Opinion
DOCKET NO. A-6040-11T4
05-28-2014
JEFFREY THOMPSON, Plaintiff-Appellant, v. CITY OF NEWARK, CITY OF NEWARK POLICE DEPARTMENT, DIRECTOR ANTHONY AMBROSE, CHIEF IRVING BRADLEY, DEPUTY CHIEF SAMUEL DEMAIO, DEPUTY CHIEF GREGG QUACKENBUSH, CAPTAIN RICHARD CUCCOLO, CAPTAIN DOMINGUS SALDIDA, CAPTAIN HARVEY SIMPSON, LIEUTENANT TIJUANA JONES BURTON, CAROLINE MCINTOSH, CAPTAIN RONALD KINDER, LIEUTENANT PALMAR AMOS, LIEUTENANT AMILKER VELEZ, LIEUTENANT ULMAR ABDUL HAKEEM LIEUTENANT MANUEL CARILLO, LIEUTENANT VICTOR CUGLIARI, SERGEANT MARLIN EASTER AND SERGEANT ANTHONY COSTA, Defendants-Respondents.
Hegge & Confusione, LLC, attorneys for appellant (Michael Confusione, of counsel and on the brief). Eric S. Pennington, P.C., attorneys for respondents (Darryl Austin, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Sapp-Peterson and Hoffman.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-4284-09.
Hegge & Confusione, LLC, attorneys for appellant (Michael Confusione, of counsel and on the brief).
Eric S. Pennington, P.C., attorneys for respondents (Darryl Austin, of counsel and on the brief). PER CURIAM
Plaintiff Jeffrey Thompson, a former police officer with the Newark Police Department (Department), appeals from the June 29, 2012 Law Division order denying his motion to enforce litigant's rights and for counsel fees, relating to defendants' failure to comply with the terms of the parties' settlement agreement. Following our review of the arguments advanced on appeal, in light of the record and applicable law, we reverse and remand.
The record discloses the following facts and procedural history. In 2009, plaintiff filed suit against the City of Newark and the Department claiming wrongful termination and retaliation, and asserting rights under the Law Against Discrimination. In 2012, the case went to trial before a jury. Before the trial concluded, the parties reached a settlement, which was memorialized in a court order entered on May 16, 2012, setting forth nine settlement terms.
Less than one month later, plaintiff filed a motion to enforce litigant's rights, regarding defendants' failure to comply with the terms of the settlement. Plaintiff certified defendants failed to comply with the following four numbered terms of the nine-term settlement agreement (none concerning the payment of money):
2. Defendants shall dismiss all administrative charges including, but not limited to all of the charges the plaintiff received after his wrongful termination;
. . . .
4. The City of Newark shall not oppose or delay plaintiff's permit to purchase a firearm, now and in the future;
. . . .
6. Plaintiff, Jeffrey Thompson shall now obtain the complete indicia of a Retired Police Officer from defendant, City of Newark, including but not limited to, Badge and ID. Same to be returned to him forthwith;
7. All recordkeeping pertaining to Jeffrey Thompson shall be altered to reflect the words of "retirement" rather than "termination." It is further agreed, that no Agent or Employee of the City of Newark shall give out any information of whatsoever kind that Jeffrey Thompson was the subject of any termination, unless the rules governing the City and the police compel them to do so. The stated Agreement between Employer and Employee is strictly for Jeffrey Thompson to be shown as "Retired in Good Standing" for purpose of any verification inquiry by any future employer or any other source[.]
The motion judge denied plaintiff's motion in an order entered on June 29, 2012, noting the motion was denied "as moot" and plaintiff "has been paid". No other statement of reasons was provided at that time.
On August 8, 2012, plaintiff appealed, and on August 28, 2012, the motion judge submitted a supplemental statement of reasons, again noting plaintiff had been paid. Although acknowledging at least one provision of the settlement agreement remained outstanding (supplying plaintiff with a "retirement badge"), the court indicated it denied plaintiff's motion "upon information and belief . . . that the City had already paid plaintiff." The judge accepted defense counsel's uncertified letter addressing the other claims of non-compliance by defendants, and then failed to address plaintiff's request for counsel fees on the enforcement motion. The judge did not impose a deadline for defendants to provide plaintiff with the retirement badge.
The record indicates changes to plaintiff's personnel records, required by the settlement agreement, were not completed until July 2012, after the court denied plaintiff's motion. Moreover, the record is unclear whether these changes fully satisfy the letter and the spirit of the settlement
As a preliminary matter, we note the interpretation and construction of a settlement agreement is a matter of law and is subject to de novo review on appeal. Kaur v. Assured Lending Corp., 405 N.J. Super. 468, 474 (App. Div. 2009). Indeed, a "'trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.'" Ibid. (quoting Alfano v. BDO Seidman, LLP, 393 N.J. Super. 560, 573 (App. Div. 2007)).
We long ago recognized "that there may be special considerations warranting specific performance of a consent judgment, see generally R. 1:10-3, and that there are strong public policy considerations favoring enforcement of settlement agreements." Jersey City Redev. Agency v. Clean-O-Mat Corp., 289 N.J. Super. 381, 404 (App. Div. 1996) (citing Pascarella v. Bruck, 190 N.J. Super. 118, 124-25 (App. Div.), certif. denied, 94 N.J. 600 (1983)). These considerations are predicated upon "'the notion that the parties to a dispute are in the best position to determine how to resolve a contested matter in a way which is least disadvantageous to everyone.'" Brundage v. Estate of Carambio, 195 N.J. 575, 601 (2008) (quoting Peskin v. Peskin, 271 N.J. Super. 261, 275 (App. Div.), certif. denied, 137 N.J. 165 (1994)). "Consequently, courts 'strain to give effect to the terms of a settlement wherever possible.'" Jennings v. Reed, 381 N.J. Super. 217, 227 (App. Div. 2005) (quoting Dep't of Pub. Advocate v. N.J. Bd. of Pub. Utils., 206 N.J. Super. 523, 528 (App. Div. 1985)).
Because plaintiff was entitled to enforcement of the terms of the settlement order, we conclude the trial court erred in denying plaintiff's motion. While plaintiff identified four areas of non-compliance in his enforcement motion, the record does not support denial of the motion on the date it was decided. Even as of the date this appeal was submitted for consideration on our plenary calendar, the record remained unclear whether defendants have fully complied with all nine settlement terms.
We therefore reverse and remand to the trial court for further proceedings to confirm defendants have completed all required actions set forth in the settlement order. At the same time, the court will address plaintiff's application for counsel fees under Rule 1:10-3, pertaining to enforcement of litigant's rights, which permits a court "in its discretion [to] make an allowance for counsel fees . . . to a party accorded relief . . . ." "[T]his rule provision allowing for attorney's fees recognizes that as a matter of fundamental fairness, a party who willfully fails to comply with an order or judgment entitling his adversary to litigant's rights is properly chargeable with his adversary's enforcement expenses." Pressler & Verniero, Current N.J. Court Rules, comment 4 on R. 1:10-3 (2014).
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
I hereby certify at the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION