November 14, 2008
SHAWKEY F. FARAG, PLAINTIFF-RESPONDENT,
NABIL GIRGIS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, L-612-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 3, 2008
Before Judges Reisner and Sapp-Peterson.
Defendant Nabil Girgis appeals from a March 28, 2008 order entered by the Law Division, enforcing a settlement between defendant and plaintiff Shawkey F. Farag.*fn1 We affirm.
The parties are brothers. The dispute in this case dates back to 1989, when Girgis obtained a judgment for approximately $39,000 against Farag. On September 26, 2005, Farag filed a complaint alleging that he had paid the judgment but that Girgis had refused to deliver a warrant of satisfaction to release the judgment lien. The parties appeared for a settlement conference on November 26, 2007, before Judge Courtney. According to Farag and his attorney, the parties agreed at the conference that they would settle their dispute for $34,500. Two days after the conference, Girgis' attorney sent the settlement judge a letter asserting that "while we were very close to a settlement, the final details were not agreed to due to the lateness of the hour."
On or about January 31, 2008, Farag filed a motion to enforce the settlement. The motion was supported with legally competent evidence in the form of certifications from Farag and his attorney, Robert B. Silverman, attesting to the settlement. Girgis did not file any opposing certifications.
According to Silverman's certification, he and Farag appeared at the November 26 settlement conference. Girgis' counsel appeared without his client, but consulted with Girgis by telephone. After lengthy negotiations, the parties "finally [agreed] to the proposal made by Judge Courtney, namely that my client should pay his brother an additional $34,500.00. Payment would be made within a reasonable time, though no definite time limit was set." Once the parties reached this agreement, Silverman sent Farag home "with instructions to raise the money needed for the settlement." After Farag left the courthouse, Girgis' counsel mentioned, for the first time, that "he wanted a default provision requiring payment of the full amount of defendant's claim if [Farag] did not pay the $34,500.00." Silverman indicated he would broach the subject with his client.
In the interim, however, Farag obtained a bank loan for the necessary funds and advised Silverman, "on December 20 or 21," that "he had the money." Silverman advised Farag that he would be out of his office over the holidays and told Farag to deliver the check to his law office "right after New Year's Day." However, on December 22, Silverman also confirmed that payment would be forthcoming, by sending Girgis' counsel a letter asking him "to send me drafts of the settlement documents so that as soon as the funds cleared my account, payment could be made."
According to the certifications of both Farag and Silverman, Farag delivered the check to Silverman on January 3, 2008. However, Girgis refused to accept Farag's tender of the settlement proceeds.
Based on this undisputed evidence, the motion judge rendered judgment for Farag. In an oral opinion placed on the record on March 28, 2008, Judge Wellerson concluded that "there was an agreement as to the amount" of the settlement. He also found "that there was essentially no agreement as to the time frame, that was left silent." He further concluded that, where the settlement terms did not specify a time for payment, "anytime between 30 and 45 days is standard [practice]." The judge also noted that it was customary in the settlement of routine civil cases for the obligor's counsel to send the obligee's counsel a release, and to forward the settlement proceeds on receipt of the signed release. Accordingly, the judge entered an order enforcing the settlement and requiring defendant to provide a warrant of satisfaction after receipt of the settlement check.
On this appeal, Girgis raises the following points for our consideration:
THERE WAS NEVER A SETTLEMENT REACHED BETWEEN THE PARTIES AT THE NOVEMBER 26, 2007, SETTLEMENT CONFERENCE AS IT WAS CONTRARY TO THE EXPRESS INTENT OF THE DEFENDANT.
THE TRIAL COURT ERRED BY FOCUSING UPON THE ABILITY OF THE PLAINTIFF TO PAY A MONETARY AMOUNT AND REFUSING TO CONSIDER THE INTENT OF BOTH PARTIES TO BE BOUND BY SETTLEMENT DISCUSSIONS OF NOVEMBER 26, 2007.
Having reviewed the record, we conclude that these contentions are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add the following comments.
Farag supported his motion with legally competent evidence that the parties reached a settlement at the November 26 conference and that, once the settlement was reached, Silverman sent Farag home to raise the money. However, after the parties had agreed on the settlement, Girgis' attorney attempted to add an additional term in the form of a default provision. Notably missing from Girgis' brief is the amount of time he was willing to give his brother to pay the settlement amount before a default would occur.
An agreement to settle a lawsuit is a contract which, like all contracts, may be freely entered into and which a court, absent a demonstration of "fraud or other compelling circumstances," should honor and enforce as it does other contracts. Honeywell v. Bubb, 130 N.J. Super. 130, 136 (App. Div. 1974). Indeed, "settlement of litigation ranks high in our public policy." Jannarone v. W.T. Co., 65 N.J. Super. 472, 476 (App. Div.), certif. denied, 35 N.J. 61 (1961). [Pascarella V. Bruck, 190 N.J. Super. 118, 124-25 (App. Div.), certif. denied, 94 N.J. 600 (1983).]
The undisputed evidence supports Judge Wellerson's conclusion that the parties reached a legally enforceable settlement on November 26, 2007, before Silverman sent his client home to raise the settlement funds. The fact that Girgis proposed an additional settlement term thereafter, and refused to sign a written agreement memorializing the settlement, does not render the oral settlement unenforceable:
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.), certif. denied, 134 N.J. 477 (1993).]
We also agree with Judge Wellerson that Farag tendered the settlement amount within a reasonable time.