MYRNA SLAUGHTER v. CONWAY'S DEPARTMENT STORE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2453-09T32453-09T3

MYRNA SLAUGHTER,

Plaintiff-Respondent,

v.

CONWAY'S DEPARTMENT STORE,

Defendant-Respondent.

___________________________________

MONIQUE WILLIAMS and DEBORAH CAPERS,

Administratrix and Administratrix

Ad Prosequendum for the Estate of

MYRNA ZENOBIA ELIZABETH ALTENOR,

Deceased,

Plaintiffs-Appellants,

v.

CONWAY'S STORE, INC.,

Defendant-Respondent.

____________________________________

 

Submitted June 2, 2010 - Decided

Before Judges Wefing, Messano and LeWinn.

On appeal from Superior Court of New Jersey,

Law Division, Essex County, No. L-3799-07.

Raymond Armour, attorney for appellants.

Lum, Drasco & Positan, attorneys for respondent

Myrna Slaughter (Dennis J. Drasco, Cynthia A.

Matheke and Kevin J. O'Connor, of counsel

and on the brief).

Respondent Conway's Store, Inc. did not

file a brief.

PER CURIAM

Two actions were filed seeking damages for the death of six-year-old Myrna Altenor, known as "Tootie," in an accident at a Conway's store in Union. One was filed by Monique Williams, Tootie's mother. The other was filed by Myrna Slaughter, the sister of Ms. Williams and Tootie's aunt, with whom Tootie had been living. The two lawsuits were eventually consolidated. At trial, defendant Conway's offered $950,000 to settle the litigation. Ms. Williams appeals from a trial court order enforcing a settlement, directing the payment to her of $50,000 to settle her claims, the payment of $650,000 to Ms. Slaughter to settle her claims and holding the balance pending an allocation hearing. After reviewing the record in light of the contentions advanced on appeal, we reverse and remand for further proceedings.

Tootie was born on April 10, 2000, and died on October 7, 2006. On that day, she, her seven-year-old cousin Isaiah, Ms. Slaughter, and a friend of Ms. Slaughter's went to a Conway's Department Store in Union. While in the store, the children became separated from the adults. Tootie had been running and she slipped on a garment that had fallen to the floor and fell into a nearby pointed wall rack that punctured her chest. She died shortly thereafter.

Ms. Williams and Ms. Slaughter disputed who was Tootie's parent and thus entitled to pursue a claim for her death. Ms. Slaughter claimed that Ms. Williams, who has struggled with drug addiction, abandoned Tootie shortly after her birth. The two came to reside with Ms. Slaughter when they were discharged from the hospital following Tootie's birth. Ms. Slaughter said that Ms. Williams left when Tootie was approximately two weeks old and never returned. Ms. Williams denied she ever abandoned Tootie, although she acknowledged that the girl lived with Ms. Slaughter. Ms. Williams said she provided financial assistance for her daughter's support and would call her every night and see her every few days. Ms. Slaughter has also cared for other children of Ms. Williams, particularly when Ms. Williams served periods of incarceration. Ms. Slaughter's daughter adopted another of Ms. Williams's children. At the time of the accident, Ms. Slaughter told the store and emergency personnel that she was Tootie's mother. She also told the funeral director that she was Tootie's mother, and the girl's death certificate originally reflected that statement. When Ms. Williams learned this, she had a corrected death certificate issued.

On December 12, 2006, Ms. Williams was appointed administrator and administrator ad prosequendum of Tootie's estate by the Surrogate of Union County. In April 2007, Ms. Slaughter's application for appointment as administrator and administrator ad prosequendum was dismissed in light of the earlier order. In May 2007, Ms. Slaughter, without the benefit of having been appointed to represent Tootie's estate, filed suit in Essex County seeking damages for Tootie's death and under Portee v. Jaffee, 84 N.J. 88 (1980), for her own emotional distress at having observed her death. In August 2007, Ms. Williams filed a wrongful death action in Union County. The two matters were later consolidated in Essex County.

Ms. Slaughter later filed a motion seeking to remove Ms. Williams as a party to this litigation, relying on the decision of this court in New Jersey Div. of Youth & Family Servs. v. M.W., 398 N.J. Super. 266 (App. Div.), certif. denied, 196 N.J. 347 (2008), in which we upheld the posthumous termination of parental rights to preclude an abusive parent from sharing in the proceeds of a wrongful death action filed following the death of her child. That motion was denied without prejudice; the order which was entered contains the notation that the issue was transferred to the Family Part of the Chancery Division.

By the time the matter was assigned for trial, there had been no resolution in the Family Part, and the civil litigation thus proceeded without any determination of which party was entitled to assert a claim for damages for Tootie's death. Ms. Slaughter and Ms. Williams were each represented by counsel, both of whom appeared for trial. By agreement, Ms. Slaughter's attorney was to try the case on liability, with Ms. Williams's attorney serving as co-counsel.

Before the trial actually got underway, defendant raised the issue of comparative fault, based upon the allegation that Ms. Slaughter had failed to properly supervise Tootie in the store. Ms. Slaughter's attorney argued that she was protected by the doctrine of parental immunity. After argument, the trial court determined that the issue would have to be resolved by the jury.

Following jury selection, three witnesses testified: Tootie's cousin Isaiah, Ms. Slaughter, and Ms. Slaughter's daughter. The trial transcript indicates that at the conclusion of that testimony, the trial court excused the jury for a recess. The transcript then continues as follows.

THE COURT: This is the matter of SLAUGHTER VS. CONWAY'S and WILLIAMS VS. CONWAY'S. The case has been reported to the Court as settled for the total sum of $950,000. $250,000 to be allocated pursuant to GREEN VS. BITTNER (phonetic). The issue then is the allocation to plaintiff Williams on the pain and suffering claim.

[Defense counsel], tell me what has occurred.

[DEFENSE COUNSEL]: Your Honor, I think the record -- this has been a complicated case, and I was very sympathetic from the beginning as to the family's loss, as we know. But I've been dealing with both Mr. Armour and Ms. -- Mrs. Slaughter. I'm sorry, I mean, Ms. Matheke throughout the negotiations. And the culmination of this afternoon's negotiations were I had asked both Mr. Armour and M[s]. Slaughter for one number that I could bring to my client.

I was in court. Between both of them they said we will give you that number and the number that was given to me at that time was $975,000. I brought that to my client. We had had authorization of $750,000. They told me to come back with an $850,000 offer, but they felt for a number of reasons, that we were in the middle of testimony, that the case was going to go on for another, you know, minimum of another week liability wise, and who knows how long -- you know, they made a decision to authorize money.

I came back. Mrs. Slaughter -- I'm sorry, Ms. Matheke said to me we have an agreement on $50,000 for Mrs. Williams' conscious pain and suffering claim that she gets herself -- not herself, but her client and her lawyer -- herself and her lawyer.

We have an agreement to go to an allocation hearing on some aspect of the GREEN VS. BITTNER damages, and I tried to get Mrs. Matheke to take $50,000 less because my client authorized $900,000 at that time.

Because we were so close I took the position with the client that at this point in time I -- once Mrs. Matheke came back and rejected the offer on behalf of -- of both plaintiffs, as far as I understood it, at 900,000. I went back and I said well, 950 will settle the entire case, which was the representation made to me and they said okay, settle the entire case for 950,000, which I just did.

Mr. Armour said to me well, I agreed to 950, but I didn't agree to $50,000 on conscious pain and suffering. That was news to me. Now what is true is I didn't talk to him directly, but I was talking to Ms. Matheke because she was representing, as far as I understood, both plaintiffs and would represent that she was speaking for both plaintiffs in that context.

So from my point of view on behalf of Conway Stores, Your Honor, this case -- I agreed and got the client and the carrier for the Conway Stores to agree and Conway's representative to agree to pay $950,000 on the claim -- on both claims, I should say.

It's our position the case is settled. And if there was an internal misunderstanding between the two plaintiffs' counsel, and I'm not choosing -- or blaming either one of them -- then I think that matter can be the subject of a separate hearing between them as an allocation of damages within that $950,000 total. But from -- what we're asking the Court to do -- what the Court has indicated it will do, and that is enter a settlement at $950,000. That's our position.

MR. ARMOUR: I did have discussions with Mr. Mulcahy concerning the figure 950,000 for the two of us to negotiate and work out a settlement between the two plaintiffs. I had no conversation either with him or with Ms. Matheke concerning accepting 50,000 for the plaintiff, Monique Williams, the mother, for the conscious pain and suffering claim and I certainly didn't agree with her or for her to take that information to Mr. Mulcahy.

So it's our position that, you know, we're not settled.

THE COURT: Well, Ms. Matheke.

MS. MATHEKE: Your Honor, I think it was just before Isaiah took the stand this afternoon when we were continuing having discussions through the lunch hour I turned to Mr. Armour and said would you take 50,000 on the conscious pain and suffering, and he said yes.

MR. ARMOUR: That is absolutely not true, absolutely.

THE COURT: Okay. All right. I'm going to mark the case settled, and I'll have to conduct an allocation hearing as well as a hearing with regard to the settlement as between -- how it will be divvied up between Williams and Slaughter.

Later, after dismissing the jury and granting Conway's motion for leave to deposit the sum of $950,000 into court, the trial court had the following colloquy with the attorney for Ms. Williams.

THE COURT: Well -- well, I think the first thing you have to determine, obviously, is whether there was an agreement to accept $50,000 by --

MR. ARMOUR: I didn't hear you, Judge.

THE COURT: Whether there was an agreement to accept $50,000. Are you -- are you submitting that there was or that there was --

MR. ARMOUR: That is an absolute lie.

THE COURT: No. I said I have to determine if there was an agreement to accept $50,000. You're asserting that there was not, right?

MR. ARMOUR: There wasn't, Judge. And I hadn't even discussed that with my client, and I certainly couldn't make -- make that statement without discussing it with her, and she can give you testimony today that she never discussed that issue with me.

THE COURT: Did you hold yourself out to Ms. Matheke and say that you would accept $50,000 for the pain and suffering?

MR. ARMOUR: No. What I discussed with her was that I read cases and the cases that I read the verdicts were 50,000 to 100,000. That was the extent of my communication [with] Ms. Matheke for conscious pain and suffering award and survivor actions.

THE COURT: For a couple of minutes? For a couple of minutes?

MR. ARMOUR: It varied. The time sequences varied, Judge.

THE COURT: Well, that's important. It's important to determine what the -- how long she was conscious, and so far all of the testimony in the case was minutes -- minutes.

MR. ARMOUR: What testimony, Judge? You only heard from two witnesses.

THE COURT: Right. And we also heard from the police officer who testified at the 104 hearing. And there's also been numerous documents.

MR. ARMOUR: Yeah, but I -- I also -- yeah, I submitted a brief. I submitted a brief concerning that issue on competent testimony regarding the conscious pain and suffering and I mentioned in my brief all the factors that the [c]ourt should take into consideration that there was.

THE COURT: I read -- I read the pretrial memo. I read the pretrial memo and a [c]ourt can very well determine that your client is entitled to none of it, right?

MR. ARMOUR: That's correct, Your Honor.

THE COURT: A [c]ourt may very well determine that she gave up her caretaker position and is just coming in here now to collect [t]he gravy.

MR. ARMOUR: My client is not looking for gravy. She's just looking for justice. She's the mother of the child. She wants her child.

Thereafter, Ms. Slaughter's attorney filed a motion to enforce a settlement. The attorney for Ms. Williams again denied that he had ever agreed to accept the sum of $50,000 as damages for her claim. He maintained that he had never even discussed that sum with her and would have had no authority to approve it. He agreed that he had approved an overall settlement for $950,000, with the understanding that the allocation would be worked out subsequently. He had never agreed, he said, that Ms. Slaughter would receive the sum of $650,000 for her claim under Portee, supra, 84 N.J. 88. The trial court, citing its "feel" of the case and its view that $50,000 was a reasonable sum for Ms. Williams's claim, enforced the settlement. It provided no explanation of how it determined that Ms. Slaughter was entitled to $650,000 for her Portee claim. We subsequently granted Ms. Williams's motion for leave to appeal and stayed distribution of any settlement proceeds.

There is a strong public policy in favor of the private resolution of parties' disputes, and that policy is furthered by enforcing settlements that parties have agreed to. "[T]he 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[,]" underlies that policy. 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)). If parties have, in fact, agreed to the terms of a settlement, "second thoughts are entitled to absolutely no weight as against our policy in favor of settlement." Dep't of Pub. Advocate v. N.J. Bd. of Pub. Utils., 206 N.J. Super. 523, 530 (App. Div. 1985).

There is no particular format required to establish an enforceable settlement. Parties who place the terms of a settlement agreement on the record, intending later to memorialize their agreement in writing, may be held to that agreement even in the absence of a writing. Pascarella v. Bruck, 190 N.J. Super. 118, 123-25 (App. Div.), certif. denied, 94 N.J. 600 (1983). "The ultimate question is one of intent." Berg Agency v. Sleepworld-Willingboro, Inc., 136 N.J. Super. 369, 374 (App. Div. 1975) (quotation omitted).

Our review of this record discloses no objective manifestation that Ms. Williams or her attorney ever agreed to accept the sum of $50,000 in settlement of her claim. From the first mention of that on the record, the attorney for Ms. Williams firmly insisted that had not occurred, that the most he had agreed to was that $950,000 was a reasonable sum overall. Whether the trial court viewed $50,000 as a reasonable amount does not provide a basis to enforce that amount against her when her attorney insisted she never agreed to it, and the trial court never made a finding that either she or her attorney had agreed.

A settlement is, in essence, a contract. Brundage, supra, 195 N.J. at 600-01. The fundamental question is the expressed intent of the parties at the time. Berg Agency, supra, 271 N.J. Super. at 373-74; Hagrish v. Olson, 254 N.J. Super. 133, 138 (App. Div. 1992). The views of a third party as to the wisdom or the virtue of the settlement is not material to that issue.

We are thus compelled to reverse the order enforcing this settlement and remand this matter to the trial court for further proceedings. We are compelled to comment, however, that some of the confusion attendant to this settlement is the result of the procedural posture in which the matter came to the trial court, that is, without an initial determination of who was entitled to share in the proceeds of any damage claim that flowed from Tootie's tragic death. We are uncertain as to how the parties could have been expected to agree upon a settlement until it was determined what ultimate rights, if any, they each possessed in the wake of Tootie's death. The record before us does not disclose whether such a determination has been made while this appeal was pending.

Further, in light of the comments of the trial court as to certain settlement discussions that took place in chambers both prior to the trial getting underway and during the trial, and its expressed view that $50,000 was reasonable in light of the possibility that a court could conclude that Ms. Williams "gave up her caretaker position and is just coming in here now to collect [t]he gravy," we direct that any remand proceedings be held before another judge. Pellicer v. St. Barnabas Hosp., 200 N.J. 22, 59-60 (2009); Carmichael v. Bryan, 310 N.J. Super. 34, 49 (App. Div. 1998).

Reversed and remanded for further proceedings.

 

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A-2453-09T3

July 29, 2010