NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-3631-15T3
ALAN GRECO,
Plaintiff-Appellant,
v.
TWINN CEDARS, INC., FRANK NIGRO and DAVID G. PAULUS,
Defendants-Respondents.
_______________________________
Submitted April 24, 2017 – Decided May 2, 2017
Before Judges Nugent and Haas.
On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Ocean County, Docket No. DC-6962-15.
Kelly Law, P.C., attorneys for appellant (Charles P. Kelly, of counsel and on the brief; Bradley Latino, on the brief).
Heagen, Pagano & Associates, attorneys for respondents (Anthony M. Pagano, on the brief).
PER CURIAM
Plaintiff Alan Greco appeals from a March 22, 2016 Law
Division order dismissing his complaint and enforcing a purported
settlement among the parties. When the court dismissed the complaint, it did not "find the facts and state its conclusions
of law" as required by Rule 1:7-4(a). For that reason, we vacate
the order and remand this matter to the trial court for further
proceedings.1
The record on appeal discloses the following procedural
history. On July 20, 2015, plaintiff filed a six-count Special
Civil Part complaint. In the complaint, he alleged defendants
Frank Nigro and David G. Paulus were the owners of defendant Twinn
Cedars, Inc., a registered home improvement contractor with whom
he contracted to construct improvements to his house in Toms River.
According to plaintiff, defendants did not complete the work, and
the work they did complete they performed in a shoddy and
unworkmanlike manner. Plaintiff also alleged that after he
retained counsel, defendants agreed to make a lengthy list of
repairs but never made them.
Defendants answered the complaint, asserted affirmative
defenses, and plead a counterclaim. The following month,
defendants moved to enforce a prior settlement allegedly executed
by the parties in February 2015.
1 On the same day the trial court dismissed the complaint, it denied as moot plaintiff's motion seeking sanctions for defendants' failure to make discovery. That order is also vacated as the matter is no longer moot.
2 A-3631-15T3 In a supporting certification from defense counsel, he
averred he was "familiar with the facts and circumstances noted
herein."2 He certified he and plaintiff's counsel "agreed upon
the terms of a settlement" after "quite a bit of negotiating." He
also certified that, though the settlement agreement was reduced
to writing and executed by plaintiff, it was never consummated
because plaintiff failed to show up on the agreed upon date to
discuss the extent of the repair work. Defense counsel certified
plaintiff never rescheduled.
Plaintiff opposed the motion. He disputed defendant's
assertions about why defendants did not perform as obligated by
the settlement agreement. He apparently filed no certifications,
but made the factual assertions in his letter brief.
The court did not initially decide defendants' motion but
instead requested supplemental submissions from the parties. The
parties complied, submitting supplemental letter briefs alleging
additional factual assertions. The parties also attached email
chains and correspondence to support their respective positions.
On the return date of the motion, the court urged the parties
to settle their dispute. When they were unable to do so, the
2 "If a motion is based on facts not appearing of record or not judicially noticeable," Rule 1:6-6 requires "affidavits made on personal knowledge, setting forth only facts which are admissible in evidence to which the affiant is competent to testify[.]"
3 A-3631-15T3 court granted defendants' motion. Without finding any facts or
making any legal conclusions, the court dismissed the complaint,
stating:
after reviewing all of the circumstances and having had counsel with counsel about this matter and exhausting the attempts to try to settle it between the parties so that they could reach some sort of agreement suitable to move on, the [c]ourt is going to grant the motion and dismiss the [c]omplaint.
The court entered a memorializing order and defendants appealed.
On appeal, plaintiff maintains the parties' settlement
agreement is void for many reasons, including that it is
unconscionable and violates the Consumer Fraud Act. Plaintiff
also contends the settlement agreement is unenforceable because
defendants breached it and committed equitable fraud. Apart from
those allegations, plaintiff asserts defendants Nigro and Paulus
were not parties to the settlement agreement, thus the complaint
as to them should not have been dismissed. Lastly, plaintiff
argues the trial court granted the motion without making requisite
findings of fact and conclusions of law.
Defendants generally deny each of plaintiff's assertions
concerning the unenforceability of the settlement agreement. They
argue plaintiff's cause of action against them should fail based
upon the entire controversy doctrine. Lastly, they contend the
4 A-3631-15T3 trial court properly determined the settlement agreement is
enforceable.
Rule 1:7-4 mandates that a trial court, "by an opinion or
memorandum decision, either written or oral, find the facts and
state its conclusions of law thereon . . . on every motion decided
by a written order that is appealable as of right[.]" The
"[f]ailure to perform that duty constitutes a disservice to the
litigants, the attorneys and the appellate court." Curtis v.
