                                NOT FOR PUBLICATION WITHOUT THE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-0343-17T2

TJM ATLANTIC CITY
MANAGEMENT LLC, d/b/a
THE CLARIDGE HOTEL,

          Plaintiff-Appellant,

v.

SCHINDLER ELEVATOR
CORPORATION,

     Defendant-Respondent.
_____________________________

                    Argued October 31, 2018 – Decided January 27, 2020

                    Before Judges Fuentes, Accurso and Moynihan.

                    On appeal from the Superior Court of New Jersey,
                    Chancery Division, Atlantic County, Docket No. C-
                    000029-17.

                    Douglas G. Leney and Jeffrey Nicholas Medio argued
                    the cause for appellant (Archer & Greiner PC, and
                    Jeffrey Nicholas Medio, attorneys; Douglas G. Leney
                    and Jeffrey Nicholas Medio, on the briefs).
            James L. Sonageri argued the cause for respondent
            (Sonageri & Fallon, LLC, attorneys; James L. Sonageri,
            on the brief).

      The opinion of the court was delivered by

FUENTES, P.J.A.D.

      In this appeal, the trial court found the Claridge Hotel in Atlantic City

(Claridge) and the Schindler Elevator Corporation (Schindler) reached an

enforceable settlement of litigation involving cross-claims of breach of contract.

Claridge does not agree with that finding. After reviewing the record and based

on prevailing legal standards, we affirm.

                                        I

      On March 3, 2014, Claridge and Schindler entered into a contract through

which Schindler agreed to provide maintenance, cleaning, testing, and other

related services on Claridge's elevators. On February 17, 2017, Jeffrey Medio,

Claridge's in-house counsel, sent an email to two Schindler representatives

confirming Claridge's prior counsel had notified Schindler that it was not

renewing its elevator service contract. Medio also wrote:

            The purpose of this email is to notify you and your firm
            that your employees and agents no longer have access
            to the Claridge Hotel. Accordingly, no Schindler
            Elevator employees or agents have permission to be on
            the premises. Any employees or agents on the premises
            will be considered trespassers.

                                                                          A-0343-17T2
                                        2
      That same day, Schindler employees entered Claridge's property and

removed technological components identified as "SIM chips" from seven

Claridge elevators.    In an email dated February 28, 2017, Medio apprised

Schindler that it considered the employees who removed this technology

trespassers and demanded the return of the SIM chips "on or before March 2,

2017." Schindler did not return the SIM chips.

      On April 7, 2017, Claridge filed a complaint and order to show cause

(OTSC) against Schindler in the Atlantic County Chancery Division, General

Equity Part alleging: (1) breach of contract; (2) breach of good faith and fair

dealing; (3) trespass to real property; (4) trespass to chattels; (5) conversion; (6)

tortious interference with an economic relationship; and (7) specific

performance. On April 6, 2017, Schindler filed a two-count complaint against

Claridge in the Morris County Law Division alleging breach of contract.

      Claridge's cause of action came before the General Equity judge in

Atlantic County on April 11, 2017, the return date of the OTSC. The judge

granted Claridge's application for a temporary restraining order (TRO) against

Schindler, enjoining it from disposing or modifying the SIM cards and related

components or "wiring diagrams corresponding to the Schindler-manufactured




                                                                             A-0343-17T2
                                         3
elevators located at [Claridge's] property[.]" The judge scheduled a hearing on

April 18, 2017 to consider whether to modify or vacate the TRO.

      These procedural safeguards proved to be unnecessary.              The parties

reached a purported settlement agreement on the day the judge scheduled the

hearing. In response to the judge's request, the attorney representing Schindler

placed on the record the following terms of the settlement agreement:

            SCHINDLER'S COUNSEL: [T]he parties have agreed
            that Schindler will not return the SRM cards or SIM
            cards to the Claridge for use in the elevators. However,
            Schindler has agreed to provide a software . . . upgrade
            for the seven Schindler elevators at the Claridge. The
            Claridge has agreed to pay Schindler $5,000.00 per
            elevator for the total of $35,000.00 for the software
            upgrade to be completed. We have discussed timing and
            we have agreed to put an outside date for the
            completion of the software upgrades of June 2, 2017.

            We have also agreed that we will bill Claridge for the
            software upgrades at a higher amount, which will
            resolve the settlement litigation.

            The total amount that Claridge will pay Schindler will
            be $100,000.00, but Schindler will bill it to the Claridge
            as $100,000.00 representing the cost of the software
            upgrades for the seven elevators.

            All temporary restraints will be vacated. We will
            exchange mutual releases. I will prepare a settlement
            agreement and mutual release for review by counsel.
            And upon that, we will then execute a stipulation of
            dismissal with prejudice of this Chancery litigation.


                                                                             A-0343-17T2
                                        4
            And then I will also prepare a stipulation of dismissal
            with prejudice of the earlier filed action, which was
            Schindler Elevator Corporation versus TJM Atlantic
            City Management LLC, a/k/a TJM Atlantic City, which
            was filed in Morris County on April 7, 2017[.]1

            THE COURT: Okay. Gentlemen, does that comport
            with your understanding of the re -- of the settlement?

            CLARIDGE'S LITIGATION COUNSEL: It does, Your
            Honor.

            CLARIDGE'S IN-HOUSE COUNSEL: It does, Your
            Honor.

      Schindler's counsel also placed on the record that as part of the settlement

agreement, Schindler agreed to permit Claridge to have "one or as many people

as they want present while Schindler is inspecting or installing the upgrades, but

that there will be no representatives of Jersey Elevator or any other elevator

competitor when Schindler is either inspecting or doing its work." Medio

explained that in lieu of having an employee of a competitor elevator service

company present, Schindler agreed to provide something akin to a "new owner's

manual[,]" that would show "the newest version[s] . . . of software."




1
  Although Schindler's attorney stated the complaint was filed on April 7, 2017,
the copy of the complaint provided as part of the appellate record is dated April
6, 2017.
                                                                          A-0343-17T2
                                        5
      In response, Schindler's attorney noted that as part of his recitation of the

terms of the settlement agreement, he neglected to include a date certain for his

client to receive the final payment. Claridge's litigation counsel argued that

payment "would follow the timeline of work being completed." The judge

suggested that payment be rendered "[u]pon completion of services."

Schindler's attorney argued his client wanted "an end date of June 2, 2017."

Medio agreed and the judge found it "reasonable." The judge directed the

attorneys to prepare and review the consent order. The judge also apprised

counsel that he was leaving in two days and would be away for a week.

            THE COURT: So . . . hopefully [it] will be sitting on
            my desk ready to sign. You both have consented to it.
            All is well. I don't . . . think you're going to be able to
            agree on it now. Is there anything else that you need to
            put on the record?

            SCHINDLER'S COUNSEL: No, Your Honor. What I
            would say in that regard is that certainly we should have
            that consent order to Your Honor by the time you
            return. But as Mr. Medio has just said, we're going to
            start the process of doing it, so I'm not --

                  ....

            - - we're not going to hold it up subject to the consent
            order.

            THE COURT: No.



                                                                           A-0343-17T2
                                        6
            SCHINDLER'S COUNSEL: Because I know that
            counsel and I are both busy the next couple of days
            anyway.

            THE COURT: Right, right.

            SCHINDLER'S COUNSEL: So[,] we're going to go
            based upon this settlement agreement that's agreed to
            . . . on the record?

            CLARIDGE'S         IN-HOUSE         COUNSEL:        Yes,
            understood.

            SCHINDLER'S COUNSEL: Okay, great.

                                        II

      The parties thereafter engaged in a series of emails that dealt mostly with

attempts to schedule a date and time for Schindler's staff to access Claridge's

property and complete the work on the elevators. Both parties' appellate briefs

refer to a hearing the trial judge conducted on May 5, 2017, in which, according

to Claridge, the judge "directed" Schindler "to complete the survey and

Upgrades without the presence of third-party elevator personnel." Claridge

disputes this material statement of fact without providing a specific citation to

the appellate record, in violation of Rule 2:6-2(a)(5). Moreover, Claridge's

appendix does not contain either: (1) a transcript of this alleged hearing; or (2)

an order dated May 5, 2017 issued by the General Equity judge reflecting th e

decision of the court, both in violation of Rule 2:5-4(a).

                                                                          A-0343-17T2
                                        7
      In a letter dated May 10, 2017, Claridge's litigation counsel made the

following claims to the General Equity judge:

            Please accept this correspondence as an update to the
            status of the settlement terms reached between the
            parties in the above referenced matter. As Your Honor
            is aware, the outcome of the telephonic hearing
            conducted last Friday May 5, 2017 (the May 5th
            Hearing) was that [p]laintiff [Claridge] would not be
            permitted to have representatives of an elevator
            servicing company present while [d]efendant
            [Schindler] performed its survey/inspection and
            upgrades to the subject elevators, but that [p]laintiff
            could have its own representatives present during same,
            and photograph, video, or otherwise record those
            procedures. Your Honor also implored [d]efendant at
            the May 5th Hearing once again to get to the [p]laintiff's
            property as soon as practicable to begin these
            procedures, as the terms of settlement provided for the
            initial survey/inspection to be done within five (5) days
            of the parties' initial hearing in this matter (April 18,
            2017, nearly three weeks ago).

            [(Emphasis added).]

      In its appellate brief, Schindler alleges: "On April 28, 2017, Schindler's

technicians arrived at The Claridge to survey the elevators for the upcoming

software upgrades." In support of this statement of fact in respondent's brief,

Schindler's counsel cites to a letter he sent to the General Equity judge on May

26, 2017. This citation does not comply with the requirements of Rule 2:6-4(a).

The genesis of this problem can be traced to the judge's failure to adhere to Rule


                                                                          A-0343-17T2
                                        8
1:2-2, which, subject to certain exceptions not relevant here, requires "all

proceedings in court shall be recorded verbatim[.]" Claridge was the party who

sought the telephonic hearing held on May 5, 2017. The judge should have

directed Claridge to make the necessary arrangements to ensure counsels'

interactions and the court's ultimate determination in this telephonic hearing

were preserved in a verbatim record from which a transcript suitable for

appellate review could be created. 2

      Unfortunately, the parties continued to communicate their intransigence

on matters related to the implementation of the settlement agreement in a manner

that displayed an utter disregard for the rules governing how attorneys should

interact with the court involving pending litigation. Thus, in lieu of filing a

formal motion pursuant to Rule 1:6-2(a) supported, where necessary, by an

affidavit made in compliance with Rule 1:6-6, the attorneys sent lengthy



2
  The only judicial acknowledgement of this telephonic hearing does not surface
until the end of the case on August 25, 2017. In the course of delivering his oral
decision denying plaintiff's motion for reconsideration, the judge made the
following oblique reference to the May 5, 2017 telephonic conference:

            [T]his [c]ourt conducted a telephonic case management
            conference on May 5th. The substance of that
            discussion only involved, again, who was permitted to
            be present during the installation of the elevator
            upgrades.
                                                                          A-0343-17T2
                                        9
correspondences replete with incompetent factual assertions directly to the

judge.

      For example, in a letter dated May 25, 2017, Claridge's litigation counsel

requested the court to "[p]lease accept this correspondence in lieu of a more

formal application by [Claridge] . . . seeking a hearing date on this [c]ourt's

Order to Show Cause originally entered on April 11, 2017 . . . for the reasons

more fully set forth herein." The three-page letter contained a total of nine

single-spaced, unnumbered, bullet-point-paragraphs, and three footnotes. In

this document, Claridge's litigation counsel described the factual foundation for

his legal arguments. The letter ended with the following prayer for relief:

            In summary, it appears that the Settlement reached in
            this matter is unfortunately not a realistic option. Either
            the Upgrades were negligently performed, or -- as
            Claridge suspects -- the Upgrades were never a true
            substitute for the functionality of the SIM Cards which
            were wrongfully taken from Claridge. In light of the
            foregoing, Claridge would respectfully request that the
            OTSC be relisted for hearing at the [c]ourt's earliest
            convenience, in order to determine, inter alia, whether
            Claridge is entitled to an immediate return of the SIM
            Cards pending the underlying litigation, as more set
            forth in Claridge's Application.

