On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. DC-816-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: December 1, 2010 - Decided: Before Judges Axelrad and J. N. Harris.
Plaintiff Robert J. Triffin appeals from the November 6, 2009 order of the Special Civil Part granting defendant's motion to enforce settlement. Triffin contends he was denied due process because the judge entered the order without having received the opposition papers he filed. He also challenges the general award of counsel fees to defendant, which amount was "to be provided through a supplemental certification[,]" as noncompliant with Rule 1:7-4, which mandates the judge to articulate findings of fact and conclusions of law. We reverse and remand.
The relevant facts are straightforward and not in dispute. Triffin, as assignee, instituted this action on November 25, 2008, against defendant, the issuer of a purportedly dishonored check, and Luis Ortiz, the payee, to recover the amount of the check ($631.24), plus prejudgment interest and costs of suit.*fn1
Defendant filed an answer. On or about August l8, 2009, defendant agreed to settle the case for the full amount sought. Triffin signed and forwarded to defendant a proposed "settlement agreement with mutual release of claims" and a stipulation of dismissal. The document was apparently unsatisfactory to defendant who responded with its own Release, and a flurry of e-mails ensued between the parties negotiating language acceptable to each. For reasons not relevant to this appeal, on October 5, 2009, defendant sent Triffin an e-mail explaining the reasons it could not acquiesce to Triffin's proposed language and advising of its intent to proceed with a motion to enforce settlement and seek related fees and costs if Triffin did not sign and promptly return the enclosed release and stipulation of dismissal.
Having not received the documents by the deadline, on October 8, 2009, defendant filed a motion to enforce settlement accompanied by a certification of counsel, copy of the final draft of defendant's proposed release, and brief. Defendant argued Triffin was "nothing but obstructionist" regarding the closing papers, and contended Triffin's "latest demands" that he would not notarize the release because it was "cost [sic] and time consuming" and he would not sign the stipulation of dismissal with prejudice "until the settlement check clears" were "simply unreasonable." Defendant contended the language of the release was "legally sound and fair." Defendant also made a general demand for counsel fees and costs, which would be detailed in a supplemental certification to be provided on the hearing date.
According to the official stamp, on October l5, 2009, Triffin filed with the court a reply certification, brief, and proposed order denying the relief requested by defendant. Triffin certified he refused to sign defendant's proposed release and disputed it was "legally sound and fair." In the brief he disputed the parties had entered into an enforceable settlement agreement, stating in general terms that defendant did not contend it gave him "any consideration to settle this case, nor that Triffin has accepted the terms of [defendant's] drafted release." He also challenged defendant's request for sanctions as without legal basis.
On October 21, 2009, Triffin e-mailed his opposition papers to defense counsel, asking if he would accept service or would prefer the documents to be mailed to him. The transmittal letter to the court was not included. Defense counsel requested a hard copy by regular mail, which, apparently, he did not receive.
The return date of the motion was scheduled by the court for November 6, 2009.*fn2 Defense counsel appeared. Triffin did not. The court apparently had not received Triffin's opposition because after defense counsel briefly recited his position respecting the settlement, the court inquired, "[h]e didn't file any opposition, did he?" to which counsel responded, "no." Defense counsel then asked that the closing papers be signed by Triffin before defendant made payment. Without any findings, the court advised it would sign the submitted order. The order signed on that date directed Triffin to sign defendant's stipulation of dismissal and notarize the latter document, and defendant to make the settlement payment within twenty days after receipt. The order further required Triffin to pay defense counsel fees and costs incurred on the motion "to be provided through a supplemental certification." As of the date of oral argument, defense counsel had not filed any supplemental certification seeking a specific amount of fees and costs. This appeal ensued.
We disagree with Triffin that defense counsel's statement that Triffin did not file opposition to his motion constituted a fraud on the court. Defense counsel may not have known the papers Triffin e-mailed to him had been filed with the court because he never received a copy of Triffin's transmittal letter to the court and he never received a hard copy of Triffin's papers as requested.*fn3 Nevertheless, it would have been preferable for defense counsel to have advised what he had received in response to the judge's query.*fn4 The judge could then have sought to ascertain whether the opposing papers had, in fact, been filed. If so, the judge could have reviewed the papers and, after hearing defense counsel's argument, ruled on the merits of the motion with appropriate factual and legal findings. As Triffin chose not to appear, he could not have asserted a due process claim as a result of his inability to orally argue his position.
Defense counsel urges on appeal the transcript does not indicate the judge granted the motion solely because it was unopposed. The lack of findings, however, renders it impossible to reach such conclusion. Because we are satisfied, through no fault of the judge, that Triffin's response did not make its way into the judge's file and was not considered by him in his ruling, a remand is necessary to satisfy due process. We make no determination as to the merits of Triffin's opposition and whether it is sufficient to defeat defendant's motion or raise a material question warranting an evidentiary hearing. We leave to the judge's discretion whether to schedule another oral argument or render a decision on the papers, but in either instance he shall make detailed findings in accordance with Rule l:7-4. If he decides to afford Triffin the opportunity for oral argument, we also leave to his discretion further inquiry of Triffin as to the reason for his non-appearance at the initial motion argument, and if the judge is dissatisfied with the explanation, we leave to his discretion the imposition of sanctions.
We also reverse and remand the portion of the order entitling defense counsel to fees and costs in connection with the motion for lack of stated legal and factual basis. We note that although Rule l:10-3 allows enforcement relief to litigants in the nature of counsel fees, the "authority to grant fees under this rule applies only to violations of orders and judgments, not to settlement agreements that have not been so memorialized." Pressler & Verniero, Current N.J. Court Rules, Comment 4.4.5 on R. l:10-3 (2011) (citing Haynoski v. Haynoski, 264 N.J. Super. 408 (App. Div. l993)). Although that case applied the predecessor Rule l:10-5, the cited language of the rule is identical to Rule l:10-3, see Haynoski, supra, 264 N.J. Super. at 413, as is the following cited comment stating that the rule recognizes that as a matter of fundamental fairness, a party who willfully fails to ...