MARC S. MacNAUGHTON v. THE DELBARTON SCHOOL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

MARC S. MacNAUGHTON,

Plaintiff-Appellant,

v.

THE DELBARTON SCHOOL, THE

ORDER OF SAINT BENEDICT

OF NEW JERSEY, and

FR. LUKE TRAVERS,

Defendants-Respondents.

___________________________________

September 23, 2015

Argued June 2, 2015 Decided

Before Judges Haas and Higbee.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-0686-11.

Noel C. Crowley argued the cause for appellant (Crowley & Crowley, attorneys; Mr. Crowley, on the briefs).

Donald T. Okner argued the cause for respondents The Delbarton School and The Order of Saint Benedict of New Jersey (Dwyer Connell & Lisbona, attorneys; Mr. Okner, of counsel and on the brief; Lynn A. Lisbona, on the brief).

John J. Grossi, III argued the cause for respondent Fr. Luke Travers (Carey & Grossi, attorneys; Mr. Grossi, on the brief).

PER CURIAM

Plaintiff Marc MacNaughton appeals the court order of October 25, 2013 dismissing his complaint and granting summary judgment to all defendants. Plaintiff also appeals the order of December 17, 2013 denying his motion for reconsideration of the summary judgment order. We reverse as to dismissal of Count I for breach of contract, Count III for tortious interference with economic advantage, Count IV for negligent supervision, Count V for a second breach of contract, and Count VI for respondeat superior liability. We affirm as to the dismissal of Count II alleging fraud in the procurement of the contract.

We review a motion for summary judgment de novo under the same legal standard applied by the trial court. Coyne v. N.J. Dep't of Transp., 182 N.J. 481, 491 (2005). Thus, we are to determine "whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); see R. 4:46-2(c).

The facts as viewed in the light most favorable to the plaintiff follow. Plaintiff was formerly employed by defendants The Delbarton School (Delbarton) and The Order of Saint Benedict of New Jersey (Saint Benedict). Delbarton is a private Catholic school, owned and operated by Saint Benedict. Both entities are charitable organizations. During the 2003 2004 school year, plaintiff was employed by Delbarton as a teacher and winter and spring track coach. During the 2004 2005 school year, he was employed as a teacher, the freshman football coach, and the head coach of winter and spring track. Plaintiff was repeatedly complemented on his job performance and was chosen as "Coach of the Year" by a local newspaper.

When plaintiff was employed by Delbarton, co-defendant Father Luke Travers (Travers) was the school's headmaster. While plaintiff was performing his duties as track coach, two of the members of plaintiff's track team approached plaintiff and revealed that Travers had made them uncomfortable by excessive hugging and patting their buttocks. Plaintiff reported this conduct to his supervisors, Athletic Director B.F. and Dean of Faculty C.R.1 In March 2005, plaintiff was informed by Travers that his contract would not be renewed for the following school year. Initially Travers gave him no reason for his termination, but later advised him that it was the result of a "reduction in force."

In response to plaintiff's protest that his termination was not justified, the parties entered into a "Separation Agreement and General Release" (Agreement) on September 2, 2005. In pertinent part, the Agreement included the following provisions

. . . .

7. Access to Delbarton's Campus: Subject to his authority to return to the campus of Delbarton School, hereby given, as a coach or assistant to a rival school, or as an official, for an athletic meeting or event, Employee understands and agrees that he will not return to the campus of Delbarton School . . .

8. Non-disparagement: Employee and Delbarton (OSBNJ) agree that they will refrain from making any disparaging statements, either writing or oral, regarding each other. Delbarton (OSBNJ) acknowledges in this regard that it has advised senior school administrators of their obligation to uphold this agreement.

9. Inquiries from prospective employers: Employee may advise prospective employers or personal recruiters to address inquiries regarding him in writing to the Business Administrator of the Abbey or anyone acting in that capacity. Delbarton (OSBNJ) has instructed all of its personnel who are likely to receive any such inquiries regarding Employee to refer all such inquiries to the Business Administrator. In the event that the Business Administrator receives any such inquiries regarding Employee, he will limit his response to (i) confirmation of the fact of the Employee's employment; (ii) giving dates of such employment; (iii) indicating the last positions held by the Employee as reflected in the personnel records of the Employee.

Despite the agreement, plaintiff alleges that senior staff members of Delbarton interfered with his attempts to obtain subsequent employment by making disparaging remarks about him to potential employers. After leaving Delbarton, plaintiff applied for various jobs, including a position at Asbury Park High School. According to plaintiff, he applied for a position that "would combine the duties of head coach for three different sports with a position to be described as either a teacher paraprofessional or a permanent substitute." The Athletic Director of Asbury Park High School, R.S., interviewed plaintiff.

In a November 17, 2010 statement by R.S., he confirmed that the position plaintiff interviewed for was a combination of athletic coach with "a choice between working as a permanent substitute for all classes or as a teacher's aide." After the interview, R.S. attempted to get reference information about plaintiff. He contacted B.F. who he quoted as telling him about the plaintiff, "He's crazy. Don't touch him!" When asked to explain, B.F. told R.S. that plaintiff "had crossed Father Luke." B.F. continued that "Luke can be vindictive" and advised R.S. not to hire plaintiff, saying plaintiff would never be able to get a job in Morris County.

In a second statement by R.S., he stated that he also contacted Reverend G.H. regarding plaintiff. G.H. was the Abbot of St. Mary's Abbey. G.H. told R.S. not to hire plaintiff, and stated "You don't need the headaches."

In August 2006, plaintiff applied for a job at Morris Catholic High School. He was interviewed by the school's principal, Dr. J.G. After his interview, plaintiff contends that G.L., the head of the school's physical Education Department and Head Football Coach, made him a formal offer as "assistant football coach and physical education teacher." Soon thereafter, however, plaintiff states that he was told the offer was withdrawn because of the Delbarton situation.

Plaintiff testified at his deposition that G.L. told him J.G. denied him the position because of a phone call. In a surreptitiously recorded statement taped in March 2012, G.L. stated to plaintiff that the Delbarton situation hindered plaintiff.

At the motion for summary judgement, the court found that there was sufficient evidence to reach the jury on the question of whether defendants breached the contract, but the court found plaintiff could not prove he would have been employed by either Asbury Park or Morris Catholic, and therefore he could not prove damages. We disagree.

At issue in this case was whether a jury could find plaintiff would have been hired for any of the positions for which he applied, but for the breach of contract and interference by defendants. The defendants argued plaintiff did not have the credentials to be a public school teacher despite the fact that he taught and coached at Delbarton. Plaintiff had an Associate Degree in Science from the County College of Morris. He also had a substitute teacher's credential certificate, which was valid from February 2006 July 1, 2009.

With respect to Morris Catholic, plaintiff's deposition and certification allege enough facts, when viewed in the light most favorable to him, to sustain an action in breach of contract for which he could prove he sustained damages. Plaintiff testified that he was basically guaranteed a position at Morris Catholic. He then testified that he did not get the job, because when the position was being finalized, J.G. nixed it because of Father Luke and a phone call about the Delbarton issues.

These alleged facts, in addition to the recorded statement plaintiff made of his conversation with G.L., are enough to survive a motion for summary judgment.

With regard to Asbury Park High School, the issue raised by defendants was whether plaintiff had the proper qualifications for a position as a public school teacher.2 The requirements for teaching in private schools differ from public schools. See N.J.S.A. 18A:26-2, which requires specific certificates to teach in public schools. The requirements for being a substitute teacher are governed by a separate section of the administrative code. See N.J.A.C. 6a:9b-6.5.

Plaintiff had an associate's degree and a substitute teacher certification. The position he was applying for was, as stated by R.S. in his certification, "a choice between working as a permanent substitute for all classes or as a teacher's aide."

