Opinion
DOCKET NO. A-3068-13T3
12-18-2014
JAMES PATTERSON and DEBRA PATTERSON, Plaintiffs-Respondents, v. JOSEPH POLIDORO, Defendant-Appellant, and GREEN CITIES ENERGY, LLC and CPI SOLAR, LLC, Defendants.
Joseph Polidoro, appellant pro se. Puff & Cockerill, LLC, attorneys for respondents (Ronald P. Sierzega, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher and Accurso. On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-1184-11. Joseph Polidoro, appellant pro se. Puff & Cockerill, LLC, attorneys for respondents (Ronald P. Sierzega, on the brief). PER CURIAM
In an earlier appeal, defendant Joseph Polidoro argued that the trial judge erred in enforcing an alleged settlement of the consumer fraud action brought against him and his company, defendant Green Cities Energy, LLC, by plaintiffs James and Debra Patterson. We agreed a factual dispute about whether defendant had consented to the terms of the "Settlement Agreement and General Release," which was prepared by the attorney representing him and his company, precluded its enforcement, and we remanded for an evidentiary hearing to resolve that dispute. Patterson v. Polidoro, No. A-1302-12 (App. Div. June 26, 2013) (slip op. at 7).
Both appeals were filed solely on behalf of defendant and not Green Cities. Accordingly, we hereafter refer to only defendant as the party quarreling with the enforcement of the settlement.
Following our remand, the trial judge conducted a hearing at which plaintiff James Patterson and defendant's former attorney (hereafter "the attorney") testified. Defendant did not testify nor did he consent to a waiver of the attorney-client privilege, thereby precluding the attorney's testimony regarding any discussions with defendant about the settlement terms or the attorney's authority to speak for him regarding the settlement. The attorney did testify, however, that he prepared a written agreement pursuant to the terms agreed to at mediation at which defendant was present, that plaintiff wanted his own personal counsel to review the agreement, and that defendant's personal counsel provided comments regarding a confidentiality clause. The attorney also testified that, as a result of those circumstances, he forwarded the written agreement to plaintiffs' counsel and requested that plaintiffs execute the document in order to conclude the matter.
By way of a written opinion, the trial judge found that defendant's former attorney was "very credible" and concluded for reasons thoroughly discussed in the opinion that the attorney was "acting under the authority of his clients." Consequently, an order was entered memorializing that determination.
Defendant appeals that order, arguing:
I. A SETTLEMENT AGREEMENT THAT IS BEING NEGOTIATED REQUIRES THE AGREEMENT OF THE PARTIES INVOLVED, THIS AGREEMENT WAS NEVER AGREED UPON OR SIGNED BY THE DEFENDANT, AND, THEREFORE, AN AGREEMENT DOES NOT EXIST.We find insufficient merit in these arguments to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following brief comments.
II. THE SUPERIOR COURT OF GLOUCESTER COUNTY RULED AGAINST THE WEIGHT OF THE EVIDENCE.
In reviewing this matter, we adhere to our familiar standard of review, which requires deference to a trial judge's findings so long as they are supported by adequate, substantial and credible evidence; a judge's findings will not be disturbed unless the appellate court is "'convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Rova Farms Resort Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div. 1963)). The judge's finding that defendant's former attorney was "very credible" is, of course, "not without significance." Ibid. That testimony, which provided the framework for the judge's determination, was unrebutted because defendant chose not to testify at the hearing. Indeed, the judge could have permissibly drawn an inference adverse to defendant in light of his decision not to testify as well as his invocation of the attorney-client privilege as a means of preventing the attorney from testifying about his discussions with defendant.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION