SOUTH JERSEY GAS COMPANY v. MOUNT CONSTRUCTION

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5221-03T35221-03T3

SOUTH JERSEY GAS COMPANY,

Plaintiff-Appellant,

v.

MOUNT CONSTRUCTION,

Defendant-Respondent,

and

SOUTH JERSEY GAS COMPANY,

Plaintiff/Third Party Plaintiff-Appellant,

v.

CENTRAL LOCATING SERVICE,

Third Party Defendant.

________________________________________

 

Argued October 24, 2005 - Decided

Before Judges Lintner and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Docket No. CPM-L-268-02.

Chad M. Sherwood argued the cause for appellant (Youngblood, Corcoran, Lafferty, Hyberg & Waldman, attorneys; Mr. Sherwood, on the brief).

Michael J. Ward argued the cause for respondent.

PER CURIAM

Plaintiff, South Jersey Gas Co., appeals from orders of March 19, 2004, denying its motion for partial summary judgment and granting the partial summary judgment motion of defendant, Mount Construction Company, Inc. We affirm.

For the most part, the facts are undisputed. Plaintiff is a public utility that owns and maintains underground facilities for transportation of natural gas. Defendant is a public works construction contractor that performs infrastructure installation. Central Locating Service (CLS), third party defendant on the counterclaim, marks the location of plaintiff's underground facilities pursuant to the Underground Facility Protection Act, N.J.S.A. 48:2-73 to -91.

On February 9, 2000, plaintiff filed a complaint against defendant in the Law Division, Atlantic County, for $13,418.03, based on thirteen counts of damage to plaintiff's underground facilities allegedly caused by defendant in Wildwood between January 13, 1999, and May 4, 1999. Defendant answered on May 30, 2000, denying all liability.

Plaintiff elected not to pursue one of the counts in the Atlantic County action (listed as "Tenth Count"), and submitted the remaining counts to non-binding court sanctioned arbitration. R. 4:21A-1 to -9. On April 10, 2001, the Atlantic County action was settled during arbitration for $3,000. The parties entered a stipulation of dismissal with prejudice on May 21, 2001, and a release was executed on May 25, 2001.

The Release was drafted by plaintiff and provided in pertinent part:

I [plaintiff] release and give up any and all claims and rights which I may have against you [defendant]. This releases all claims, including those of which I am not aware and those not mentioned in this Release. This Release applies to claims resulting from anything which has happened up to now. I specifically release the following claims: . . . arising out of . . . incidents which occurred on or about January 19, 1999, January 13, 1999, January 27, 1999, January 29, 1999, February 3, 1999, February 10, 1999, February 16, 1999, February 25, 1999, April 7, 1999, March 29, 1999[,] and May 4, 1999. This Release includes, but is not limited to, all claims for damage to property, repairs related thereto, . . . past, present and future, . . . which could, anytime hereafter, be asserted as arising out of the aforesaid incident [sic]. . . . I have been paid a total of $ 3,000.00 in full payment for the making of this Release. I agree that I will not seek anything further including any other payment from you. (emphasis added).

On May 1, 2002, plaintiff filed a thirty-six count complaint seeking $35,793.89 for damage to its facilities allegedly caused by defendant in North Wildwood, Sea Isle City, Turnersville, Berlin, Mount Royal, Glassboro, Medford, Beckett, and Greenfield, between November 5, 1997, and September 19, 2001. Only Counts 35 and 36 postdate the release of May 25, 2001.

Defendant answered and counterclaimed on September 27, 2002, alleging damages for plaintiff's failure to properly mark out plaintiff's facilities, and alleging that the release covered some or all of plaintiff's claims. On November 27, 2002, plaintiff answered and impleaded CLS by way of third-party complaint seeking indemnification on the counterclaim. CLS filed an answer to the third-party complaint denying liability. The parties settled three of the counts (numbers 20, 21, and 36) on March 11, 2003.

On February 20, 2004, plaintiff moved for partial summary judgment contending the release did not cover the claims in the present action. Defendant cross-moved for summary judgment asserting the release applied to the claims in the action, and that Counts 1 to 34 be dismissed.

At argument on the motions, defendant asserted that the settlement in the Atlantic County action was intended to cover all then existing claims, whether or not such claims were known to plaintiff, and that this intention is evidenced by the release. Plaintiff's position was that the settlement covered only the claims in the Atlantic County action, and that plaintiff's representative did not authorize settlement of claims outside those in the Atlantic County action.

Judge Visalli denied plaintiff's motion and granted defendant's cross-motion, ruling that the release barred claims 1 to 34. An order was entered on March 19, 2004, enforcing the release, and dismissing 32 of the 33 unsettled counts in the complaint. The parties reached post-judgment settlement on the remaining count. A consent order dismissing plaintiff's complaint, defendant's counterclaims, and the third-party complaint was entered on April 22, 2004, rendering the summary judgment order final.

On appeal, plaintiff argues: 1) that the release does not apply to any claims other than the twelve claims set forth in the instrument; 2) that the settlement is invalid because plaintiff's attorney did not have authority to settle claims other than those listed in the release; 3) the release is ineffective because it was not properly executed and sealed; and 4) that genuine issues of material fact regarding the prior settlement exist requiring that the matter be remanded for a factual hearing.

A trial court will grant summary judgment to the moving party "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c); see also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). "An issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact." R. 4:46-2(c).

On appeal, "the propriety of the trial court's order is a legal, not a factual, question." Pressler, Current N.J. Court Rules, comment 3.2.1 on R. 2:10-2 (2006). "We employ the same standard that governs trial courts in reviewing summary judgment orders." Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).

We have carefully reviewed the record and the applicable law. We conclude that plaintiff's contentions (3) and (4) are without merit and do not warrant discussion in a full written opinion. R. 2:11-3(e)(1)(E). We address plaintiff's arguments (1) and (2).

Plaintiff argues that the motion judge erred in finding that the release applied to claims in the present action, because plaintiff never intended to release any claims outside those specified in the release. Plaintiff contends: 1) there was never a meeting of the minds between the parties at the time of settlement because plaintiff believed that the specific language contained in the release would govern the general provisions; 2) there was a mutual mistake as to the claims covered by the settlement; and 3) plaintiff's counsel lacked authority to settle any claims other than those listed in the release. Defendant counters that the record before the motion judge establishes that there had been a negotiated full and voluntary settlement of all existing, potential and pending claims that existed between the parties on the date of settlement. Defendant further contends that plaintiff's voluntary acts placed its attorney in a situation where defendant was justified in presuming that the attorney had authority to enter into a settlement, not just negotiations, on behalf of plaintiff.

The competent evidence in the record below establishes that plaintiff's counsel was aware that defendant only agreed to settle the Atlantic County lawsuit provided plaintiff agreed to settle all claims, known and unknown, up to the time of settlement. The record is devoid of any evidence to the contrary. The affidavit submitted to the motion judge of Lynn Weinberger, office manager of plaintiff's Cape May County office, does not raise a material issue of fact to the contrary. The affidavit only states that she was the individual who authorized plaintiff's attorney to settle the suit for $3,000; that she never authorized settlement of any other claims against defendant; and was the individual who executed the release.

Generally, a settlement is "not binding on the client unless the client has expressly authorized the settlement." Amatuzzo v. Kozmiuk, 305 N.J. Super. 469, 475 (App. Div. 1997). An exception, however, is where the "client's voluntary act has placed the attorney in a situation wherein a person of ordinary prudence would be justified in presuming that the attorney had the authority to enter into a settlement, not just negotiations, on behalf of the client." Ibid. Here, negotiations were undertaken in the presence of the arbitrator, plaintiff's counsel, defendant's counsel and defendant's corporate president. Plaintiff's counsel was advised by defendant that settlement could be reached only if it included all claims up to that date. Plaintiff, rather than having a corporate representative at the negotiations, permitted its attorney to negotiate the terms of settlement. Plaintiff's counsel conversed with Weinberger on the telephone and advised the arbitrator, defendant's counsel and representative that plaintiff had accepted the terms of settlement and had "agreed it would dismiss the lawsuit and provide a full general release in exchange for [defendant's] payment of $3,000."

The release, which was subsequently prepared by plaintiff's counsel, supports the broad settlement negotiated at the arbitration proceeding by including "any and all claims and rights which [plaintiff] may have against [defendant] . . . [and] all claims, including those of which [plaintiff was] not aware and those not mentioned in this Release." Without an affidavit or certification from plaintiff's counsel who negotiated the terms of settlement, the motion judge properly determined that plaintiff's counsel had apparent authority to negotiate the broad settlement binding the plaintiff. Id. at 475-76.

As to the terms of the release itself, plaintiff asserts that it was under belief that the specific language referring to the claims in the Atlantic County lawsuit would govern the general provision of releasing any and all claims, and therefore, there was never a meeting of the minds. We disagree. "[I]f [a] release is in general terms, followed by particular recitals, the latter do not control the general language preceding them." Van Slyke v. Van Slyke, 80 N.J.L. 382, 387 (E. & A. 1910). Intent to the contrary will only control where the release's particular recitals specifically indicate "unmistakabl[e] . . . intent to limit the scope of the release. Ibid. Such is not the case in the present matter. Accordingly, we affirm.

 
Affirmed.

(continued)

(continued)

10

A-5221-03T3

November 15, 2005