                        NOT FOR PUBLICATION WITHOUT THE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-3065-15T3



JO ANN SICA PAPPALARDO,
individually and as
Executrix of THE ESTATE
OF JOHN E. PAPPALARDO,

        Plaintiffs,

v.

PEE WEE PREP, INC., a New
Jersey Corporation,
PAPPALARDO, an alleged
partnership,

        Defendants,

NEIL PAPPALARDO and TERESA
PAPPALARDO,

        Defendants-Appellants,

and

PENTAX SERVICE, INC., ROBERT
SZMITKOWSKI, tax preparer/
accountant, THE ESTATE OF
LEON SZMITKOWSKI, public
accountant, CHASE BANK USA
N.A., CITIBANK N.A./CITI
AT&T UNIVERSAL MASTERCARD,
CAPITAL ONE BANK, ESTATE
INFORMATION SERVICES, LLC,
     Defendants,

v.

GARY NORGAARD, FISCAL
AGENT,

     Defendant-Respondent.

______________________________________________

           Submitted April 25, 2017 – Decided June 2, 2017

           Before Judges Reisner and Rothstadt.

           On appeal from Superior Court of New Jersey,
           Law Division, Hudson County, Docket No. L-
           0899-14.

           James A. Sylvester, attorney for appellants.

           Norgaard O'Boyle attorneys for respondent
           (Cassandra C. Norgaard, on the brief).

PER CURIAM

     Defendants, Neil Pappalardo and Teresa Pappalardo, appeal

from the Law Division's February 11, 2016 order1 enforcing the

parties' written settlement agreement and permitting the fiscal

agent, Gary K. Norgaard, to obtain a default judgment against

defendants in the amount of $50,000 based upon their default in

payment.     The motion judge determined that based upon the terms


1
    Defendants had also appealed from a second order entered by
the court on the same date.     That order entered a judgment in
favor of plaintiffs, Jo Ann Sica Pappalardo and the Estate of John
Pappalardo. The parties resolved that appeal and, by stipulation
of partial dismissal filed on June 23, 2016, with this court, they
agreed to dismiss that appeal.

                                 2                           A-3065-15T3
of the written settlement agreement and defendants' testimony

confirming their acceptance and understanding of its terms, the

agreement    should     be    enforced,    even       though    a   promissory     note

contemplated in the agreement was never signed.                           On appeal,

defendants     argue    that    the   motion         judge's   findings    were     not

supported by the record and were otherwise erroneous. In addition,

they    contend   that,       even    if       the    settlement     agreement      was

enforceable, the motion judge impermissibly altered its terms, and

it was a miscarriage of justice for the judge to allow the fiscal

agent to benefit from his "intransigence and unilateral attempts

to alter the terms of the settlement agreement."                    We disagree and

affirm.

       "On a disputed motion to enforce a settlement," a trial court

must   apply   the     same    standards       "as    on   a   motion   for    summary

judgment."     Amatuzzo v. Kozmiuk, 305 N.J. Super. 469, 474-75 (App.

Div. 1997).    In reviewing the grant or denial of summary judgment,

we apply the same standard that governs the trial court, Townsend

v. Pierre, 221 N.J. 36, 59 (2015), which requires denial of summary

judgment if "the competent evidential materials presented, when

viewed in the light most favorable to the non-moving party, are

sufficient to permit 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, 540 (1995).

                                           3                                   A-3065-15T3
     The   salient    facts,   drawn   from   the    competent,     evidential

materials and viewed "in the light most favorable to [defendants],

the non-moving part[ies]," Lippman v. Ethicon, Inc., 222 N.J. 362,

367 (2015) (citing Brill, supra, 142 N.J. at 523, 540), were

substantially undisputed and can be summarized as follows.

     The parties' concerns a dispute entered on November 5, 2015.

On that date, the motion judge and the parties completed jury

selection for the trial of the underlying corporate dispute that

led to the appointment of the fiscal agent.           After jury selection,

the parties informed the judge they had settled the matter, entered

into a settlement agreement, and wished to go over its terms on

the record, with the parties testifying under oath as to their

understanding and acceptance of the agreement.

     The   written    settlement   agreement        provided   in   paragraph

thirteen that defendants would deliver to the fiscal agent a

promissory note in the amount of $50,000 that would require

payments at the rate of $650 per month with interest at the rate

of one percent.2     Payments were to be made by "bank check or money

order."    Paragraph twenty addressed defaults and stated that

           a default as to any provision . . . , including
           without limitation a failure of payment as

2
    The fiscal agent was not a signatory to the agreement but was
instead an intended beneficiary of defendants' agreement with
plaintiffs to resolve amounts owed for the fiscal agent's fees
incurred in the litigation.

                                       4                               A-3065-15T3
           provided herein which is not cured within five
           (5) days of the due date shall constitute a
           default under all terms of this Agreement.
           Upon default [p]laintiff's counsel may seek
           the entry of judgment upon submission of an
           affidavit proving the default.

