Opinion
DOCKET NO. A-5455-13T1
05-03-2016
METROPOLITAN GROUP PROPERTY AND CASUALTY INSURANCE COMPANY, Plaintiff-Respondent, v. KERLINE JEAN-FRANCOIS, Defendant-Appellant, and MARIE JEAN-FRANCOIS, Defendant.
Raymond Armour argued the cause for appellant (Mr. Armour, attorney; Kerline Jean-Francois, on the pro se brief). Lee H. Eckell argued the cause for respondent (Fowler, Hirtzel, McNulty & Spaulding, LLP, attorneys; Mr. Eckell, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Simonelli, Carroll and Sumners. On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-2325-14. Raymond Armour argued the cause for appellant (Mr. Armour, attorney; Kerline Jean-Francois, on the pro se brief). Lee H. Eckell argued the cause for respondent (Fowler, Hirtzel, McNulty & Spaulding, LLP, attorneys; Mr. Eckell, on the brief). PER CURIAM
Defendant Kerline Jean-Francois appeals from the Law Division's June 12, 2014 order enforcing a settlement agreement with plaintiff Metropolitan Group Property and Casualty Insurance Company. For the reasons stated below, we affirm.
I
Defendants Kerline Jean-Francois and Marie Jean-Francois are sisters who jointly-own a residence in Bloomfield. On October 29, 2012, during Superstorm Sandy, defendants sustained losses to their property. On September 16, 2013, defendants submitted a claim under their homeowner's insurance policy issued by plaintiff, alleging the storm caused damage to their roof, gutters, siding, pool cover, pool liner, pump, and fence.
Although both defendants' names appear on the Notice of Appeal, only Kerline Jean-Francois filed a brief on appeal and there is nothing in the record to indicate that defendant Marie Jean-Francois relies on the arguments set forth in Kerline's brief. Thus, we refer to Kerline by her first name intending no disrespect but for ease of reference.
The claims regarding the roof, gutters, and siding were settled in the amount of $19,233.46, based on plaintiff's adjuster's itemized assessment. After applying the $500 policy deductible, plaintiff determined that it owed defendants a net payment of $18,733.46. Plaintiff rejected the balance of defendants' claims. On December 19, 2013, plaintiff issued a check in that amount; defendants rejected this payment and appealed the decision to plaintiff's appeal process panel.
In a letter dated January 15, 2014, the appeal process panel affirmed the initial decision to deny further coverage; explaining that because defendants failed to immediately report the loss, performed repairs prior to inspection, and lacked proper documentation, plaintiff was unable to verify whether these damages were repaired from prior loss settlements. Even so, on January 23, plaintiff informed defendants that the New Jersey Department of Banking and Insurance (DOBI) established a voluntary mediation program to resolve disputes between insurers and policyholders for claims stemming from Superstorm Sandy. Defendants agreed to mediate the valuation of their claim.
Prior to mediation, and in regard to the $18,733.46 payment, on February 4, 2014, plaintiff conducted a title search on defendants' property which revealed that a United States Small Business Association (SBA) mortgage was a recorded lien on the property. On February 14, plaintiff informed defendants that unless they provided documentation that the mortgage had been paid and the lien extinguished, plaintiff would have to issue another $18,733.46 check to both defendants and the SBA.
On March 5, Kerline, plaintiff's field property supervisor and field claims supervisor, and the mediator participated in a mediation session. Given that Kerline was not represented by an attorney, the mediator took special care to explain the mediation process. After rejecting plaintiff's first offer, Kerline accepted the offer of $6,266.54 to add to the $18,733.46 original settlement amount, resulting in a total $25,000 settlement to resolve all claims. According to the testimony of plaintiff's field property supervisor, the mediator indicated to Kerline "emphatically" that this amount represented final settlement of all claims against plaintiff. Because Kerline claimed that she had documentation that the SBA lien had been extinguished, plaintiff's representatives did not give Kerline a check issued to both defendants and the SBA for the previously agreed upon $18,733.46, agreeing to reissue the check to defendants only, upon receiving that documentation.
On March 6, at 10:29 p.m., plaintiff received a fax from Kerline documenting that the SBA lien had in fact been removed, as well as the notarized agreement signed by both defendants releasing all claims against plaintiff in exchange for the $25,000 settlement. The following day, plaintiff's claim representative issued a $25,000 check payable only to defendants; however, according to plaintiff, the check was prepared too late in the day to be sent by regular mail. So, on March 10, plaintiff mailed the check via overnight delivery to plaintiff's counsel, who would forward the check to defendants with a letter reiterating the terms of the agreement. For reasons unclear in the record, plaintiff's counsel did not mail the check to defendants until March 18, 2014.
Meanwhile, on March 17, unhappy with the delay in receiving her check, Kerline notified the mediator by e-mail of her intention to rescind the settlement agreement by not accepting the check. According to the terms of the agreement, plaintiff was to provide defendants with the $25,000 settlement payment within three business days of the date of the agreement. However, the settlement agreement also provided that defendants may only rescind the agreement by notifying both plaintiff and mediator by 5:00 p.m. of the third business day of the agreement's signing unless they had already cashed or deposited the settlement check.
On March 25, plaintiff reissued the $25,000 settlement check but, this time, divided the lump sum into two checks in the amounts of $18,733.46 and $6,266.54. Along with the checks, plaintiff's claim adjuster sent a letter explaining that "[p]ursuant to the New Jersey Superstorm Sandy Mediation and your signed release, you will be receiving under separate cover two checks totaling the settlement amount of $25,000. The first check is in the amount of $18,733.46 and the second check is in the amount of $6,266.54." Kerline cashed the larger check; however, she alleged that she believed this check only represented payment of defendants' claims prior to the mediation and that her rescission of the settlement agreement was valid, and so returned the second, smaller check.
On April 9, plaintiff filed an order to show cause and verified complaint seeking to enforce the mediation settlement. Plaintiff's process server unsuccessfully attempted to serve defendants at their home with copies of the order, summons, and verified complaint on April 14, 15, and 16. Then on April 19, copies of those documents were served upon a woman, who refused to give her name, over the age of fourteen at defendants' address.
On May 29 and 30, Kerline sent emails to plaintiff's counsel, asking about a "court hearing" and stating she had never been served. She also requested that counsel send her documents pertinent to the property damage inspection and estimates. Defendants did not submit any reply papers to the order to show cause.
On May 30, at 5:56 p.m., plaintiff's counsel sent an e-mail in response to both of Kerline's e-mails, in which counsel indicated that the order to show cause hearing was rescheduled at the request of the court, as the judge was not available on the originally scheduled date of May 16. Counsel also indicated the new hearing date of June 12, at 4:00 p.m., stating that the same information was included in his letter dated May 13, which Kerline admitted to having received in her May 29 e-mail.
Kerline appeared at oral argument held on June 12, where Judge Edith K. Payne heard argument from both parties and the testimony of plaintiff's two witnesses. The testimony indicated that the mediator explained the mediation process to Kerline because she was not represented by counsel, and also that the mediator spoke with Kerline alone in detail before addressing both parties collectively. At the conclusion of the hearing, Judge Payne issued an oral opinion ruling:
Marie Jean-Francois did not appear at the proceeding.
[Kerline] signed a release as did her sister, which very clearly states that the release is for the release of all claims of damages arising out of Superstorm Sandy.
I have heard [Kerline]. I understand she has an accent. But I am very satisfied that she has a complete understanding of English and of what she reads. There is simply no doubt about that . . . .
So I will find that she enter -- she signed that release, as did her sister, with full knowledge of its contents. . . . I am unwilling to vacate the settlement simply because the [plaintiff] did not come with a check made out solely to the [defendants] at the mediation. I do not find that they had any obligation to do that. And I would
find, as well, that they, um, with relative promptness issued a new check which was, in fact, cashed and there is, therefore, an accord and satisfaction of that much of the claim.The court then issued an order enforcing the settlement agreement, precluding defendants from bringing any future claims arising from the same losses, and ordering plaintiff to pay the remaining balance of $6,266.54 within seven days. This appeal followed.
[I] find no basis to find that, [Kerline] did not understand the claim to have been fully -- the settlement to have fully encompassed all the claims that, um, she had brought against [plaintiff]. And on that basis, I will enforce the settlement for the full amount of $25,000.
II
On appeal, Kerline's pro se brief contends that the trial court violated her due process rights and made findings of fact which were not supported by adequate, substantial or credible evidence. We address the procedural argument first.
Kerline's counsel relied upon the brief submitted by Kerline. --------
Kerline argues that her due process rights afforded by Rule 1:6-2(d) and Rule 4:4-4 were violated. Specifically, she contends that she was not served with a copy of the complaint or order to show cause, and despite her e-mail request from plaintiff's counsel, she never received the documents, thereby not knowing what to respond to when she appeared at oral argument.
Since this is a new argument raised on appeal, we note that ordinarily we do not consider a claim that was not presented in the trial court "'unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest.'" State v. Robinson, 200 N.J. 1, 20 (2009) (quoting Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)). However, we will examine Kerline's claims as she challenges the trial court's jurisdiction.
As for Kerline's assertion that her rights under Rule 1:6-2(d) were violated, we find insufficient merit in her argument to warrant discussion in a written opinion under Rule 2:11-3(e)(1)(E) governing an appellate court's affirmance without opinion. We only add that the rule addresses when a civil and family court shall conduct oral argument for a motion, and there was no violation of the rule in this case.
Turning to Kerline's contention concerning Rule 4:4-4. Though Kerline does not expressly argue that she is entitled to vacate the trial court's judgment under Rule 4:50-1, she does so implicitly by maintaining that she was never properly served with process or other required notices as required by Rule 4:4-4, and the judgment was void.
Through the lens of Rule 4:50-1, our standard of review warrants substantial deference to the trial court's determination, which "should not be reversed unless it results in a clear abuse of discretion." U.S. Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 467 (2012) (citation omitted). An abuse of discretion occurs when "a decision is made without a rational explanation, inexplicably depart[s] from established policies, or rest[s] on an impermissible basis." Ibid. (citation omitted).
Rule 4:50-1 provides various avenues for relief from a judgment or order. In relevant part, it reads:
On motion, with briefs, and upon such terms as are just, the court may relieve a party . . . from a final judgment or order for the following reasons: . . . ; (c) fraud . . . , misrepresentation, or other misconduct . . . ; (d) the judgment or order is void[.]
[R. 4:50-1.]
Kerline's argument that she and her sister were not served with process is premised on her statement that she was never served and her request for pleadings from plaintiff's counsel went unanswered. Although, as noted, this issue was not addressed below, we can take original jurisdiction to determine this matter as the record is adequate to permit our review. R. 2:10-5; Cf. Price v. Himeji, LLC, 214 N.J. 263, 294-95 (2013) (exercise of original jurisdiction is discouraged when the record is inadequate to permit appellate review). Based upon the record before us, we conclude that Kerline's statement is without merit.
"[T]he court rules which describe the manner in which process is to be served must be read in the context of effecting due process." Rosa v. Araujo, 260 N.J. Super. 458, 463 (App. Div. 1992), certif. denied, 133 N.J. 434 (1993). "'An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.'" Ibid. (quoting O'Connor v. Altus, 67 N.J. 106, 126 (1975)).
Rule 4:4-4(a)(1) provides as follows:
(a) Primary Method of Obtaining In Personam Jurisdiction. The primary method of obtaining in personam jurisdiction over a [defendant] in this State is by causing the summons and complaint to be personally served within this State pursuant to R. 4:4-3, as follows:
(1) Upon a competent individual of the age of 14 or over, by delivering a copy of the summons and complaint to the individual personally, or by leaving a copy thereof at the individual's dwelling place or usual place of abode with a competent member of the household of the age of 14 or over then residing therein[.]
Here, the record reflects that a copy of the summons, order to show cause, and complaint were left at defendants' dwelling place or usual place of abode. The process server delivered the documents by leaving them with a household member, a woman, over the age of fourteen. Clearly, there is sufficient proof that Kerline was served in accordance with our rules.
Kerline's contention that plaintiff's counsel failed to respond to her document request does not pertain to the pleadings addressed by Judge Payne but, instead, to documents specific to the property damage claim. The pleadings referenced documents pertaining strictly to the settlement agreement reached at mediation, and post-mediation communications between the parties.
Moreover, Kerline appeared before Judge Payne. In doing so, she subjected herself to the court's jurisdiction. See First Nat'l State Bank of N.J. v. Gray, 232 N.J. Super. 368, 371 (Law Div. 1989), overruled on other grounds by State v. Cruise, 275 N.J. Super. 324 (App. Div. 1994) (defendant who appears in court, has placed himself "under the control of the court").
We last address Kerline's argument that Judge Payne's order upholding the settlement agreement was not supported by the record. We are unpersuaded.
Our scope of review is limited. An appellate court shall "'not disturb the factual findings and legal conclusions of the trial judge unless [it 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[.]'" Seidman v. Clifton Sav. Bank, S.L.A., 205 N.J. 150, 169 (2011) (second alteration in original) (quoting In re Trust Created by Agreement Dated December 20, 1961, ex rel. Johnson, 194 N.J. 276, 284 (2008)); see also Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of Am., 65 N.J. 474, 484 (1974). Review on appeal "does not consist of weighing evidence anew and making independent factual findings; rather, our function is to determine whether there is adequate evidence to support the judgment rendered at trial." Cannuscio v. Claridge Hotel & Casino, 319 N.J. Super. 342, 347 (App. Div. 1999) (citing State v. Johnson, 42 N.J. 146, 161 (1964)). However, we owe no deference to the trial court's "interpretation of the law and the legal consequences that flow from established facts." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) (citations omitted). We review such decisions de novo. 30 River Court E. Urban Renewal Co. v. Capograsso, 383 N.J. Super. 470, 476 (App. Div. 2006) (citing Rova Farms, supra, 65 N.J. at 483-84).
Applying these standards, we find no basis to disturb the trial court's determinations, which are supported by substantial credible evidence in the record. We therefore affirm substantially for the reasons Judge Payne expressed in her well-reasoned oral opinion. We add the following limited comments.
The record supports the judge's factual finding that Kerline was fully aware that, under the settlement agreement, all of her Superstorm Sandy property damage claims were settled for $25,000. We see no factual basis for Kerline's contention that the settlement required plaintiff to pay $25,000 in addition to the $18,733.46 that had been agreed upon prior to mediation. Defendants did not rescind the settlement within the three-day period following its execution, as set forth in the agreement. The terms did not indicate that failure to deliver the settlement check within a specific time frame would constitute a breach that would afford defendants the right to rescind the agreement. Moreover, Kerline testified that she was not concerned regarding the timeliness of receiving the check.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION