                                 NOT FOR PUBLICATION WITHOUT THE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-0251-18T3

JESUS GONZALEZ,

          Plaintiff-Respondent,

v.

ELECTRONIC INTEGRATION
SERVICES, LLC, t/a PANURGY
OEM,

     Defendant-Appellant.
______________________________

                   Submitted May 6, 2019 – Decided May 30, 2019

                   Before Judges Sabatino, Sumners and Susswein.

                   On appeal from Superior Court of New Jersey, Law
                   Division, Morris County, Docket No. L-2572-15.

                   Ford & Harrison LLP, attorneys for appellant (Salvador
                   Pedro Simao, of counsel and on the brief; Jeffrey A.
                   Shooman, on the brief).

                   Berkowitz Lichtstein Kuritsky Giasullo & Gross, LLC,
                   attorneys for respondent (John Messina, on the brief;
                   Evan Silagi, on the brief).

PER CURIAM
      On the cusp of starting a jury trial of plaintiff Jesus Gonzalez's

employment discrimination complaint against his former employer, defendant

Electronic Integration Services, LLC, t/a Panurgy OEM (Panurgy), a settlement

was reached and placed on the record before Judge Louis S. Sceusi.                  In

consideration for dismissal of Gonzalez's suit, Panurgy agreed to pay Gonzalez

$175,000. Panurgy was represented by its designated trial counsel and did not

have any other company representative present when the terms were confirmed

on the record or at any point during the two-day settlement negotiations

orchestrated by Judge Sceusi and another judge.

      When Panurgy later decided not to pay the settlement claiming counsel

was not authorized to settle the matter, Gonzalez successfully moved to enforce

the settlement agreement.     Appealing that order of enforcement, Panurgy

contends the judge erred in not holding a plenary hearing to determine whether

counsel had apparent authority to enter into the settlement agreement on its

behalf. We conclude that a plenary hearing was unnecessary and that trial

counsel had apparent authority to settle the matter, therefore, we affirm.

      Throughout the litigation of Gonzalez's discrimination complaint, trial

counsel represented Panurgy as designated in the company's pleadings.

According to a certification by Panurgy's Human Resource Director at the time,


                                                                             A-0251-18T3
                                        2
Andrea McCurdy, there were concerns with the way trial counsel was handling

the case, but it eventually decided to allow him to continue representing the

company.

      Prior to the scheduled start of jury trial on May 8, 2018, settlement

conferences were conducted by Judge David H. Ironson on May 7, and by Judge

Sceusi on May 8, which culminated in an agreement that was placed on the

record by both counsel and confirmed by Gonzalez on that later date. The

agreement required Panurgy to pay Gonzalez $175,000 as follows: $100,000 to

be paid immediately, and the remaining $75,000 to be paid on August 6, 2019.

      Later that day, Panurgy advised trial counsel that it would not sign the

written settlement agreement that was being drafted by Gonzalez's counsel.

Panurgy contended its counsel was not given any authority to settle the case as

the company always took the position that Gonzalez's allegations had no merit.

Moreover, Panurgy advised trial counsel that he was no longer representing the

company; new counsel was later retained.

      After discovering that Panurgy refused to pay the settlement, Gonzalez

filed a motion to enforce litigant's rights. According to the certification of trial

counsel who represented Panurgy during the settlement, he contended that he

obtained actual settlement authority from its CEO Richard Levinson. Panurgy


                                                                            A-0251-18T3
                                         3
opposed, arguing that its trial counsel "went rogue" and settled the matter

without any actual or apparent authority to do so. There is, however, no dispute

that McCurdy was told by counsel to be in court the morning of May 8, for the

start of the trial, but she failed to appear.

