NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0006-23
ALIYAH HARMON, an Individual,
Plaintiff-Appellant,
v.
BMW OF NORTH AMERICA, LLC, BMW GROUP COMPANY, and ROYAL MOTORS, INC.,
Defendants-Respondents. ____________________________
Submitted November 6, 2024 – Decided December 30, 2024
Before Judges Bishop-Thompson and Augostini.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-0846-20.
Lento Law Group, PC, attorneys for appellant (Samuel D. Jackson, on the briefs).
Porzio, Bromberg & Newman, PC, attorneys for respondent BMW of North America, LLC (Roy Alan Cohen and Jennifer A. Kelliher, of counsel and on the brief). PER CURIAM
In this products liability case, a dispute arose as to whether plaintiff
authorized her attorneys to settle the case. Plaintiff Aliyah Harmon appeals from
a July 18, 2023 order, following a plenary hearing, granting defendant BMW of
North America, LLC's motion to enforce the settlement agreement entered as a
result of arms' length negotiations between the parties' counsel. We affirm.
I.
We summarize the relevant facts from the motion and plenary hearing
record. On March 16, 2020, plaintiff filed a complaint alleging product liability
and breach of contract claims against defendant arising from a July 26, 2018
fire-related incident involving her 2008 BMW vehicle. At that time, she was
represented by Russell S. Warren, Jr., Esq. (Warren).
The matter proceeded with discovery. On March 13, 2023, the parties
attended mediation, which proved unsuccessful. Plaintiff testified she learned
for the first time at mediation that if the matter proceeded to trial, she would be
responsible for the trial costs upwards of $30,000.00. Plaintiff and Warren
disagreed about the value of the case and how to proceed. Dissatisfied with her
attorney's advice, plaintiff began exploring alternate counsel.
A-0006-23 2 Plaintiff was previously represented by Jeanine Warrington (Warrington)
of the law firm D'Arcy Johnson Day (DJD) in a workers' compensation matter.
Given their prior attorney-client relationship, plaintiff testified she had a trusting
relationship with Warrington. Therefore, she contacted her about this case.
Warrington testified, in early 2023, when plaintiff contacted her about the
case, plaintiff explained she was "in a bit of a bind" because she did not want to
accept the settlement offer made at mediation, as she viewed it as "unfair," and
so, she needed representation for trial. Plaintiff then asked Warrington if her
firm would get involved with this case.
Warrington, who did not handle personal injury matters, contacted another
attorney in her firm, Richard Albuquerque, Esq., (Albuquerque) to review the
case. Albuquerque testified that before getting involved in the case, he
requested plaintiff's permission to review the file and contact Warren and the
mediator, a retired judge. Plaintiff authorized the firm to review the file and
speak to those individuals.
Albuquerque testified he spoke with Warren about the case and relayed to
plaintiff their discussions about working as "co-counsel" because, at this point,
trial had been scheduled. Albuquerque testified he next spoke with the mediator
and learned the offer at mediation had been $70,000.00. According to
A-0006-23 3 Albuquerque, Warren was recommending the settlement offer to plaintiff.
However, after reviewing the submissions, Albuquerque felt the case had more
value, estimating between $100,000.00 and $150,000.00.
Albuquerque spoke again to Warrington, advising her: "if the client's
expectations are changed or she's willing to consider a fair settlement value,
something between a hundred and 150, which is where I thought the case should
settle, [then] we would be happy to get involved with the case."
Warrington, who had been primarily communicating with plaintiff during
this time via texts and emails, reported to Albuquerque that she spoke with
plaintiff, who was willing to follow the firm's recommendations. Albuquerque
relayed his preference to have the client's consent "in writing." Warrington then
emailed plaintiff on March 27, 2023, at 2:16 p.m.:
Dear Aliyah, prior to agreeing to handle your case against BMW, my firm is requesting your authority to settle this case for $125,000. Of course, we'll do our best to get more, but need your written consent to settle at $125,000 before proceeding. Thank you, Jeanine.
Plaintiff responded on the same date at 5:08 p.m.: "Yes, please proceed. Thank
you, Aliyah." The next day, March 28, 2023 at 5:26 p.m., plaintiff responded to
the email, reiterating:
Dear Jeanine,
A-0006-23 4 Yes, I authorize you to move forward with my case per the terms set forth in your email below. Please reach out to me if you have any questions or concerns.
Kind regards,
Aliyah Harmon
Satisfied he had the client's authorization to proceed, on March 29, 2023,
Albuquerque contacted defendant's counsel, Roy Alan Cohen, Esq., to advise
that he was joining plaintiff's legal team. 5: The attorneys spoke on March 30,
2023, regarding the case, and engaged in settlement negotiations over several
days. Albuquerque testified at one point he relayed to Warrington that "[w]e're
stuck at a hundred" but requested that Warrington "please see" if plaintiff will
accept $125,000.00. Ultimately, defendant agreed to settle the case for
$125,000.00.
Defendant's counsel sent a confirming email with the Confidential
Settlement Agreement on April 11, 2023. Although not anticipated by
Albuquerque, it was decided that the settlement funds would be processed
through the DJD firm. Albuquerque explained that he had not obtained a fee
agreement from the client because he was not taking money from the client −
either the settlement funds or payment for services − because Warren was
plaintiff's attorney of record. Accordingly, when this changed and the
A-0006-23 5 settlement funds were going to be processed through the DJD firm, Albuquerque
sent plaintiff a retainer agreement on April 12, 2023, which plaintiff signed the
same day.
After a period of days, the settlement agreement and release were not
returned. At Albuquerque's request, Warrington followed up with plaintiff.
Warrington stated that, in addition to the monetary settlement, plaintiff was now
requesting a car. Albuquerque testified that he advised Warrington the case was
settled, and the terms could not be changed. On April 17, 2023, Albuquerque
contacted defendant's counsel to advise that plaintiff was not willing to sign the
settlement agreement and release.
On April 21, 2023, defendant filed a motion to enforce the settlement,
which plaintiff opposed. After reviewing the submissions, the motion judge
determined there were disputed issues of material fact, and therefore, a plenary
hearing was necessary.
A plenary hearing was conducted on June 27, 2023. In addition to
plaintiff, Albuquerque, Warrington, and Warren testified. The parties
stipulated, in lieu of testimony, that Terron Lewis, plaintiff's fiancé, would
corroborate plaintiff's testimony regarding phone calls between plaintiff and
Warrington in March 2023 discussing the case.
A-0006-23 6 At the hearing, plaintiff confirmed contacting Warrington because of her
dissatisfaction with her attorney and sending an email advising Warrington's
firm to proceed with settlement. She explained why she sent the March 27, 2023
email to Warrington telling her to proceed with settlement if she, in fact, did not
want to settle the case for $125,000.00:
Because Jeanine [Warrington] told me that in order for them to even become my attorneys, that – and this was prior to, meaning that she basically told me that I would have the option later to be able to either go to trial or negotiate something different, that it wasn't set in stone, it was just them trying to see where my head was at with everything.
Plaintiff further claimed that DJD "never agreed to be [her] attorneys." Plaintiff
testified, prior to signing the retainer agreement on April 12, 2023, she did not
believe DJD was representing her in the present matter because "[w]henever an
attorney [has] represent[ed] me, I speak to them often. They tell me what's going
on. None of those things happened."
Warren testified that Albuquerque contacted him to review the case
because "they were looking to come into the case and take it over." When
Albuquerque first contacted Warren, but before providing him with the file,
Warren spoke with and obtained plaintiff's consent. According to Warren,
plaintiff confirmed she wanted to hire DJD as her attorneys in the matter .
A-0006-23 7 Warren testified, "[t]he client told me to make sure that I gave them all of the
information and that they were going to represent her." Based upon his
conversations with the client, Warren believed DJD had "authority from the
client" to engage in settlement discussions.
Warren testified that Albuquerque contacted him during the negotiations
to advise him that a settlement offer of $100,000.00 was "on the table," but they
were not going to take it. Albuquerque later notified Warren that a settlement
had been reached.
On July 18, 2023, the judge issued an order with an accompanying
seventeen-page decision granting defendant's motion to enforce the settlement.
He found: (1) after arms' length negotiation between counsel, the lawsuit settled
on April 11, 2023, for $125,000.00; (2) plaintiff's counsel received written
authorization from plaintiff to accept the proposed settlement; and (3) the case
was settled in its entirety.
The judge concluded that Warrington, Albuquerque and Warren were
"much more credible" than plaintiff. The judge found these witnesses' testimony
candid, forthright and reasonable. He further noted their testimony was
consistent with each other and "was supported and corroborated based on the
timeline and how each obtained knowledge of the facts."
A-0006-23 8 On the other hand, the judge found plaintiff less credible. He noted that
plaintiff's testimony was unreasonable, particularly with respect to her
"purported misunderstanding of authorizing the settlement." The judge found
plaintiff's explanation of her email communications with Warrington "did not
make any sense." Thus, the judge concluded plaintiff "clearly authoriz[ed] the
monetary settlement."
This appeal followed.
II.
Plaintiff argues the judge erred in five ways in enforcing the settlement
agreement: (1) in finding that DJD were plaintiff's attorneys at the time the
settlement was negotiated; (2) in finding that plaintiff's communication with
DJD constituted actual authorization to settle; (3) in finding plaintiff's
communications with DJD constituted apparent authority to settle; (4) in
evaluating the credibility of the witnesses; and (5) in holding plaintiff was not
fraudulently induced into providing authorization to settle the case. We have
considered those arguments in light of the record and governing law. We discern
no error in the motion judge's findings of fact and conclusions of law and affirm.
A-0006-23 9 A.
We defer to a court's factual findings in support of granting or denying the
enforcement of a settlement agreement provided those findings are supported by
sufficient credible evidence. Balducci v. Cige, 240 N.J. 574, 595 (2020). We
defer to the trial court's credibility findings because the trial judge has a "better
perspective than a reviewing court in evaluating the veracity of a witness." C.R.
v. M.T., 248 N.J. 428, 440 (2021) (quoting Gnall v. Gnall, 222 N.J. 414, 428
(2015)).
Deference is not due, however, to the court's legal conclusions.
Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
We review the court's legal conclusions de novo. See Reese v. Weis, 430 N.J.
Super. 552, 568 (App. Div. 2013).
B.
Plaintiff contends the motion judge erred in finding an attorney-client
relationship existed between plaintiff and DJD at the time of settlement
negotiations. Plaintiff argues the discussions with DJD never left the
"preliminary, hypothetical stage," and DJD never "manifested . . . their consent"
to enter into an attorney-client relationship. We disagree.
A-0006-23 10 An attorney-client relationship commences "[w]hen . . . the prospective
client requests the lawyer to undertake the representation, the lawyer agrees to
do so and preliminary conversations are held between the attorney and client
regarding the case . . . . " Herbert v. Haytaian, 292 N.J. Super. 426, 436 (App.
Div. 1996). "The creation of an attorney-client relationship does not rest on
whether the client ultimately decides not to retain the lawyer or whether the
lawyer submits a bill." Ibid.
No longer satisfied with her initial attorney's services, plaintiff reached
out to Warrington, with whom she had a prior, trusting attorney-client
relationship, and requested that Warrington's firm "get involved with the case."
Plaintiff then consented to DJD receiving confidential case information from her
present attorney to review "in hopes of" settling the case for a sum greater than
$70,000.00. Plaintiff also granted permission for DJD to speak with attorney
Warren and the mediator about the case.
We are satisfied that the judge correctly concluded that an attorney-client
relationship was formed with DJD at that time. DJD was privy to confidential
information regarding plaintiff's case, assessed the value of the case, and
discussed the mediation with the mediator and plaintiff's initial attorney. As the
A-0006-23 11 judge aptly noted, "[t]he fact that a retainer agreement was not executed until
later does not alter that finding."
