Opinion
DOCKET NO. A-5938-13T1
05-06-2016
GLADYS MUNIVE, Plaintiff-Appellant, v. PASSAIC COUNTY BOARD OF SOCIAL SERVICES, DEPUTY DIRECTOR ANTHONY DE SIMONE, and DIRECTOR MARK H. SCHIFFER, Defendants-Respondents.
Timothy J. McIlwain, attorney for appellant. Buglione, Hutton & DeYoe, L.L.C., attorneys for respondent Passaic County Board of Social Services (Albert Buglione, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Espinosa and Currier. On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-3805-11. Timothy J. McIlwain, attorney for appellant. Buglione, Hutton & DeYoe, L.L.C., attorneys for respondent Passaic County Board of Social Services (Albert Buglione, on the brief). PER CURIAM
Plaintiff Gladys Munive appeals from an order enforcing a settlement agreement, arguing the agreement did not comply with the terms the parties reached during settlement discussions in court. We find, in the circumstances present, that the judge erred when he relied on his "recollection" of an in-chambers settlement three months after its occurrence, and imposed it as an enforceable contract on the parties. We, therefore, reverse.
Plaintiff's complaint against defendants, Passaic County Board of Social Services, Deputy Director Anthony De Simone, and Director Mark H. Schiffer (defendants) arose out of an employment dispute, alleging violations of the New Jersey Law against Discrimination, N.J.S.A. 10:5-1 to -49. On the day of trial, extensive settlement discussions were conducted with the attorneys and judge in chambers, ultimately resulting in an agreement. Unfortunately, the settlement terms were not memorialized by placing them on the record in the courtroom.
Two weeks later, defendants' counsel prepared and forwarded a settlement agreement and release to their adversary. In response, plaintiff's counsel advised the terms were different than those agreed upon in chambers, and set forth the "misrepresentations" he believed were contained in the agreement and release.
Plaintiff alleged the terms of the settlement reached in chambers included: (1) a lump sum payment of $35,000; (2) her reinstatement for a period necessary to process her pension and back pay benefits; and (3) a second payment from the pension fund valued between $75,000 and $112,000, depending on the date of its calculation. The agreement prepared by defendants provided for (1) a lump sum of $35,000 characterized as back pay, carrying the potential of different tax consequences than a lump sum settlement of her claims; and (2) the deputy director's reasonable efforts to assist plaintiff with filing a pension application.
When defendants refused to modify the document, plaintiff filed a motion to vacate the settlement; defendant moved to enforce it. After reviewing the motions, the judge requested plaintiff withdraw her application, and directed both counsel to provide their respective understandings of the settlement in a letter. The attorneys' correspondence reveals very different views of the settlement terms.
Following an off-the-record telephone conference with the judge, the parties again submitted correspondence as to the agreement each believed had been reached. Their terms greatly varied. As a result, defendants requested a plenary hearing on the record to address their application to enforce the settlement.
Three months after the original "settlement," the parties appeared in court for oral argument. The judge began by stating: "There's no doubt in my mind what the settlement was and I'm prepared to enforce the settlement. And I'll state what I remember it being with one modification which I think is implicit in the settlement." He noted that the negotiations between the parties included an agreement whereby plaintiff would be reinstated to allow her an opportunity to apply for her pension. Although defendants were now claiming that reinstatement was not possible, the judge stated, that "the County and the Board were willing to walk the lady through the application process, assist her in any way possible to get whatever pension she was entitled to."
The judge also recalled that back pay had been a part of the conversation in chambers and "it was represented at the time of the settlement that there was [back pay on the pension]." When defendant disagreed with this term at oral argument, the judge responded:
[If she] gets a pension but there is no back pay, we have to consider that because that was an element that was considered and accepted by the other side. It was never represented that it would be a certain amount but . . . an estimate was given. There had to be something.The judge later inquired again as to whether there would be a retroactive pension benefit and stated "that was part of the deal as represented by . . . those who also negotiated it. No guarantee was given to a number but there was an estimate given upon which there was reliance."
Despite the judge's articulation of two terms he believed defendants had agreed to at the time of settlement not memorialized in the written agreement, the judge nevertheless crafted a new agreement and ordered its enforcement. He added that if plaintiff did not receive a pension or if there were no retroactive pension payments, she had the option to return the lump sum payment and proceed to a trial of her case.
The judge ordered defendant to: (1) pay a lump sum of $35,000; (2) make a second payment of $70,000 as back payments from her pension; and (3) assist plaintiff in filing a pension application.
After another conference with counsel off the record, the judge repeated the terms of the settlement. Plaintiff reiterated her objection to the settlement being imposed by the judge. She now appeals from that order.
Plaintiff believed, that as part of the settlement agreement, she was to be reinstated to her original position in order to collect certain pension benefits. Defendants' proposed settlement did not contain such terms. Upon questioning the written agreement, plaintiff was advised that reinstatement was not possible. The judge agreed that reinstatement was a crucial factor in the settlement negotiations. He also recollected the additional back pay payment corresponding to pension benefits; another term not included in defendants' written agreement.
We are compelled to note it is always the prudent course to memorialize a settlement on the record in the courtroom. There should never be a need for a judge to "recollect" or affirm his or her "understanding" of the terms of a settlement. This obviates the need for post-settlement motions, correspondence and conferences to re-construct an agreement.
The original settlement was not recorded. When defendants prepared the written agreement leaving out terms that plaintiff deemed crucial from the settlement reached in chambers, there was no longer a mutual assent by the parties to the same terms and therefore no agreement. The judge could not, thereafter, impose an agreement on plaintiff with terms that she claimed differed from the original settlement. If the parties could not come to a new agreement, the matter was not settled.
As the parties differ greatly in their views of its terms, and the judge has acknowledged that defendants have retracted or changed several crucial provisions, we have no choice but to reverse the order of enforcement and direct that it be placed on the trial list.
Under other circumstances, a plenary hearing might have been appropriate in order to determine the intent of each party as to the settlement. We do not find it would be helpful at this juncture. --------
Reversed and remanded. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION