Opinion
DOCKET NO. A-2662-14T3
07-14-2016
RAJESH THAKKAR, Plaintiff-Appellant, v. CHRISTOPHER E. ALLERS and SISBARRO TOWING, Defendants-Respondents.
Frank Butterfield argued the cause for appellant (Mark Law Firm, LLC, attorneys; Mr. Butterfield, of counsel and on the briefs). Gina M. Zippilli argued the cause for respondents (Capehart & Scatchard, P.A., attorneys; Ms. Zippilli, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ostrer and Manahan. On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-2180-12. Frank Butterfield argued the cause for appellant (Mark Law Firm, LLC, attorneys; Mr. Butterfield, of counsel and on the briefs). Gina M. Zippilli argued the cause for respondents (Capehart & Scatchard, P.A., attorneys; Ms. Zippilli, of counsel and on the brief). PER CURIAM
This appeal pertains to the contested settlement of a personal injury action arising out of a motor vehicle accident. Plaintiff Rajesh Thakkar seeks to avoid an agreement reached by his attorney to resolve Thakkar's claim against defendants Christopher E. Allers and Sisbarro Towing. Thakkar claims he authorized his attorney to settle his claim for an amount that would yield an $80,000 recovery to him, after deductions for fees and costs. His attorney orally agreed with defendants' counsel to settle the case for $80,000 gross. Thakkar appeals from the trial court orders enforcing the settlement and denying his motion to vacate those orders. He contends his attorney lacked actual authority to settle, and the court was obliged to conduct a plenary hearing to resolve issues of fact disputed by Thakkar and his attorney. Having considered the parties' respective arguments in light of the record and applicable principles of law, we affirm.
The disputed settlement discussions occurred after Thakkar, through his attorney, demanded a trial de novo pursuant to Rule 4:21A-6(c), rather than accept a $50,000 arbitration award. Thakkar later certified that he told his attorney in a November 4, 2014 telephone conversation, that he agreed to settle the matter for a "net settlement amount of $80,000.00." Thakkar also certified that on November 7, 2014, he emailed a letter to his attorney reiterating that position. However, the letter went further, requesting that the settlement agreement also provide that if Thakkar needed certain additional treatment of his hip, a particular chiropractor would be responsible to pay. We gather from the record that Thakkar contended that the chiropractor, who treated him after the accident, negligently caused him further injury.
On November 6, 2014, Thakkar's attorney had sent an email to defense counsel, apparently confirming an oral conversation minutes earlier. Both attorneys certified the email exchange. At 5:06 p.m. on November 6th, Thakkar's counsel wrote: "As discussed at 5 PM today, Mr Thakkar has authorized the undersigned to accept [$]80000.00 in settlement." Defense counsel responded shortly after 4 p.m. on November 7th: "You have a settlement of $80,000.00. Please advise the Court."
In a November 11, 2014 letter to defense counsel, Thakkar's counsel reported that Thakkar had refused to sign a release and wanted $80,0 00 net, "which in no way was stated . . . before I advised you, subsequent to speaking to Mr. Thakkar, that I was authorized to settle this matter for the sum of $80,000.00."
Defendants subsequently filed a motion to enforce the settlement and for fees. Plaintiff's counsel filed a certification setting forth his version of facts, which we have described above. Thakkar filed by letter an informal pro se motion to terminate his counsel's representation, without a lien for compensation. He attached his alleged November 7 letter and claimed his attorney had committed misconduct.
On the motion to enforce, the court heard argument from both attorneys, but not from Thakkar. The court granted defendants' motion to enforce the settlement but denied their request for fees, and granted Thakkar's motion to terminate his attorney's representation. The judge found that a settlement was reached and Thakkar's counsel had authority to settle. An initial order was entered December 5, 2014, which was revised on December 19, 2014.
Represented by new counsel, Thakkar filed a motion for reconsideration. He reiterated his version of events, which was embodied in the certification we have already referenced. Defendant opposed the motion, and questioned the validity of Thakkar's alleged November 7 letter.
The judge denied the motion, concluding that even if Thakkar's attorney did exceed the scope of his authority, Thakkar's remedy was a malpractice action. The judge impliedly found that the attorney had apparent authority to enter a binding settlement, even if he did not have actual authority to settle for $80,000 gross.
On appeal, plaintiff argues that the trial court erred by resolving disputed issues of fact and finding that his counsel had actual authority to settle the case for $80,000 gross. Plaintiff contends the court should have held a plenary hearing. Plaintiff asserts that the court erred by not permitting him to address the motion to enforce the settlement.
Our system strongly values the settlement of litigation, and we "strain to give effect to the terms of a settlement wherever possible." Brundage v. Estate of Carambio, 195 N.J. 575, 601 (2008) (internal quotation marks and citation omitted). We apply contract principles to the task. Id. at 600-01. As the court did not conduct an evidentiary hearing, we review de novo whether a binding settlement was reached. Cf. 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 standard as the trial court).
The dispositive issue before us is whether plaintiff's attorney had authority to settle the underlying case for $80,000 gross. We recognize that there is a genuine issue of fact as to whether plaintiff's counsel had actual authority to do so. Were that the only issue before us, we agree that an evidentiary hearing would have been required. See Amatuzzo v. Kozmiuk, 305 N.J. Super. 469, 474-75 (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 rational fact-finder, to resolve the disputed factual issues in favor of the non-moving party.").
However, "an 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) (citing United States Plywood Corp. v. Neidlinger, 41 N.J. 66, 73-74 (1963)). Apparent authority is created 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 had authority to enter into a settlement, not just negotiations, on behalf of a client." Amatuzzo, supra, 305 N.J. Super. at 475; see also LoBiondo v. O'Callaghan, 357 N.J. Super. 488, 497 (App. Div.) (creation of apparent authority is based on "the actions of the principal, not the alleged agent"), certif. denied, 177 N.J. 224 (2003). "[S]ending an attorney to a settlement conference presumptively establishes that the attorney has authority to settle . . . ." Seacoast Realty Co., supra, 14 N.J. Tax at 204 (citing Neidlinger, supra, 41 N.J. at 74).
Here, there is no genuine issue of fact as to the existence of apparent authority. Plaintiff admitted that his attorney engaged in negotiations with defense counsel with his approval. Furthermore, he admitted that his attorney was not limited to negotiating subject to his final consent, but was authorized to reach a final, binding settlement. While the attorney may have miscommunicated Thakkar's demand, defense counsel was justified in presuming that her counterpart was authorized to settle for $80,000 gross. The court correctly ordered that a binding settlement was reached. Plaintiff's recourse for his attorney's alleged deviation from his actual authority lies in a malpractice action against his attorney.
Plaintiff's remaining arguments lack sufficient merit to warrant discussion in a written opinion. 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