Opinion
DOCKET NO. A-4574-13T2 DOCKET NO. A-4575-13T2
02-01-2016
DEPARTMENT OF COMMUNITY AFFAIRS, Plaintiff-Respondent, v. ELENA THOMAS, Defendant-Appellant. DIVISION OF CODES AND STANDARDS, Plaintiff-Respondent, v. ELENA THOMAS, Defendant-Appellant.
Mario M. Blanch, attorney for appellant. John J. Hoffman, Acting Attorney General, attorney for respondents Department of Community Affairs and Division of Codes and Standards (Melissa Dutton Schaffer, Assistant Attorney General, of counsel; Debra A. Allen, Deputy Attorney General, on the briefs).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Haas and Manahan. On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket Nos. DJ-225206-10 and DJ-232952-13. Mario M. Blanch, attorney for appellant. John J. Hoffman, Acting Attorney General, attorney for respondents Department of Community Affairs and Division of Codes and Standards (Melissa Dutton Schaffer, Assistant Attorney General, of counsel; Debra A. Allen, Deputy Attorney General, on the briefs). PER CURIAM
In these back-to-back matters, which we consolidate for the purpose of this opinion, defendant Elena Thomas appeals from an order entered in the Law Division denying her motion to vacate judgments entered against her by the Department of Community Affairs (DCA) and the Division of Codes and Standards (DCS), and to enforce a settlement agreement. Having considered defendant's contentions in light of the record and applicable law, we affirm.
We cull the following relevant facts from the record. Defendant owned real property in Jersey City and registered the multiple-family dwelling located on the property with the Bureau of Housing Inspection (plaintiff). Commencing in 2008, defendant was issued a series of violation notices under the provisions of the Hotel and Multiple Dwelling Law (HMDL), N.J.S.A. 55:13A-1 to -28. Various monetary penalties were eventually lodged against defendant and she was also ordered to abate the violations. Despite attempts to resolve these issues, plaintiff and defendant did not settle on the final amount due.
The two subject judgments challenged on appeal were entered as a result of penalties assessed against defendant by the Bureau of Housing Inspection. Accordingly, we refer to the Bureau of Housing Inspection as plaintiff.
As a result of defendant's non-payment, a judgment totaling $19,029 was docketed in favor of the DCA on September 7, 2010. Defendant sought to vacate the judgment. On February 4, 2011, a Law Division judge denied the motion to vacate. Defendant appealed the decision, and the parties appeared for a settlement conference before an appellate judge on March 25, 2011. No agreement was reached at the settlement conference. On October 5, 2012, the appeal was dismissed due to defendant's failure to prosecute. A subsequent judgment for additional penalties totaling $60,279 was docketed in favor of the DCS on December 5, 2013.
Defendant contends a verbal settlement agreement was reached between counsel for the parties sometime after the settlement conference, whereby plaintiff would dismiss both claims in exchange for payment of $12,000 by defendant. There is correspondence in the record from defendant's counsel alluding to such an agreement, but no written agreement was ever executed and there is no correspondence from plaintiff memorializing such an agreement.
On or about January 10, 2014, defendant filed a motion to vacate both judgments and to enforce the parties' purported settlement agreement. Plaintiff opposed the motion, denying that a settlement was ever reached. On April 25, 2014, another Law Division judge issued an order denying the motion, and placed the reasons on the record. In sum, the judge found no credible evidence proving a settlement was reached. This appeal followed.
Defendant raises the following point on appeal:
WHERE THE PARTIES DISPUTE THE VALIDITY OF A VERBAL SETTLEMENT, THE COURT SHOULD HOLD A FACT[-]FINDING HEARING AND DISCOVERY TO ASCERTAIN THE FACTS SURROUNDING THE SETTLEMENT AS VERBAL SETTLEMENTS CAN BE ENFORCED.
Pursuant to Rule 4:50-1, a court may, "upon such terms as are just," relieve a party from an order for, among other reasons, "mistake, inadvertence, surprise, or excusable neglect" as well as "any other reason justifying relief." R. 4:50-1(a) and (f). Motions for relief from judgments are to be decided at the sound discretion of the trial judge. Morristown Hous. Auth. v. Little, 135 N.J. 274, 283 (1994). In deciding such applications, the trial court should be guided by equitable principles. Ibid. We do not disturb the result unless there has been a clear abuse of discretion. Ibid.
