1. Art and Diseño

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-6098-12T1
CRISTOBAL J. POLANCO,
Plaintiff-Appellant,
v.
OFFICER DARRYL DABNEY,
OFFICER GEORGE ADAMS,
OFFICER JEFFREY BRAASCH,
OFFICER WILLIAM LOGAN (incorrectly
impleaded as Officer Logan Williams),
OFFICER FRANK INGARGIOLA,
"DEUCE" K-9 OFFICER, CITY OF
ATLANTIC CITY and its agents,
jointly, severally, and in the alternative,
and 40/40 CLUB,
Defendants-Respondents.
JACQUES POLANCO,
Plaintiff-Appellant,
v.
OFFICER DARRYL DABNEY,
OFFICER GEORGE ADAMS,
OFFICER ALEXUS SMITH,
OFFICER TRACEY, and CITY OF
ATLANTIC CITY,
Defendants-Respondents.
Submitted January 14, 2015 – Decided January 29, 2015
Before Judges Waugh, Maven, and Carroll.
On appeal from the Superior Court of New
Jersey,
Law
Division,
Atlantic
County,
Docket No. L-1986-09.
Cristobal J. Polanco
appellants, pro se.
and
Jacques
Polanco,
Riley and Riley, attorneys for respondents
(Michael E. Riley, on the brief).
PER CURIAM
Plaintiffs Cristobal J. Polanco and Jacques Polanco1 appeal
from a May 31, 2013 Law Division order that granted their motion
for reconsideration, but left undisturbed a March 27, 2013 order
enforcing a settlement of the litigation.
Plaintiffs contend
that they did not authorize their attorneys to accept $25,000
each
to
settle
their
claims
for
injuries
resulting
from
altercation with defendant Atlantic City police officers.
an
We
reverse both orders and remand for a hearing as to whether an
enforceable agreement was entered into.
I.
The underlying dispute involves a 2007 altercation outside
an Atlantic City nightclub during which plaintiffs contend they
were assaulted by several members of the Atlantic City Police
Department, who were also named as defendants.
Plaintiffs filed
1
Because plaintiffs share a common surname, at times during this
opinion we refer to them by their first names for purposes of
clarity and ease of reference.
In doing so we intend no
disrespect.
2
A-6098-12T1
separate actions seeking damages for their personal injuries,
which were thereafter consolidated for trial.
Trial commenced with jury selection on December 4, 2012.
Plaintiffs
testified
on
December
5,
2012.
Before
court
concluded for the day, settlement negotiations ensued between
counsel for the respective parties.
At some point, Jacques's
attorney, James Wolfe, Esquire, approached the bench and advised
the trial judge that $25,000 would resolve the matter.
All
counsel then entered chambers, where the settlement discussions
continued.
Michael
E.
Agreement was then reached that defendants' counsel,
Riley,
Esquire,
would
seek
authorization
from
Atlantic City to resolve both matters for $50,000, in which
event they would be deemed settled.
Riley obtained authority
for the settlement early the following morning, and notified the
court and plaintiffs' counsel that the matter, which had been
adjourned until December 10, was resolved.
Consequently, on
December 6, 2012, the court entered an order dismissing the case
as settled, and discharged the jury.
Plaintiffs promptly objected to the settlement on the basis
that they had not authorized it.
On December 6, after the jury
had already been discharged and the case dismissed, Cristobal's
attorney, Dan Smith, Esquire, advised court staff that there was
a problem with the reported settlement.
3
Additionally, by fax
A-6098-12T1
correspondence the same day, Wolfe informed the court that "both
plaintiffs assert that they never agreed to the settlement of
$25,000
each,"
proceed.
7,
that
and
advice
from
the
court
on
how
to
The trial judge responded to all counsel on December
"the
[c]omplaints
marked 'settled.'
an
sought
appropriate
have
been
dismissed
and
the
case
I assume that if any action is to be taken,
[m]otion
will
be
filed
with
supporting
Certifications."
On December 28, 2012, Cristobal sent a letter to Smith, on
which Wolfe was copied.
In his letter, Cristobal stated:
Pursuant to our conversation last week and
the
communication
between
my
brother,
Jacques Polanco, and James Wolfe, it is our
understanding that you and Mr. Wolfe will
file
a
timely
motion
to
rescind
the
settlement on our behalf. Please contact us
as soon as possible so we can sign the
certification which is required with the
motion.
If there are any problems in
getting this done please do not hesitate to
contact us as soon as possible to avoid any
further delay.
No
motion
to
vacate
the
dismissal
was
filed,
and
when
plaintiffs refused to sign the settlement documents, defendants
filed a motion to enforce the settlement, returnable on March
22, 2013.
In support of the motion, Riley certified to his
discussion with Smith that Cristobal would settle his case for
$25,000, and Wolfe's representation to the court that Jacques
would also settle for $25,000.
4
Further, Riley averred that
A-6098-12T1
during the subsequent conference in chambers, "[i]t was clear
. . . that a total settlement of $50,000.00 ($25,000.00 for each
plaintiff) would completely resolve this matter."
Defendants' motion went unopposed and on March 27, 2013,
the court entered an order enforcing the settlement.
In an
accompanying written statement of reasons the judge concluded:
In the absence of any suggestion to the
contrary, this [c]ourt assumes for purposes
of this opinion that plaintiffs' counsel had
their clients' authority to settle the
litigation in exchange for the payment of
money agreed to by both attorneys.
The
agreement is a contract, and will be honored
"absent a determination of fraud or other
compelling
circumstances."
Plaintiffs'
counsel [have] not provided this [c]ourt
with any evidence of . . . fraud, mutual
mistake or other compelling circumstances in
which to deny enforcement of the settlement
agreement.
Further, this [c]ourt will not
inquire
into
the
adequacy
of
the
consideration
underlying
a
compromise
settlement fairly and deliberately made.
Lastly, the fact that a settlement agreement
has not been memorialized in writing makes
it no less a contract where the parties
concluded agreement by which they intend to
be bound [sic].
Plaintiffs
filed
a
pro
se
motion
for
reconsideration,
returnable on May 3, 2013, asserting that they never authorized
their respective attorneys to settle for $25,000, and faulting
counsel
for
settlement
failing
and
not
to
oppose
moving
to
the
vacate
motion
it.
to
In
enforce
a
the
supporting
certification, Cristobal, himself a licensed attorney, stated:
5
A-6098-12T1
10. We all broke for lunch [on December 5]
and again Mr. Smith and Mr. Wolfe decided to
go get lunch on their own. It appeared that
Mr. Wolfe had convinced Mr. Smith to settle
as
he
then
approached
me
with
the
explanation that there was an offer of
$25,000.00 and we should take it. . . . He
again stressed the fact that there was an
offer of $25,000.00 and I told him that I am
not accepting it.
11. We then went in the [courtroom] to
finish my testimony which consisted of
showing videos of that night.
However,
before I started Mr. Wolfe approached the
bench ex-parte and whispered something to
the judge.
It appears that what he said
echoed in the [courtroom] as the microphone
was on. Immediately after his statement the
judge called a conference in chamber[s] with
all attorneys. Mr. Smith and Mr. Wolfe then
brought my brother and I into the hall and
told us that [d]efendant offered $25,000.00
[each] and will try to get it.
I was
confused as to why we were having this
conversation as I had just told Mr. Smith
that $25,000.00 would not settle it. It was
never communicated to us that our attorneys
made the demand for $25,000.00 or that if
[d]efendant was able to get it the case was
settled.
Also at no point did we say that
we agreed to the amount as it was expressed
to them on several occasions that similar
cases would settle for $100,000.00 and more.
12. The trial was adjourned and we were told
to return on Monday as Mr. Smith had to
schedule an expert deposition the next day.
. . . .
14. On Thursday, December 6, 2012, my
brother called me and told me that he got a
message from Mr. Wolfe that the case settled
for $25,000.00 each.
I truly did not
understand what he was saying as I knew he
6
A-6098-12T1
would not have accepted only
I never agreed to it.
So,
texted my attorney inquiring
on as we are not accepting
settlement.
Jacques
essentially
also
echoing
submitted
a
Cristobal's
$25,000.00 and
I immediately
what was going
$25,000.00 as
supporting
Certification
representations.
Notably,
Jacques stated:
9. As we entered the courtroom after lunch
[Wolfe] walked up to the bench and whispered
to the [j]udge that we agreed to settle.
The attorneys were called into chambers to
conference the case after the comment made
by Mr. Wolfe.
After the conference Mr.
Wolfe and Mr. Smith took my brother and I
outside the courtroom and told us that
defense counsel has offered $25,000.00 and
will try to get it. This was the first time
hearing of the $25,000.00.
I advised Mr.
Wolfe that I never agreed to a settlement
and he apologized for not speaking to me
about his course to settle the case. I also
questioned what was whispered to the judge
and Mr. Wolfe advised me that because the
jury was not present when he made the
statement to the judge that the information
was off-record.
At no time did I give my
attorney authorization to settle the case.
I clearly stated to [Wolfe] that the only
way
I
would
consider
entertaining
a
settlement was if we were offered six
figures.
Based on that conversation it was
my understanding that the case will proceed
and the case was not settled.
Defendants opposed plaintiffs' motion for reconsideration.
Also, Wolfe and Smith submitted Certifications detailing their
recollection of the settlement discussions.
7
Wolfe certified:
A-6098-12T1
4. The testimony of Cristobal Polanco was
taken on the morning [of] December 6,
201[2].
After [that] testimony [], there
was discussion regarding the effectiveness
of
his
testimony.
Nevertheless,
that
afternoon, the judge called counsel into his
chambers and recommended that the case be
resolved for $25,000.00 for each plaintiff.
Defense counsel stated that he did not know
whether he could get that amount of money
but before he would try . . . he wanted to
be sure that it would be accepted by
plaintiffs. Discussions [were] had with the
plaintiffs and specifically with my client,
Jacques Polanco.
After explaining the pros
and cons of the settlement and the risks of
trial, Mr. Polanco agreed to that amount.
It was also my understanding that his
brother also agreed to that amount.
The
settlement was communicated to the [c]ourt
with the clear understanding that defense
counsel would advise by the next morning if
he could resolve the cases for that amount.
5. The [c]ourt explained to the jury that
the trial would commence on that Monday due
to a medical deposition scheduled for that
afternoon. However, it was explained to all
counsel that if the case settled the next
morning, the jury would be discharged.
6. Further discussions [were] held with my
client and his brothers as we left the
[courthouse].
The
above
settlement
discussions were repeated to my client and
his brother.
There is no question in my
mind that when we left the court, the
plaintiffs
were
aware
that
if
defense
counsel got the above authority, the case
was settled.
7. The very next morning when defense
counsel
communicated
that
he
had
the
authority for the settlement, I did text
Jacques Polanco and advised him that the
case was settled in accordance with our
8
A-6098-12T1
discussions.
Mr. Polanco called me and
advised me for the first time that he did
not
accept
the
settlement.
I
then
immediately communicated his position by
letter to the court.
In his certification, Smith added:
5. The terms of settlement [were heard] in
open [c]ourt by all including Mr. Cristobal
J. Polanco who commented that the police
officers heard it.
6. On December 5, 2012, after [c]ourt, Mr.
Wolfe spoke with all the Polancos regarding
settlement. . . .
[A]t no time did
Cristobal J. Polanco instruct me to not
accept or approve the settlement.
7. In fact, Mr. Polanco said "that's okay,
Dan."
On May 31, 2013, the court granted reconsideration but,
upon
reviewing
undisturbed.
the
merits,
left
the
March
27,
2013
order
In his written decision, the judge reasoned:
There is no doubt but that Messrs.