Finneran, 83 N.J. 563, 569-70 (1980) (citation omitted).
The trial court must clearly state its factual findings and
correlate them with relevant legal conclusions so the parties and
appellate courts may be informed of the rationale underlying the
decision. Monte v. Monte, 212 N.J. Super. 557, 564-65 (App. Div.
1986). "In the absence of reasons, we are left to conjecture as
to what the judge may have had in mind." Salch v. Salch, 240 N.J.
Super. 441, 443 (App. Div. 1990). Furthermore, such an omission
"imparts to the process an air of capriciousness that does little
to foster confidence in the judicial system." Twp. of Parsippany-
Troy Hills v. Lisbon Contractors, Inc., 303 N.J. Super. 362, 367
(App. Div.), certif. denied, 152 N.J. 187 (1997). For these
reasons, the order dismissing the complaint in the case before us
must be vacated.
5 A-3631-15T3 We note defendants did not cite in their Notice of Motion the
rule or authority under which they were proceeding. Such omissions
by attorneys are not uncommon. Nonetheless, we make the
observation because the appropriate standard of review will
ordinarily guide a trial court's determination. Here, for example,
defendants sought to dismiss the complaint, albeit under the theory
that the parties had entered into an enforceable settlement before
the complaint was filed. As the motion was not based upon
discovery violations, there were only a limited number of rules
under which defendants could have proceeded.
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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-3631-15T3
ALAN GRECO,
Plaintiff-Appellant,
v.
TWINN CEDARS, INC., FRANK NIGRO and DAVID G. PAULUS,
Defendants-Respondents.
_______________________________
Submitted April 24, 2017 – Decided May 2, 2017
Before Judges Nugent and Haas.
On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Ocean County, Docket No. DC-6962-15.
Kelly Law, P.C., attorneys for appellant (Charles P. Kelly, of counsel and on the brief; Bradley Latino, on the brief).
Heagen, Pagano & Associates, attorneys for respondents (Anthony M. Pagano, on the brief).
PER CURIAM
Plaintiff Alan Greco appeals from a March 22, 2016 Law
Division order dismissing his complaint and enforcing a purported
settlement among the parties. When the court dismissed the complaint, it did not "find the facts and state its conclusions
of law" as required by Rule 1:7-4(a). For that reason, we vacate
the order and remand this matter to the trial court for further
proceedings.1
The record on appeal discloses the following procedural
history. On July 20, 2015, plaintiff filed a six-count Special
Civil Part complaint. In the complaint, he alleged defendants
Frank Nigro and David G. Paulus were the owners of defendant Twinn
Cedars, Inc., a registered home improvement contractor with whom
he contracted to construct improvements to his house in Toms River.
According to plaintiff, defendants did not complete the work, and
the work they did complete they performed in a shoddy and
unworkmanlike manner. Plaintiff also alleged that after he
retained counsel, defendants agreed to make a lengthy list of
repairs but never made them.
Defendants answered the complaint, asserted affirmative
defenses, and plead a counterclaim. The following month,
defendants moved to enforce a prior settlement allegedly executed
by the parties in February 2015.
1 On the same day the trial court dismissed the complaint, it denied as moot plaintiff's motion seeking sanctions for defendants' failure to make discovery. That order is also vacated as the matter is no longer moot.
2 A-3631-15T3 In a supporting certification from defense counsel, he
averred he was "familiar with the facts and circumstances noted
herein."2 He certified he and plaintiff's counsel "agreed upon
the terms of a settlement" after "quite a bit of negotiating." He
also certified that, though the settlement agreement was reduced
to writing and executed by plaintiff, it was never consummated
because plaintiff failed to show up on the agreed upon date to
discuss the extent of the repair work. Defense counsel certified
plaintiff never rescheduled.
Plaintiff opposed the motion. He disputed defendant's
assertions about why defendants did not perform as obligated by
the settlement agreement. He apparently filed no certifications,
but made the factual assertions in his letter brief.
The court did not initially decide defendants' motion but
instead requested supplemental submissions from the parties. The
parties complied, submitting supplemental letter briefs alleging
additional factual assertions. The parties also attached email
chains and correspondence to support their respective positions.
On the return date of the motion, the court urged the parties
to settle their dispute. When they were unable to do so, the
2 "If a motion is based on facts not appearing of record or not judicially noticeable," Rule 1:6-6 requires "affidavits made on personal knowledge, setting forth only facts which are admissible in evidence to which the affiant is competent to testify[.]"
3 A-3631-15T3 court granted defendants' motion. Without finding any facts or
making any legal conclusions, the court dismissed the complaint,
stating:
after reviewing all of the circumstances and having had counsel with counsel about this matter and exhausting the attempts to try to settle it between the parties so that they could reach some sort of agreement suitable to move on, the [c]ourt is going to grant the motion and dismiss the [c]omplaint.
The court entered a memorializing order and defendants appealed.
On appeal, plaintiff maintains the parties' settlement
agreement is void for many reasons, including that it is
unconscionable and violates the Consumer Fraud Act. Plaintiff
also contends the settlement agreement is unenforceable because
defendants breached it and committed equitable fraud. Apart from
those allegations, plaintiff asserts defendants Nigro and Paulus
were not parties to the settlement agreement, thus the complaint
as to them should not have been dismissed. Lastly, plaintiff
argues the trial court granted the motion without making requisite
findings of fact and conclusions of law.
Defendants generally deny each of plaintiff's assertions
concerning the unenforceability of the settlement agreement. They
argue plaintiff's cause of action against them should fail based
upon the entire controversy doctrine. Lastly, they contend the
4 A-3631-15T3 trial court properly determined the settlement agreement is
enforceable.
Rule 1:7-4 mandates that a trial court, "by an opinion or
memorandum decision, either written or oral, find the facts and
state its conclusions of law thereon . . . on every motion decided
by a written order that is appealable as of right[.]" The
"[f]ailure to perform that duty constitutes a disservice to the
litigants, the attorneys and the appellate court." Curtis v.
Finneran, 83 N.J. 563, 569-70 (1980) (citation omitted).
The trial court must clearly state its factual findings and
correlate them with relevant legal conclusions so the parties and
appellate courts may be informed of the rationale underlying the
decision. Monte v. Monte, 212 N.J. Super. 557, 564-65 (App. Div.
1986). "In the absence of reasons, we are left to conjecture as
to what the judge may have had in mind." Salch v. Salch, 240 N.J.
Super. 441, 443 (App. Div. 1990). Furthermore, such an omission
"imparts to the process an air of capriciousness that does little
to foster confidence in the judicial system." Twp. of Parsippany-
Troy Hills v. Lisbon Contractors, Inc., 303 N.J. Super. 362, 367
(App. Div.), certif. denied, 152 N.J. 187 (1997). For these
reasons, the order dismissing the complaint in the case before us
must be vacated.
5 A-3631-15T3 We note defendants did not cite in their Notice of Motion the
rule or authority under which they were proceeding. Such omissions
by attorneys are not uncommon. Nonetheless, we make the
observation because the appropriate standard of review will
ordinarily guide a trial court's determination. Here, for example,
defendants sought to dismiss the complaint, albeit under the theory
that the parties had entered into an enforceable settlement before
the complaint was filed. As the motion was not based upon
discovery violations, there were only a limited number of rules
under which defendants could have proceeded.
Two such rules are Rule 4:6-2(e) (failure to state a cause
of action upon which relief can be granted) and Rule 4:46 (summary
judgment). Under Rule 4:6-2(e), if "matters outside the pleading
are presented to and not excluded by the court, the motion shall
be treated as one for summary judgment and disposed of as provided
by R. 4:46, and all parties shall be given reasonable opportunity
to present all material pertinent to such a motion." Ibid. The
summary judgment standard requires denial of a summary judgment
motion if there exists a "genuine issue as to any material fact
challenged." R. 4:46-2(c). Moreover, summary judgment motions,
like all motions, must be supported by affidavits that comply with
R. 1:6-6.
6 A-3631-15T3 Neither the parties nor the trial court should construe our
observations as requiring the trial court to merely make findings
of fact and conclusions of law on remand. Nor do we mean to imply
how defendants' motion should be decided. We suggest only that
the trial court has broad discretion on remand. If the record
before it is inadequate to resolve whether the parties' purported
settlement agreement can be enforced, then the motion should be
denied and the court should permit the parties to take discovery
and thereafter conduct an evidentiary hearing, if necessary. If
the trial court determines the existing record is adequate to
dispose of defendants' motion, then it should issue an opinion
that cites the appropriate standard of review and sets forth
On remand, the trial court should conduct a status conference
with counsel within thirty days to discuss and decide whether the
motion record should be supplemented and, if so, whether limited
discovery or a hearing is necessary. The parties shall then
proceed accordingly.
The March 22, 2016 order dismissing the complaint is vacated
and this matter is remanded for further proceedings consistent
with this opinion. We do not retain jurisdiction.
7 A-3631-15T3