Opinion
DOCKET NO. A-3961-13T3
10-15-2015
ANNE M. TRUFOLO LIVING TRUST, Plaintiff-Respondent, v. ANTHONY F. TRUFOLO, JR., Defendant-Appellant.
Anthony F. Trufolo, Jr., appellant pro se. Richard C. Sciria, attorney for respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Simonelli and Leone. On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. DC-2328-13. Anthony F. Trufolo, Jr., appellant pro se. Richard C. Sciria, attorney for respondent. The opinion of the court was delivered by LEONE, J.A.D.
In this family dispute, defendant Anthony F. Trufolo, Jr. appeals from the grant of a motion to enforce settlement, filed by plaintiff, the Anne M. Trufolo Living Trust. We affirm.
I.
Plaintiff is the legal owner of a property in the Borough of Little Silver. In 2013, plaintiff filed a complaint for ejectment in the Special Civil Part of the Law Division. Plaintiff alleged that defendant illegally occupied the rear basement ("the premises") of a building on the property for over five years, that plaintiff was entitled to possession, and that defendant's refusal to vacate prevented plaintiff from using, leasing, and making necessary repairs to the property.
Defendant's answer alleged that in 1987 Anthony F. Trufolo, Sr. (Father) and Anne M. Trufolo (Mother) gave defendant permission to occupy the premises in return for construction and maintenance services, and that Father, as the beneficiary of plaintiff, later permitted him to continue to occupy the premises in return for similar services on behalf of the plaintiff. Defendant also alleged that the filing of the ejectment complaint violated the entire controversy doctrine because there was an action pending in the Chancery Division seeking to remove plaintiff's trustee (and defendant's sister) Sandra J. Bucossi.
According to defendant's certification, Mother died in 1998; and the premises is a basement storage room which defendant used as office space and for entertaining friends. --------
On the September 23, 2013 trial date, Bucossi, plaintiff's counsel Richard C. Sciria, and defendant's counsel Michael Convery appeared before the Special Civil Part and informed the trial court that a settlement had been reached. Sciria noted there were other actions between the parties in different courts, including the Chancery Division, but "we were able to resolve the issues as far as this ejectment matter." Sciria put on the record the terms of the settlement, namely that defendant would voluntarily leave the premises on January 31, 2014; that defendant would provide access to the premises to the property manager; and that if defendant failed to provide such access or failed to leave by January 31, 2014, plaintiff would seek an ex parte removal of defendant, reserving its right to seek damages.
Sciria said he understood that defendant "understands this and we'll also put this in writing to confirm it, but just for the protection of the parties" it was appropriate to put it on the record. Defendant's counsel Convery stated that defendant was not present, explaining: "We had a trial date and you know, I apologize for not presenting him. I didn't feel it was necessary. He totally understands the terms. I have the ability to consent to those terms, which were arrived at at a meeting on Thursday afternoon," September 19, 2013. Convery continued: "I didn't produce him today because I figured we could submit a consent order and notify the Court. It was Mr. Sciria who felt that it was necessary to put it on the record, so I agreed."
Convery affirmed to the trial court that he was "authorized on [defendant's] behalf to consent to the terms as placed by Mr. Sciria on the record." The court then questioned Bucossi, who testified she understood and agreed to the terms as plaintiff's trustee. The court marked the matter as settled. The next day, Sciria sent Convery a letter confirming the terms stated on the record.
Efforts continued to settle other matters. In a January 13, 2014 letter to Convery, Sciria wrote that, although the parties "were unsuccessful in reaching a global resolution" at a January 9, 2014 meeting, those conversations suggested "a potential proposal to settle this matter." Sciria's potential proposal included that plaintiff would be removed as trustee, and that defendant's "time to vacate the property would be extended from January 31, 2014 until April 30, 2014." Sciria emphasized that the potential proposal had not been adopted by the parties.
On February 28, 2014, Convery withdrew, and defendant, representing himself, filed a motion to vacate the September 23 settlement. Plaintiff filed a cross-motion to enforce the settlement and for ejectment.
On April 25, 2014, another Law Division judge heard the motions. He implicitly denied defendant' motion to vacate the settlement, and explicitly granted plaintiff's cross-motion to enforce the settlement. Pursuant to that settlement, the judge ordered that "defendant shall be deemed ejected from the premises." The judge permitted plaintiff to effect the orderly removal of defendant no sooner than May 9, 2014.
The judge denied defendant's motion for a stay, finding that his proposed appeal lacked merit and that plaintiff should not be burdened with another prolonged delay. We denied defendant's emergent application for a stay. After defendant failed to vacate the premises, the judge issued a writ of possession. Defendant was evicted on August 5, 2014.
II.
Defendant appeals the April 25, 2014 order. We have held that:
On a disputed motion to enforce a settlement, as on a motion for summary judgment, a hearing is to be held to establish the facts unless the available competent evidence, considered in a light most favorable to the non-moving party, is insufficient to permit the judge, as a rational factfinder, to resolve the disputed factual issues in favor of the non-moving party.Thus, we apply the same standard as the Law Division, and must hew to a de novo standard of review. See also Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 405 (2014).
[Amatuzzo v. Kozmiuk, 305 N.J. Super. 469, 474-75 (App. Div. 1997) (citing Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540 (1995))].
A.
We first address a preliminary concern over whether defendant's counsel Convery was authorized to agree to the settlement put on the record at the September 23, 2013 hearing.
In Amatuzzo, negotiations between the parties' attorneys led to the drafting of a stipulation of settlement which the plaintiff's counsel forwarded on August 30, 1996, but the defendant refused to sign. Amatuzzo, supra, 305 N.J. Super. at 471-73. When the plaintiff moved to enforce the settlement, the "[d]efendant filed a certification in opposition to plaintiff's motion, stating: 'I did not enter into any settlement agreement with the plaintiff in this case.'" Id. at 473. The defendant certified: "'I made no agreement to settle on August 30, 1996. I had made my objection to the proposed agreement quite clear to [my attorney] and never authorized her to settle the case on the terms demanded by plaintiff.'" Ibid. (alteration in original). He further certified: "'If my attorney orally agreed to settle this matter on the terms of the settlement agreement attached to plaintiff's certification it was without my knowledge or consent. I did not agree, in writing or orally, to settle this matter on those terms.'" Ibid. We held that the "[d]efendant's certification is sufficient to raise a material and substantial issue as to whether he granted his attorney actual authority to settle," and remanded for a hearing. Id. at 474, 476.
Here, by contrast, defendant's certification in support of his motion to vacate the settlement did not allege that he had not agreed or authorized Convery to agree to the settlement. Instead, defendant's certification asserted he lawfully occupied the premises, and claimed the ejectment proceeding had been brought in retaliation for his exercise of his legal rights in the Chancery action. Defendant's unsworn pro se brief in support of his motion similarly did not allege that he did not agree or authorize his counsel to agree to the settlement. Rather, defendant argued that, "due to his medical condition and extreme pressure from the Plaintiff [he] was unable to comprehend the circumstances of the verbal agreement demanded of him," and that he never signed plaintiff's "one-sided letter." Defendant made similar arguments pro se at the April 25, 2014 hearing. He added he "was not present in any discussion about this [e]jectment case that took place between Mr. Sciria and Mr. Convery," but conceded he knew something about it and was represented by Convery.
Thus, defendant's certification and his arguments to the motions judge did not dispute that he agreed, or authorized his counsel to agree, to the settlement. Accordingly, there was no need for a hearing on that issue.
It is a well-settled principle that agreements "'made by attorneys when acting within the scope of their authority are enforceable against their clients.'" Jennings v. Reed, 381 N.J. Super. 217, 230 (App. Div. 2005) (quoting Carlsen v. Carlsen, 49 N.J. Super. 130, 137 (App. Div. 1958)). "'[I]t is the clear policy of our courts to recognize acts by the attorneys of the court as valid and presumptively authorized[.]'" Id. at 231 (quoting Bernstein & Loubet, Inc. v. Minkin, 118 N.J.L. 203, 205 (E. & A. 1937)). "Consequently, an attorney is presumed to possess authority to act on behalf of the client, and the party asserting the lack of authority must sustain 'a heavy burden to establish that [his] attorney acted without any kind of authority[.]'" Ibid. (citations omitted).
Moreover, "'New Jersey law recognizes two types of authority to settle a lawsuit which would bind its client: actual, either express or implied, and apparent authority.'" Burnett v. Cnty. of Gloucester, 415 N.J. Super. 506, 513 (App. Div. 2010) (citation omitted). Even if defendant had certified that his counsel lacked actual authority, "the circumstances here gave rise to an apparent authority" on which plaintiff and the trial court could rely. United States Plywood Corp. v. Neidlinger, 41 N.J. 66, 74 (1963). On September 23, defendant did not appear. Given defendant's non-appearance on the day of trial, when his counsel "approved a settlement agreement, he presumptively had his client's authority to take that action." See id. at 73-74. Thus, "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 had authority to enter into a settlement, not just negotiations, on behalf of the client." Amatuzzo, supra, 305 N.J. Super. at 475 (citing United States Plywood Corp., supra, 41 N.J. at 74). Therefore, even ignoring that the parties and counsel had negotiated on September 19, 2013, and that, on September 23, 2013, defendant's counsel made clear he had defendant's actual authorization (which defendant has not denied) to enter into the settlement reached on September 19, the settlement on the day of trial was supported by apparent authority. See Jennings, supra, 381 N.J. Super. at 231-32.
B.
As defendant has not certified or even alleged that the settlement was not supported by actual or apparent authority, "a contract of settlement was entered into." Amatuzzo, supra, 305 N.J. Super. at 475. Because "'[t]he settlement of litigation ranks high in our public policy,'" we "'strain to give effect to the terms of a settlement wherever possible.'" Brundage v. Estate of Carambio, 195 N.J. 575, 601 (2008) (citation omitted). "[A] court, absent a demonstration of 'fraud or other compelling circumstances,' should honor and enforce" an agreement to settle a lawsuit. Ibid. (quoting Pascarella v. Bruck, 190 N.J. Super. 118, 124-25 (App. Div.), certif. denied, 94 N.J. 600 (1983)).