With respect to Asbury Park High School, plaintiff interviewed to be a substitute teacher or teacher's aide, along with being the coach of a sports team, not for a regular teaching position. Defendants contend that R.S. would not have hired plaintiff based on certain statements made by him at his deposition. Conflicting statements between a witness's deposition and his certified statement create exactly the issues of disputed fact not appropriate for summary judgment especially when the statements are taken out of context. We find the question of whether plaintiff was deprived of employment by defendants is a fact sensitive question and cannot be disposed of by summary judgment. The court of course must determine the laws and regulations that apply at trial but first the underlying facts need to be determined through the trial process.

The trial judge also ruled that because there were no damages, the count of the complaint on tortious interference with prospective economic advantage could not stand. For the reasons expressed above, however, the issue of damages is one for a jury and this count should also be reinstated as to all defendants.

Separate from the employment provisions of the separation, there was also an allegation that the defendants prevented plaintiff from officiating at the school, and that this also violated the contract. It is undisputed that this occurred. The court determined that it was not reasonable to require Delbarton to allow plaintiff to officiate their games after he sued them. In so ruling, the trial judge went beyond the language of the contract. "It is not the function of the court to make a better contract for the parties, or to supply terms that have not been agreed upon." Graziano v. Grant, 326 N.J. Super. 328, 342 (App. Div. 1999). The relevant provision of the Agreement clearly stated: "Subject to his authority to return to the campus of Delbarton School, hereby given, as a coach or assistant to a rival school, or as an official, for an athletic meeting or event". (Emphasis added).

In this case, it is undisputed that Delbarton withdrew the authority it had unambiguously given in the contract to plaintiff to return to the campus to act in the capacity as an official or as a rival coach. The damages for this breach of contract claim may be limited, but they can be determined by a jury.

In summary, we find that the court erred in dismissing plaintiff's complaint as to breach of contract and tortious interference with economic advantage. The count as to negligent supervision of employees should also be reinstated as the issue as to whether the employees who disparaged the plaintiff were adequately supervised to prevent breaches of the agreement is a jury question, even though the school asserts it took appropriate action to avoid breaches of the terms of the agreement through written communications with staff. In addition, there is no evidence that clearly refutes plaintiff's allegations in the record. The written communications, combined with what appears to have been clear violations of them by employees in very high level positions, demonstrate there is a genuine factual dispute. We therefore reinstate all but Count II of the complaint.

This count pleading premeditative fraud to induce plaintiff to enter into a contract has no evidence to support it in the record. Appellant presents no evidence that defendants intended to breach the agreement when it was prepared and presented it to plaintiff.

Finally, we address the discovery disputes raised on appeal. There were many discovery disputes throughout the litigation including, but not limited to, the failure of Travers to be deposed and his assertion of his Fifth Amendment rights. It appears clear that defendants delayed and did not respond to some discovery requests. It also appears plaintiff named an expert near the end of discovery that defendants were not able to depose. The court can only respond to motions for discovery requests when they are made. In this case, some motions were filed and orders were entered, but there were no effective attempts to enforce the orders. Instead discovery was simply continually extended at the request of the parties. A trial date was already in place at the time the last discovery motions were heard. The court denied plaintiff and defendants' motions, holding that the discovery period was over and no further extensions would be granted.

A trial court's decision regarding an extension of discovery under Rule 4:24-1 is disturbed only if there is an abuse of discretion. Huszar v. Greate Bay Hotel & Casino, Inc., 375 N.J. Super. 463, 471 (App. Div.), rev d on other grounds, 185 N.J. 290 (2005). We cannot find an abuse of discretion in the judge's decision. When the case goes back, it should proceed to trial with the discovery that has been completed and the experts that have been named. The effect of Travers' pleading the Fifth Amendment in discovery, and his possible refusal to answer questions at trial shall be dealt with by the trial judge during the trial.

Affirmed in part and reversed in part, and remanded for trial. We do not retain jurisdiction.

1 We use initials to refer to individuals who were not parties to this litigation.

2 Defendants also argue that plaintiff could not prove damages because he never interviewed with the superintendent of Asbury Park High School which he would be required to do before being hired. N.J.S.A. 18A:27-4.1(a). However, if defendants' conduct prevented plaintiff from getting this interview, a jury question still exists as to damages.