            [(alteration in original).]

      Claridge's letter predictably triggered an equally ad hoc response from

Schindler's counsel in the form of a letter dated May 26, 2017 to the judge "in

                                                                          A-0343-17T2
                                          10
opposition to [p]laintiff 'seeking a hearing date on this [c]ourt's Order to Show

Cause originally entered on April 11, 2017.'" Schindler disputed Claridge's

factual assertions and characterized the terms of the settlement allegedly reached

on April 18, 2017 as "clear and unambiguous." Schindler's counsel ended the

letter by claiming that Claridge's "sole right is to receive a copy of the owner's

manual which will be provided upon payment of the settlement amount of

$100,000.00."

                                        III

      On June 6, 2017, Schindler filed a formal motion "to enforce settlement,"

supported by a certification from counsel. The court heard argument on June

23, 2017, the return date of the motion. The judge read into the record the terms

of the settlement agreement that Schindler's counsel placed on the record on

April 18, 2017, and specifically noted Claridge's in-house counsel and its

litigation counsel both acknowledged the accuracy of the terms and their

agreement to abide by them.        Schindler's counsel summarized his client's

obligation under the settlement agreement as consisting of three items:

"Software upgrades, owner's manual, [and] dummy invoice." The judge agreed.

      Schindler's counsel claimed his client completed the software upgrades.

He was "fully prepared, represented it to counsel, represent it in in open [c]ourt"


                                                                           A-0343-17T2
                                       11
and that he would "provide the owner's manual and . . . the dummy invoice."

Claridge's litigation counsel argued the settlement agreement required Schindler

to upgrade the elevators and provide the owner's manual. Claridge also needed

to determine whether this restored the same level of functionality the elevators

had "when we had the SIM cards." Schindler's counsel argued the settlement

agreement did not hold his client responsible for functionality.

      After considering the arguments of counsel and the certifications

submitted in the motion, the judge held the parties reached an enforceable

agreement on April 18, 2017. The judge ordered Schindler to provide Claridge

"the owner's manual and passwords" within seven days. The judge also ordered

Claridge to send a check in the amount of $100,000 within seven days, made

payable to the trust account of the law firm that represents Schindler in this

litigation. The judge directed Claridge's attorney to prepare the order, which

would also prohibit Schindler's counsel from withdrawing any part of the

$100,000 "for any purpose until they receive . . . either the consent of counsel,

if . . . everything's fine . . . or the consent of the Superior Court[.]"

      The judge found this was "a reasonable way of resolving" this matter. The

judge noted that "[i]f it does not work, you're going to have to set up a hearing,

an evidentiary hearing where I'm going to make a determination. But at least


                                                                            A-0343-17T2
                                         12
you will have fully performed what you were responsible for doing." The judge

provided the following elaboration in response to Claridge's litigation counsel's

inquiries:

             [I]f your clients are not satisfied, what I want you to do
             is call [Schindler's counsel] [and] schedule a
             conference call with me. I will set a date for a plenary
             hearing. At the plenary hearing, I do not want to, you
             know, reinvent the wheel. I want to -- I want testimony
             from Claridge as to what they feel those software
             upgrades and the owner's manual that were provided
             were not in accordance with the settlement, and I'm
             going to expect some testimony from [Schindler's
             counsel's] client as to whether they complied with what
             . . . they said they were going to do.

             It's going to be an enforcement of the settlement
             plenary hearing, simply put[.]

      The judge signed the order in response to Schindler's motion on July 7,

2017. The order directed Schindler to deliver to Claridge, within seven days, an

owner's manual containing the necessary computer passwords. Schindler was

also required to provide Claridge an invoice for $100,000.00 that itemized the

upgrades installed. The court directed Claridge to send Schindler's counsel,

within seven days, a check in the amount of $100,000.00 payable to the firm's

trust account. These funds were not to be distributed without express written

authorization from Claridge or an order of the court.



                                                                          A-0343-17T2
                                        13
      Further, the court authorized Claridge to submit written questions to

Schindler regarding the software upgrades within fourteen days of delivery of

the owner's manual.      Schindler had fourteen days to respond to Claridge's

questions. Following Schindler's response, "either party may advise the [c]ourt

of the status of the matter and apply to the court for a further ruling [.]"

