SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A - 3065
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JO ANN SICA PAPPALARDO, individually and as Executrix of THE ESTATE OF JOHN E. PAPPALARDO, Plaintiffs,

v. PEE WEE PREP, INC., a New Jersey Corporation, PAPPALARDO, an alleged partnership, Defendants,

NEIL PAPPALARDO and TERESA PAPPALARDO,
Defendants
- Appellants,
and PENTAX SERVICE, INC., ROBERT SZMITKOWSKI, tax preparer/ accountant, THE ESTATE OF LEON SZMITKOWSKI, public accountant, CHASE BANK US A N.A., CITIBANK N.A./CITI AT&T UNIVERSAL MASTERCARD, CAPITAL ONE BANK, ESTATE INFORMATION SERVICES , LLC, NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court . " A lthough 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
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Defendants,

v. GARY NORGAARD, FISCAL AGENT,
Defendant
- Respondent.

______________________________________________

Submitted April 25, 2017

– Decided Before Judges Reisner and Rothstadt. On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L

0899
- 14. James A. Sylvester, attorney for appellants. Norgaard O'Boyle attorneys for respondent ( Cassandra C. Norgaard, on the brief) . PER CURIAM
Defenda nts , Neil Pappalardo and Teresa Pap p alardo , appeal from the Law Division's February 11, 2016 order 1 enforcing the parties' written settlement agreement and permitting the fiscal agent , Gary K. Norgaard , to obtain a default judgment against
defendants in th e amount of $50,000 based upon their default in payment . The motion judge determined that based upon the terms

1 Defendants had a lso a p pe a led from a second order ent e red by the court on the same date. That order entered a judgment in favor of plaintiffs, Jo Ann Sica Pappalardo and the Es t ate of John Pappalardo. The parties resolved that appeal and , by stipulation of partial dismissal filed on June 23, 2016 , with this court, they agreed to dismiss that appeal. June 2, 20173 A - 3065
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of the written settlement agreement and defendants' testimony confi r ming their acceptance and understanding of its terms , the agreement should b e enforced, even though a promissory note contemplated in the agreement was never signed. On appeal,
defendants argue that the motion judge's finding s w ere not supported by the record and w ere otherwise erroneous . In addition, they contend that , even if the settlement agreement was
enforceable , the motion judge impermissibly altered its terms , and it was a miscarriage of justice fo r the judge to allow the fiscal agent to benefit from his "intransigence and unilateral attempts
to alter the terms of the set tlement agreement ." We disagree and affirm . "On a disputed motion to enforce a settlement," a trial court must apply the same standards "as on a motion for summary judgment." Amatuzzo v. Kozmiuk , 305 N.J. Super. 469, 474
- 75 (App. Div. 1997). In reviewing the grant or denial of summary judgment, we apply the same standard that governs the trial court, Townsend v. Pierre , 221 N.J. 36, 59 (2015), which requires denial of summary judgment if "the competent evidential materials presented, when view ed in the light most favorable to the non

- moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non

- moving party." Brill v. Guardian Life Ins. Co. of Am. , 142 N.J. 520, 540 (1995).4 A - 3065
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The salient f acts, drawn from the competent , evidential materials and viewed "in the light most favorable to [defendants],
the non
- moving part[ies]," Lippman v. Ethicon, Inc. , 222 N.J. 362,
367 (2015) (citing Brill , supra , 142 N.J. at 523, 540), were substantially undisputed and can be summarized as follows.
The parties' concerns a dispute entered on November 5, 2015. On that date, the motion judge and the parties completed jury selection for the trial of the underlying corporate dispute that led to the appointment of the fiscal agent . After jury selection,
the parties informed the judge they had settled the matter, entered into a settlement agreement , and wished to go over its terms on
the record, with the parties testifying unde r oath as to their understanding and acceptance of the agreement.
The written settlement agreement provided in paragraph thirteen that defendants would deliver to the fiscal agent a promissory note in the amount of $50,000 that would require payments at t he rate of $650 per month with interest at the rate
of on e percent . 2 Payments were to be made by "bank check or money
order." Paragraph twenty addressed defaults and stated that

a default as to any provision . . . , including without limitation a failure of payment as

2 The fiscal agent was not a signatory to the agreemen t but was instead an intended beneficiary of defendants' agreement with plaintiffs to resolve amounts owed for the fiscal agent's fees incurred in the litigation.5 A - 3065
- 15T3 p rovided herein which is not cured within five (5) days of the due date shall constitute a default under all terms of this Agreement . Upon default [p] laintiff's counsel may seek the entry of judgment up on submission of an affidavit proving the default. At the November 5 hearing, defendants and the fiscal agent testified that t hey understood the agreement's terms and accepted
them. Theresa Pappalardo and the fiscal agent specifically stated
that they un derstood that the payments would begin on January 1,
2016 . After the hearing, the parties attempted to agree upon a promissory note that incorporated the terms of their settlement.
When they could not agree and after the January 1 payment due date passed , the fiscal agent filed a motion on January 6, 2016 , to
enforce the agreement by entering judgment against defendants for
the full amount owed . In his supporting certification, the fisc al agent aske d the court to compel defendants to accept h is proposed
form of promissory note, or some variation of it, or order that the entire balance be accelerated . Defendants and their attorney file d certifications in opposition to the fiscal agent's motion . In t he i r January 13,
2016 certification s , they each certified that Neil Pap p alardo
t ender ed the first payment on January 4, 2016 , and, according to

T heresa Pappalardo, the fiscal agent cashed the check .6 A - 3065
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The motion judge consider ed oral argument on January 22,
2016. At the h e aring, the fiscal agent confirm ed that he had not received a check from defendants prior to filing his motion to enforce, but rec e i v ed it on January 15 . He advised that it was a personal check dated January 13, 2016 , so, unless the check was post - dated, defendants had not sent it prior to filing their certifications . He asserted that , in any event, the check was late and not in proper form. Defendants ' counsel responded by arguing that t he parties had not agreed upon a grace period, but
both forms of proposed notes conta ined that feature . As a result,
defendants ' delay in sending the check was contemplated by the parties . On February 11, 2016, the motion judge entered the order enforcing the settlement agreement and permitting the fiscal agent to obtain a judgment agai nst defendants . On the same date, the judge place d his reasons on the record in a comprehensive oral decision. In his decision, the judge revie we d the parties' testimony from when the settlement w as placed on the record , including their confirmation that they understood that t he first payment was due to the fiscal agent on January 1, 2016 . The judge
concluded that the settlement agreement should be enforced as the parties " knowingly , willingly and purposefully settled the case." Based on "the only terms of the debt that were presented to the7 A - 3065
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[c]ourt , " the judge found that the parties did not dispute "the amount each party was obligate d to pay, the amount of the defendant[s'] monthly payments, . . . [the] one - percent interest
rate [ , and that payments] "were due on the first day of each
month ." The judge entered the order and this appeal followed. We begin our review by acknowledging "New Jersey's strong public policy in favor of the settlement of litigation," Gere v. Louis , 209 N.J. 486, 500 (2012), a nd the enforcement of settlement agreements like any other contract. Nolan v. Lee Ho , 120 N.J. 465, 472 (1990) ; see also Pascarella v. Bruck , 190 N.J. Super. 118, 124
- 25 (App. Div.), certif. denied , 94 N.J. 600 (1983) . In furtherance of the strong policy of enforcing settlements, "our courts strain to give effect to the terms of a settlement wherever possible." Brundage v. Estate of Carambio , 195 N.J. 575,
601 (2008) (citation and internal quotation marks omitted). Therefore, an agreement to settle a laws uit will be honored and enforced in the absence of fraud or other compelling circumstances.
Nolan , supra , 120 N.J. at 472 . However, unless there is "an agreement to the essential terms" by the parties, there is no settlement in the first instance. Mosley v. Femina Fashions , Inc. , 356 N.J. Super. 118, 1 26 (App. Div. 2002), certif. denied , 176 N.J. 279 (2003); see also Weichert Co. Realtors v. Ryan , 128

N.J. 427, 435 (1992) (holding that if the parties agree on the8 A - 3065
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essential terms and to be bound by t hose terms, an enforceable contract has been created). "[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 Av e. , L.L.C. , 4 21 N.J. Super. 445, 453 (App. Div. 2011) , aff'd , 215 N.J.
242 (2013) . "Where the parties agree upon the essential terms of a settlement, so that the mechanics can be 'fleshed out' in a writing to be thereafter executed, the settlement will be enforced
not withstanding the fact the writing does not materialize because a party later reneges." Lahue v. Pio Costa , 263 N.J. Super. 575,
596 (App. Div.) (quoting Bistricer v. Bistricer , 231 N.J. Super. 143, 145 (Ch. Div. 1987)), certif. denied , 134 N.J. 477 (1993). Applying these guiding principles, we conclude defendants' arguments are without sufficient merit to warrant further discussion beyond these brief comments . R. 2:11
- 3(e)(1)(E). The material terms of their settlement were set forth in the written agreement and placed on the record by the parties. W e agree with the motion judge's conclusion that the settlement agreement was
enforceable , and that defendants breached their agreement by failing to make payment in accordance with those terms. Payment

was due on January 1, 2016 , in the form of a money order or bank
check and, considering the default provision of the settlement9 A - 3065
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agreement, payment was made at least five days after the due date and not in proper form . Affirmed.