls and

exchanges of email[,]" the parties agreed to settle the matter for $3000, to be

paid by McMillan in $50 monthly installments. McMillan further argues that

the parties agreed to execute a consent order, but file it only upon McMillan's

default in payments. According to McMillan, all material terms of a settlement

agreement were agreed upon, and the only remaining issue was: "(1) whether

[McMillan would] state that she intentionally committed insurance fraud, or (2)

whether there [would] be [a] statement that a settlement is not an admission of

any wrongdoing, but merely an economical way to resolve litigation, or (3) no

statement."

The written exchanges between counsel demonstrate that the parties never

reached a final settlement agreement. Although the IFPA created a statutory

mandate to "confront aggressively the problem of insurance fraud in New

Jersey," N.J.S.A. 17:33A-2, it does allow a no-admission settlement, N.J.S.A.

17:33A-5(d). The emails between the Deputy Attorney General and McMillan's

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counsel confirm that there was no meeting of the minds as to the essential issue

of admission of culpability.

On May 11, 2017, in response to defense counsel's request for draft

settlement documents, the Deputy Attorney General emailed the following:

"Frankly, it does not make sense to draft settlement documents until I have your

assent to the terms I mentioned yesterday, since those are the terms we have

been discussing now for perhaps three months, and you still have not advised

me whether your client will agree to them." Eight days later, in response to

defense counsel's email stating that McMillan would not admit to knowingly

submitting a false claim, the Deputy Attorney General emailed:

I have advised you time and again, for months now, that
it is basically impossible that the Department would
agree to a "no admission" settlement agreement. Yet,
you continue to ask. I have been candid with you from
the start about these items you raise. Furthermore, I
have made concessions throughout our attempts at
settlement; I do not believe your client has done the
same, especially in light of the fee-shifting nature of
this case and the risk of her losing her driving privileges
for one year.

....

At this point, we must move forward with the motion.
Whatever opposition you submit is now untimely, and
I will object on those grounds and reserve the right to
reply.

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 On May 23, 2017, in response, defense counsel emailed:

We previously agreed to $3,000 at $50 a month.

....

The only issue we have left is the paperwork regarding
whether my client admits to wrongdoing or whether the
paperwork reflects that the settlement is not an
admission by either party. Your previous email below
stated you are waiting to hear back from your client
regarding that. I see this merely as a drafting issue with
the paperwork.

Agreeing on the amount of the settlement and the
payment plan is the material issue that we resolved.

The Deputy Attorney General responded:

Your client's request for no admission of fault language
was rejected by my client. She will have to admit to a
knowing violation of the Fraud Act based on the
submission of a false PIP claim.

Based on that, it does not appear we have an agreement
on the material terms.

The Department's acceptance of the settlement agreement was expressly

conditioned upon McMillan's admission that she knowingly violated the IFPA.

See Richard v. Union Carbide Indus. Gases, Inc., 347 N.J. Super. 524, 530 (App.

Div. 2002) (acceptance to a contract is not valid if "expressly made conditional

on assent to [] additional or different terms.") (quoting N.J.S.A. 12A:2-207(1)).

Moreover, as indicated by the written exchanges between counsel, until

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McMillan agreed to include an admission of culpability, the Deputy Attorney

General refused to draft settlement documents. Thus no meeting of the minds

as to all essential elements of the agreement occurred, and the motion court

properly did not enforce McMillan's version of the settlement.

II. Summary Judgment

We review a trial court's grant of summary judgment under the same

standard as the motion court. Globe Motor Co. v. Igdalev, 225 N.J. 469, 479

(2016). A trial court may grant a motion for summary judgment "if the

pleadings, depositions, answers to interrogatories and admissions on file,

together with the affidavits, if any, show that there is no genuine issue as to any

material fact challenged and that the moving party is entitled to a judgment or

order as a matter of law." R. 4:46-2(c). When determining whether a genuine

issue of material fact exists, a motion court must consider whether competent

evidence presented, "viewed in the light most favorable to the non-moving

party" is sufficient to allow a rational factfinder "to resolve the alleged disputed

issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am.,

142 N.J. 520, 523 (1995). In order to defeat a motion for su mmary judgment,

the non-moving party must present evidence that creates a genuine issue of a

material fact. Id. at 529. In other words, the evidence cannot simply "point[] to

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any fact in dispute." Ibid. To determine if an issue of fact is genuine, a trial

court must decide "whether the evidence presents a sufficient disagreement to

require submission to a jury or whether it is so one-sided that one party must

prevail as a matter of law." See id. at 536 (quoting Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 251-52 (1986)).

A party will prevail under the IFPA if it establishes that "(1) the defendant

'presented' a 'written or oral statement'; (2) the defendant knew that the statement

contained 'false or misleading information'; and (3) the information was

'material' to 'a claim for payment or other benefit pursuant to an insurance policy

. . . .'" See Allstate New Jersey Ins. Co. v. Lajara, 222 N.J. 129, 147-48 (2015)

(quoting N.J.S.A. 17:33A-4(a)(1)). A party seeking summary judgment must

therefore establish that the evidence satisfying these three factors is beyond

dispute such that the party "must prevail as a matter of law." See Brill, 142 N.J.

at 540 (quoting Liberty Lobby, Inc., 477 U.S. at 252).

McMillan submitted a claim to NJM for PIP benefits, stating that she was

in a car accident. Because, as the jury found, McMillan was not involved in a

car accident, McMillan must have known her claim was fraudulent. McMillan's

claim to NJM that she was in a car accident was, of course, material to NJM's

decision regarding payment of benefits.

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 Our Supreme Court has described the doctrine of collateral estoppel:

For the doctrine of collateral estoppel to apply to
foreclose the relitigation of an issue, the party asserting
the bar must show that: (1) the issue to be precluded is
identical to the issue decided in the prior proceeding;
(2) the issue was actually litigated in the prior
proceeding; (3) the court in the prior proceeding issued
a final judgment on the merits; (4) the determination of
the issue was essential to the prior judgment; and (5)
the party against whom the doctrine is asserted was a
party to or in privity with a party to the earlier
proceeding.

[Olivieri v. Y.M.F. Carpet, Inc., 186 N.J. 511, 521
(2006) (quoting In re Estate of Dawson, 136 N.J. 1, 20-
21 (1994)).]

The doctrine of collateral estoppel bars McMillan from contesting the

jury's finding that she was not involved in an accident. The issue involved in

this case is the same as McMillan's previous case against NJM, where the jury

found that McMillan was not involved in a car accident. This finding was

critical to the outcome of the lawsuit against NJM for PIP benefits. Because

McMillan is barred from arguing that she was involved in a car accident, she

cannot prevail and no genuine dispute of material fact exists.

III. Oral Argument

McMillan argues that the court improperly denied her oral argument on

the Commissioner's motion for summary judgment. Rule 6:3-3(c)(1) states that

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"[n]o oral argument of a motion shall be permitted unless specifically demanded

by a party or directed by the court." McMillan argues that the sentence in the

Deputy Attorney General's cover letter submitted with his motion, directing the

clerk to, "Please enter [the motion for summary judgment] upon the docket and

advise when a hearing date is scheduled[]" is an explicit request for oral

argument. We do not read that sentence as meeting the specific request

requirement of Rule 6:3-3. The motion also notified McMillan that she could

respond and ask for oral argument, yet she did not request oral argument. On

her motion for reconsideration, however, McMillan made a request for oral

argument, which was not provided.

A court may deny a request for oral argument, as long as it sets forth the

reason for doing so "orally on the record or separately in writing." See

Raspantini v. Arocho, 364 N.J. Super. 528, 531-32 (App. Div. 2003). For

example, if a motion for reconsideration, on its face, does not demonstrate that

the trial court a) based its decision upon a "palpably incorrect or irrational

basis," or b) failed to consider or appreciate "the significance of probative,

competent evidence[;]" or c) the litigant is not bringing "new or additional

information to the [motion court's] attention which it could not have provided

on the first application," then the motion court has the discretion to deny it

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without oral argument, provided it articulates such substantive shortcoming as a

reason for denying oral argument. Cummings v. Bahr, 295 N.J. Super. 374, 384

(App. Div. 1996) (quoting D'Atria v. D'Atria, 242 N.J. Super 392, 401-02 (Ch.

Div. 1990)); Raspantini, 364 N.J. Super. at 531-32.

A trial court's decision to deny a motion for reconsideration will be upheld

on appeal unless the motion court's decision was an abuse of discretion. Granata

v. Broderick, 446 N.J. Super. 449, 468 (App. Div. 2016). An abuse of discretion

"arises when a decision is 'made without a rational explanation, inexplicably

departed from established policies, or rested on an impermissible basis. '" Flagg

v. Essex County Prosecutor, 171 N.J. 561, 571 (2002) (quoting Achacoso-

Sanchez v. INS, 779 F.2d 1260, 1265 (7th Cir. 1985). We do not find the court

abused its discretion in denying oral argument on the motion for reconsideration,

although the court should have placed its reasons for denying argument in the

order or on the record.

IV. Insufficient Findings

We agree with the court that collateral estoppel mandated the grant of

summary judgment. Although its findings were brief, the court's handwritten

notes were sufficient with regard to the grant of summary judgment , and with

regard to the denial of reconsideration. The court was required, however, to

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make findings of fact and conclusions of law before imposing $13,946.50 in

attorneys' fees and penalties upon McMillan. The trial court did not make any

findings that the maximum $5000 civil penalty and $7946.50 in attorneys' fees

were rationally related to expenses associated with eradicating insurance fraud.

See Merin v. Maglaki, 126 N.J. 430, 444, 446 (1992). Our Supreme Court has

outlined seven factors the court should weigh before imposing a civil penalty:

1) the good or bad faith of defendant, 2) defendant's ability to pay, 3) the amount

of profits obtained from the illegal activity, 4) the injury to the public, 5) the

duration of the conspiracy, 6) the existence of criminal or treble damages

actions, and 7) any past violations. Kimmelman v. Henkels & McCoy, Inc., 108

N.J. 123, 137-40 (1987) (discussing civil penalties under the New Jersey

Antitrust Act, N.J.S.A. 56:9-1 to -19). The court here imposed the maximum

penalty without explanation. The court also failed to explain its reasoning in

awarding all of the counsel fees sought. See RPC 1.5(a) (delineating the factors

to consider when assessing a counsel fee request).

The trial court must provide reasons with its decisions, either on the record

or in writing. R. 1:7-4(a). "Moreover, the appellate court ordinarily cannot

perform its review function in the absence of findings." Filippone v. Lee, 304

N.J. Super. 301, 306 (App. Div. 1997).

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 We understand the tremendous volume of matters passing through the

Special Civil Part, but we cannot review the imposition of maximum penalties

and the full amount of legal fees requested without assurance that the court

considered the appropriate factors. We remand for reconsideration and a

statement of reasons after all of the appropriate factors are considered. We do

not intend any particular result after reconsideration. We see no reason to

remand this matter to a different judge.

Affirmed in part and reversed and remanded in part to reconsider the

imposition of penalties and award of counsel fees and provide findings. We do

not retain jurisdiction.

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