Thus, "the party seeking to vacate the settlement must show compelling circumstances." Amatuzzo, supra, 305 N.J. Super. at 475 (citing Nolan v. Lee Ho, 120 N.J. 465, 472 (1990)). "Before vacating a settlement agreement, our courts require 'clear and convincing proof that the agreement should be vacated." Nolan, supra, 120 N.J. at 472 (citation omitted). Defendant's certification to the motions judge offered no factual basis why the settlement should be vacated. Therefore, no factual hearing was required.
Defendant did make several arguments to the motions judge which he reprises on appeal. Defendant argues that the settlement was one-sided and lacked consideration. To the contrary, the settlement resolved an action seeking defendant's immediate ejectment on the September 23, 2013 trial date by agreeing to defendant's continued occupation of the premises for more than four months until his agreed-upon departure by January 31, 2014. That extension of four-plus months was sufficient consideration to support the agreement. "Moreover, courts will not ordinarily inquire into the adequacy or inadequacy of the consideration underlying a compromise settlement fairly and deliberately made." Pascarella, supra, 190 N.J. Super. at 125.
Defendant now argues that the parties had reached a global settlement on September 19, and that the September 23 settlement omitted terms that were bargained for in the settlement negotiations. He argues the settlement should have incorporated the terms proposed by plaintiff's counsel in his January 13, 2014 letter.
However, defendant's certification to the motion judge made no allegation that a global settlement had been reached on September 19 but forgotten by September 23. Before the motion judge, defendant simply argued that the September 19 meeting "was working towards a global resolution," but that "most of the global resolution" was not discussed at the meeting.
Moreover, Sciria made clear on September 23 that they had been able to resolve the ejectment action, but not the several other matters pending in the Chancery Division. Sciria's January 13, 2014 letter similarly indicated that the parties were still unable to negotiate a global resolution. That letter merely suggested a tentative proposal for a potential settlement, which offered to extend the January 31, 2014 date for defendant to vacate the premises, pursuant to the September 23 settlement. Though defendant may wish that the parties had reached a global settlement before the trial date on the ejectment action forced the parties to resolve that action, he offered no evidence a global settlement had occurred, and the record is to the contrary.
Defendant notes he never signed anything. However, there was no suggestion on September 23, or in defendant's certification, that the parties would sign a written settlement agreement in the ejectment action. Rather, the settlement was placed upon the record before the trial court and reiterated in a confirming letter between counsel. Indeed, an oral "'agreement to settle a lawsuit, voluntarily entered into, is binding upon the parties, whether or not made in the presence of the court and even in the absence of a writing.'" Pascarella, supra, 190 N.J. Super. at 124 (citation omitted).
Defendant notes he was not present when the settlement was placed on the record on September 23, but that does not suggest it was not a voluntary agreement. Jennings, supra, 381 N.J. Super. at 228. Indeed, "[t]he practice of spreading the terms of the agreement upon the record, although a familiar practice, is not a procedural requisite to either its validity or enforcement." Id. at 229.
Defendant cites that on September 23, the trial court questioned Bucossi about her understanding of and agreement to the terms of the settlement. However, such questioning was not a precondition of the parties' settlement. Rather, it was a suggestion of the court to make sure Bucossi "understands and agrees to those terms as the Trustee." Moreover, defendant was absent, and Convery made clear he had not asked defendant to be present because it was unnecessary.
Nonetheless, defendant argues that he was absent because of his illness, and fraud and retaliatory acts by his two sisters. He identifies no fraud or retaliation that explains his absence from the trial date on the ejectment action. In any event, his presence was not required.
Defendant argues that his medical condition made him unable to comprehend the circumstances of the September 23, 2013 settlement, but he made no such assertion in his certification, brief, or argument to the motions judge. At the motion hearing, defendant raised his medical condition to excuse the quality of his presentation at the hearing, to complain he was "forced" to go to the September 19 meeting, and to explain why he did not make the motion to vacate the settlement until five months later. But he did not claim he did not understand what was agreed to on September 19 or 23.
Defendant's appellate appendix attaches "To Whom It May Concern" letters from his doctor, dated May 2013 and August 2013, opining that defendant "should refrain from any and all Judicial Proceedings" for several months. It is unclear whether these letters were before the motions judge, as they were not mentioned in defendant's brief or certification. In any event, defendant concedes he was able to engage in settlement discussions on September 19, and claims he comprehended the global settlement he alleges was reached at that meeting. Defendant proffered nothing to show that his alleged inability to attend judicial proceedings prevented him from agreeing, or authorizing his counsel to agree, to a settlement to resolve the much narrower but more pressing issue posed in the ejectment action.
Finally, defendant argues the motions judge cut short his attempt to argue why the settlement should be vacated. To the contrary, the judge repeatedly allowed defendant to speak at length. When the judge was issuing his ruling, he allowed defendant to interrupt to put something on the record which turned out to be repetitive and unrelated. When defendant attempted to interrupt again, the court properly declined.
Defendant's remaining arguments lack sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION