DR. JERROLD FEIGENBAUM VS. MW PROPERTIES, LLC (C-000121-17, MORRIS COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: December 16, 2020
• Docket: A-4198-18T4
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-4198-18T4

DR. JERROLD FEIGENBAUM, MICHAEL HARTUNG, and LINDA MCDAVITT, Personal Representative and Trustee of the Estate of Trust of Edward J. McGrath,

Plaintiffs-Appellants,

v.

MW PROPERTIES, LLC, DIVERSIFIED PROPERTIES, LLC, MARSHALL WEINERMAN, individually and in his capacity as Managing Member of MW Properties, LLC, NICHOLAS MINOIA, and HOWARD WEINERMAN,

Defendants-Respondents,

and

DPMW ASSOCIATES, LLC and DP LLC,

Defendants. ______________________________ Argued October 14, 2020 – Decided December 16, 2020

Before Judges Haas and Natali.

On appeal from the Superior Court of New Jersey, Chancery Division, Morris County, Docket No. C- 000121-17.

Julian Wilsey argued the cause for appellants (Franzblau Dratch, PC, attorneys; Julian Wilsey, on the briefs).

Daniel P. McNerney argued the cause for respondents MW Properties LLC, Marshall Weinerman and Howard Weinerman (Bruce C. Licausi and McNerney & McAuliffe, attorneys; Daniel P. McNerney, of counsel and on the brief).

Geoffrey T. Bray argued the cause for respondents Nicholas Minoia and Diversified Properties, LLC (Bray & Bray, LLC, attorneys; Geoffrey T. Bray, on the brief).

PER CURIAM

Plaintiffs Dr. Jerold Feigenbaum, Michael Hartung, and Linda McDavit 1

appeal the following three Chancery Division orders: 1) a November 9, 2018

order denying their motion to enforce a settlement; 2) a January 30, 2019 order

granting motions by defendants Marshall Weinerman, Howard Weinerman,

Nicholas Minoia, Diversified Properties, LLC (DP), and MW Properties, LLC

1 Plaintiffs amended the complaint to add McDavit, the daughter of the late Edward J. McGrath, as executrix of her father's estate. A-4198-18T4 2 (MW) to dismiss the complaint as barred by the statute of limitations; and 3) a

May 2, 2019 order denying their motion for reconsideration. After carefully

reviewing the record and the applicable legal principles, we vacate the

aforementioned orders and remand for further proceedings to address plaintiffs'

claim that the parties entered into a binding settlement agreement.

I.

In 2017, plaintiffs filed a complaint against defendants MW, DPMW

Associates, LLC,2 Marshall Weinerman, Howard Weinerman (collectively the

"Weinerman defendants"), DP, and Nicholas Minoia (collectively the "Minoia

defendants"). The plaintiffs sought an accounting and also asserted claims

sounding in consumer and common law fraud, negligent misrepresentation,

misappropriation, breach of fiduciary duty, and unjust enrichment related to a

real estate investment in Summit.

The Minoia defendants filed a motion to dismiss the complaint based on

lack of standing and that plaintiffs' claims were barred by the statute of

limitations, an application later joined by the Weinerman defendants. The court

issued an order denying both applications "on [the] theory of standing" but

2 Although DPMW is identified as a defendant in the amended complaint, it is unclear from the record why it was not included in the January 30, 2019 order. A-4198-18T4 3 granted a hearing on the statute of limitations issue, pursuant to Lopez v. Swyer,

62 N.J. 267 (1973).

At some point thereafter, the parties commenced settlement discussions

with Leonard Selesner, a mutual friend of Dr. Feigenbaum and Marshall

Weinerman, operating as the "go-between." On July 2, 2018, Selesner emailed

Chris Franzblau, plaintiffs' counsel, the terms of the negotiated settlement. He

stated: "[s]ettled at $300,000; $30,000 down then [three] equal payments [of]

$90,000 [due on] [October] 1, [November] 1, [and] [December] 1. [N]o interest,

includes Minoia; with non-disparagement clause and confidentiality clause and

they should finalize settlement agreement." That same day, Franzblau sent a

letter to Bruce C. LiCausi, counsel for the Weinerman defendants, and Geoffrey

T. Bray, counsel for the Minoia defendants. The letter stated Franzblau would

"have the proposed settlement agreement prepared within the next several

business days."

Later that evening, Bray responded to Franzblau and stated that the

agreement needed to include that "the payments under the settlement agreement

will be made by Marshall Weinerman" and language that a "[stipulation] of

[d]ismissal will be filed dismissing the claims against all of the [d]efendants and

provide that the [p]laintiffs are releasing the [d]efendants." On July 3, 2018,

Franzblau confirmed with Bray that he would address his comments in the

A-4198-18T4 4 written agreement. That same day, Franzblau sent LiCausi and Bray the

proposed written agreement. He also stated that any request for revisions should

be made within five days, otherwise "[Franzblau] [would] assume the agreement

is satisfactory." On July 5, 2018, LiCausi confirmed the receipt of the proposed

settlement and stated that he was "unavailable until the end of next week and

any matters involving the above captioned matter [would] be addressed when he

returns."

On July 16, 2018, the court issued an order dismissing the case after it

was advised by the parties that the matter had settled. Despite the court order,

the parties continued to finalize the written agreement. In this regard, on July

18, 2018, Franzblau sent LiCausi a settlement agreement which included

revisions requested by Bray. Franzblau also asserted that if LiCausi did not

respond, he would "immediately apply to the court for enforcement of the

enclosed revised agreement and request legal fees."

On July 23, 2018, LiCausi responded to Franzblau and stated that the "last

two sentences [of paragraph four] are superfluous and redundant and should be

A-4198-18T4 5 deleted."3 He also noted that although he understood the intent of paragraph

seven, it should:

[M]erely provide that if payment is not made, then upon ten days written notice to the undersigned of an opportunity to cure a non-payment of any amount due under paragraph [two] of the [a]greement, [p]laintiffs shall be entitled to enter a [c]onsent [j]udgment for all amounts due and owing together with interest accruing at a rate of [six percent] per annum.

On July 24, 2018, Franzblau responded to LiCausi and stated that he had

amended paragraph seven pursuant to his request but insisted that paragraph four

was still necessary and "relevant under the circumstances in view of the ages

and health of some of the parties . . . ." Franzblau also noted that he was sending

a separate agreement to Bray to be executed by the Minoia defendants.

Franzblau further stated that "in order to speed up the process" he was sending

the agreement to the plaintiffs that day "for signature and return." Finally,

Franzblau requested LiCausi's "immediate attention to have [Marshall

Weinerman] execute the agreement and have it returned to him."

3 For reasons not adequately explained by the parties, the appellate record does not contain a copy of the written agreement. As best we can discern, paragraph four "set forth the parties' mutual release." The Weinerman defendants asserted that the last "two sentences" which addressed what would occur if they failed to make timely payment were "superfluous" as that issue was already addressed in paragraph seven. A-4198-18T4 6 On July 26, 2018, Franzblau contacted LiCausi again regarding the

dispute over the language in paragraph four. On July 30, 2018, LiCausi

responded to Franzblau and asserted that he would "welcome [Franzblau's]

indulgence in simply allowing [him] to redraft the two paragraphs." In a

subsequent correspondence on August 2, 2018, LiCausi reiterated that he would

address the "discrepancies" in the draft settlement.

On August 3, 2018, plaintiffs filed a motion to enforce the settlement.

Plaintiffs requested that the court "enforce a confidential settlement as agreed

upon on or about July 3, 2018," and award "counsel fees from Marshall

Weinerman." In response, on August 20, 2018, the Weinerman defendants filed

a motion in opposition to plaintiff's motion and in support of their cross-motion

to enforce the settlement.

In an accompanying certification, counsel for the Weinerman defendants

requested that the court "enforce the essential terms of the settlement that the

parties [had] agreed to;" direct LiCausi "to prepare the final [s]ettlement

[a]greement;" and "award attorney fees to the prevailing party" in the event

future disputes regarding the settlement agreement arose. Notably, the

Weinerman defendants did not dispute that "there was a settlement and that the

parties [had] agreed to all essential terms," but that the agreement was "error-

A-4198-18T4 7 laden and deficient." The Weinerman defendants conceded that the essential

terms of the agreement were detailed in plaintiffs' counsel's certification.

In addition, the Minoia defendants informed the court at a November 9,

2018 hearing that "we don't have a problem with the settlement agreement. It

was agreed to. It was signed." Indeed, the court acknowledged that the "[Minoia

defendants] [had] signed plaintiff's proposed settlement" and "oppose granting

the relief requested . . . by the Weinerman defendants on the cross-motion."

The Weinerman defendants also stated that "there's very . . . minor issues

. . . that are to be resolved here." Specifically, the Weinerman defendants

maintained that the agreement needed to include "[their] language

concerning . . . this non-disparagement and non-disclosure." The Weinerman

defendants further informed the court that its counsel had requested insertion of

a $50,000 damages provision to the non-disparagement clause after the motion

to enforce had been filed.

After hearing oral arguments, the court issued an order denying both the

plaintiffs' motion to enforce settlement and the Weinerman defendants' cross-

motion and concluded an evidentiary hearing was not required. In its

accompanying oral decision, the court determined that "the parties did not agree

on the terms of a settlement except for certain financial aspects." The court

A-4198-18T4 8 further noted that the correspondence between the parties indicated that the

parties did not finalize the settlement agreement.

The court specifically emphasized Selesner's July 2, 2018 email which

stated that "[t]hey should finalize the agreement" and Franzblau's July 3, 2018

letter that included a "proposed settlement agreement." The court further noted

that the parties did not come to a resolution regarding paragraphs four and seven

after multiple discussions. The court explained that the parties were effectively

requesting that it "determine that a settlement was reached and what its terms

were," which the court then determined "was not possible on this record."

The court subsequently conducted a Lopez hearing to determine whether

the statute of limitations barred plaintiffs' claims. At that hearing, plaintiffs

presented three witnesses including McDavit, Hartung, and the de bene esse

deposition testimony of Dr. Feigenbaum.

The court granted defendants' motions and dismissed plaintiffs' amended

complaint after concluding that the claims were barred by the statute of

limitations. In an accompanying oral decision, the court found that the

discovery rule was inapplicable because plaintiffs "should have known that this

cause of action existed" within "the statutory six-year period."

Plaintiffs moved for reconsideration and claimed that the court "failed to

address the applicability of the doctrines of equitable estoppel, equitable tolling,

A-4198-18T4 9 and substantial compliance." A different motion judge heard oral arguments on

the reconsideration application and denied plaintiffs' motion. This appeal

followed.

II.

On appeal, plaintiffs raise two primary arguments. They assert that the

court erred in denying their motion to enforce the parties' settlement. Plaintiffs

also rely on Catena v. Raytheon Company, 447 N.J. Super. 43, 53 (App. Div.

2012), and claim the court misapplied the discovery rule in dismissing their

fraud-based claims. We conclude the court should have conducted an

evidentiary hearing to address factual disputes regarding the alleged settlement

and remand for further proceedings.

We begin with the well-settled principle that "[t]he settlement of litigation

ranks high in our public policy." Jannarone v. W.T. Co., 65 N.J. Super. 472,

476 (App. Div. 1961). That policy, however, "does not mean that courts will

rewrite or unduly expand settlement agreements in order to deem settled or

waived things not legitimately encompassed." Isetts v. Borough of Roseland,

364 N.J. Super. 247, 254 (App. Div. 2003).

"[A]n agreement to resolve a matter will be enforced as long as the

agreement addresses the principal terms required to resolve the dispute."

Willingboro Mall, Ltd. v. 240/242 Franklin Ave., L.L.C., 421 N.J. Super. 445,

A-4198-18T4 10 453 (App. Div. 2011). A valid settlement agreement requires an offer and

acceptance by the parties, "and the terms of the agreement must 'be sufficiently

definite [so] that the performance to be rendered by each party can be

ascertained with reasonable certainty.'" GMAC Mortg., LLC v. Willoughby,

230 N.J. 172, 185 (2017) (quoting Weichert Co. Realtors v. Ryan, 128 N.J. 427,

435 (1992)). There must be an "unqualified acceptance to conclude the

manifestation of assent." Weichert, 128 N.J. at 435-36 (quoting Johnson &

Johnson v. Charmley Drug Co., 11 N.J. 526, 538-39 (1953)). "[I]f parties agree

on essential terms and manifest an intention to be bound by those terms, they

have created an enforceable contract." Id. at 435. As a corollary, "[w]here the

parties do not agree to one or more essential terms, however, courts generally

hold that the agreement is unenforceable." Ibid. Essential terms are those that

go to the "heart of the alleged agreement." Satellite Entm't Ctr. v. Keaton, 347

N.J. Super. 268, 277 (App. Div. 2002).

The burden of proving that a settlement was reached is on the party

seeking to enforce the settlement. Amatuzzo v. Kozmiuk, 305 N.J. Super. 469,

475 (App. Div. 1997). On a disputed motion to enforce settlement, the trial

court should hold a hearing to establish the facts "unless the available competent

evidence, considered in a light most favorable to the non-moving party, is

insufficient to permit the judge, as a rational factfinder, to resolve the disputed

A-4198-18T4 11 factual issues in favor of the non-moving party." Id. at 474-75. Thus, the judge

"cannot resolve material factual disputes upon conflicting affidavits and

certifications." Harrington v. Harrington, 281 N.J. Super. 39, 47 (App. Div.

1995).

We review the court's decision, not under the more deferential abuse of

discretion standard, but rather de novo, since "[a] settlement agreement between

parties to a lawsuit is a contract[,]" Nolan v. Lee Ho, 120 N.J. 465, 472 (1990),

and involves questions of law. See, e.g., Sealed Air Corp. v. Royal Indem. Co.,

404 N.J. Super. 363, 375 (App. Div. 2008) ("The interpretation of contracts and

their construction are matters of law for the court subject to de novo review. ").

Here, we conclude the court placed undue emphasis on the absence of a

formal written agreement. The evidence presented in the motion record required

a hearing to determine if the parties had a "meeting of the minds" regarding the

essential terms of the settlement agreement. Johnson & Johnson, 11 N.J. at 538.

Although the court stated that "there [was] no settlement agreement," it reached

that conclusion after initially dismissing the case based on the parties'

representations that they had resolved the matter.

We also note that the Weinerman defendants admitted that "there was a

settlement and that the parties [had] agreed to all essential terms." They further

conceded that the essential terms of the settlement included a payment of

A-4198-18T4 12 $300,000, with a $30,000 down payment, and three equal installments of

$90,000 to be paid on October 1, 2018, November 1, 2018, and December 1,

2018. There also appears no dispute that the parties agreed to include non-

disparagement and confidentiality clauses in the final settlement agreement.

Further, at the November 9, 2018 proceeding, the Weinerman defendants'

counsel characterized the outstanding issues as "minor." The Minoia defendants

also stated that they did not "have a problem with the settlement agreement. It

was agreed to. It was signed." They did, however, object to the Weinerman

defendants' belated request for inclusion of the damages provision.

The dispute, as best we can discern, relates to the significance, if any, of

paragraphs four and seven, and the Weinerman defendants' request for a $50,000

damages provision. On remand, the court should address, after a plenary

hearing, if those provisions were "essential" to the agreement and if the parties

disagreed on any other material terms. The court should also make supplemental

findings of fact and conclusions of law pursuant to Rule 1:7-4.

In light of our decision that a remand is necessary for the court to develop

further the record and set forth specific findings of fact to support its decision,

we need not address defendants' second argument that plaintiffs' claims are time-

barred as resolution of the settlement issue may moot that claim. Nothing in our

A-4198-18T4 13 opinion should be construed as suggesting our view on the outcome of the

remanded proceedings.

Vacated and remanded for further proceedings consistent with our

opinion. We do not retain jurisdiction.

A-4198-18T4 14