Here, the determinative issue is whether an oral settlement agreement was reached between counsel for the parties that would provide defendant relief from the judgment. "A settlement agreement between parties to a lawsuit is a contract." Nolan v. Lee Ho, 120 N.J. 465, 472 (1990). Since the "[s]ettlement of litigation ranks high in our public policy," Jannarone v. W.T. Co., 65 N.J. Super. 472, 476 (App. Div.), certif. denied sub nom., Jannarone v. Calamoneri, 35 N.J. 61 (1961), "settlement agreements will be honored 'absent a demonstration of fraud or other compelling circumstances.'" Nolan, supra, 120 N.J. at 472 (quoting Pascarella v. Bruck, 190 N.J. Super. 118, 125 (App. Div.), certif. denied, 94 N.J. 600 (1983)). Unless there is "an agreement to the essential terms" by the parties, however, there is no settlement in the first instance. Mosley v. Femina Fashions Inc., 356 N.J. Super. 118, 126 (App. Div. 2002), certif. denied, 176 N.J. 279 (2003).
We note that since no formal order or judgment was entered memorializing a settlement, defendant's motion is not governed by Rule 1:10-3. Haynoski v. Haynoski, 264 N.J. Super. 408, 413-14 (App. Div. 1993). --------
The burden of proving that the parties entered into a settlement agreement is upon the party seeking to enforce the settlement. Amatuzzo v. Kozmiuk, 305 N.J. Super. 469, 475 (App. Div. 1997). "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 rationale factfinder, to resolve the disputed factual issues in favor of the non-moving party." Id. at 474-75. However, not every factual dispute on a motion requires a plenary hearing; a plenary hearing is only necessary to resolve a genuine issue of a material fact. Eaton v. Grau, 368 N.J. Super. 215, 222 (App. Div. 2004); Harrington v. Harrington, 281 N.J. Super. 39, 47 (App. Div.), certif. denied, 142 N.J. 455 (1995); Adler v. Adler, 229 N.J. Super. 496, 500 (App. Div. 1988).
Where a court does not hold an evidentiary hearing, we review de novo the court's determination that a settlement agreement was reached or not, just as we would a decision on a motion for summary judgment. See Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010) (stating that appellate court reviews grant of summary judgment de novo, applying the same standards as does the trial court). We also review de novo the trial court's legal determinations. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
Here, unlike the factual scenario presented in Amatuzzo, supra, 305 N.J. Super. at 474, we are satisfied there are no material issues of fact requiring a plenary hearing. We affirm substantially for the reasons set forth in the judge's oral decision on April 25, 2014. We add only the following.
The judge determined that there was "no credible evidence of a settlement" and "there was nothing indicating that the parties came to any meeting of the minds in settling the case." The judge pointed to the lack of any written communication by plaintiff confirming or memorializing settlement, defendant's failure to follow up or make further attempts to memorialize the settlement, and the lack of payment by defendant. The judge reasoned, and we agree, that defendant did not satisfy her burden of proof by offering competent evidence of a mutually-enforceable agreement.
Further, the judgments were appropriately docketed following defendant's non-payment of the penalties lodged against her due to non-compliance with the HMDL. The purpose of the HMDL is to protect the health and welfare of New Jersey residents by ensuring a decent, standard and safe dwelling space. N.J.S.A. 55:13A-2. Penalties for violations of the Law may be assessed against a property owner. N.J.S.A. 55:13A-19(b). The time within which a person aggrieved by an administrative penalty may request a hearing under the HMDL is set at fifteen days. N.J.S.A. 55:13A-18; see also Cmty. Affairs Dep't v. Wertheimer, 177 N.J. Super. 595, 599 (App. Div. 1980). Under the Penalty Enforcement Law of 1999, if civil administrative penalties become final after the opportunity for a hearing has been afforded, an administrative agency may request the Clerk of the Superior Court to record the final order assessing the penalty on the judgment docket of the court. N.J.S.A. 2A:58-10(a); see also R. 4:70-1(b). Given defendant's failure to timely challenge the penalties, as well as her failure to make payments, plaintiff appropriately docketed those penalties as judgments.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION