RUTH PARKER v. RCG INFORMATION TECHNOLOGY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0775-05T20775-05T2

RUTH PARKER,

Plaintiff-Appellant,

v.

RCG INFORMATION TECHNOLOGY,

Defendant-Respondent.

_______________________________________

 

Argued October 31, 2006 - Decided December 21, 2006

Before Judges Lisa and Grall.

On appeal from Superior Court of New

Jersey, Law Division, Bergen County,

L-1390-03.

Ruth Parker, appellant, argued the cause

pro se.

Deborah Martin Norcross argued the cause

for respondent (Deborah Martin Norcross, attorney; Ms. Norcross and Michael Newman, on the brief).

Veronica W. Saltz argued the cause for Saltz Polisher, (Saltz Polisher, attorneys; Ms. Saltz and Wendy Lappin Barragree, on the brief).

PER CURIAM

Plaintiff Ruth Parker appeals pro se from the denial of her motion for relief from a judgment entered on her complaint in a civil action against her former employer, defendant RCG Information Technology (RCG). Her pro se motion was based on the circumstances that led to entry of a consent order dismissing her complaint and authorizing her attorney, Veronica W. Saltz, of Saltz Polisher P.C. (the firm), to execute a settlement of the claims. RCG and the firm opposed Parker's motion for relief from judgment and oppose this appeal. Although the pertinent facts were disputed, the motion was denied without an evidential hearing. For that reason, we remand for further proceedings. See Nolan v. Lee Ho, 120 N.J. 465, 474 (1990).

In February 2003 the firm filed a complaint on Parker's behalf asserting legal and equitable claims arising from her employment and termination by RCG. In July 2003 RCG filed an answer. In October 2003 the matter was mediated; Parker attended and was represented by Robert S. Stickley, a member of the firm. In February 2004 RCG served interrogatories, a request for documents and a notice of deposition.

Members of the firm contacted Parker in March, April, May, June and July 2004. On August 18, 2004, Saltz filed a motion requesting the trial court to appoint a guardian ad litem for Parker on the ground of her "lack of capacity to comprehend and to render decisions regarding her case." In support of that motion, Saltz submitted a certification that described the firm's contacts with Parker.

Saltz's certification includes the following information about Parker's participation in the early stages of the litigation. From the spring of 2001 until early summer of 2004, Parker participated in and made decisions about the case with apparent understanding. On April 22, 2004, she authorized the firm to settle her case for $65,000. Stickley conveyed that offer to RCG.

Saltz's certification also describes efforts she, Stickley and another member of the firm, Albert Saltz, made to communicate with Parker after RCG rejected the $65,000 settlement offer and countered with an offer of $35,000. When Parker did not respond to phone calls or voicemail messages about the counteroffer, the firm took additional steps. On May 27 and June 14, 2004, Stickley wrote and asked Parker to contact him about the case as soon as possible. On June 15, 2004, Stickley and Albert Saltz went to Parker's home. Although they were able to hear Parker inside, she did not come to the door. On the same day Stickley wrote to Parker, reported the $35,000 offer and advised her that the "offer will be likely withdrawn by Friday, June 18, 2004 if we do not issue a response." He asked Parker to contact Saltz immediately. The letter concluded with this sentence: "If you do not respond to our efforts to communicate, this firm will have no other alternative but to file a motion with the court to withdraw as counsel and terminate our representation of your interests." That letter was hand delivered and sent by federal express, regular mail and certified mail. On June 25, 2004, Albert Saltz and Stickley went to Parker's home and left "hand written instructions . . . on either accepting or rejecting a settlement offer." In early July Albert Saltz went to Parker's home, saw her and told her about the offer. She "refused to accept or reject it," told Albert Saltz she did not feel well and said she would contact the firm the next day. In mid-July Saltz traveled to Parker's home and talked with her. Parker spoke "in a flat voice." She said, "I am very ill. I am not able to process this information. I am not able to make a decision, please leave."

Saltz's certification also reported that "local authorities and medical professionals with whom I consulted confirmed, without opportunity of examination, that Ms. Parker is unable to comprehend the information provided to her." In her "professional judgment, Ms. Parker [was] incapable of making any decisions relating to this litigation and her self interests." In a letter brief Saltz submitted in support of her motion for appointment of a guardian ad litem, she advised that she had spoken with Parker's sister, the local police and medical officials who "indicated that Ms. Parker is having significant medical and/or mental difficulties at this time."

There is no evidence that Parker had notice of the firm's application to appoint a guardian or was served with a copy of the moving papers. RCG did not oppose the motion.

By order dated September 20, 2004, the trial court granted the firm's motion. The judge appointed an attorney to serve as Parker's guardian ad litem. The court stayed discovery and further proceedings until such time as the guardian had an opportunity to review the case.

On November 8, 2004, the guardian, Saltz and RCG's attorney participated in a telephone conference with the trial court. On December 29, 2004, after "consider[ing] the discussion among the parties and the interests of justice," the court signed a consent order acknowledging settlement of Parker's case for the sum of $35,000. The order further authorizes Saltz to execute a "Confidential Negotiated Settlement Agreement and General Release" on behalf of Parker. The order discharges the guardian, and directs RCG to pay a fee for the guardian's services from the settlement amount and to deposit the remainder of the funds with the court. The consent order authorizes the firm to submit an application for payment of fees from the fund in court. Finally, the order dismisses with prejudice Parker's claims against RCG. Stickley signed the consent order on behalf of Parker.

By letter dated January 5, 2005, Stickley mailed a copy of the consent order to Parker. On January 31, 2005, Parker notified the trial court of her objection to the order. On February 8, 2005, the judge wrote to Parker and advised that the firm's fee application would be heard on February 18, 2005. Parker did not appear.

On August 18, 2005, acting pro se and alleging "fraud and material misrepresentation [of] the facts of the case on the part of [her] counsel," Parker filed a motion for relief from the "final consent order" and the order appointing a "guardian ad litem." In support of that motion, she submitted a certification that described her condition and her contacts with the members of the firm.

Parker certified to the following. She and Stickley discussed a $65,000 settlement, and she told him she wanted to think about it. In late May she received voicemail messages from Stickley about RCG's offer of $35,000. She returned his calls and left messages informing him that she would not accept the settlement and wanted to go to trial. In June she ignored voicemails from Stickley "pressuring" her to settle. She left a message in response to the letter of June 15, 2004, which advised that the firm would cease representing her if she did not sign the settlement, indicating that it would be "acceptable to her" if the firm withdrew. When Saltz went to Parker's home, she told her she would not settle the case and no longer wanted her firm's representation. She had no notice of the motion to appoint a guardian ad litem and no opportunity to object and present information refuting Saltz's account of her conduct and capacity.

In support of her motion, Parker appended a handwritten note that Stickley left at her home. The note was dated July 6, 2004. In that note, Stickley advised that the offer would be withdrawn if they did "not act immediately." She contended that her refusal to accept the settlement was not evidence of incapacity.

The trial court heard argument on plaintiff's motion but took no testimony. Parker reiterated her contention that her rejection of the settlement offer was not an indication of incapacity. On behalf of the firm, Stickley and Saltz argued that Parker's refusal and apparent inability to make a decision about the settlement or cooperate in the litigation required them to seek appointment of a guardian in order to protect her interests. They contended that the settlement, which the guardian ad litem had approved, was fair and should not be disturbed.

The trial court denied Parker's motion. The court determined that the appointment of the guardian was appropriate on the basis of the information that was before the court at the time. The court further concluded that the settlement, which had been reviewed by the experienced attorney who served as Parker's guardian, was fair. The court did not address Parker's claim that the order appointing the guardian ad litem was based on "fraud and material misrepresentation."

Our review of a trial court decision on a motion for relief from judgment pursuant to Rule 4:50-1 is limited. The question whether there are grounds to set aside a judgment is left to the sound discretion of the trial court. Housing Auth. of Town of Morristown v. Little, 135 N.J. 274, 283-84 (1994). Although Parker's motion did not include a citation to Rule 4:50-1, her contentions raised grounds for relief that are within its ambit. Parker sought relief from the final consent order, and the order appointing a guardian ad litem that led to its entry, on the ground that she rejected the settlement offer. She certified to facts that, if true, contradicted the facts presented to the court in support of the motion to appoint a guardian ad litem. There is no evidence that Parker had notice of that motion or an opportunity to refute the information prior to entry of the order appointing the guardian or the consent order. Rule 4:50-1(f) authorizes relief from a final order or judgment when there is a reason "justifying" that remedy. The broad category is designed to permit redress in "exceptional situations" where enforcement of the order would not be just or equitable. Id. at 289.

Wolkoff v. Villane, 288 N.J. Super. 282 (App. Div. 1996), informs our decision. In that case, Wolkoff moved to vacate an order entering judgment and dismissing her case as settled. Id. at 284. In her moving papers she asserted that she was unable to understand the information her attorney presented when she settled the case. Ibid. In opposition to Wolkoff's motion, Villane's attorney certified that he had observed Wolkoff and her attorney discussing the matter and "that [she] did not seem to him to be 'confused, incapable of understanding [her attorney], or unaware of what was taking place.'" Id. at 285. On the basis of these conflicting certifications, the court denied Wolkoff's motion for relief from judgment.

On appeal, this court held that the settlement should be set aside if plaintiff was incompetent to authorize the settlement. Id. at 288. In short, Wolkoff's capacity to settle the litigation was material to her motion for relief from judgment. Ibid. We "reiterat[ed] the axiom that for 'a trial court to decide contested issues of material fact on the basis of conflicting affidavits, without considering the demeanor of witnesses, is contrary to fundamental principles of our legal practice.'" Id. at 286 (quoting Conforti v. Guliadis, 245 N.J. Super. 561, 565 (App. Div. 1991) (emphasis added), aff'd on this point, 128 N.J. 318, 322-23 (1992)).

In this case as in Wolkoff, Parker's assertions raise a question of material fact relevant to the fairness and equity of enforcing the judgment that incorporates the settlement.

R. 4:50-1(f). "A settlement between parties to a lawsuit is a contract like any other contract. Settlement agreements must be voluntarily made and freely entered into." Peskin v. Peskin, 271 N.J. Super. 261, 275 (App. Div.), certif. denied, 137 N.J. 165 (1994) (internal quotations and citations omitted). If Parker rejected this settlement offer as she asserted in her certification and did not, as the firm certified, simply refuse to act, the fairness, equity and justice of enforcing this settlement would be in question. There is no evidence that she had notice of the application or facts that would suggest a need to take affirmative action to avoid approval of the settlement. To the contrary, the letters from the firm advised that inaction would lead to the firm's withdrawal and retraction of the settlement offer. Thus, the disputed facts were material. For that reason, the motion could not be decided without an evidential hearing. Wolkoff, supra, 288 N.J. Super. at 290; see Nolan, supra, 120 N.J. at 474. Accordingly, we must remand for further proceedings.

Without expressing any opinion of facts that must be determined after a hearing, we appreciate the difficult position in which attorneys and the trial court are placed in any case that might present circumstances of the sort described in the certifications submitted below. The Supreme Court's discussion of the distinction between the role of the attorney and the role of a guardian ad litem in In re M.R., 135 N.J. 155, 171-79 (1994), and Rule 4:26-2, which governs the appointment of a guardian ad litem and specifies the procedures to be employed in making such an appointment, provide important guidance for all involved. Fundamental procedural protections, such as prior notice to a client who is not present in court, cannot be overlooked. Moreover, if the relationship between the client and his or her attorney becomes adversarial, proper applications to withdraw and intervene should be filed.

The additional points raised by plaintiff on appeal lack sufficient merit to warrant discussion in a written opinion.

R. 2:11-3(e)(1)(E).

The matter is remanded for further proceedings. We do not retain jurisdiction.

 

Although Saltz Polisher did not file a motion to intervene below or on appeal, they opposed the appeal and argued. On our motion, we grant the firm leave to intervene

as if timely requested.

The attorney for RCG and Stickley signed the order, which was prepared by the firm. They consented "to the form and entry of th[e] Consent Order."

Plaintiff has included in her appendix on appeal certifications executed by her sister and her father about her capacity during the relevant time period and their respective communications with Saltz. We have not considered these documents, which were not part of the record below.

Saltz's argument included new assertions of fact that were based on information provided to her by persons who were not before the court and had not submitted certifications.

(continued)

(continued)

12

A-0775-05T2

December 21, 2006