SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3631-15T3

ALAN GRECO,

Plaintiff-Appellant,

v.

TWINN CEDARS, INC., FRANK 

NIGRO and DAVID G. PAULUS,

Defendants-Respondents.

_______________________________

Submitted April 24, 2017 – Decided

Before Judges Nugent and Haas.

On appeal from Superior Court of New Jersey, 

Law Division, Special Civil Part, Ocean 

County, Docket No. DC-6962-15.

Kelly Law, P.C., attorneys for appellant 

(Charles P. Kelly, of counsel and on the 

brief; Bradley Latino, on the brief).

Heagen, Pagano & Associates, attorneys for 

respondents (Anthony M. Pagano, on the brief).

PER CURIAM 

Plaintiff Alan Greco appeals from a March 22, 2016 Law 

Division order dismissing his complaint and enforcing a purported 

settlement among the parties. When the court dismissed the 

NOT FOR PUBLICATION WITHOUT THE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.

May 2, 2017
2 A-3631-15T3

complaint, it did not "find the facts and state its conclusions 

of law" as required by Rule 1:7-4(a). For that reason, we vacate 

the order and remand this matter to the trial court for further 

proceedings.1

The record on appeal discloses the following procedural 

history. On July 20, 2015, plaintiff filed a six-count Special 

Civil Part complaint. In the complaint, he alleged defendants 

Frank Nigro and David G. Paulus were the owners of defendant Twinn 

Cedars, Inc., a registered home improvement contractor with whom 

he contracted to construct improvements to his house in Toms River. 

According to plaintiff, defendants did not complete the work, and 

the work they did complete they performed in a shoddy and 

unworkmanlike manner. Plaintiff also alleged that after he 

retained counsel, defendants agreed to make a lengthy list of 

repairs but never made them. 

Defendants answered the complaint, asserted affirmative 

defenses, and plead a counterclaim. The following month, 

defendants moved to enforce a prior settlement allegedly executed 

by the parties in February 2015. 

 

1 On the same day the trial court dismissed the complaint, it 

denied as moot plaintiff's motion seeking sanctions for 

defendants' failure to make discovery. That order is also vacated 

as the matter is no longer moot.
3 A-3631-15T3

In a supporting certification from defense counsel, he 

averred he was "familiar with the facts and circumstances noted 

herein."2 He certified he and plaintiff's counsel "agreed upon 

the terms of a settlement" after "quite a bit of negotiating." He 

also certified that, though the settlement agreement was reduced 

to writing and executed by plaintiff, it was never consummated 

because plaintiff failed to show up on the agreed upon date to 

discuss the extent of the repair work. Defense counsel certified 

plaintiff never rescheduled. 

Plaintiff opposed the motion. He disputed defendant's 

assertions about why defendants did not perform as obligated by 

the settlement agreement. He apparently filed no certifications, 

but made the factual assertions in his letter brief. 

The court did not initially decide defendants' motion but 

instead requested supplemental submissions from the parties. The 

parties complied, submitting supplemental letter briefs alleging 

additional factual assertions. The parties also attached email 

chains and correspondence to support their respective positions.

On the return date of the motion, the court urged the parties 

to settle their dispute. When they were unable to do so, the 

 

2 "If a motion is based on facts not appearing of record or not 

judicially noticeable," Rule 1:6-6 requires "affidavits made on 

personal knowledge, setting forth only facts which are admissible 

in evidence to which the affiant is competent to testify[.]" 
4 A-3631-15T3

court granted defendants' motion. Without finding any facts or 

making any legal conclusions, the court dismissed the complaint, 

stating: 

after reviewing all of the circumstances and 

having had counsel with counsel about this 

matter and exhausting the attempts to try to 

settle it between the parties so that they 

could reach some sort of agreement suitable 

to move on, the [c]ourt is going to grant the 

motion and dismiss the [c]omplaint.

The court entered a memorializing order and defendants appealed.