      On August 14, Judge Sceusi granted Gonzalez's motion and ordered that

the terms of the settlement agreement were binding.1 In his statement of reasons

attached to the order, the judge explained that Panurgy's trial counsel had

apparent authority to bind it to the settlement based on his representation and

his role as the company's legal representative.         Panurgy's motion for

reconsideration contending that the judge ignored binding case law to hold a

hearing was denied on September 14. Less than a year later, on May 3, 2019,

the judge issued amplification of his decision, wherein he reiterated the same




1
   In the order, the judge affirmed a similar order dated July 10, which was
entered without giving Panurgy's new counsel the opportunity to submit
opposition papers.


                                                                        A-0251-18T3
                                           4
reasoning for ordering that the settlement agreement was binding on Panurgy.2

This appeal followed. 3

      We begin with the well-settled principle that "[t]he settlement of litigation

ranks high in our public policy," Jannarone v. W.T. Co., 65 N.J. Super. 472,

476, (App. Div. 1961), thus, "settlement agreements will be honored 'absent a

demonstration of fraud or other compelling circumstances.'" Nolan v. Lee Ho,

120 N.J. 465, 472 (1990) (internal quotation marks omitted) (quoting Pascarella

v. Bruck, 190 N.J. Super. 118, 125 (App. Div. 1983)).           When there is a




2
   The amplification was issued three days before this appeal was considered
without oral argument. Among other things, Panurgy contends the amplification
was untimely, because it was not filed within fifteen days of the trial judge's
receipt of the notice of appeal as allowed under Rule 2:5-1(b). While Panurgy
correctly cites the rule, there is nothing in the rule, or any other rule, that
prevents this court from considering a trial court's amplification if it is filed
beyond the fifteen-day timeframe. In addition, because the parties accepted our
invitation to submit supplemental briefs addressing the amplification, there is
no prejudice to the parties due the submission. Moreover, the amplification
essentially addresses the post-appeal enforcement efforts by Gonzalez and
Panurgy's efforts to stay enforcement, which are not the subject of this appeal,
but have been presented to this court through an emergent motion to stay and
for leave to appeal. The emergent motion is discussed at the conclusion of this
opinion.
3
  Panurgy's motions to stay enforcement of Judge Sceusi's orders enforcing the
settlement agreement have been denied by the judge, this court and our Supreme
Court.
                                                                           A-0251-18T3
                                        5
disagreement as to whether a settlement was reached, the court must resolve the

dispute.

      "On a disputed motion to enforce a settlement," a trial judge must apply

the same standards "as on a motion for summary judgment[.]" Amatuzzo v.

Kozmiuk, 305 N.J. Super. 469, 474 (App. Div. 1997). Thus, the judge "cannot

resolve material factual disputes upon conflicting affidavits and certifications."

Harrington v. Harrington, 281 N.J. Super. 39, 47 (App. Div. 1995). Appellate

review of a ruling on a motion for summary judgment is de novo, applying the

same standard governing the trial court. Davis v. Brickman Landscaping, Ltd.,

219 N.J. 395, 405 (2014).

      When a judge is faced with disputed material facts in a motion to enforce

a settlement, a hearing must be conducted "to resolve the disputed factual issues

in favor of the non-moving party." Amatuzzo, 305 N.J. Super. at 474-75.

However, this court has stressed that not every factual dispute on a motion

requires a plenary hearing; a plenary hearing is only necessary to resolve a

genuine issue of material fact. See Eaton v. Grau, 368 N.J. Super. 215, 222

(App. Div. 2004); Harrington, 281 N.J. Super. at 47; Adler v. Adler, 229 N.J.

Super. 496, 500 (App. Div. 1988).




                                                                          A-0251-18T3
                                        6
      In this case, the only disputed fact is whether trial counsel received actual

authority to settle Gonzalez's claims. Panurgy disputed counsel's assertion that

he had such authority; arguing the judge failed to hold a hearing to determine

whether its trial counsel had actual or apparent authority to bind it to a

settlement. Panurgy maintains – as set forth in the certifications of McCurdy

and Levinson – counsel was never authorized to settle the case for $175,000.

The company contended that counsel was repeatedly told the case was frivolous,

and that it wanted to go to trial unless a "nuisance value" settlement could be

reached.   Claiming there is a bona fide dispute whether trial counsel had

settlement authority, Panurgy urges that based upon Amatuzzo, we must reverse

and remand for a plenary hearing. We disagree.

      Whether trial counsel had settlement authority is of no consequence in

determining whether Gonzalez's motion to enforce the settlement agreement

should have been granted. Enforcement of the agreement turns on whether

counsel had apparent authority to reach a settlement with Gonzalez.             See

Pascarella v. Bruck, 190 N.J. Super. 118, 125 (App. Div. 1983) (holding an

agreement placed on the record but memorialized in writing is binding "absent

a demonstration of 'fraud or other compelling circumstances[.]'").




                                                                           A-0251-18T3
                                        7
       A party's trial attorney can enter into a settlement on behalf of his or her

client. "[A]n attorney for a private party may settle a lawsuit based upon 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, 305 N.J. Super. at 475. Where the principal "places the

attorney in a position where 'a person of ordinary prudence, conversant with

business usages and the nature of the particular business, is justified in

presuming that such agent has authority to perform the particular act in

question.'" Seacoast Realty Co., 14 N.J. Tax at 204-05 (quoting Neidlinger, 41

N.J. at 74); see also LoBiondo v. O'Callaghan, 357 N.J. Super. 488, 497 (App.

Div. 2003) (creation of apparent authority is based on "the actions of the

principal, not the alleged agent.").      Therefore, "sending an attorney to a

settlement conference presumptively establishes that the attorney has aut hority

to settle . . . ." Id. at 204.




                                                                           A-0251-18T3
                                         8
        Applying these principles, we agree with Judge Sceusi's reasoning 4 that:

              [F]or several reasons, [counsel] had apparent authority
              to act on behalf of [Panurgy].          [Counsel] was
              [Panurgy]'s sole attorney of record since the inception
              of this matter in 2015. [He] engaged in motion practice,
              mediation and settlement discussions and was the
              Designated Trial Attorney for [Panurgy]. . . . [He] was
              the sole representation of [Panurgy] to appear for trial;
              by [Panurgy]'s own actions, [he] was placed in a
              situation wherein a person of ordinary prudence, in this
              case [Gonzalez]'s counsel and this [c]ourt, were
              justified in presuming that [counsel] had authority to
              enter into the settlement agreement on behalf of
              [Panurgy].

        There were no factual assertions presented by Panurgy to Judge Sceusi

that needed to be resolved by a plenary hearing to address whether counsel was

cloaked with the apparent authority to enter into a settlement agreement. Given

counsel's continuous representation of Panurgy throughout the litigation,

concluding with placing the settlement on the record after two consecutive days

of settlement conferences, there was a clear demonstration to the judge and

Gonzalez that he had the authority to reach a settlement. Panurgy has presented

no facts that bring into question whether its counsel had apparent authority to

negotiate and reach a binding settlement agreement on its behalf. Consequently,

we discern no value in conducting a plenary hearing.


4
    Set forth is his statement of reasons attached to the August 14, 2018 orde r.
                                                                            A-0251-18T3
                                          9
      Lastly, on May 7, 2019, while this appeal was pending, we granted

Panurgy permission to file a motion for emergent relief for leave to stay and

appeal a May 3 order by Judge Sceusi, which denied reconsideration of a March

22 order permitting Gonzalez to enforce the August 14, 2018 order that the

settlement agreement was binding. Specifically, Panurgy seeks to stay and

appeal: paragraph 3(c), which requires payment of $100,000 to Gonzalez from

the attorney trust account of Panurgy's counsel "in compliance with the terms of

the settlement agreement," as previously enforced by the court's orders; and

paragraph 5, which requires Panurgy's counsel "to immediately turn over any

remaining funds in its trust account left when it originally placed the $100,000

in its trust account" for Gonzalez. Because we have affirmed the August 14

order enforcing the parties' settlement agreement, the emergent motion to stay

and for leave to appeal is denied as moot.

      Affirmed.




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