CINDY SMITH v. UNITED PARCEL SERVICE, INC.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4322-04T2

CINDY SMITH,

Plaintiff-Appellant,

v.

UNITED PARCEL SERVICE, INC.,

Defendant-Respondent.

__________________________________________

 

Submitted November 30, 2005 - Decided

Before Judges Parker and Grall.

On appeal from Superior Court of New Jersey,

Law Division, Ocean County, L-3064-02.

Vaz Law Firm, attorneys for appellant

(Christopher J. Vaz, on the brief).

Pitney Hardin, attorneys for respondent

(Wendy Johnson Lario and Kimberly A.

O'Sullivan, on the brief).

PER CURIAM

Plaintiff Cindy Smith appeals from a final order enforcing a settlement agreement with her former employer, defendant United Parcel Service (UPS), and dismissing her amended complaint alleging violations of the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8, and the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42. The trial judge found that that the parties reached an enforceable agreement. Because that finding is supported by substantial credible evidence in the record and is consistent with controlling legal principles, we affirm.

The facts relevant to plaintiff's appeal are drawn from the pleadings and from the certifications and testimony produced at the hearing on defendant's motion to enforce the settlement. Plaintiff filed her complaint on September 11, 2002. At the time, she was represented by Kevin M. Costello, Esq. Defendant, represented by Wendy J. Lario, Esq., filed an answer dated December 30, 2002. By leave granted on December 13, 2003, plaintiff filed an amended complaint on January 9, 2004. Defendant filed an answer to the amended complaint dated February 13, 2004.

On August 26, 2004, Mr. Costello filed a motion for leave to withdraw as counsel for plaintiff. That motion was granted on September 24, 2004. Plaintiff proceeded without counsel. After an adjournment in November 2004, trial was scheduled for March 7, 2005.

Prior to the trial date, plaintiff retained a second attorney, Christopher Vaz to represent her in negotiating a settlement with UPS. By letter dated February 10, 2005, Mr. Vaz presented Ms. Lario with a demand for a settlement in the amount of $75,000, inclusive of attorneys fees and costs. At that point, Mr. Costello's fees alone were in excess of $40,000.

Defendant responded to plaintiff's settlement demand with an offer of $22,500. Mr. Vaz rejected that offer but agreed to continue negotiations by forwarding information in support of his initial demand to Ms. Lario. When Mr. Vaz did not contact Ms. Lario as agreed, she called him. Mr. Vaz advised that plaintiff was again speaking with Mr. Costello about settlement and trial.

As Mr. Vaz indicated, plaintiff contacted Mr. Costello. On February 28, 2005, plaintiff herself called Ms. Lario directly and told her that Mr. Costello would be speaking with her about settlement and trial.

Mr. Costello contacted Ms. Lario on March 1, 2005. He advised that while he had not yet been retained, he believed that plaintiff intended to retain him. He told Ms. Lario he was willing to facilitate settlement by compromising his lien against plaintiff's damage award and would call her after plaintiff retained him. On the same day, plaintiff retained Mr. Costello. On March 1, 2005, she wrote an e-mail to Mr. Costello. In its entirety that e-mail stated, "okay on the $30,000 but you gotta (sic) first try for more as Wendy said to me yesterday that she can go up to 35,00[0] for me."

Mr. Costello called Ms. Lario and advised that plaintiff had authorized him to settle the case for $55,000. Ms. Lario responded with an offer of $50,000. Mr. Costello suggested another $2,500, contending that they should split the difference between $55,000 and $50,000. Ms. Lario agreed to take the counteroffer to her client.

On the morning of March 2, 2005, Ms. Lario contacted Mr. Costello and told him that UPS was unwilling to offer more than $50,000, which was its final offer. After some discussion, Mr. Costello advised that he would accept the offer on behalf of his client if UPS would characterize only $10,000 of the payment as wages. He explained that that allocation of damages would result in a larger after tax payment for his client than if the entire settlement was cast as wages. Ms. Lario agreed on behalf of her client. The settlement was to be conditioned on plaintiff's dismissal of her complaint and issuance of a release on those claims. Mr. Costello's paralegal contacted plaintiff to let her know that the case had been resolved. Plaintiff advised that she would not agree to the settlement.

On the afternoon of March 2, 2005, plaintiff herself called Ms. Lario. She advised that she would not accept the settlement and denied that she authorized Mr. Costello to settle the case for $50,000. Plaintiff and Mr. Costello agreed to participate in a conference call with Ms. Lario. When Mr. Costello stated that plaintiff had given him authorization to settle at $50,000, plaintiff did not dispute his assertion. Plaintiff said she wanted another $10,000 and was willing to risk the consequences of rejecting the offer.

On March 3, 2005, defendant filed a motion to enforce the settlement agreement. Mr. Costello wrote a letter to the court in support of that motion. In that letter he asserted that the e-mail was absolute authorization for him to enter a settlement in the amount of $50,000. Ms. Lario prepared a certification in support of the motion in which she detailed her discussions with Mr. Vaz, plaintiff and Mr. Costello. She also appended a written agreement that memorialized the settlement.

Ms. Lario had included in the agreement a provision allowing plaintiff time to withdraw from the agreement in accordance with Ms. Lario's understanding of the time frames required by federal law for wavier of claims under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. 621-634. This litigation did not include a claim under the ADEA.