Smith and Wolfe had the apparent authority
as attorneys to bind their clients to the
proposed settlement agreement. Furthermore,
the parties were present in the courtroom
when Mr. Wolfe approached the bench after
lunch on December 5, 2012[,] and indicated
on the record that the matter could be
resolved in exchange for the payment of
$50,000.00. From the perspective of counsel
for the City, even if the court were to
accept the position articulated by the
Polancos,
that
is
that
they
did
not
authorize their lawyers to convey a demand
to settle for $50,000.00 to the defendant,
Mr. Riley reasonabl[y] believed that they
had the authority of the plaintiffs to
9
A-6098-12T1
settle
in
payment.
exchange
for
the
$50,000.00
This appeal ensued, in which plaintiffs continue to maintain
that
they
never
authorized
their
attorneys
to
settle
their
our
public
respective cases for $25,000.
II.
"'Settlement
policy.'"
of
litigation
ranks
high
in
Nolan v. Lee Ho, 120 N.J. 465, 472 (1990) (quoting
Jannarone v. W.T. Co., 65 N.J. Super. 472, 476 (App. Div.),
certif.
denied,
35
N.J.
61
(1961)).
Settlement
agreements
should be honored in the absence of evidence of fraud or some
other
compelling
circumstances.
Ibid.
(citing
Pascarella
v.
Bruck, 190 N.J. Super. 118, 124-25 (App. Div.), certif. denied,
94 N.J. 600 (1983)).
A
disputed
motion
to
enforce
a
settlement
agreement
is
governed by the same standard as a motion for summary judgment.
Amatuzzo v. Kozmiuk, 305 N.J. Super. 469, 474-75 (App. Div.
1997) (requiring that a hearing be held "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 factual issues in
favor of the non-moving party" (citing Brill v. Guardian Life
Ins. Co., 142 N.J. 520, 540 (1995))).
decision,
we
apply
the
same
standard
10
In reviewing such a
as
the
trial
court.
A-6098-12T1
Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162,
167 (App. Div.) (citing Antheunisse v. Tiffany & Co., 229 N.J.
Super. 399, 402, (App. Div. 1988), certif. denied, 115 N.J. 59
(1989)), certif. denied, 154 N.J. 608 (1989).
A party moving to
enforce a settlement bears the burden of demonstrating that one
exists in the first place.
Amatuzzo, supra, 305 N.J. Super. at
475.
In resolving the issue whether parties to a dispute reached
a settlement of the claim when they are represented by counsel,
we are informed by the principles enunciated in Amatuzzo:
The general rule is that unless an
attorney is specifically authorized by the
client to settle a case, the consent of the
client is necessary.
Negotiations of an
attorney are not binding on the client
unless the client has expressly authorized
the settlement or the client's voluntary act
has placed the attorney in a situation
wherein a person of ordinary prudence would
be justified in presuming that the attorney
had authority to enter into a settlement,
not just negotiations, on behalf of the
client.
Thus, in private litigation, where the
client by words or conduct communicated to
the adverse attorney, engenders a reasonable
belief that the attorney possesses authority
to conclude a settlement, the settlement may
be enforced.
However, the attorney's words
or acts alone are insufficient to cloak the
attorney with apparent authority.
[Id. at 475-76 (citations omitted).]
11
A-6098-12T1
Based on our review of the record, we are satisfied that
plaintiffs' certifications are sufficient to raise a material
and substantial issue as to whether they granted their attorneys
actual authority to settle their respective cases for $25,000.
See id. at 476.
Plenary hearings are required when there are
"contested issues of material fact on the basis of conflicting
affidavits."
We
conclude
Conforti v. Guliadis, 128 N.J. 318, 322-23 (1992).
that
there
are
sufficiently
competing
certifications, which require the judge to conduct a plenary
hearing and make the requisite findings of fact and conclusions
of law.
See R. 1:7-4; Conforti, supra, 128 N.J. at 322.
Reversed and remanded.
We do not retain jurisdiction.
12
A-6098-12T1