      On July 14, 2017, Claridge filed a motion for reconsideration of the court's

July 7, 2017 order which found the parties reached an enforceable settlement.

In a memorandum of law submitted in support of the motion, Claridge argued

"that . . . [because] it appears there was never a meeting of the minds between

the parties, no enforceable agreement ever existed between Claridge and

Schindler."   Alternatively, Claridge argued the matter should proceed to a

plenary hearing pursuant to Rule 4:67-5.

      In a certification in support of the motion, Claridge's litigation counsel

acknowledged that on April 18, 2017, the parties "reached a settlement in

principle, certain material elements of which were read into the record on that

date." Without citing to a particular section of the transcript of the April 18

hearing, Claridge's litigation counsel claimed the settlement required Schindler

to "perform certain changes to the elevators' computers that were characterized

by Schindler in chambers as 'software upgrades'. . . to the elevators which would


                                                                               A-0343-17T2
                                        14
return the elevators to the same level of functionality and safety as if they had

SIM Cards[.]" However, according to Claridge, "since the completion of the

. . . 'Upgrades,' the Schindler-manufactured elevators are in no better shape from

a functionality and testing perspective than they were prior to the Upgrades."

        Schindler's counsel responded to Claridge's motion in a self-described

letter memorandum brief.        The letter merely recounted the factual and

procedural journey of this contentious litigation. Schindler's counsel did not

submit a certification or affidavit to support his factual contention as required

by Rule 1:6-6, nor cite relevant legal authority to support his client's position.

        Claridge's motion for reconsideration came before the judge for oral

argument on August 25, 2017. At this hearing, Claridge's litigation counsel 3

argued plaintiff was seeking "two disjunctive forms of relief":                    (1)

"reconsideration that there exists a valid and enforceable settlement . . . as a

matter of law;" or (2) a plenary hearing to enable the court to decide whether

there exists a valid enforceable settlement as a matter of fact.

        The record of the motion hearing shows Claridge raised the same

arguments the judge had previously considered and rejected.             Schindler's

counsel's argument is noteworthy only in one particular respect; when the judge


3
    Claridge's in-house counsel also entered his appearance on the record.
                                                                             A-0343-17T2
                                       15
asked him to respond to Claridge's arguments, Schindler's counsel addressed the

court as follows:

            I've handed you [the judge] a transcript of the
            conference, telephonic hearing with the Court on July
            25th, 2017. I direct you respectfully to page 5, lines
            15-18. I'll follow [Claridge's counsel] and read it.

                    "THE COURT: — is — by the way, let me
                    just interrupt you for one second. Let me
                    interrupt you for one second. It's also my
                    position that there's an enforceable
                    settlement. It's my position that there's an
                    enforceable settlement."

            A settlement is a settlement. We've complied. They
            finally complied by giving me the $100,000. This case
            is over. Over. No more hearings, no more claims for
            damages. This case is over. Your Honor says . . . :

                    "Motion denied. Case dismissed with
                    prejudice. Move on your separate ways.
                    [The    judge     addressing     Schindler's
                    counsel][:] give your client the money."

            [(Emphasis added).]

      At the conclusion of the attorneys' legal argument, the judge applied the

standard codified in Rule 4:49-2, as construed by our colleague Judge Harris in

his often cited opinion D'Atria v. D'Atria, and found no legal or factual basis to

reconsider his earlier decision. 242 N.J. Super. 392, 401 (Ch. Div. 1990).      At

this point, the judge shifted his analysis and raised the question of damages.


                                                                          A-0343-17T2
                                        16
Specifically, the judge addressed whether Claridge should be entitled to pursue

a claim for damages in the Law Division for breach of the settlement agreement.

