August 8, 2013
STEPHEN MARTIAK, Plaintiff-Respondent,
EUGENE S. MOLNAR and TOWNSHIP OF WOODBRIDGE (a New Jersey municipal corporation), Defendants, and JAY D. ARBEITER, ESQ., BAER, ARBEITER & PLOSHNICK, ATTORNEYS AT LAW, PAUL J. FLETCHER, FLETCHER ENGINEERING, INC., RUSSELL I. KNUDSON, P.L.S., and LAWYERS TITLE INSURANCE CORPORATION, Defendants-Respondents, and TRANS-COUNTY TITLE AGENCY, INC., Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 22, 2013
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-8973-08.
Fred S. Dubowsky argued the cause for appellant.
Clark W. Convery argued the cause for respondent Stephen Martiak (Convery, Convery & Shihar, P.C., attorneys; Mr. Convery, of counsel and on the brief).
Kasia Walch argued the cause for respondent Lawyers Title Insurance Corporation (Finestein & Malloy, L.L.C., attorneys (Russell M. Finestein and Ms. Walch, on the brief).
Before Judges Grall, Simonelli and Accurso.
This is the second appeal from an order enforcing a settlement filed by defendant Trans-County Title Agency, Inc. (Trans-County). On the prior appeal, "[b]ecause the judge enforced the purported settlement agreement without conducting an evidentiary hearing to resolve the factual dispute presented by the parties' competing certifications, we vacate[d] the order under review and remand[ed]." Martiak v. Molnar, No. A-6220-10 (App. Div. Mar. 30, 2012) (slip op. at 2). On September 4, 2012, the trial court conducted an evidentiary hearing as directed and issued a letter opinion dated September 10, 2012, setting forth its findings and reasons for enforcing the settlement.
In its opening brief Trans-County states the issues as follows:
I. CAN PLAINTIFF BIND APPELLANT TO THE TERMS OF A SETTLEMENT CONTRACTED WITH OTHER PARTIES TO THE LITIGATION BUT WITHOUT APPELLANT'S KNOWLEDGE OR PARTICIPATION BASED ON THE SETTLING PARTIES [sic] ATTEMPT TO CREATE A GLOBAL SETTLEMENT?
II. IS THE SETTLEMENT BETWEEN APPELLANT AND LAWYERS TITLE ABROGATED BY A SUBSEQUENT GLOBAL SETTLEMENT OF WHICH APPELLA[NT] WAS UNAWARE AND IN WHICH HE DID NOT PARTICIPATE[?]
III.STANDARD OF REVIEW.
IV. ANALYSIS OF TRIAL COURT [sic] CONCLUSIONS COMPARED TO RELEVANT FACTS ADDUCED AT HEARING.
In its reply brief, Trans-County states the issues as follows:
I. PLAINTIFF RESPONDENT'S POSITION THAT THE TRIAL COURT CONCLUDED TWICE THAT THE "FRIVOLOUS FILING" CLAIM OF APPELLANT WAS INCORPORATED IN THE PROPOSED SETTLEMENT ON THE BASIS THAT HE PROPERLY DENIED IT SUMMARILY IS CORRECT[, ] BUT MOOT.
II. RESPONDENT LAWYERS TITLE INSURANCE CORPORATION (LAWYERS TITLE & L.T.) CAN BE SEPARATELY SUED ON ITS FEBRUARY 4, 2011 SETTLEMENT WITH APPELLANT.
A. A writing or agreement on the record was required here to transform the February 4, 2011 dismissal without prejudice to one with prejudice.
B.For the settlement conference Appellant authorized his attorney to negotiate a settlement with plaintiff; but not with Respondent Lawyers Title with whom to his knowledge a settlement had already been accomplished months earlier.
C.& D. Inventing or scrambling facts and conclusions and transferring arguments exclusively applicable to Appellants [sic] claims against plaintiff to avoid Respondent's earlier settlement with Appellant are unavailing.
Having considered the arguments supporting the foregoing issues and assertions, the transcript of the evidentiary hearing and the trial court's letter opinion, we conclude that the issues have insufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm the trial judge's order on remand because it is based upon his assessment of the witnesses' credibility and upon findings of fact that are adequately supported by the record. R. 2:11-3(e)(1)(A).