SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-0960- 23 MARIO NAPOLITANO and TONI -LYNN NAPOLITANO, Plaintiffs-Appellants,

v. EUROPEAN CONSTRUCTION PROFESSIONALS, LLC, and CARLOS LOPES, Defendants-Respondents,
and ALEN FELD and THE CITY OF BAYONNE, and its Component Departments, Offices, and Agencies, 1
Defendants.

____ ___________________________

Submitted April 9, 2024

– Decided April 17, 2024 Before Judges Mayer and Enright.

1 Defendants Alen Feld and the City of Bayonne are no t parties on the interlocutory appeal. NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court.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 parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 0960

- 23 On appeal from an interlocutory order of the Superi or Court of New Jersey, Law Division, Hudson County, Docket No. L- 1180

- 18. Skolnick Legal Group, PC, attorneys for appellants (Thomas Blair Gardner and Martin Phillip Skolnick, of counsel and on the briefs ). Burns Horn, LLC, attorneys for respondents (Robert F. Horn, on the brief).
PER CURIAM By leave granted, plaintiffs Mario and Toni-Lynn N apolitano 2 appeal from a September 14, 2023 order granting a motion to enf orce a settlement filed on behalf of defendants European Construction Professi onals, LLC (European) and Carlos Lopes. Plaintiffs also appeal from an Octob er 20, 2023 order denying their motion for reconsideration. We reverse and r emand. Plaintiffs own property in Bayonne. On February 20 , 2014, plaintiffs entered into a written contract with European to build a home on their vacant property. Lopes was European's representative and dealt with plaintiffs regarding the construction of the new home. Europe an started construction in

2 Toni -Lynn Napolitano is deceased. As did the trial cou rt and counsel, we refer to the parties filing the appeal as plaintiffs.3 A- 0960

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June 2014, and demanded payment from plaintiffs to proceed with the construction. In July 2014, plaintiffs noticed construction on th e ir new home slowed. They also observed significant time periods with no work done. Despite the slowed progress of the construction, European and L opes demanded payment from plaintiffs. By the fall of 2014, plaintiffs r ealized their new home would not be constructed by the completion date stated in the written contract. In 2015, the construction project failed several mu nicipal inspections, including electrical, mechanical, and plumbing. Du ring this time period, European and Lopes continued to demand payment from plaintiffs. Plaintiffs made the demanded payments, anticipating completion of their new home in the near future. When plaintiffs realized the ir home would not be timely completed, they retained counsel to address various construction de fects and delays. The home continued to fail municipal inspections. In April 2015, the City of Bayonne issued a notice of violation and order to terminate construction on the home

. The notice directed European to abate all violation s and deficiencies by May 1, 2015 . While European corrected certain deficiencies, o ther defects and deficiencies remained unresolved.4 A- 0960

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Be cause European and Lopes failed to correct the defe cts and deficiencies, plaintiffs filed a complaint against European, Lope s, and other defendants. In their multi-count complaint, plaintiffs alleged bre ach of contract, breach of warranty, fraudulent misrepresentation, unjust enri chment, negligence, and various statutory violations. European and Lopes f iled an answer. The parties exchanged discovery and eventually agre ed to participate in mediation. The parties attended mediation on Novem ber 11, 2022, but failed to reach an agreement on that date. There were no oth er in-person mediation sessions after November 11, 2022. On December 8, 2022, the mediator sent the following letter to counsel for the parties:

Based upon my phone conversations with each of you yesterday, we have reached an agreement. European and [Lopes] . . . [are] agreeable to payin g Mr. Napolitano in full and final settlement of all clai ms arising out of the project [in] the amount of $840, 000. The above amount will be paid as follows:
1. $159,500 [u]pon Napolitano's filing of a [s]tipulation of [d]ismissal with [p]rejudice and [w]ithout [c]osts[;] [and]
2. $680,500 [f]or the purchase of Mr. Napolitano's home[,] . . . memorialized in a standard form of [r]eal [e]state [c]ontract.5 A- 0960

- 23 3. The [r]eal [e]state [c]ontract will provide for a [ ten percent] deposit ($68,000) to be held in trust unti l settlement or closing of title.
4. Said [r]eal [e]state [c]ontract shall provide that Napolitano will take back a $300,000 mortgage, at [six percent] interest. Monthly payments will be made based upon a [thirty]-year amortization schedule, but the entire unpaid principal and any accrued and unpaid interest will be payable in full five years after the date of mortgage execution. 5. . . .Mr. Napolitano will . . . convey clear titl e to the property, the property must be free of all tenants[ ,] and the property must be in the condition it is [as of December 8, 2022], ordinary wear and tear excepted.

. . . . I believe the above sets forth the basic parameters of the settlement. Unless you want me involved, I wil l leave it to you . . . to prepare the [s]ettlement [a]greement and associated [r]eal [e]state [c]ontra ct. Kindly signify your respective . . . agreement that the above is an accurate summary of the settlement reac hed by either signing and returning this letter to me o r giving the acknowledgment via return e-mail. In what is a fine example of "never give up hope," I thank you both for your professional courtesies. I t was a pleasure working with you. My final invoice will follow in a day or two.6 A- 0960

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Contrary to the provisions in the mediator's Decemb er 8 letter, neither party returned a signed copy of the letter. Nor di d the parties email the mediator acknowledging a settlement. On December 13, 2022, plaintiffs' counsel email ed the mediator, stating, "[Mr. Napolitano] is just confirming a few things o n his end. I will get back to you shortly." Later that same day, the mediator re plied, "[Defendants' counsel] is doing likewise. [European] is going to need a l arger mortgage than the amount proposed in my letter. Since it balloons at [five] years, this should not be a serious issue. Please let me know." A month later, plaintiffs' counsel emailed defendan ts' attorney, stating "I thought we were finalizing the settlement but then you stopped responding. What happened?" Later that day, defendants' counse l replied he underwent surgery and "need[ed] to finalize the release." De spite this email exchange between counsel, the parties never executed a forma l written settlement agreement or real estate contract consistent with t he mediator's December 8, 2022 letter. Nor was any release circulated. In August 2023, defendants filed a motion to enforc e a settlement. During the September 14, 2023 motion argument, defense counsel e xplained the parties were "struggling . . . to get the [settlement] deta ils finalized[.]" On the other7 A- 0960

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hand, plaintiffs' counsel argued, "[T]here [was] no settlement. There [was] . . . an outline of terms that need to be resolved . . . . [T]here [was] no real estate contract. . . . There [was] no mortgage . . . ." In a September 14, 2023 order, the judge grant ed defendants' motion to enforce the settlement. In her written decision, t he judge found:

[I]t is evident that [defendants have] met [their] burden and shown that there was a "meeting of the minds" a s a result of the mediation . . . , which was memoriali zed in the letter of December 8, 2022. Therein, [the medi ator] confirm[ed] that the parties ha[d] agreed to settle for $840,000 and set[] forth . . . the "parameters" of the agreement. Said terms are plain and unambiguous an d constitute the material terms of the agreement. Th e unfortunate fact that the parties have not been abl e to "flesh out" the release terms does not merit the un doing of this settlement, especially as there is no showi ng of any fraud or other compelling circumstances in this motion record. Plaintiffs moved for reconsideration of the Septemb er 14, 2023 order. The judge denied reconsideration in an October 20, 2023 order. In denying reconsideration, the judge found:

Plaintiff[s] ha[ve] failed to set forth a justifiable reason for this [c]ourt to reconsider the September 14 [o] rder. In [that] [o]rder, the [c]ourt held that, although the settlement agreement was not signed by both parties , a "meeting of the minds" occurred and [was] memorialized in the . . . letter dated December 8, 2022. Upon reconsideration, [p]laintiff[s] argue[] that t he [December 8, 2022] letter was not signed, confirmed ,8 A- 0960

- 23 or acknowledged by either party per the [mediator's ] request . . . . The [c]ourt does not find this arg ument persuasive. In Pascarella v. Bruck, the Appellate Division held that an agreement to settle a lawsuit, where voluntarily entered, is binding upon the part ies even in the absence of a writing. 190 N.J. Super. 118, 124 (App. Div. 1983); Lahue v. Pio Costa, 263 N.J. Super. 575, 596 (App. Div. 1993). . . . Here, [p]laintiff[s'] argument fails because precedent do es not require that the settlement be in writing and signe d for a "meeting of the minds" to occur. Plaintiffs moved for leave to appeal the September 14, 2023 and October 20, 2023 orders. In a November 30, 2023 order, we granted leave to appeal from those orders. On appeal, plaintiffs argue the judge "erred in co ncluding that an unsigned proposal sent to the parties by a mediat or after a failed mediation could bind the parties as an enforceable settlement agreement." W e agree that the judge mistakenly found the unsigned proposal submitted by the mediator to be a valid and enforceable settlement. Our "review of a motion to enforce settlement is de novo" and we
"consider [] whether the 'available competent evidence, conside red in a light most favorable to the non-moving party, is insuffic ient to permit the judge . . . to resolve the disputed factual issues in favor of the non-moving party.'" Gold Tree Spa, Inc. v. PD Nail Corp., 475 N.J. Super. 24 0, 245 (App. Div. 2023)9 A- 0960

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(omission in original) (quoting Amatuzzo v. Kozmiuk , 305 N.J. Super. 469, 475 (App. Div. 1997)). The party seeking to enforce the settlement has the burden of proving a valid settlement was reached. Amatuzz o, 305 N.J. Super. at 475. Ordinarily, "[w]here the parties agree upon the ess ential terms of a settlement, so that the mechanics can be 'fleshed o ut' in a writing to be thereafter executed, the settlement will be enforced notwithst anding the fact that the writing does not materialize because a party later reneges." Harrington v. Harrington, 281 N.J. Super. 39, 46 (App. Div. 1995) (alteration in original) (quoting Lahue v. Pio Costa, 263 N.J. Super. 575, 5 96 (App. Div. 1993)). However, "a settlement that is reached at mediation but not reduced to a signed written agreement will not be enforceable." Gold T ree Spa, 475 N.J. Super. at 245 (quoting Willingboro Mall, Ltd. v. 240/242 Fran klin Ave., L.L.C., 215 N.J. 242, 263 (2013)). This "broad, bright-line rule" g overns all mediation agreements, "whether mediation is court-ordered or voluntary." Ibid. The decisions in Willingboro and Gold Tree Spa are clea r and unequivocal in holding

a settlement by way of a mediation is achieved only w hen the parties agree in writing. Although t he parties dispute whether there were further telep honic discussions with the mediator after November 11, 20 22, there is no dispute th e10 A- 0960

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parties never signed the December 8, 2022 letter or submitted an email acknowledging and accepting the terms contained in that letter. Therefore, consistent with well-settled case law, the document could not, and did not, constitute an enforceable settlement. Defendants' merits brief asserts plaintiffs lack sta nding on appeal because they failed to disclose the death of one of the nam ed parties. However, defendants did not seek leave to file a cross-appea l. Moreover, defendants failed

to present this issue to the trial court. Thus, we de cline to address defendants' standing argument.
To the extent we have not addressed any remaining argu ments, those arguments lack sufficient merit to warrant discussi on in a written opinion. R. 2:11 -3(e)(1)(E). Reversed and remanded. We do not retain jurisdict ion.