On appeal, plaintiff maintains the parties' settlement 

agreement is void for many reasons, including that it is 

unconscionable and violates the Consumer Fraud Act. Plaintiff 

also contends the settlement agreement is unenforceable because 

defendants breached it and committed equitable fraud. Apart from 

those allegations, plaintiff asserts defendants Nigro and Paulus 

were not parties to the settlement agreement, thus the complaint 

as to them should not have been dismissed. Lastly, plaintiff 

argues the trial court granted the motion without making requisite 

findings of fact and conclusions of law.

Defendants generally deny each of plaintiff's assertions 

concerning the unenforceability of the settlement agreement. They 

argue plaintiff's cause of action against them should fail based 

upon the entire controversy doctrine. Lastly, they contend the 
5 A-3631-15T3

trial court properly determined the settlement agreement is 

enforceable. 

Rule 1:7-4 mandates that a trial court, "by an opinion or 

memorandum decision, either written or oral, find the facts and 

state its conclusions of law thereon . . . on every motion decided 

by a written order that is appealable as of right[.]" The 

"[f]ailure to perform that duty constitutes a disservice to the 

litigants, the attorneys and the appellate court." Curtis v. 

Finneran, 83 N.J. 563, 569-70 (1980) (citation omitted).

The trial court must clearly state its factual findings and 

correlate them with relevant legal conclusions so the parties and 

appellate courts may be informed of the rationale underlying the 

decision. Monte v. Monte, 212 N.J. Super. 557, 564-65 (App. Div. 

1986). "In the absence of reasons, we are left to conjecture as 

to what the judge may have had in mind." Salch v. Salch, 240 N.J. 

Super. 441, 443 (App. Div. 1990). Furthermore, such an omission 

"imparts to the process an air of capriciousness that does little 

to foster confidence in the judicial system." Twp. of ParsippanyTroy Hills v. Lisbon Contractors, Inc., 303 N.J. Super. 362, 367 

(App. Div.), certif. denied, 152 N.J. 187 (1997). For these 

reasons, the order dismissing the complaint in the case before us

must be vacated. 
6 A-3631-15T3

We note defendants did not cite in their Notice of Motion the 

rule or authority under which they were proceeding. Such omissions 

by attorneys are not uncommon. Nonetheless, we make the 

observation because the appropriate standard of review will 

ordinarily guide a trial court's determination. Here, for example, 

defendants sought to dismiss the complaint, albeit under the theory 

that the parties had entered into an enforceable settlement before 

the complaint was filed. As the motion was not based upon 

discovery violations, there were only a limited number of rules 

under which defendants could have proceeded. 

Two such rules are Rule 4:6-2(e) (failure to state a cause 

of action upon which relief can be granted) and Rule 4:46 (summary 

judgment). Under Rule 4:6-2(e), if "matters outside the pleading 

are presented to and not excluded by the court, the motion shall 

be treated as one for summary judgment and disposed of as provided 

by R. 4:46, and all parties shall be given reasonable opportunity 

to present all material pertinent to such a motion." Ibid. The 

summary judgment standard requires denial of a summary judgment 

motion if there exists a "genuine issue as to any material fact 

challenged." R. 4:46-2(c). Moreover, summary judgment motions, 

like all motions, must be supported by affidavits that comply with 

R. 1:6-6. 
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Neither the parties nor the trial court should construe our 

observations as requiring the trial court to merely make findings 

of fact and conclusions of law on remand. Nor do we mean to imply 

how defendants' motion should be decided. We suggest only that 

the trial court has broad discretion on remand. If the record 

before it is inadequate to resolve whether the parties' purported 

settlement agreement can be enforced, then the motion should be 

denied and the court should permit the parties to take discovery 

and thereafter conduct an evidentiary hearing, if necessary. If 

the trial court determines the existing record is adequate to 

dispose of defendants' motion, then it should issue an opinion 

that cites the appropriate standard of review and sets forth

findings of fact and conclusions of law. 

On remand, the trial court should conduct a status conference 

with counsel within thirty days to discuss and decide whether the

motion record should be supplemented and, if so, whether limited 

discovery or a hearing is necessary. The parties shall then 

proceed accordingly. 

The March 22, 2016 order dismissing the complaint is vacated 

and this matter is remanded for further proceedings consistent 

with this opinion. We do not retain jurisdiction.