C.
Plaintiff next argues the judge erred in finding that there was both actual
and implied authority to settle case. Specifically, plaintiff contends the March
27 and March 28, 2023 email exchanges between plaintiff and Warrington did
not constitute actual authority to settle the case. Again, we disagree.
Plaintiff asserts that DJD was ethically obligated to bring any firm
settlement offer to her before finalizing an agreement. In explaining why she
sent an email on March 28, preceded by a similar text the day before, to
Warrington telling her to "please proceed" with the case, plaintiff testified,
Because Jeanine told me that in order for them to even become my attorneys, that -- and this was prior to, meaning that she basically told me that I would have the option later to be able to either go to trial or negotiate something different, that it wasn't set in stone, it was just them trying to see where my head was at with everything.
The judge, however, found that plaintiff's email "expressly authorized Mr.
Albuquerque to settle the case for $125,000.00 . . . ."
"Stipulations . . . made by attorneys when acting within the scope of their
authority are enforceable against their clients." Jennings v. Reed, 381 N.J.
A-0006-23 12 Super. 217, 230 (App. Div. 2005) (emphasis omitted) (alteration in original)
(quoting Carlsen v. Carlsen, 49 N.J. Super. 130, 137 (App. Div. 1958)). This
general principle has long been established in our jurisprudence:
As early as 1888, in Phillips, . . . a defendant, who gave his lawyer general instructions to negotiate a settlement in a tort action, was bound by the agreement made by his attorney on his behalf where the defendant, after learning of the lowest sum plaintiff would accept, instructed the attorney to settle on the best terms he could obtain.
[Id. at 230-231 (citing Phillips v. Pullen, 50 N.J.L. 439 (E. & A. 1888)).]
Thus, an attorney is presumed to be acting with authority on behalf of the client.
Id. at 231. A "party asserting the lack of authority must sustain 'a heavy burden
to establish that [her] attorney acted without any kind of authority in agreeing '"
to enter a settlement. Ibid. (quoting Sur. Ins. Co. of Cal. v. Williams, 729 F.2d
581, 583 (8th Cir. 1984)).
"New Jersey law recognizes two types of authority to settle a lawsuit
which would bind its client: actual, either express or implied, and apparent
authority." Burnett v. Cnty. of Gloucester, 415 N.J. Super. 506, 513 (App. Div.
2010) (quoting Newark Branch, NAACP v. Twp. of West Orange, 786 F. Supp.
408, 423 (D.N.J. 1992)). Apparent authority exists when "the client's voluntary
act has placed the attorney in a situation wherein a person of ordinary prudence
A-0006-23 13 would be justified in presuming that the attorney had authority to enter into a
settlement, not just negotiations, on behalf of the client." Amatuzzo v. Kozmiuk,
305 N.J. Super. 469, 475 (App. Div. 1997) (citing U.S. Plywood Corp. v.
Neidlinger, 41 N.J. 66, 74 (1963)). "Under implied authority, an agent is
authorized to do what he may reasonably infer the principal desires him to do in
light of the principal's manifestations and facts as he knows or should know
them when he acts." Lampley v. Davis Mach. Corp., 219 N.J. Super. 540, 548-
49 (App. Div. 1987) (citing Lewis v. Travelers Ins. Co., 51 N.J. 244, 251
(1968)).
Plaintiff asserts DJD had no apparent authority to act on her behalf
because plaintiff never "manifested" to anyone, DJD or defendant, that she had
given DJD such authority. This argument fails in light of the record. We note
that plaintiff failed to raise the argument of apparent authority before the motion
judge. Therefore, this issue is not properly before us. See Nieder v. Royal
Indem. Ins. Co., 62 N.J. 229, 234 (1973) ("[A]ppellate courts will decline to
consider questions or issues not properly presented to the trial court when an
opportunity for such a presentation is available . . . .").
Nonetheless, we are satisfied that the record supports the motion judge's
finding that actual authority existed for DJD to engage in settlement negotiations
A-0006-23 14 on plaintiff's behalf. Because the judge correctly concluded DJD had actual
authority from the client to settle the case, we need not reach the issue of whether
DJD had apparent authority as well.
In crediting the testimony of Albuquerque, Warrington and Warren, the
judge found plaintiff's actions, both express and implied − in contacting DJD for
help with her case, authorizing the release of confidential information, sending
text and email communications authorizing DJD to "please proceed" and "I
authorize you to move forward with my case per the terms set forth in your email
below" – demonstrate clearly plaintiff understood and expressly authorized
Albuquerque to settle the case for $125,000.00 on her behalf.
Thus, we are satisfied the judge properly found that plaintiff had not met
her "heavy burden to establish that [her] attorney acted without any kind of
authority." Jennings, 381 N.J. Super. at 231. Accordingly, we discern no basis
to reject the judge's determination that DJD acted with actual authority on
plaintiff's behalf.
D.
Plaintiff argues that the judge improperly assessed the credibility of the
witnesses. Specifically, plaintiff asserts the judge failed "to properly apply the
A-0006-23 15 factors used in assessing credibility, and instead relie[d] entirely on generic,
conclusory language to justify its determination." This argument fails .
"Appellate courts should defer to trial courts' credibility findings that are
often influenced by matters such as observations of the character and demeanor
of witnesses and common human experience that are not transmitted by the
record." State v. Locurto, 157 N.J. 463, 474 (1999) (citing State v. Jamerson,
153 N.J. 318, 341 (1998)). The judge detailed his credibility findings, giving
examples of his findings and ample reasons for his conclusions. We defer to
those well-grounded findings.
E.
Lastly, plaintiff contends the judge erred in rejecting her argument that
she was fraudulently induced into providing authorization to the DJD firm.
Plaintiff claims DJD made false statements to her which induced her to sending
the authorization email. We reject these claims as without merit.
Plaintiff alleges fraud as a basis to void the settlement agreement.
Plaintiff alleges that Warrington made material misrepresentations to her during
their phone conversations, inducing her to settle the case. During her testimony,
Warrington did not recall any such conversations.
A-0006-23 16 "In order to prove equitable fraud, a plaintiff must demonstrate a material
misrepresentation made with intent that it be relied on, coupled with actual
detrimental reliance." Nolan by Nolan v. Lee Ho, 120 N.J. 465, 472 (1990)
(citing Jewish Ctr. of Sussex Cnty. v. Whale, 86 N.J. 619, 625 (1981)). Having
heard the testimony of the witnesses and assessed their credibility, the judge did
not find plaintiff's recollection of these communications with Warrington
credible. Rather, he credited Warrington's testimony as "clear and concise" and
found that she relayed "all information received from plaintiff to Albuquerque."
We have no reason to reject the judge's findings. Thus, plaintiff has not
established any material misrepresentation of fact, or that her agreement was
induced by fraud or material representation. See Largoza v. FKM Real Estate
Holdings, Inc., 474 N.J. Super. 61, 73 (App. Div. 2022). Without such,
plaintiff's claims of fraudulent inducement fail.
III.
In conclusion, the motion judge properly determined that a plenary
hearing was necessary to resolve the genuine issues of material fact in dispute.
Thereafter, he carefully considered and evaluated the evidence and credibility
of the witnesses. The judge made detailed findings of fact and applied the
relevant law to those facts, concluding that defendant met its burden to establish
A-0006-23 17 a settlement agreement was voluntarily entered by the parties on April 11, 2023.
The judge further found that an attorney-client relationship had been created
between plaintiff and DJD, and DJD had express authority to negotiate and settle
the case for $125,000.00. The judge correctly found that the case in its entirety
was settled. Accordingly, we affirm the order granting defendant's motion to
enforce the settlement agreement.
Affirmed.
A-0006-23 18