            THE COURT: Now let me . . . get into one concern that
            I have. My inclination is to refer this matter to the Law
            Division. If there's any further proceedings, I don't
            know, they would be proceedings for damages for non-
            performance of the agreement because [Claridge's
            litigation counsel's] contention is . . . that Schindler did
            not perform what it was required to perform. Now that
            . . . Claridge has performed what it has been required to
            perform, they've delivered the $100,000 to you, and
            [addressing Schindler's litigation counsel] I'm going to
            order — I want you to prepare this order — I'm going
            to order that you can release the $100,000 to your
            client. But the only, there is one opening for [Claridge's
            litigation counsel] if he decides to take it, and that is he
            does contend . . . that the technical provisions of the
            order were not performed . . . by Schindler in that they
            did not give the plaintiff what the plaintiff bargained
            for.

      Although the judge was certain the parties reached a settlement

agreement, he remained uncertain about whether Schindler "delivered to . . .

Claridge what it was supposed to have delivered." In this light, the judge

wondered whether "there's an opening for a plenary hearing in that matter." The

judge continued to ponder the implications of a potential damages claim by

Claridge:

            I think [there] . . . should be part and parcel of your
            damage claim if you have a damage claim against
            Claridge, and if they didn't deliver what they were

                                                                           A-0343-17T2
                                       17
            required to deliver maybe there were damages that
            were, that were attendant to that failure. But I don't
            know whether that should be in front of me or it should
            be in the Law Division because I see it now as
            essentially a claim for damages by Claridge against,
            against Schindler.

            [(Emphasis added).]

      Without abandoning his legal position as to the unenforceability of the

settlement agreement, Claridge's litigation counsel did not object to a judgment

entered by the Chancery Division, General Equity Part finding the settlement

agreement enforceable and thereafter transferring the case to the Law Division.

After the judge reached this critical conclusion, he apprised Schindler's counsel

that he was "going to order . . . the $100,000 paid over be distributed to your

client." This prompted the following colloquy between the court and Schindler's

counsel:

            SCHINDLER'S COUNSEL: Judge, I got to tell you,
            respectfully, you're wrong on that one.

                  ....

            If we have a settlement, we have a settlement. Their
            plenary hearing is to come back and say, "Oh, no. You
            didn't get what you said you were supposed to get in the
            settlement."

                  ....



                                                                         A-0343-17T2
                                      18
By definition Your Honor ruled there's a settlement.
They got what they were supposed to get. They got the
software upgrades.

THE COURT: No, no, no, no. I said there was a — there
was a — I'm ruling that there was a . . . that was a
settlement.

      ....

And that they were entitled to receive certain things
from Schindler. You were entitled to receive certain
things from Claridge. You have now received $100,000
from Claridge. Their claim is that they did not receive
what they were supposed to have received from you. I
am not ruling that you — that Schindler has fully
performed under the settlement. I have no idea whether
Schindler . . . fully performed under the settlement. Do
you understand what I'm saying?

SCHINDLER'S COUNSEL: There's no evidence, there
is no evidence before Your Honor that Schindler did not
fully perform under the settlement.

THE COURT: This is their claim . . . There's no
evidence because I haven't taken evidence.

SCHINDLER'S COUNSEL: No, but my point is they're
talking about a plenary hearing as to the software
upgrades. They've never denied receiving the software
upgrades. They've never denied receiving the owner's,
the owner's manual or the password, and they certainly
haven't come back and said to you that there are issues
with the operation of the elevator. I point to the order
because I think it's telling. They could have submitted
questions to us. They submitted no questions to us.

      ....

                                                           A-0343-17T2
                          19
            Clearly if you've submitted no questions to me, you
            must be satisfied.

            THE COURT: Wow, that's a leap. But I don't know
            how clear that is . . . [.]

            [(Emphasis added).]

      In an order dated August 31, 2017, the judge authorized Schindler's

counsel "to immediately transfer the $100,000.00 being held in its trust account

to Schindler Elevator Corporation[.]"       The judge further handwrote: "Any

further proceedings are hereby transferred to the Law Division as they concern

monetary damages claimed for non-performance of the settlement agreement."

                                       IV

      It is well-settled in our State that a settlement agreement between parties

to a lawsuit is a contract. Pascarella v. Bruck, 190 N.J. Super. 118, 124 (App.

Div. 1983). "Settlement of litigation ranks high in our public policy." Nolan v.

Lee Ho, 120 N.J. 465, 472 (1990) (quoting Jannarone v. W.T. Co., 65 N.J. Super.