     At the November 5 hearing, defendants and the fiscal agent

testified that they understood the agreement's terms and accepted

them.   Theresa Pappalardo and the fiscal agent specifically stated

that they understood that the payments would begin on January 1,

2016.

     After the hearing, the parties attempted to agree upon a

promissory note that incorporated the terms of their settlement.

When they could not agree and after the January 1 payment due date

passed, the fiscal agent filed a motion on January 6, 2016, to

enforce the agreement by entering judgment against defendants for

the full amount owed.   In his supporting certification, the fiscal

agent asked the court to compel defendants to accept his proposed

form of promissory note, or some variation of it, or order that

the entire balance be accelerated.

     Defendants   and   their   attorney   filed   certifications    in

opposition to the fiscal agent's motion.       In their January 13,

2016 certifications, they each certified that Neil Pappalardo

tendered the first payment on January 4, 2016, and, according to

Theresa Pappalardo, the fiscal agent cashed the check.


                                  5                           A-3065-15T3
     The motion judge considered oral argument on January 22,

2016.   At the hearing, the fiscal agent confirmed that he had not

received a check from defendants prior to filing his motion to

enforce, but received it on January 15.    He advised that it was a

personal check dated January 13, 2016, so, unless the check was

post-dated, defendants had not sent it prior to filing their

certifications.   He asserted that, in any event, the check was

late and not in proper form.     Defendants' counsel responded by

arguing that the parties had not agreed upon a grace period, but

both forms of proposed notes contained that feature.   As a result,

defendants' delay in sending the check was contemplated by the

parties.

     On February 11, 2016, the motion judge entered the order

enforcing the settlement agreement and permitting the fiscal agent

to obtain a judgment against defendants.     On the same date, the

judge placed his reasons on the record in a comprehensive oral

decision.    In his decision, the judge reviewed the parties'

testimony from when the settlement was placed on the record,

including their confirmation that they understood that the first

payment was due to the fiscal agent on January 1, 2016.   The judge

concluded that the settlement agreement should be enforced as the

parties "knowingly, willingly and purposefully settled the case."

Based on "the only terms of the debt that were presented to the

                                 6                          A-3065-15T3
[c]ourt," the judge found that the parties did not dispute "the

amount    each   party   was    obligated   to    pay,   the    amount   of   the

defendant[s'] monthly payments, . . . [the] one-percent interest

rate[, and that payments] "were due on the first day of each

month."    The judge entered the order and this appeal followed.

      We begin our review by acknowledging "New Jersey's strong

public policy in favor of the settlement of litigation," Gere v.

Louis, 209 N.J. 486, 500 (2012), and the enforcement of settlement

agreements like any other contract.              Nolan v. Lee Ho, 120 N.J.

465, 472 (1990); see also Pascarella v. Bruck, 190 N.J. Super.

118, 124-25 (App. Div.), certif. denied, 94 N.J. 600 (1983).

      In furtherance of the strong policy of enforcing settlements,

"our courts strain to give effect to the terms of a settlement

wherever possible."      Brundage v. Estate of Carambio, 195 N.J. 575,

601   (2008)     (citation     and   internal    quotation     marks   omitted).

Therefore, an agreement to settle a lawsuit will be honored and

enforced in the absence of fraud or other compelling circumstances.

Nolan, supra, 120 N.J. at 472.              However, unless there is "an

agreement to the essential terms" by the parties, 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); see also Weichert Co. Realtors v. Ryan, 128

N.J. 427, 435 (1992) (holding that if the parties agree on the

                                        7                                A-3065-15T3
essential terms and to be bound by those terms, an enforceable

contract has been created).

     "[A]n agreement to resolve a matter will be enforced as long

as the agreement addresses the principal terms required to resolve

the dispute."       Willingboro Mall, Ltd. v. 240/242 Franklin Ave.,

L.L.C., 421 N.J. Super. 445, 453 (App. Div. 2011), aff'd, 215 N.J.

242 (2013).    "Where the parties agree upon the essential terms of

a settlement, so that the mechanics can be 'fleshed out' in a

writing to be thereafter executed, the settlement will be enforced

notwithstanding the fact the writing does not materialize because

a party later reneges."       Lahue v. Pio Costa, 263 N.J. Super. 575,

596 (App. Div.) (quoting Bistricer v. Bistricer, 231 N.J. Super.

143, 145 (Ch. Div. 1987)), certif. denied, 134 N.J. 477 (1993).

     Applying these guiding principles, we conclude defendants'

arguments     are   without    sufficient    merit     to   warrant   further

discussion beyond these brief comments.          R. 2:11-3(e)(1)(E).       The

material terms of their settlement were set forth in the written

agreement and placed on the record by the parties.             We agree with

the motion judge's conclusion that the settlement agreement was

enforceable,    and   that    defendants    breached   their   agreement     by

failing to make payment in accordance with those terms.               Payment

was due on January 1, 2016, in the form of a money order or bank

check and, considering the default provision of the settlement

                                     8                                A-3065-15T3
agreement, payment was made at least five days after the due date

and not in proper form.

    Affirmed.




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