Ms. Lario served Mr. Vaz with a copy of the settlement agreement and defendant's motion to enforce it. Mr. Vaz did not appear on the date of trial, March 7, 2005, but he spoke with plaintiff by telephone just prior to the hearing on defendant's motion to enforce the settlement.

The judge heard defendant's motion on March 7, 2005. Plaintiff was placed under oath and Ms. Lario, who had prepared the certification in support of the motion, repeated her assertions and responded to the judge's questions. Plaintiff acknowledged writing the e-mail to Costello but insisted that she expected him to "go for" $55,000 and call her before finalizing an agreement. She said she was unwilling to accept the agreement and was prepared to proceed to trial. Her only objection to the settlement was the amount of the settlement.

The judge reviewed plaintiff's e-mail to Mr. Costello, Ms. Larios's certification and Mr. Costello's letter. He considered plaintiff's testimony and Ms. Lario's representations to the court that were consistent with her certification. The judge found that plaintiff had authorized her attorney to settle for $30,000 and that Mr. Costello had a commitment from his client that she would accept a settlement that would result in her receipt of $30,000 after payment of his compromised fee. The judge concluded:

I'm satisfied there was a full and complete settlement of the whole entire case for $50,000, $30,000 to [plaintiff], no matter what happens. And all the other terms and conditions of the settlement were agreed to by Mr. Costello because he was [plaintiff's] lawyer for purposes of the settlement discussions, and [she] confirmed it to him.

Plaintiff disagreed with the judge. She said: "No, he told me before he settled anything he would get back to me. He did not get back to me. He had Denise, his paralegal, get back to me to tell me it was settled." The judge explained, "He did not have to get back to you. He had the e-mail from you. You e-mailed him and you admit it is your e-mail." He added, "You knew what you were doing. You admit you sent the e-mail. The e-mail confirms you were getting $30,000 net [of fees] and there is a settlement. And I'm going to enforce the settlement."

The judge further found that the provision of the agreement that gave the plaintiff time to withdraw from the agreement should be excised because it was unrelated to any claims in the litigation, which included only a claim under CEPA and a claim of discrimination on the basis of handicap under the LAD. For that reason, the judge directed Lario to excise that provision from the agreement so as to give effect to his order enforcing the agreement. Plaintiff signed the agreement at the court's direction after again consulting with Mr. Vaz by telephone and upon his advice that the judge had decided to enforce the agreement. After consulting with Mr. Vaz, plaintiff did not raise any objection to the language of the agreement. The trial judge confirmed plaintiff's consultation with Mr. Vaz and his review of the agreement on the record.

Plaintiff raises the following issues on appeal:

I. PLAINTIFF'S AGENT, KEVIN COSTELLO,

ESQ. EXCEEDED HIS AUTHORITY.

A. MR. COSTELLO LACKED EXPRESS

AUTHORITY TO ACCEPT A FINAL

SETTLEMENT OFFER ON BEHALF OF

PLAINTIFF.

B. DEFENDANT'S BELIEF, IF ANY, THAT

MR. COSTELLO WAS CLOAKED WITH

APPARENT AUTHORITY TO ACCEPT A

FINAL SETTLEMENT OFFER WAS

UNREASONABLE.

II. PLAINTIFF'S AGENT, KEVIN COSTELLO,

ESQ., BREACHED HIS FIDUCIARY DUTY TO

PLAINTIFF BY NOT RECUSING HIMSELF FROM

SETTLEMENT NEGOTIATIONS. (Not Raised

Below)

III. THE SETTLEMENT AGREEMENT AND RELEASE

IS VOID AND UNENFORCEABLE AS A MATTER

OF LAW. (Not Raised Below)

IV. THE DEFENDANT'S LETTER DATED MARCH 2,

2005, MEMORIALIZED A COUNTEROFFER THAT

WAS WITHIN PLAINTIFF'S RIGHT TO

REJECT. (Not Raised Below)

V. THE TRIAL COURT ERRED WHEN IT MODIFIED

PROVISIONS OF THE SETTLEMENT

AGREEMENT, THEREBY SUBSTITUTING THE

COURT'S OWN JUDGMENT AND NOTION OF

FAIRNESS IN PLACE OF BONA FIDE

SETTLEMENT NEGOTIATIONS BETWEEN THE

PARTIES. (Not Raised Below)

Our review of the record in light of the issues presented under Point I convinces us that those arguments lack sufficient merit to warrant extended discussion in a written opinion.

R. 2:11-3(e)(1)(E). The motion judge's factual findings are supported by sufficient evidence in the record, and his conclusions about plaintiff's understanding are based upon his observation of her sworn statements in court. R. 2:11-3(e)(1)(A); Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974). Because we see no offense to the interests of justice, we will not disturb the judge's findings or conclusions on the enforceability of the settlement agreement. See Rova, supra, 65 N.J. at 484.

 
Plaintiff's remaining arguments were not raised below, and we decline to consider them as that would require us to deviate from a sound rule of appellate practice. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234-35 (1973). The rule ensures that all parties have an opportunity to present relevant evidence, and that the judges of the trial courts have the opportunity to address claims in the first instance.

Affirmed.

At one point during the motion hearing, plaintiff noted that she had questions about her pension credits that were not resolved. As the judge noted, pension credits were not an issue in the litigation.

(continued)

(continued)

9

A-4322-04T2

December 28, 2005