DR. JERROLD FEIGENBAUM VS. MW PROPERTIES, LLC (C-000121-17, MORRIS COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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