472 (App. Div. 1961)). We review a trial court's construction and interpretation

of a contract de novo. Kaur v. Assured Lending Corp., 405 N.J. Super. 468, 474

(App. Div. 2009). Under this standard of review, "[a] trial court's interpretation

of the law and the legal consequences that flow from established facts are not




                                                                          A-0343-17T2
                                       20
entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of

Twp. of Manalapan, 140 N.J. 366, 378 (1995).

       In Nolan, our Supreme Court commented that settlement agreements will

not be vacated absent "fraud or other compelling circumstances." 120 N.J. at

472.   Thus, a party challenging the enforceability of a settlement agreement

must present "clear and convincing evidence" to vacate a settlement agreement.

Kaur, 405 N.J. Super at 475 (quoting De Caro v. De Caro, 13 N.J. 36, 42 (1953)).

       The factual and procedural record we have described at length here reveals

the parties' positions in this appeal. Claridge argues the General Equity judge

erred because the terms of the settlement placed on the record by Schindler's

counsel did not include essential elements critical to the sound operation or

"functionality" of the elevators. Schindler argues the transcript of the April 18,

2017 settlement hearing reflects the parties reached an enforceable settlement

agreement. After conducting a de novo review of the record before us, we

conclude the parties reached an enforceable agreement.

       As a starting point, oral agreements will be enforced even if the agreement

is never reduced to writing because a party reneges. Lahue v. Pio Costa, 263

N.J. Super. 575, 596 (App. Div. 1993).        "A settlement agreement usually

involves the payment of money by one party in consideration for the dismissal


                                                                          A-0343-17T2
                                       21
of a lawsuit by the other party." Thompson v. City of Atlantic City, 190 N.J.

359, 379 (2007). As the intent of the parties can be ascertained "and the

language is clear and unambiguous, a court must enforce the agreement as

written, unless doing so would lead to an absurd result." Quinn v. Quinn, 225

N.J. 34, 45 (2016).

      After a full day of negotiations, the parties reached a settlement.

Schindler's counsel described the terms of the settlement agreement on the

record:

            (1) Schindler will not return the SRM cards or SIM
            cards to the Claridge for use in the elevators;

            (2) Schindler agreed to provide a software upgrade for
            the seven elevators it fabricated and serviced;

            (3) Claridge agreed to pay Schindler $5,000.00 per
            elevator for the software upgrade;

            (4) the parties agreed that Schindler would complete the
            software upgrades by "an outside date" of June 2, 2017;

            (5) Schindler agreed to permit Claridge's employees to
            be present while Schindler inspects or installs the
            software upgrades;

            (6) no representatives of Jersey Elevator will be
            allowed to be present;

            (7) Schindler agreed to provide a "manual" that shows
            the software upgrades;


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                                      22
            (8) Claridge agreed to pay Schindler a total of $100,000
            for the work involved in the software upgrades for the
            seven elevators;

            (9) the TRO entered by the General Equity Part will
            vacated and the parties will exchange mutual releases;

            (10) the parties agreed to execute a stipulation of
            dismissal with prejudice in this litigation; and

            (11) Schindler agreed to dismiss with prejudice the
            complaint it filed in Morris County.

      The record shows that both Claridge's in-house counsel and litigation

counsel acknowledged on the record that these terms accurately reflected the

parties' settlement agreement. The "functionality" of the elevators was not a

part of the settlement agreement. We also reject the concerns raised by Claridge

in the context of a motion for reconsideration. Schindler's motion asked the

court to determine whether the parties reached an enforceable settlement

agreement on April 18, 2017.        Any issues or matters arising from the

implementation of the settlement agreement are outside the scope of this appeal.

      Finally, we cannot conclude without expressing our strong disapproval of

the ad hoc approach employed by the attorneys, as well as the judge's failure to

follow and enforce rudimentary procedural principles codified by the Supreme

Court in the rules governing our courts. The wholesale departure from the rules

governing the adjudication of civil disputes that permeated this case

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                                      23
significantly impedes meaningful appellate review and undermines the

transparency of the judicial process.

      Affirmed.




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                                        24
