BEN VUONG v. TRUMP TAJ MAHAL ASSOCIATES

Annotate this Case

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2764-03T32764-03T3

BEN VUONG,

Plaintiff-Appellant,

v.

TRUMP TAJ MAHAL ASSOCIATES,

d/b/a TRUMP TAJ MAHAL CASINO

RESORT,

Defendant-Respondent.

______________________________________________________

 

Argued telephonically June 21, 2006 - Decided July 19, 2006

Before Judges Stern, A.A. Rodr guez and Fall.

On appeal from the Superior Court of New

Jersey, Law Division, Atlantic County,

Docket No. L-2720-02.

Eugenie F. Temmler argued the cause for appellant

(Rabner, Allcorn, Baumgart & Ben-Asher, attorneys;

Ms. Temmler and Robert E. Reilert, on the brief).

Adam N. Saravay argued the cause for respondent

(McCarter & English, attorneys; Mr. Saravay, on

the brief).

PER CURIAM

Plaintiff appeals from an order entered on December 4, 2003, granting summary judgment to defendant and dismissing his complaint that sought severance pay, unpaid bonuses, executive insurance premiums, counsel fees, costs, and damages for breach of contract. On this appeal he argues:

POINT I THE COURT MISAPPLIED THE LAW OF COLLATERAL

ESTOPPEL IN ITS RULING THAT THE FINDING OF

THE COMMISSION THAT VUONG HAD ENGAGED IN

WRONGDOING CREATED A "FOR CAUSE" BASIS FOR

TERMINATION UNDER MR. VUONG'S CONTRACT, AND

INDEED WAS DISPOSITIVE OF THAT ISSUE.

POINT II THE TRIAL COURT ERRED BY IGNORING OR MIS-

INTERPRETING NEW JERSEY LAW REQUIRING THAT

A DISCHARGE FOR CAUSE BE MADE WITHIN A

REASONABLE TIME AFTER THE ALLEGED CAUSE IS

KNOWN TO THE EMPLOYER.

POINT III THE TRIAL COURT ERRED IN RULING THAT PLAINTIFF

HAD TO BE LICENSED BY THE CASINO CONTROL

COMMISSION ON THE DATE DEFENDANT CHOSE TO

PAY HIM HIS BONUS, RATHER THAN AT THE TIME

HE SHOULD HAVE BEEN PAID HIS BONUS.

On September 17, 1997, plaintiff entered into an employment agreement to serve as defendant's Vice-President of International Marketing for the period from July 15, 1997 to July 14, 2001 "unless terminated earlier by [defendant] pursuant to Paragraph 12 or 13" of the agreement. Paragraph 12 provided:

You hereby understand and acknowledge that TTMA may terminate this Agreement in the event your Casino Control Commission license is terminated and/or suspended or revoked by the Commission or if you shall commit an act constituting "Cause", which is defined to mean the following: a breach by you of any of the provisions of this Agreement or any employee conduct rules; an act of dishonesty; the deliberate and intentional refusal by you to perform your duties hereunder or your failure, as determined solely by TTMA, to properly perform and execute your duties hereunder; . . . any act which in TTMA's sole opinion would adversely reflect upon TTMA or impair your ability to effectively perform your duties hereunder; alcohol or drug abuse; your disability, which is defined to be any condition prohibiting you from performing your duties hereunder for a period in excess of thirty (30) days; or your death. In the event of a termination pursuant to this Paragraph, TTMA shall pay you your salary earned to the date of termination and shall have no further liability or obligation to you under this Agreement.

Paragraph 13 provided:

You hereby also understand and acknowledge that, notwithstanding any other provision hereof, TTMA may terminate this Agreement without cause as defined in Paragraph 12 in its sole discretion immediately upon notice to you. In such event, TTMA shall pay and you shall accept in satisfaction of all obligations and liabilities hereunder, an amount equal to the lesser of nine (9) months or the number of months then remaining in this Agreement at your then current salary. You shall, in such event, execute any and all release documents requested by TTMA.

Defendant terminated plaintiff on January 4, 2000. Plaintiff contends that he was improperly terminated because he was not, in fact, discharged for cause and that if there had been "cause" to terminate him, defendant "waived" its right to do so.

The background giving rise to this appeal is detailed in our unpublished opinion affirming the revocation of plaintiff's casino key employee license by the Casino Control Commission on August 22, 2001, as a result of which he was prohibited from employment in a casino. State of New Jersey, Dep't of Law & Public safety, Div. of Gaming Enforcement v. Vuong, A-2181-01T5 (Feb. 6, 2003). According to that opinion:

Vuong has been employed in the casino industry since 1984. In December 1994, the Casino Control Commission issued to Vuong a casino key employee license. N.J.S.A. 5:12-9; N.J.S.A. 5:12-89. Shortly thereafter, he assumed the position of Vice President of International Marketing with Trump Taj Mahal Casino Resort ("Taj Mahal").

Vuong was informed that Donald Trump was scheduled to be in Hong Kong on November 6, 1998, on business and he was asked to prepare and coordinate a "player party" at that city's Grand Hyatt for some of Taj Mahal's premium casino players from that region of the world to meet Mr. Trump. The party had three objectives: to solicit new business from these players, to collect any outstanding debts these players might owe to Taj Mahal and to generate a higher volume of business from them.

Vuong conferred with his superior, Nick Niglio, and the two drew up a list of some one hundred people to be invited; they included on their list Rudy Gunawan and his wife, Mirawati Siamir, of Indonesia. At the time, the Gunawans owed approximately $1,500,000 to Taj Mahal. Five hundred thousand dollars of this was the debt of Mr. Gunawan's wife.

Mr. Gunawan had originally requested that someone from Taj Mahal come to Indonesia to collect payment. The casino, however, had rejected this proposal in light of the unsettled situation in that country; it was considered too dangerous an undertaking.

Vuong discussed the upcoming party by telephone with Mr. Gunawan and then advised his superiors that Mr. Gunawan would bring $500,000 in cash to Hong Kong to settle his wife's gambling debt. Later, Gunawan called Vuong and told him he was uncomfortable carrying that amount of cash out of Indonesia and, instead, would wire $500,000 to Taj Mahal. Vuong replied by fax on October 30. He requested that Gunawan only wire $480,000 to Taj Mahal and bring $20,000 in cash to Hong Kong.

Vuong insisted he did so because he was concerned about running such a large event, something he had not done before. According to Vuong, he was worried about the possibility of running out of money to pay for the party and thought that it would be advisable to have cash on hand in the event of an emergency. Vuong, however, had a corporate American Express card for his use and executives of Taj Mahal frequently stayed at the Grand Hyatt hotel on their business trips to the area. Vuong also had access to travel advance payments from Taj Mahal to handle such items. Vuong's position, moreover, as a marketing executive did not authorize him to engage in the collection of gambling debts. N.J.A.C. 19:45-1.29(b).

On November 2, 1998, Taj Mahal received a wire from Gunawan for $480,000. In accordance with standard policy, the Taj Mahal employee who received the payment began the process to issue a "cash complimentary" form ("cash comp") to Gunawan for $20,000, which, when processed, would have the effect of reducing his wife's balance to zero.

Once in Hong Kong, Niglio learned that Gunawan had wired $480,000. He thought the amount curious and asked Vuong, who replied that he would look into the matter. Vuong did not mention his earlier fax to Gunawan. Niglio did not know that a cash complimentary had already been issued in Atlantic City and he asked that blank forms be sent to him for that purpose.

Kevin Smith, an attorney for Taj Mahal who was in Hong Kong for purposes of the party, testified that he saw Vuong meeting with Mr. Gunawan's wife to have the cash complimentary form executed and that Vuong gave him the executed form to return to Atlantic City. Smith also testified that the day following the party, he met Mr. Gunawan in the hotel lobby. The two were talking and Smith asked why Gunawan wired $480,000, as opposed to $500,000. While Gunawan responded that he had given $20,000 to someone, another individual then joined the two men and their conversation ended. Smith did not have an opportunity to resume the discussion before Gunawan left the hotel.

When the Gunawans left, they did so in the company of Vuong and one of his colleagues, Stephen Tang. The four went to Macao for a gambling trip.

When Gunawan returned to Hong Kong, he met with Niglio, who was still there. Gunawan told Niglio that he had given Vuong the $20,000. Niglio said nothing but determined to investigate upon his return to Atlantic City.

As soon as Niglio and Vuong were together in Atlantic City, Niglio told Vuong what Gunawan had said. Vuong responded that Gunawan was "crazy" and must have mixed up the $20,000 he had lost during the gambling expedition to Macao.

Several weeks later, Smith received a telephone call from Gunawan, who was very distressed because his wife's gambling credit had not been cleared. During this call, Gunawan told Smith that he had given Vuong $20,000 during the trip to Hong Kong.

Taj Mahal launched an investigation. Vuong was asked if he had requested the Gunawans to bring any money with them to Hong Kong and had accepted any money from them. Vuong insisted he had not. He was then shown the fax he had sent to Gunawan requesting that he bring $20,000 with him. Vuong then explained that he had done so in case he needed cash for the party. This occurred on Friday, December 4, 1998.

On Monday, December 7, Taj Mahal received a wire for an additional $20,000 to be credited to the account of Mr. Gunawan's wife. Gunawan insisted he did not make this payment, saying he had no reason to do so because, from his perspective, he had already made payment in full. Evidence was presented which would link this payment to Vuong's associate, Stephan Tang. Vuong resigned on January 4, 2000, and on April 14, 2000, the Division of Gaming Enforcement initiated charges against him based on this incident.

[Id., slip op. at 2-6.]

However, on January 4, 2000, defendant terminated Vuong's employment. The termination letter provided:

Please be advised that your employment with Trump Taj Mahal Associates is terminated effective January 4, 2000.

The termination of your employment is pursuant to paragraph twelve of your employment agreement dated September 17, 1997 as you committed an act constituting "Cause" with respect to dishonesty related to certain transactions occurring in November 1998 currently under investigation by the New Jersey Division of Gaming Enforcement.

You will be paid your salary through January 4, 2000.

After plaintiff's termination, the Division of Gaming Enforcement filed a complaint on April 14, 2000 against plaintiff and, as noted above, his casino key employee license was subsequently revoked. Plaintiff commenced this action on August 8, 2002 following the revocation of his license.

As already noted, plaintiff alleges in his complaint that defendants violated the employment agreement by failing to pay him bonuses that he had earned and changing the marketing strategy to deprive him of bonuses for the years 1998 and 1999. Plaintiff further alleges that he was entitled to nine months of severance pay pursuant to the agreement and that the incident resulting in the revocation of his license was used as a "pretext" to deprive him of the severance pay.

Defendant moved for summary judgment. On December 4, 2003, Judge Steven Perskie granted the motion. He found that, while defendant knew of plaintiff's conduct as of November 1998, it was nevertheless reasonable for defendant to await the results of the investigation before terminating him and that defendant did not waive its right to terminate plaintiff by waiting until January 2000 to do so. The judge also concluded that plaintiff was not entitled to any bonuses because he had to be licensed to receive them, and his license had been revoked prior to his claim for bonuses and any entitlement to payment thereof.

We affirm the judgment substantially for the reasons expressed by Judge Perskie in his oral opinion of December 4, 2003, but add the following.

Plaintiff insists that he was entitled to the bonuses because they had been earned before his termination and that his license was not revoked until August 2001, approximately eighteen months after he was terminated. He also asserts that the subsequent revocation of his license could not be used as a basis for the termination. Moreover, plaintiff insists that defendant waived its right to terminate him under the agreement as a result of the 1998 incident because it waited over thirteen months after knowing about his alleged misconduct to do so. Finally, before us in responding to our questions regarding prejudice, plaintiff claims that he has never been given a true forum in which to challenge the findings concerning his misconduct.

First, we note that plaintiff appealed the revocation of his license by the Casino Control Commission and had the right to raise any procedural or due process concerns about revocation. In fact, in our opinion challenging the revocation, we "reject[ed] Vuong's contention that he was denied due process" and concluded that "[t]he hearing was conducted fairly." We consider that revocation to be conclusive in this matter. Independent of the requirement that plaintiff possess a key employee license, see N.J.S.A. 5:12-9, -86, -89; see generally State, Dept. of Law v. Gonzalez, 142 N.J. 618, 622 (1995), the findings of the Commission, as detailed in the hearing officer's opinion of August 22, 2001, warrant the conclusion that there was "cause," within the meaning of paragraph 12 of the parties' agreement, to terminate plaintiff in January 2004. Plaintiff presents no authority for the proposition that his burden of proof in the present case is so different from the burden in the revocation proceeding that relitigation of the same facts in different forums is warranted.

We find no waiver by defendant in asserting its right under the contract. It had the right to await the initial investigation by the Division of Gaming Enforcement, and plaintiff was not prejudiced in any way by the delay, particularly because he was fully paid during the interim thirteen-month period.

We conclude, as did Judge Perskie, that plaintiff's conduct, as found by the Casino Control Commission, justified defendant's decision to terminate plaintiff under the agreement, notwithstanding that the finding was after the termination, and that defendant did not waive its right by delaying thirteen months, between November 1998 and January 2000, in terminating plaintiff.

The judgment is affirmed.

 

Actually, August 22, 2001 was the date of the initial decision of the Commission's Vice Chair as hearing officer. The record also contains an "amended order" of the Commission, dated November 28, 2001, adopting the initial opinion and revoking plaintiff's license.

(continued)

(continued)

11

A-2764-03T3

July 19, 2006

 


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