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ALBERT THOMAS

User Name: ALBERT THOMAS

Date and Time: Wednesday, April 26, 2017 12:30:00 PM EDT

Job Number: 46899796

Document (1)

1. In re Forrest, 158 N.J. 428

Client/Matter: -None-

Search Terms: In re Forrest, 158 N.J. 428

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ALBERT THOMAS

PositiveAs of: April 26, 2017 4:30 PM Z

In re Forrest

Supreme Court of New Jersey

January 21, 1999, Argued ; June 11, 1999, Decided

D-16 September Term 1998

Reporter158 N.J. 428 *; 730 A.2d 340 **; 1999 N.J. LEXIS 668 ***

IN THE MATTER OF ROBERT J. FORREST, AN ATTORNEY AT LAW.

Prior History: [***1] On an Order to show cause why respondent should not be disbarred or otherwise disciplined.

Core Termsarbitrator, tribunal, material fact, settlement, misrepresentation, inform, suspension, fail to disclose, ethical, opposing counsel, practice of law, Disciplinary, negotiation

Case Summary

Procedural Posture

Respondent appeared on an order to show cause why disciplinary action under R.P.C. 3.3(a)(5), 3.4(a), and 8.4(c) should not be taken as recommended by the Disciplinary Review Board.

OverviewRespondent attorney appeared on an order to show cause why he should not be subject to disciplinary sanction for his failure to disclose the death of his client to the court, an arbitrator, and opposing counsel over a period of nine months in connection with his representation of deceased and his wife in a negligence action. Respondent acknowledged he acted imprudently, but contended his actions were mitigated by the fact he acted out of a desire to zealously advocate his clients' interests and made no misrepresentations, but merely withheld certain information. The court rejected respondent's argument and found he knowingly failed to disclose to the tribunal a material fact with knowledge it would be misled by such failure. The court determined the fact the violation

occurred before an arbitrator did not render the rule inapplicable when arbitration was a substitution of one tribunal for another in the ordinary processes of law. The court explained respondent's misrepresentation to a tribunal was a most serious breach of ethics because it directly affected the administration of justice. The court determined a six month suspension was warranted.

OutcomeThe court entered an order which suspended respondent attorney for six months for his knowing misrepresentation of the material fact of his client's death to the court, an arbitrator, and opposing counsel because such action was a serious breach of ethics which directly affected the administration of justice.

LexisNexis® Headnotes

Legal Ethics > Professional Conduct > Tribunals

Legal Ethics > Sanctions > General Overview

Legal Ethics > Sanctions > Disbarments

HN1[ ] An attorney also owes an affirmative duty of candor and frankness to the court and opposing counsel when such a major event as the death of the plaintiff has taken place.

Legal Ethics > Sanctions > General Overview

HN2[ ] An attorney shall not knowingly fail to disclose to the tribunal a material fact with knowledge that the tribunal may tend to be misled by such failure under R.P.C. 3.3(a)(5).

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Business & Corporate Compliance > ... > Pretrial Matters > Alternative Dispute Resolution > Mandatory ADR

Legal Ethics > Sanctions > General Overview

HN3[ ] The fact that a violation occurred before an arbitrator as opposed to a court does not render a rule inapplicable. Arbitration is a substitution of another tribunal for the tribunal provided by the ordinary processes of law.

Civil Procedure > Sanctions > General Overview

Civil Procedure > Sanctions > Misconduct & Unethical Behavior > General Overview

Legal Ethics > Sanctions > Disciplinary Proceedings > Hearings

HN4[ ] In determining the appropriate sanction in attorney disciplinary matters, the court considers the seriousness of the ethical infractions, the circumstances surrounding the misconduct, and the respondent's record and reputation.

Legal Ethics > Sanctions > General Overview

HN5[ ] A misrepresentation to a tribunal is a most serious breach of ethics because it affects directly the administration of justice.

Syllabus

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

In the Matter of Robert J. Forrest (D-16-98)

Argued January 21, 1999 -- Decided June 11, 1999

PER CURIAM

This attorney disciplinary case arises from a complaint filed by the District XIII Ethics Committee (DEC).

Respondent, Robert J. Forrest, who was admitted to practice in 1984, was retained by Robert and Mary Ann Fennimore, husband and wife, to represent them in a

personal injury action resulting from an automobile accident in which they were both injured. On April 5, 1993, the firm at which respondent worked filed a complaint against the driver of the other vehicle [***2] involved in the accident, in which it was alleged that Mr. Fennimore suffered permanent injuries. Thereafter, between April 1993 and December 1993, Robert Fennimore died for reasons unrelated to the accident. Mrs. Fennimore informed respondent of her husband's death.

In December 1993, knowing of Mr. Fennimore's death, respondent served unsigned answers to interrogatories on his adversary, Christopher Walls, Esq. Neither the answers nor the cover letter indicated that Mr. Fennimore had died.

On June 8, 1994, respondent and Mrs. Fennimore appeared at a mandatory automobile arbitration proceeding. Prior to the proceeding, respondent advised Mrs. Fennimore that she should not voluntarily reveal her husband's death in her testimony before the arbitrator. When the arbitrator inquired about Mr. Fennimore's absence, respondent replied that he was "unavailable." The arbitrator entered awards in favor of both Mr. and Mrs. Fennimore.

Following the arbitration, respondent contacted Walls to discuss possible settlement. Again, he did not inform Walls of Mr. Fennimore's death. Thereafter, between January and August 1994, Walls propounded several requests on respondent to produce [***3] Mr. Fennimore for a medical examination. Respondent did not reply to those requests. Walls therefore filed a motion to compel Mr. Fennimore to appear for an examination. Respondent did not oppose or otherwise reply to that motion, and the court entered an order requiring Mr. Fennimore to appear for an examination on October 4, 1994.

Following the entry of that order, respondent again contacted Walls to further discuss settlement. Again, he did not disclose Mr. Fennimore's death. Respondent finally informed Walls of Mr. Fennimore's death when Fennimore failed

to appear for the court-ordered medical examination.

While respondent admitted that he acted imprudently when he failed to disclose Mr. Fennimore's death to the court, the arbitrator, and opposing counsel, he contended that he acted only out of a desire to enhance the recovery for his clients. He further maintained that he made no misrepresentations throughout the matter

158 N.J. 428, *428; 730 A.2d 340, **340; 1999 N.J. LEXIS 668, ***1

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but merely withheld certain information, a negotiation technique he described as "bluffing" and "puffing."

The DEC found that respondent's conduct in the matter violated the Rules of Professional Conduct (RPCs), specifically RPC 3.3(a)(5) [***4] (failure to disclose material fact to a tribunal); RPC 3.4(a) (obstructing a party's access to evidence of potential evidentiary value); and RPC 8.4(c) (conduct involving dishonesty, fraud, deceit or misrepresentation). The DEC recommended that respondent be reprimanded for his violations.

In December 1997, the Disciplinary Review Board (DRB) held a hearing in the matter, at which respondent waived his appearance. The DRB issued its decision in June 1998 concluding that respondent's conduct warranted a three-month suspension. Respondent filed a Petition for Review of the DRB's decision, which the Supreme Court denied.

Pursuant to R. 1:20-16(b), the Supreme Court issued an order to show cause why respondent should not be disbarred or otherwise disciplined.

HELD: Respondent's conduct in withholding the material fact of his client's death was misleading and violative of RPC 3.3(a)(5) and RPC 3.4(a), and RPC 8.4(c), for which he is suspended for a period of six months.

1. Although an attorney has an affirmative duty to zealously represent a client's interests, he also owes an affirmative duty of candor and frankness to the court and opposing counsel. (pp. 6-8)

2. [***5] Respondent violated RPC 3.3(a)(5) when he withheld the material fact of Mr. Fennimore's death from the arbitrator, and the fact that the violation occurred before an arbitrator as opposed to a court does not render the rule inapplicable. (pp. 8-10)

3. Respondent obstructed opposing counsel's access to potentially valuable evidence, in violation of RPC 3.4(a), by failing to inform him that Fennimore was deceased. (p.10)

4. Respondent engaged in conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of RPC 8.4(c). (p. 11)

5. Attorneys must possess a certain set of traits -- honesty and truthfulness, trustworthiness and reliability, and a professional commitment to the judicial process

and the administration of justice. A misrepresentation to a tribunal is a most serious breach of ethics because it affects directly the administration of justice. (pp. 11-13)

6. Misrepresentation of a material fact to an adversary or a tribunal in the name of "zealous representation" never has been nor ever will be a permissible litigation tactic. (pp. 13-14)

CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI, STEIN, and COLEMAN join [***6] in this PER CURIAM opinion.

Counsel: Tangerla Mitchell Thomas, Deputy Ethics Counsel, argued the cause on behalf of the Office of Attorney Ethics.

David B. Rubin, argued the cause for respondent.

Judges: Chief Justice PORITZ and Justices HANDLER, POLLOCK, O'HERN, GARIBALDI, STEIN, and COLEMAN. COLEMAN join in this opinion.

Opinion

[*430] [**341] PER CURIAM.

This attorney discipline proceeding arises from a complaint filed by the District XIII Ethics Committee (DEC) against respondent Robert J. Forrest. The DEC issued a report, finding that respondent had engaged in unethical conduct warranting a public reprimand. The matter proceeded to a hearing before the Disciplinary Review Board (DRB). The DRB found that respondent had failed to disclose a material fact to a tribunal, obstructed a party's access to evidence of potential value, and engaged in conduct involving deceit, dishonesty and misrepresentation. The DRB recommended that respondent be suspended from the practice of law for three months, thereby rejecting the DEC's recommendation that respondent be reprimanded.

I

In 1984, respondent was admitted to the New Jersey bar. At the time the ethics complaint was filed, respondent practiced with the law [***7] firm of Lieberman & Ryan in Somerville. In March 1993, [*431] Robert and Mary Ann Fennimore, husband and wife, retained Lieberman & Ryan to represent them in a personal injury action resulting from a car accident in which the Fennimores' car had been hit by another vehicle. The Fennimores, both of whom were in the car

158 N.J. 428, *428; 730 A.2d 340, **340; 1999 N.J. LEXIS 668, ***3

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at the time of the accident, sought to recover from the driver of the other car. Mr. Fennimore claimed that as a result of the accident he suffered a rotator cuff tear, limitation of movement in his right ring finger, limitation of strength in his left shoulder, chronic cervical strain, and headaches. He further claimed that all of his injuries were "permanent." The scope of Mrs. Fennimore's injuries is not reflected by the record.

On April 5, 1993, Lieberman & Ryan filed a complaint against the driver of the other car on behalf of the Fennimores. [**342] Respondent was assigned to work on the Fennimores' file.

Mr. Fennimore died sometime between April 1993 and December 1993, for reasons unrelated to the car accident. (The record does not indicate the specific date of death.) Mrs. Fennimore notified respondent of her husband's death.

In December 1993, respondent, knowing of Mr. [***8] Fennimore's death, served unsigned answers to interrogatories, entitled "Plaintiff Robert A. Fennimore's Answers to Defendant's . . . Interrogatories," on his adversary, Christopher Walls, Esq. Neither the answers nor the cover letter indicated that Mr. Fennimore had died.

On June 8, 1994, respondent and Mrs. Fennimore appeared at an arbitration proceeding apparently conducted pursuant to Rule 4:21A (mandating arbitration in automobile negligence actions with amount in controversy less than $ 15,000 and other personal injury actions with amount in controversy less than $ 20,000). Before the proceeding, respondent advised Mrs. Fennimore that when she testified she should not voluntarily reveal her husband's death. When the arbitrator inquired about Mr. Fennimore's absence, respondent replied that Mr. Fennimore was "unavailable." The arbitrator awarded $ 17,500 to Mrs. Fennimore and $ 6000 to Mr. Fennimore. At no time before, during, or after the [*432] arbitration proceeding did respondent or Mrs. Fennimore inform the arbitrator that Mr. Fennimore had died.

After the arbitration, respondent contacted Walls to discuss a possible settlement. Again, respondent did not inform Walls of Mr. Fennimore's [***9] death.

From January to August 1994, Walls propounded several requests on respondent to produce Mr. Fennimore for a medical examination, but respondent did not reply to those requests. Consequently, Walls filed a motion with the trial court to compel Mr.

Fennimore to appear for a medical examination. Respondent did not oppose or otherwise reply to the motion, and the court entered an order on September 9, 1994, that directed Mr. Fennimore to submit to a medical examination on October 4, 1994. After the order was entered, respondent did not disclose Mr. Fennimore's death but nevertheless contacted Walls to further discuss settlement. Only when Mr. Fennimore failed to appear for the court-ordered medical examination did respondent inform Walls of Mr. Fennimore's death.

The DEC found respondent's conduct in handling the Fennimore matter to be unethical and concluded that respondent violated certain Rules of Professional Conduct (RPC), specifically RPC 3.3(a)(5) (failure to disclose material fact to tribunal), RPC 3.4(a) (obstructing party's access to evidence of potential evidentiary value), and RPC 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit or misrepresentation). [***10] The DEC recommended that respondent be publicly reprimanded.

In December 1997, the DRB held a hearing in the matter, at which respondent waived his appearance. The DRB issued its decision in June 1998, and concluded that respondent's conduct warranted a three-month suspension. We denied respondent's petition for review of the DRB's decision.

Respondent appears before this Court on an order to show cause why he should not be disbarred or otherwise disciplined. Respondent admits that he acted imprudently when he failed to [*433] disclose Mr. Fennimore's death to the court, the arbitrator, and opposing counsel. Respondent argues, however, that certain circumstances mitigate his conduct. Specifically, respondent contends that he acted out of a desire to enhance the recovery for his clients and always had his clients' best interests in mind; that he made no misrepresentations throughout the Fennimore matter but merely withheld certain information, a negotiation technique he describes as "bluffing" and "puffing"; and that he did not knowingly or intentionally [**343] violate the Rules of Professional Conduct. Respondent has expressed regret for his misguided conduct in failing to disclose Mr. Fennimore's [***11] death.

II

A

The failure to disclose a material fact to a tribunal is an ethical violation under RPC 3.3(a)(5). Respondent

158 N.J. 428, *431; 730 A.2d 340, **341; 1999 N.J. LEXIS 668, ***7

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violated that rule when he failed to inform the trial court that opposing counsel's motion to compel Mr. Fennimore to appear for a doctor's examination was moot.

We find guidance in Virzi v. Grand Trunk Warehouse & Cold Storage Co., 571 F. Supp. 507, 512 (E.D.Mich.1983), in which the court held that, under the relevant rule of professional conduct, plaintiff's attorney had an affirmative duty to disclose the fact of his client's death to the court and his adversary. The attorney in Virzi, after learning of his client's death, appeared before the court at a pretrial conference and entered into a settlement agreement without notifying the court or opposing counsel of plaintiff's death. Id. at 508. In setting aside the settlement, the court held that "[b]y not informing the [c]ourt of plaintiff's death . . ., plaintiff's attorney led this [c]ourt to enter an order of a settlement for a non-existent party." Id. at 511-12. Acknowledging that an attorney has an affirmative duty to zealously represent a client's interests, the court noted that HN1[

] an attorney [***12] "also owes an affirmative duty of candor and frankness to the [*434] [c]ourt and opposing counsel when such a major event as the death of the plaintiff has taken place." Id. at 512; see also Toledo Bar Ass'n v. Fell, 51 Ohio St. 2d 33, 364 N.E.2d 872, 873 (1977) (imposing indefinite suspension from practice of law on Workmen's Compensation attorney who "understood that it had been the long established practice . . . to deny any claim for permanent-total disability benefits upon notice of the death of the claimant, [and] deliberately withheld information concerning his client's death prior to the hearing on the motion concerning the claim"); American Bar Association, Formal Opinion No. 95-397 (1995) (advising that, when client dies in midst of settlement negotiations, lawyer has duty to inform court and opposing counsel of death in first communication to either); In re Jeffers, 1995 Cal. LEXIS 2593, 1994 WL 715918 (Cal. Review Dept. of State Bar Court Dec.16, 1994) (imposing two-year probation on attorney who failed to inform court of client's death and represented to court during settlement discussions that he could not communicate with client because "client's brain was not functioning").

[***13] We note that the relevant rule of professional conduct at issue in Virzi, supra, 571 F. Supp. at 509 --Rule 3.3 of the American Bar Association's Model Rules of Professional Conduct--provides, in relevant part, that a "lawyer shall not knowingly make a false statement of material fact or law to a tribunal . . . [nor] fail to disclose a material fact to a tribunal when disclosure is

necessary to avoid assisting a criminal or fraudulent act by the client." In contrast, our corresponding rule, RPC 3.3, provides, in relevant part, that HN2[ ] an attorney "shall not knowingly fail to disclose to the tribunal a material fact with knowledge that the tribunal may tend to be misled by such failure." RPC 3.3(a)(5). In view of New Jersey's even more stringent requirement of disclosure than the standard set forth by the Model Rules cited in Virzi, we hold that respondent's withholding of the material fact of Mr. Fennimore's death was misleading and violative of RPC 3.3(a)(5).

In addition, respondent violated RPC 3.3(a)(5) when he withheld the fact of Mr. Fennimore's death from the arbitrator. HN3[ ] [*435] The fact that the violation occurred before an arbitrator as opposed to a court does not render [***14] the rule inapplicable. Arbitration is "a substitution . . . of another tribunal for the tribunal provided by the ordinary processes of law." Barcon Assocs. v. Tri-County Asphalt Corp., 86 N.J. 179, 187, 430 A.2d 214 (1981) (quoting Eastern Eng'g Co. v. City of Ocean City, [**344] 11 N.J. Misc. 508, 510, 167 A. 522 (Sup.Ct.1933)). An arbitrator acting pursuant to Rule 4:21A has the power to issue subpoenas, compel the production of relevant documentary evidence, administer oaths and affirmations, determine the law and facts of the case, and generally exercise the powers of a court in the management and conduct of the hearing.

Moreover, in an effort to offset rising litigation costs and overcrowded dockets, arbitration has become an integral part of the New Jersey judicial system. Less formal and less costly than litigation, see Zirger v. General Accident Ins. Co., 144 N.J. 327, 342, 676 A.2d 1065 (1996), arbitration is now mandated in certain automobile negligence and personal injury actions. See R. 4:21A-1(a). The effectiveness of arbitration as an alternative to formal litigation clearly would be undermined if counsel did not deal candidly with arbitrators.

We view respondent's proffer [***15] to the arbitrator that Mr. Fennimore was "unavailable" for the arbitration hearing as nothing less than a concealment of the material fact that Mr. Fennimore was deceased. Unquestionably, the arbitrator would have been compelled to consider Mr. Fennimore's death in determining the amount of any monetary award. Additionally, we note that the cause of action originally filed on behalf of Mr. Fennimore--an automobile negligence/personal injury action--would have been transformed into a survivor's action upon Mr.

158 N.J. 428, *433; 730 A.2d 340, **343; 1999 N.J. LEXIS 668, ***11

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Fennimore's death. See N.J.S.A. 2A:15-3. To withhold information about Mr. Fennimore's death from the arbitrator effectively prevented the arbitrator from properly discharging his responsibilities under the court rules.

[*436] B

As did the DEC and the DRB, we find that respondent obstructed opposing counsel's access to potentially valuable evidence, in violation of RPC 3.4(a), by failing to inform opposing counsel that Mr. Fennimore was deceased. Respondent deliberately misled his adversary by serving answers to interrogatories propounded on Mr. Fennimore without disclosing that his client was deceased. Respondent exacerbated that deception by attempting to negotiate a settlement [***16] of the claim although his adversary remained uninformed of Mr. Fennimore's death. As the court observed in Virzi, supra, the attorney

did not make a false statement regarding the death of plaintiff. He was never placed in a position to do so because during the . . . settlement negotiations defendants' attorney never thought to ask if plaintiff was still alive. Instead, in hopes of inducing settlement, [he] chose not to disclose plaintiff's death. . . . But the fact of plaintiff's death . . . would have had a significant bearing on defendants' willingness to settle.

[571 F. Supp. at 511.]

We also find that respondent engaged in conduct involving dishonesty, deceit, and misrepresentation, in violation of RPC 8.4(c). Respondent misrepresented to the arbitrator the reasons for Mr. Fennimore's absence at the arbitration proceeding, encouraged Mrs. Fennimore to withhold from the arbitrator the fact of her husband's death, and misled opposing counsel throughout the discovery and negotiation process.

III

The principal goal of disciplinary proceedings is to foster and preserve public confidence in the bar, In re Hasbrouck, 152 N.J. 366, 371, 705 A.2d 350 [***17] (1998), and to protect the public from an attorney who does not meet the high standards of professional responsibility, In re Stout, 75 N.J. 321, 325, 382 A.2d 630 (1978). HN4[ ] In determining the appropriate sanction in attorney disciplinary matters, we consider the seriousness of the ethical infractions, the circumstances surrounding the misconduct, and the

respondent's [*437] record and reputation. In re Whitmore, 117 N.J. 472, 479, [**345] 569 A.2d 252 (1990); Stout, supra, 75 N.J. at 325, 382 A.2d 630.

Attorneys must "possess a certain set of traits--honesty and truthfulness, trustworthiness and reliability, and a professional commitment to the judicial process and the administration of justice." Application of Matthews, 94 N.J. 59, 77, 462 A.2d 165 (1983). Attorneys who have demonstrated a temporary or permanent lack of those traits have been sanctioned severely by this Court. See, e.g., In re Lunn, 118 N.J. 163, 169, 570 A.2d 940 (1990) (imposing three-year suspension on attorney who forged statement of his deceased wife in personal injury action); In re Edson, 108 N.J. 464, 473, 530 A.2d 1246 (1987) (disbarring attorney who fabricated defense for client, lied to prosecutor, [***18] and allowed client to perjure himself at trial).

HN5[ ] A misrepresentation to a tribunal "is a most serious breach of ethics because it affects directly the administration of justice." In re Johnson, 102 N.J. 504, 510, 509 A.2d 171 (1986). Accordingly, we have recognized that "the destructive potential of such conduct to the justice system warrants stern sanctions." Id. at 511, 509 A.2d 171. In Johnson, respondent misrepresented facts to a trial court in order to secure an adjournment. In imposing a three-month suspension from the practice of law, the Court found that respondent's deliberate misrepresentations "not only prejudiced his clients but demeaned the entire legal profession." Id. at 510, 509 A.2d 171. Similarly, in In re Kernan, 118 N.J. 361, 369, 571 A.2d 1282 (1990), respondent, who was representing himself pro se in a divorce action, received a three-month suspension for failing to inform the court that he had transferred certain property to his mother. Respondent revealed the transfer only after he was directly questioned by the court regarding the matter. Id. at 363, 571 A.2d 1282; cf. In re Mark, 132 N.J. 268, 624 A.2d 1368 (1993) (imposing three-month suspension for oral and written [***19] misrepresentations to court and adversary).

In the instant matter, respondent concealed a material fact from the court and arbitrator. That concealment was compounded by [*438] respondent's misrepresenting to the arbitrator the reasons for Mr. Fennimore's absence at the hearing, encouraging Mrs. Fennimore to evade questions about her husband's death, and obstructing Walls's access to the fact of Mr. Fennimore's death. Respondent's misconduct extended far beyond adversarial tactics that might constitute acceptable

158 N.J. 428, *435; 730 A.2d 340, **344; 1999 N.J. LEXIS 668, ***15

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"puffing" or "bluffing." Respondent's nondisclosure of Mr. Fennimore's death deceived both his adversary and the arbitrator about a fact that was crucial to the fair and proper resolution of the litigation.

Respondent received a private reprimand in 1991 for the "inadvertent invasion of client funds" and failure to maintain attorney business records in accordance with generally accepted accounting practices. He has not been involved in any other disciplinary proceeding since this matter arose. Nevertheless, respondent has failed to demonstrate any circumstances that might mitigate or excuse his ethical lapse. Respondent's conduct was not an isolated incident but occurred over [***20] a period of at least nine months. Respondent engaged in a continuing course of dishonesty, deceit, and misrepresentation. See In re Kornreich, 149 N.J. 346, 368, 693 A.2d 877 (1997) (imposing three-year suspension when attorney repeatedly and consistently misrepresented her involvement in automobile accident). Respondent's deception of his adversary and the arbitrator is inexcusable, and the contention that it occurred because of a sincere but misguided attempt to obtain a permissible tactical advantage in a lawsuit strains our credibility. Misrepresentation of a material fact to an adversary or a tribunal in the name of "zealous representation" never has been nor ever will be a permissible litigation tactic.

We believe that respondent now understands the gravity of his misdeeds. [**346] Nonetheless, respondent's ethical transgressions are serious, and he must be sanctioned accordingly. We conclude that respondent should be suspended from the practice of law for six months. Respondent is also ordered to reimburse the Disciplinary Oversight Committee for appropriate administrative costs.

[*439] CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI, STEIN, and COLEMAN join in [***21] this PER CURIAM opinion.

ORDER

It is ORDERED that ROBERT J. FORREST of SOMERVILLE, who was admitted to the bar of this State in 1984, is hereby suspended from the practice of law for a period of six months, effective July 5, 1999, and until the further Order of the Court; and it is further

ORDERED that respondent be restrained and enjoined from practicing law during the period of his suspension

and that he comply with Rule 1:20-20 governing suspended attorneys; and it is further

ORDERED that respondent reimburse the Disciplinary Oversight Committee for appropriate administrative costs incurred in the prosecution of this matter.

WITNESS, Honorable Deborah T. Poritz, Chief Justice, at Trenton, this 11th day of June, 1999./s/ Gail G. Haney

End of Document

158 N.J. 428, *438; 730 A.2d 340, **345; 1999 N.J. LEXIS 668, ***19

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ALBERT THOMAS

User Name: ALBERT THOMAS

Date and Time: Wednesday, April 26, 2017 12:16:00 PM EDT

Job Number: 46898718

Document (1)

1. Field v. Wal-Mart Stores, Inc., 2012 N.J. Super. Unpub. LEXIS 1728

Client/Matter: -None-

Search Terms: Field v. Walmart, 2012 NJ Super Unpub LEXIS 1728

Search Type: Natural Language

Narrowed by:

Content Type Narrowed byCases Court: New Jersey

ALBERT THOMAS

No Shepard’s Signal™As of: April 26, 2017 4:16 PM Z

Field v. Wal-Mart Stores, Inc.

Superior Court of New Jersey, Law Division, Hunterdon County

July 13, 2012, Argued; July 13, 2012, Decided

Docket No. HNT-L-6-12

Reporter2012 N.J. Super. Unpub. LEXIS 1728 *

Joyce Field and Dean Field v. Wal-Mart Stores, Inc., et al

Notice: NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE COMMITTEE ON OPINIONS.

PLEASE CONSULT NEW JERSEY RULE 1:36-3 FOR CITATION OF UNPUBLISHED OPINIONS.

Judges: [*1] Honorable Peter A. Buchsbaum, J.S.C.

Opinion by: Peter A. Buchsbaum

Opinion

Memorandum of Decision on Motion

The Honorable Peter A. Buchsbaum, J.S.C.

Facts and Procedural Posture:

The present action stems from injuries allegedly sustained by Joyce Field ("plaintiff") at a Wal-Mart Store ("defendant") located in Flemington, NJ. Plaintiff filed a complaint in January 2012 with answers timely filed by defendant. Both parties freely admit that settlement discussions occurred after the complaint and answer were filed and a settlement agreement was reached. Plaintiff now files this motion to enforce the settlement and defendant has cross-moved to enforce the settlement as well, but under different terms.

The undisputed facts of the settlement agreement are as follows. On May 4, 2012, plaintiff and defendant verbally agreed to settle the case for the sum of $30,000. The conversation between both parties' legal counsel which led to the settlement focused on the amount of money, the use of the money by plaintiff to pay off an ERISA lien, and a release of all claims by the plaintiff related to the incident. Plaintiff did not ask if there were any additional terms of the agreement, nor

did defendant provide any information [*2] as any additional terms defendant would require as part of the settlement. Def. Cert., June, 8 2012 ¶9, 14; Pl. Cert., July 8, 2012, ¶11.

On May 9, 2012, defendant sent to plaintiff a four page document entitled, "Full and Final Confidential Settlement, Release of All Claims and Indemnity Agreement" (hereinafter "the Release"). Defendant required plaintiff to sign the Release as part of the settlement. The Release included three provisions which plaintiff found objectionable on the grounds they were not agreed to as part of the settlement conversation. These terms are an indemnification provision requiring plaintiff to hold defendant harmless from any other claims brought by other parties related to the January 2010 incident; a confidentiality requirement preventing plaintiff from disclosing any information about the settlement; and a choice of law provision selecting Arkansas law as the rules by which the agreement would be enforced. Pl. Exh. A. Plaintiff sent a letter to defendant on May 22, 2012 stating the indemnity, confidentially, and choice of law provisions were never discussed as part of the settlement negotiations and were not acceptable. Pl. Exh. D. The letter included a [*3] signed copy of the Release with the objected to provisions struck and a request for the edited release to be executed. Defendant responded to this request in a letter dated May 29, 2012, where it declined to accept plaintiff's revisions. The letter stated the Release is "a standard Release that Wal-Mart uses in all personal injury litigation," and that the "provisions contained therein ... are fair and reasonable." Pl. Exh. E.

Plaintiff then filed this motion to enforce the settlement as agreed to on May 4, 2012. This motion is based on the grounds that defendant never stated its requirement for an indemnification section, confidentially clause, or a choice of law provision as part of those discussions. Had defendant made this intention known at the time of the settlement discussion, plaintiff claims she would not

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ALBERT THOMAS

have accepted the $30,000 agreement. Plaintiff further asserts that the confidentially provision violates prior precedent, the New Jersey Rules of Court, and would trigger tax implications for plaintiff. Moreover, plaintiff contends the legal selection clause should not apply to the settlement agreement since defendant consented to New Jersey law when it filed its answer. [*4] Lastly, plaintiff's counsel provides a copy of a previously negotiated settlement on a different matter with defendant which did not use the Release form in question Pl. Exh. F. Plaintiff states the terms of that agreement included indemnification as part of the settlement negotiations from the beginning, unlike the case here. Pl. Cert. ¶22. Plaintiff seeks attorney fees and court costs associated with this motion.

Defendant filed a cross-motion to enforce the settlement under the terms of the release as originally drafted. Defendant claims the provisions of the Release objected to by plaintiff are justified for several reasons. First, the indemnification provision only applies to the claims related to this incident and is necessary in case there are other liens against plaintiff stemming from the alleged injury which defendant is unaware of. Second, the confidentially agreement is necessary to "prevent an onslaught of claims that might arise if everyone, including attorneys, who received a settlement from Wal-Mart were permitted to disclose it." Pl. Exh. E. Further, defendant points out that the Release as constituted provides an exemption for tax disclosure. Defendant also notes the [*5] choice of law provision is necessary as defendant is headquartered in Arkansas and therefore should be allowed to apply the law of the state where it is principally located. Lastly, defendant contends the prior settlement between plaintiff's legal counsel and different legal counsel on behalf of defendant show plaintiff's counsel was aware an indemnity clause would be sought. As such, plaintiff cannot now claim ignorance. Defendant also seeks attorney's fees and court costs associated with this motion.

In her reply brief, plaintiff reiterates her contention that the provisions in question were never part of the settlement discussions. Plaintiff reasserts it was defendant's obligation to provide the all terms it sought as part of the settlement discussion at the time that discussion took place.

Analysis:

Plaintiff's Motion to Enforce the Settlement

A disputed motion to enforce a settlement should be treated under the same standard as a motion for summary judgment in that "a hearing is to be held to establish the facts unless the available competent evidence, considered in a light most favorable to the non-moving party, is insufficient to permit the judge, as a rational factfinder, to resolve [*6] the disputed factual issues in favor of the non-moving party." Amatuzzo v. Kozmiuk, 305 N.J. Super. 469, 474-75, 703 A.2d 9 (App. Div. 1997). New Jersey courts favor the settlement of cases and treat an agreed upon settlement as a contract that should be honored unless there is fraud or other compelling circumstances. See Honeywell v. Bubb, 130 N.J. Super. 130, 136, 325 A.2d 832 (App. Div. 1974); Willingboro Mall, Ltd. v. 240/242 Franklin Ave., LLC, 421 N.J. Super. 445, 451, 24 A.3d 802 (App. Div. 2011).

When parties reach a settlement agreement with certain and specific terms, that agreement should be enforced. Hagrish v. Olson, 254 N.J. Super. 133, 137, 603 A.2d 108 (App. Div. 1992) (emphasis added). Failure to execute a written document does not void the original agreement, nor does it make it deficient from the outset, because execution of a release is "a mere formality, not essential to formation of the contract of settlement." Id. at 138. Rather, the parties "objective intent" governs because the "contracting party is bound by the apparent intention he or she outwardly manifests to the other party. It is immaterial that he or she has a different, secret intention from that outwardly manifested." Id. See also, Jennings v. Reed, 381 N.J. Super. 217, 229, 232, 885 A.2d 482 (App. Div. 2005)(when [*7] there is no disagreement with the bargain struck, the settlement should be upheld even when there is no release document or formalization of the terms on the court record).

This Court first considers the plaintiff's motion using the above standards. The facts are well developed and undisputed. From the certifications and supporting evidence presented, plaintiff and defendant admit that a settlement for $30,000 was reached on May 4, 2012. Further, nowhere does defendant dispute that terms of the May 4th settlement were for plaintiff to release defendant from liability and plaintiff was to use the settlement to pay off the medical lien related to the claim. Taking that available evidence in a light most favorable to the non-moving party and applying the relevant law, the dispute must be resolved in favor of the plaintiff.

Although not cited by either plaintiff or defendant, the

2012 N.J. Super. Unpub. LEXIS 1728, *3

Page 3 of 4

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facts and decision in Hagrish are analogous, instructive, and applicable to the case at hand. In Hagrish, the two parties reached a verbal settlement but that settlement began to break down because certain additional terms could not be agreed upon. 254 N.J. Super. at 136-37. After one party sought to enforce the [*8] settlement, the trial court found no binding settlement agreement was entered into. Id. at 135. However, the Appellate Division reversed because even though there was no written agreement, the verbal agreement was enforceable since the terms were specific and clear: one party would pay a sum of money and the other party would not pursue their appeal. Id. at 138-39.

Just as above, in the instant case a settlement agreement reached on May 4, 2012. This was a contract to settle in its purest form with specific and certain terms. There was an offer, an acceptance, and consideration on both sides. Defendant was to pay plaintiff $30,000 and in return, plaintiff would release defendant from the claims and pay the medical lien resulting from treatment of the injury. There was no mention of indemnification provisions, confidentially clauses, or choice of law selections during these discussions when the terms were reached. Very simply, if defendant wanted to use the Release containing this information, there needed to be some mention of that during the negotiations. Nowhere in the record does it state such a disclosure occurred. Defendant cannot add additional terms which plaintiff finds objectionable [*9] after the agreement has been made. Such action violates the very principles of encouraging settlements and honoring contracts.

Moreover, even if defendant intended to use its standard settlement document from the very beginning of the discussions, Hagrish makes clear that intention is immaterial. All that matters is the objective intent and whether the terms stated are clear and specific. Here, the objective intent and terms between the parties could not be clearer: a payment is to be made from defendant to plaintiff to cover medical bills in return for a release from liability.

As succinctly stated by Judge Stein, "There is no need for further extended proceedings ... The case should come to an end." Hagrish at 139.

Defendant's Cross Motion to Enforce the Settlement

Defendant's petition to enforce the release as drafted contains several fatal flaws when contrasted with the controlling law. First, defendant relies on the fact plaintiff

"did not inquire about the Release or the provisions therefore before the settlement." Def. Cert. at ¶11. However, as noted above, the level of inquiry from plaintiff is not the legal standard by which this Court evaluates the claim. Rather, this Court follows [*10] the concept of what the parties to the agreement objectively believe the intentions are and whether the terms were specific and clear.

Additionally, defendant seeks to enforce a settlement document based upon the fact the terms they seek to include should be allowed. This argument misses the mark. This motion is not based upon whether defendant could have sought these terms as part of a settlement agreement. This matter is about whether the Release proposed by defendant accurately reflected the agreed upon settlement from May 4, 2012. Based upon the analysis above, the Release fails to do so and cannot be enforced as initially drafted.

Moreover, defendant wants this Court to believe that past negotiations with legal counsel on behalf of defendant should have informed plaintiff's negotiations. However, the settlement was not contingent on Walmart's usual terms. Thus, the prior settlement in a different case is irrelevant to the motion at hand. Further, each settlement is unique in its own way and has its own payment terms. All that needs to be considered is whether the terms are clear and specific and the objective intent of the parties is understood. That standard is met.

Perhaps most [*11] importantly, defendant wants to hold plaintiff to a document that was never agreed to by her. Unlike the verbal agreement of May 4, 2012, which was consented to by both parties, plaintiff never agreed to the terms of the Release as composed by defendant. It is particularly absurd for defendant to contend that plaintiff, as a New Jersey resident, would have consented to a choice of law provision selecting Arkansas law to adjudicate any claims related to the Release. To enforce the Release as proposed by defendant would go against the long standing jurisprudence of contract law enforcing the bargain as agreed to.

Conclusion:

Based on the foregoing, plaintiff's motion to enforce the settlement is GRANTED. Plaintiff is to receive the agreed upon sum of $30,000 from defendant, plaintiff is to use the award for payment of the outstanding ERISA lien, and plaintiff is to release defendant from all liability related to the claim. Plaintiff's request for attorney's fees

2012 N.J. Super. Unpub. LEXIS 1728, *7

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is DENIED.

Defendant's cross motion to enforce the settlement is DENIED.

End of Document

2012 N.J. Super. Unpub. LEXIS 1728, *11

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ALBERT THOMAS

User Name: ALBERT THOMAS

Date and Time: Wednesday, April 26, 2017 12:18:00 PM EDT

Job Number: 46898766

Document (1)

1. Hagrish v. Olson, 254 N.J. Super. 133

Client/Matter: -None-

Search Terms: Hagrish, 254 NJ Super 133

Search Type: Natural Language

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ALBERT THOMAS

PositiveAs of: April 26, 2017 4:18 PM Z

Hagrish v. Olson

Superior Court of New Jersey, Appellate Division

November 4, 1991, Submitted ; February 25, 1992, Decided

A-2830-90T5

Reporter254 N.J. Super. 133 *; 603 A.2d 108 **; 1992 N.J. Super. LEXIS 61 ***

JOHN HAGRISH, AN INDIVIDUAL, AND SALLY J. SOHIGIAN (FORMERLY "HAGRISH"), AN INDIVIDUAL, PLAINTIFFS-APPELLANTS, v. EDWIN OLSON AND JOHANNA OLSON, HUSBAND AND WIFE, THE ESTATE OF JOHANNA OLSON, DECEASED, MICHAEL F. RICCARDELLI, AN INDIVIDUAL, FRANK W. GASIOROWSKI, AN INDIVIDUAL, AND JOHN D. DEMASSI, AN INDIVIDUAL, (F/K/A "RICCARDELLI, GASIOROWSKI & DEMASSI"), DEFENDANTS-RESPONDENTS

Subsequent History: [***1] Approved for Publication March 16, 1992.

Prior History: On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County.

Disposition: Reversed and remanded for entry of an order consistent with this opinion.

Core Termssettlement, releases, parties, plaintiffs', settle

Case Summary

Procedural PosturePlaintiff purchasers of a house sought review of a decision of the Superior Court of New Jersey, Law Division, Hunterdon County, which denied their motion to enforce a settlement with defendants, sellers and sellers' law firm.

Overview

The trial judge granted defendants', sellers and sellers' law firm, motion for judgment notwithstanding the verdict in plaintiff purchasers' action seeking return of a deposit on a house. The case settled before plaintiff's appealed, but plaintiffs refused to execute releases. Plaintiffs then

filed a motion to enforce the settlement, which was denied. The court disagreed with the trial judge's conclusion that there was never a binding contract of settlement. The court found that the parties had a settlement agreement with specific terms, that plaintiffs' failure to execute releases did not void the agreement nor render it deficient, and that execution of releases was a mere formality not essential to formation of the contract. The court further found that there was a meeting of the minds despite defendant attorney's undisclosed intention to preserve a right to maintain a lawsuit against plaintiffs under N.J. Stat. Ann. § 2A:15-59 because the parties' objective intent governed. Accordingly, the court reversed the denial of plaintiff's motion and remanded with directions to order enforcement of the settlement.

OutcomeThe court reversed the denial of plaintiff purchaser's motion to order enforcement of their settlement agreement with defendants', sellers and sellers' law firm. The court found that the parties had a binding settlement agreement with specific terms, that plaintiffs' failure to grant releases did not void the agreement nor render it deficient, and that execution of releases was not essential to formation of the contract.

LexisNexis® Headnotes

Contracts Law > Contract Interpretation > General Overview

HN1[ ] So long as the basic essentials are sufficiently definite, any gap left by the parties should not frustrate their intention to be bound.

Contracts Law > Contract Interpretation > General Overview

Page 2 of 4

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Business & Corporate Compliance > ... > Formation of Contracts > Acceptance > Meeting of Minds

HN2[ ] The parties' objective intent governs. A contracting party is bound by the apparent intention he or she outwardly manifests to the other party. It is immaterial that he or she has a different, secret intention from that outwardly manifested.

Legal Ethics > Professional Conduct > Frivolous Claims & Conduct

HN3[ ] The notion of an independent post-settlement or post-judgment frivolous lawsuit action is frivolous. N.J. Stat. Ann. § 2A:15-59.1c requires that applications for litigation costs must be made in the same case in which the applicant prevails. Section 2A:15-59.1c states that a party seeking an award shall make application to the court which heard the matter. The judge who heard the underlying case must make findings that the nonprevailing party acted in bad faith. N.J. Stat. Ann. § 2A:15-59.1b. The purpose of the statute is to limit, not perpetuate, unnecessary lawsuits. An independent post-settlement frivolous lawsuit action would also conflict with the entire controversy doctrine. N.J. Ct. R. 4:30A.

Counsel: Donald P. Fedderly, attorney for appellants.

Howard C. Trueger, attorney for respondents Edwin Olson, Johanna Olson and the Estate of Johanna Olson; Voorhees & Acciavatti, attorneys for respondents Riccardelli, Gasiorowski and DeMassi (Robert W. McAndrew and Howard C. Trueger, of counsel and on the joint brief).

Judges: PETRELLA, R.S. COHEN and ARNOLD M. STEIN.

Opinion by: STEIN

Opinion

[*135] [**109] The opinion of the court was delivered by

ARNOLD M. STEIN, J.A.D.

Plaintiffs appeal the Law Division's order denying their motion to enforce a claimed settlement with defendants. The trial judge concluded that there "never was a binding contract to settle this case . . . ." We reverse and remand for entry of an order enforcing the settlement and dismissing the case.

Plaintiffs purchasers sued defendants sellers, the Olsons, and the Olsons' law firm, Riccardelli, Gasiorowski and DeMassi, seeking return [***2] of a $31,990 deposit they had made on the house sold them by defendants. The case went to trial and a jury [*136] returned a verdict in plaintiffs' favor, finding by special interrogatory that plaintiffs did not breach the real estate contract.

The trial judge set aside the verdict and granted defendants' motion for judgment notwithstanding the verdict pursuant to R. 4:40-2(b).

Before plaintiffs filed an appeal from this ruling, the attorneys for the parties exchanged communications which they and their clients obviously thought resolved the matter. The terms were simple: defendants would pay plaintiffs $7,000; in return, plaintiffs would abandon the appeal.

On June 25, 1990, plaintiffs' lawyer, Donald P. Fedderly, wrote defendants' lawyers (Robert W. McAndrew of Voorhees & Acciavatti for the lawyers and Howard C. Trueger for the Olsons):

This will confirm our settlement discussions of last week in which it was agreed that the captioned matter would be settled by your clients paying to John Hagrish the total sum of $7,000.00.

On June 26, Trueger responded to Fedderly:

This letter will confirm that the above referenced [***3] matter has been settled whereby defendants shall pay to the plaintiffs the sum of $ 7,000.00.. . . .

. . . We, Mr. McAndrew and I, will need general releases from Mr. Hagrish and Ms. Sohigian before disbursing the settlement funds.

Things then became a little testy. On the same day, Trueger wrote to the trial judge:

I understand that Donald P. Fedderly, Esq. has requested the Court not to execute the Order Directing the Clerk of the Superior Court of New Jersey to Disburse Funds on Deposit submitted to you by letter dated June 22, 1990, until he has received a letter from both Mr. McAndrew and me confirming the settlement amount. While the case has in fact been settled, I am of the opinion that Mr. Fedderly's request to the Court is improper, if not

254 N.J. Super. 133, *133; 603 A.2d 108, **108; 1992 N.J. Super. LEXIS 61, ***1

Page 3 of 4

ALBERT THOMAS

insulting. I hereby request that the Order be signed, filed, and a copy be sent to this office without regard to Mr. Fedderly's request. [emphasis added].

On July 2, McAndrew wrote Fedderly:

At this time, please be advised that I am in accord with the statements made in Mr. Trueger's letter of June 26, 1990 to the effect that we will require general releases from John Hagrish and Sally J. Sohigian in favor of [***4] Riccardelli, Gasiorowski and DeMassi, attorneys at law and Michael Riccardelli, an individual, Frank W. Gasiorowski, an individual, and John DeMassi, an individual. [*137] As soon as I have received properly executed releases, I will arrange with Mr. Trueger to forward the settlement draft directly to your attention made payable to John Hagrish and Sally J. Sohigian and Fedderly and Shaw, attorneys. [emphasis added].

In the meantime, on June 28, Fedderly had written Trueger and McAndrew:

I have drafted Releases for the signatures of Sally Sohigian and John Hagrish, and am in the process of obtaining same. Kindly prepare reciprocal Releases for your clients' execution so that we may exchange same sometime next week.

On July 16, McAndrew responded to Fedderly's letter with a copy to Trueger:

In making an order to settle this case on behalf of my clients, it was never contemplated that my clients would execute releases in favor of your clients. Therefore, [**110] I will not be asking them to execute releases in favor of your clients as any part of this settlement.

In November 1990, long after plaintiffs' time for appeal from the judgment notwithstanding [***5] the verdict had expired, Fedderly moved before the Law Division to enforce the $7,000 settlement. On November 27, Trueger wrote Fedderly, with copy to McAndrew:

We received your motion papers on November 23, 1990, more than five (5) months after we asked you for a simple general release from John Hagrish and Sally Sohigian. I have not received that release. There is no question that we always requested a release from the plaintiffs from the outset on behalf of Mr. Olson. If your clients cannot or will not provide a release, please let me know, in writing.

We do not think this case needs another motion.If we do not receive the release from you by Wednesday, November 28, 1990, we will resist your motion.

We disagree with the trial judge's conclusion that there was never a binding contract of settlement. The parties had reached a settlement agreement with certain and specific terms: defendants would pay plaintiffs $7,000 and plaintiffs would not pursue their appeal of the judgment notwithstanding the verdict. The case would be over when the parties fulfilled these simple conditions. Absent unusual circumstances, the courts should enforce executory agreements to settle [***6] litigation. Jannarone v. W.T. Co., 65 N.J.Super. 472, 476-77, 168 A.2d 72 (App.Div.1961).

[*138] Plaintiffs' failure to execute release documents did not void the original agreement, nor did it render it deficient from the outset. Execution of a release was a mere formality, not essential to formation of the contract of settlement. HN1[ ] "So long as the basic essentials are sufficiently definite, any gap left by the parties should not frustrate their intention to be bound." Berg Agency v. Sleepworld-Willingboro, Inc., 136 N.J.Super. 369, 377, 346 A.2d 419 (App.Div.1975).

In the absence of opposing claims such as counterclaims, we would not expect the attorney for the releasor to demand cross-releases from the paying party. Fortunately for plaintiffs, their attorney requested reciprocal releases from these defendants. It turned out that one of the lawyer defendants had a hidden agenda. According to certifications filed in opposition to plaintiffs' motion to enforce the settlement, defendant Gasiorowski never intended to provide a release to plaintiffs because he did not wish to forfeit his right to press a claim against plaintiffs [***7] under the frivolous litigation statute, N.J.S.A. 2A:15-59.1. 1

There was a meeting of the minds despite Gasiorowski's undisclosed intention to preserve a right to maintain a lawsuit against plaintiffs. HN2[ ] The parties' objective intent governs. A contracting party is bound by the apparent intention he or she outwardly manifests to the other party. It is immaterial that he or she has a different, secret intention from that outwardly manifested. Looman Realty Corp. v. Broad St. Nat. Bank of Trenton, 74 N.J.Super. 71, 82, 180 A.2d 524

1 At oral argument on the settlement enforcement motion, counsel for the lawyers expressly stated their clients did not intend to pursue such a claim

254 N.J. Super. 133, *136; 603 A.2d 108, **109; 1992 N.J. Super. LEXIS 61, ***3

Page 4 of 4

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(App.Div.1962).

Furthermore, HN3[ ] the notion of an independent post-settlement or post-judgment frivolous lawsuit action is itself frivolous. The statute requires that applications for litigation costs must be made in the same case in which the applicant prevails. [*139] N.J.S.A. 2A:15-59.1 [***8] c states: "A party seeking an award . . . shall make application to the court which heard the matter." The judge who heard the underlying case must make findings that the nonprevailing party acted in bad faith. N.J.S.A. 2A:15-59.1b.

The purpose of this statute is to limit, not perpetuate, unnecessary lawsuits. Moreover, such an independent claim would also conflict with the entire controversy doctrine. R. 4:30A.

[**111] We again voice our disapproval of attorneys who settle cases without disclosing to the other side the intention of their clients to press undisclosed claims against a settling party. Garde v. Wasson, 251 N.J.Super. 608, 612, 598 A.2d 1253 (App.Div.1991). Such conduct debases the legal profession.

There is no need for further extended proceedings. There is no longer a need for the exchange of releases. The case should come to an end. The order is reversed and the matter is remanded to the Law Division for entry of an order:

1. Requiring immediate payment to plaintiffs of $7,000 plus interest from August 1, 1990, at a rate to be fixed pursuant to R. 4:42-11(a)(ii) [***9] ;

2. Authorizing withdrawal of the required payment to plaintiffs from any funds held in escrow by the Clerk of the Superior Court or elsewhere; and

3. Dismissing with prejudice any and all claims involving these parties which arise from the litigation.

Reversed and remanded for entry of an order consistent with this opinion.

End of Document

254 N.J. Super. 133, *138; 603 A.2d 108, **110; 1992 N.J. Super. LEXIS 61, ***7

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ALBERT THOMAS

User Name: ALBERT THOMAS

Date and Time: Wednesday, April 26, 2017 12:09:00 PM EDT

Job Number: 46897955

Document (1)

1. Polanco v. Dabney, 2015 N.J. Super. Unpub. LEXIS 164

Client/Matter: -None-

Search Terms: 2015 NJ Super. Unpub. LEXIS 164

Search Type: Natural Language

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CitedAs of: April 26, 2017 4:09 PM Z

Polanco v. Dabney

Superior Court of New Jersey, Appellate Division

January 14, 2015, Submitted; January 29, 2015, Decided

DOCKET NO. A-6098-12T1

Reporter2015 N.J. Super. Unpub. LEXIS 164 *

CRISTOBAL J. POLANCO, Plaintiff-Appellant, v. OFFICER DARRYL DABNEY, OFFICER GEORGE ADAMS, OFFICER JEFFREY BRAASCH, OFFICER WILLIAM LOGAN (incorrectly impleaded as Officer Logan Williams), OFFICER FRANK INGARGIOLA, "DEUCE" K-9 OFFICER, CITY OF ATLANTIC CITY and its agents, jointly, severally, and in the alternative, and 40/40 CLUB, Defendants-Respondents.JACQUES POLANCO, Plaintiff-Appellant, v. OFFICER DARRYL DABNEY, OFFICER GEORGE ADAMS, OFFICER ALEXUS SMITH, OFFICER TRACEY, and CITY OF ATLANTIC CITY, Defendants-Respondents.

Notice: NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION.

PLEASE CONSULT NEW JERSEY RULE 1:36-3 FOR CITATION OF UNPUBLISHED OPINIONS.

Prior History: [*1] On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-1986-09.

Core Termssettlement, settle, certif, attorneys, defense counsel, communicated, plaintiffs', courtroom, chambers, morning

Counsel: Cristobal J. Polanco and Jacques Polanco, appellants, Pro se.

Riley and Riley, attorneys for respondents (Michael E. Riley, on the brief).

Judges: Before Judges Waugh, Maven, and Carroll.

Opinion

PER CURIAM

Plaintiffs Cristobal J. Polanco and Jacques Polanco1 appeal from a May 31, 2013 Law Division order that granted their motion for reconsideration, but left undisturbed a March 27, 2013 order enforcing a settlement of the litigation. Plaintiffs contend that they did not authorize their attorneys to accept $25,000 each to settle their claims for injuries resulting from an altercation with defendant Atlantic City police officers. We reverse both orders and remand for a hearing as to whether an enforceable agreement was entered into.

I.

The underlying dispute involves a 2007 altercation outside an Atlantic City nightclub during which plaintiffs contend they were assaulted by several members of the Atlantic City Police [*2] Department, who were also named as defendants. Plaintiffs filed separate actions seeking damages for their personal injuries, which were thereafter consolidated for trial.

Trial commenced with jury selection on December 4, 2012. Plaintiffs testified on December 5, 2012. Before court concluded for the day, settlement negotiations ensued between counsel for the respective parties. At some point, Jacques's attorney, James Wolfe, Esquire, approached the bench and advised the trial judge that $25,000 would resolve the matter. All counsel then entered chambers, where the settlement discussions continued. Agreement was then reached that defendants' counsel, Michael E. Riley, Esquire, would seek authorization from Atlantic City to resolve both matters for $50,000, in which event they would be deemed settled. Riley obtained authority for the settlement early the following morning, and notified the

1 Because plaintiffs share a common surname, at times during this opinion we refer to them by their first names for purposes of clarity and ease of reference. In doing so we intend no disrespect.

Page 2 of 4

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court and plaintiffs' counsel that the matter, which had been adjourned until December 10, was resolved. Consequently, on December 6, 2012, the court entered an order dismissing the case as settled, and discharged the jury.

Plaintiffs promptly objected to the settlement on the basis that they had not [*3] authorized it. On December 6, after the jury had already been discharged and the case dismissed, Cristobal's attorney, Dan Smith, Esquire, advised court staff that there was a problem with the reported settlement. Additionally, by fax correspondence the same day, Wolfe informed the court that "both plaintiffs assert that they never agreed to the settlement of $25,000 each," and sought advice from the court on how to proceed. The trial judge responded to all counsel on December 7, that "the [c]omplaints have been dismissed and the case marked 'settled.' I assume that if any action is to be taken, an appropriate [m]otion will be filed with supporting Certifications."

On December 28, 2012, Cristobal sent a letter to Smith, on which Wolfe was copied. In his letter, Cristobal stated:

Pursuant to our conversation last week and the communication between my brother, Jacques Polanco, and James Wolfe, it is our understanding that you and Mr. Wolfe will file a timely motion to rescind the settlement on our behalf. Please contact us as soon as possible so we can sign the certification which is required with the motion. If there are any problems in getting this done please do not hesitate to contact us as soon as possible [*4] to avoid any further delay.

No motion to vacate the dismissal was filed, and when plaintiffs refused to sign the settlement documents, defendants filed a motion to enforce the settlement, returnable on March 22, 2013. In support of the motion, Riley certified to his discussion with Smith that Cristobal would settle his case for $25,000, and Wolfe's representation to the court that Jacques would also settle for $25,000. Further, Riley averred that during the subsequent conference in chambers, "[i]t was clear . . . that a total settlement of $50,000.00 ($25,000.00 for each plaintiff) would completely resolve this matter."

Defendants' motion went unopposed and on March 27, 2013, the court entered an order enforcing the settlement. In an accompanying written statement of reasons the judge concluded:

In the absence of any suggestion to the contrary,

this [c]ourt assumes for purposes of this opinion that plaintiffs' counsel had their clients' authority to settle the litigation in exchange for the payment of money agreed to by both attorneys. The agreement is a contract, and will be honored "absent a determination of fraud or other compelling circumstances." Plaintiffs' counsel [have] not provided this [*5] [c]ourt with any evidence of . . . fraud, mutual mistake or other compelling circumstances in which to deny enforcement of the settlement agreement. Further, this [c]ourt will not inquire into the adequacy of the consideration underlying a compromise settlement fairly and deliberately made. Lastly, the fact that a settlement agreement has not been memorialized in writing makes it no less a contract where the parties concluded agreement by which they intend to be bound [sic].

Plaintiffs filed a pro se motion for reconsideration, returnable on May 3, 2013, asserting that they never authorized their respective attorneys to settle for $25,000, and faulting counsel for failing to oppose the motion to enforce the settlement and not moving to vacate it. In a supporting certification, Cristobal, himself a licensed attorney, stated:

10. We all broke for lunch [on December 5] and again Mr. Smith and Mr. Wolfe decided to go get lunch on their own. It appeared that Mr. Wolfe had convinced Mr. Smith to settle as he then approached me with the explanation that there was an offer of $25,000.00 and we should take it. . . . He again stressed the fact that there was an offer of $25,000.00 and I told him that I am not [*6] accepting it.11. We then went in the [courtroom] to finish my testimony which consisted of showing videos of that night. However, before I started Mr. Wolfe approached the bench ex-parte and whispered something to the judge. It appears that what he said echoed in the [courtroom] as the microphone was on. Immediately after his statement the judge called a conference in chamber[s] with all attorneys. Mr. Smith and Mr. Wolfe then brought my brother and I into the hall and told us that [d]efendant offered $25,000.00 [each] and will try to get it. I was confused as to why we were having this conversation as I had just told Mr. Smith that $25,000.00 would not settle it. It was never communicated to us that our attorneys made the demand for $25,000.00 or that if [d]efendant was able to get it the case was settled. Also at no point

2015 N.J. Super. Unpub. LEXIS 164, *2

Page 3 of 4

ALBERT THOMAS

did we say that we agreed to the amount as it was expressed to them on several occasions that similar cases would settle for $100,000.00 and more.12. The trial was adjourned and we were told to return on Monday as Mr. Smith had to schedule an expert deposition the next day.. . . .

14. On Thursday, December 6, 2012, my brother called me and told me that he got a message from Mr. Wolfe that the case [*7] settled for $25,000.00 each. I truly did not understand what he was saying as I knew he would not have accepted only $25,000.00 and I never agreed to it. So, I immediately texted my attorney inquiring what was going on as we are not accepting $25,000.00 as settlement.

Jacques also submitted a supporting Certification essentially echoing Cristobal's representations. Notably, Jacques stated:

9. As we entered the courtroom after lunch [Wolfe] walked up to the bench and whispered to the [j]udge that we agreed to settle. The attorneys were called into chambers to conference the case after the comment made by Mr. Wolfe. After the conference Mr. Wolfe and Mr. Smith took my brother and I outside the courtroom and told us that defense counsel has offered $25,000.00 and will try to get it. This was the first time hearing of the $25,000.00. I advised Mr. Wolfe that I never agreed to a settlement and he apologized for not speaking to me about his course to settle the case. I also questioned what was whispered to the judge and Mr. Wolfe advised me that because the jury was not present when he made the statement to the judge that the information was off-record. At no time did I give my attorney authorization [*8] to settle the case. I clearly stated to [Wolfe] that the only way I would consider entertaining a settlement was if we were offered six figures. Based on that conversation it was my understanding that the case will proceed and the case was not settled.

Defendants opposed plaintiffs' motion for reconsideration. Also, Wolfe and Smith submitted Certifications detailing their recollection of the settlement discussions. Wolfe certified:

4. The testimony of Cristobal Polanco was taken on the morning [of] December 6, 201[2]. After [that] testimony [], there was discussion regarding the effectiveness of his testimony. Nevertheless, that

afternoon, the judge called counsel into his chambers and recommended that the case be resolved for $25,000.00 for each plaintiff. Defense counsel stated that he did not know whether he could get that amount of money but before he would try . . . he wanted to be sure that it would be accepted by plaintiffs. Discussions [were] had with the plaintiffs and specifically with my client, Jacques Polanco. After explaining the pros and cons of the settlement and the risks of trial, Mr. Polanco agreed to that amount. It was also my understanding that his brother also [*9] agreed to that amount. The settlement was communicated to the [c]ourt with the clear understanding that defense counsel would advise by the next morning if he could resolve the cases for that amount.5. The [c]ourt explained to the jury that the trial would commence on that Monday due to a medical deposition scheduled for that afternoon. However, it was explained to all counsel that if the case settled the next morning, the jury would be discharged.6. Further discussions [were] held with my client and his brothers as we left the [courthouse]. The above settlement discussions were repeated to my client and his brother. There is no question in my mind that when we left the court, the plaintiffs were aware that if defense counsel got the above authority, the case was settled.7. The very next morning when defense counsel communicated that he had the authority for the settlement, I did text Jacques Polanco and advised him that the case was settled in accordance with our discussions. Mr. Polanco called me and advised me for the first time that he did not accept the settlement. I then immediately communicated his position by letter to the court.

In his certification, Smith added:

5. The terms of settlement [*10] [were heard] in open [c]ourt by all including Mr. Cristobal J. Polanco who commented that the police officers heard it.6. On December 5, 2012, after [c]ourt, Mr. Wolfe spoke with all the Polancos regarding settlement. . . . [A]t no time did Cristobal J. Polanco instruct me to not accept or approve the settlement.7. In fact, Mr. Polanco said "that's okay, Dan."

On May 31, 2013, the court granted reconsideration but, upon reviewing the merits, left the March 27, 2013 order undisturbed. In his written decision, the judge reasoned:

There is no doubt but that Messrs. Smith and Wolfe

2015 N.J. Super. Unpub. LEXIS 164, *6

Page 4 of 4

ALBERT THOMAS

had the apparent authority as attorneys to bind their clients to the proposed settlement agreement. Furthermore, the parties were present in the courtroom when Mr. Wolfe approached the bench after lunch on December 5, 2012[,] and indicated on the record that the matter could be resolved in exchange for the payment of $50,000.00. From the perspective of counsel for the City, even if the court were to accept the position articulated by the Polancos, that is that they did not authorize their lawyers to convey a demand to settle for $50,000.00 to the defendant, Mr. Riley reasonabl[y] believed that they had the authority of the plaintiffs to settle [*11] in exchange for the $50,000.00 payment.

This appeal ensued, in which plaintiffs continue to maintain that they never authorized their attorneys to settle their respective cases for $25,000.

II.

"'Settlement of litigation ranks high in our public policy.'" Nolan v. Lee Ho, 120 N.J. 465, 472, 577 A.2d 143 (1990) (quoting Jannarone v. W.T. Co., 65 N.J. Super. 472, 476, 168 A.2d 72 (App. Div.), certif. denied, 35 N.J. 61, 171 A.2d 147 (1961)). Settlement agreements should be honored in the absence of evidence of fraud or some other compelling circumstances. Ibid. (citing Pascarella v. Bruck, 190 N.J. Super. 118, 124-25, 462 A.2d 186 (App. Div.), certif. denied, 94 N.J. 600, 468 A.2d 233 (1983)).

A disputed motion to enforce a settlement agreement is governed by the same standard as a motion for summary judgment. Amatuzzo v. Kozmiuk, 305 N.J. Super. 469, 474-75, 703 A.2d 9 (App. Div. 1997) (requiring that a hearing be held "unless the available competent evidence, considered in a light most favorable to the non-moving party, is insufficient to permit the judge, as a rational factfinder, to resolve the disputed factual issues in favor of the non-moving party" (citing Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540, 666 A.2d 146 (1995))). In reviewing such a decision, we apply the same standard as the trial court. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167, 704 A.2d 597 (App. Div.) (citing Antheunisse v. Tiffany & Co., 229 N.J. Super. 399, 402, 551 A.2d 1006, (App. Div. 1988), certif. denied, 115 N.J. 59, 556 A.2d 1206 (1989)), certif. denied, 154 N.J. 608, 713 A.2d 499 (1989). A party moving to enforce a settlement bears the burden of demonstrating that one exists in the first place. Amatuzzo, supra, 305 N.J. Super. at 475.

In resolving the issue whether parties to a dispute reached a settlement of the claim when they are represented by counsel, we are [*12] informed by the principles enunciated in Amatuzzo:

The general rule is that unless an attorney is specifically authorized by the client to settle a case, the consent of the client is necessary. Negotiations of an attorney are not binding on the client unless the client has expressly authorized the settlement or 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 authority to enter into a settlement, not just negotiations, on behalf of the client.Thus, in private litigation, where the client by words or conduct communicated to the adverse attorney, engenders a reasonable belief that the attorney possesses authority to conclude a settlement, the settlement may be enforced. However, the attorney's words or acts alone are insufficient to cloak the attorney with apparent authority.

[Id. at 475-76 (citations omitted).]

Based on our review of the record, we are satisfied that plaintiffs' certifications are sufficient to raise a material and substantial issue as to whether they granted their attorneys actual authority to settle their respective cases for $25,000. See id. at 476. Plenary hearings are required [*13] when there are "contested issues of material fact on the basis of conflicting affidavits." Conforti v. Guliadis, 128 N.J. 318, 322-23, 608 A.2d 225 (1992). We conclude that there are sufficiently competing certifications, which require the judge to conduct a plenary hearing and make the requisite findings of fact and conclusions of law. See R. 1:7-4; Conforti, supra, 128 N.J. at 322.

Reversed and remanded. We do not retain jurisdiction.

End of Document

2015 N.J. Super. Unpub. LEXIS 164, *10

Honorable Vincent Le Blon, J.S.C. is assigned to the Civil Division of the

Superior Court, Middlesex County Vicinage, New Brunswick, New Jersey. He

was appointed to the bench in 1997. He has sat previously in the Special Civil

Division, Civil Division, Family and Criminal Divisions. Judge Le Blon also

managed the Multi-County Litigation (Asbestos), from July 10, 2012 – February

10, 2014 – presided over complex litigation concerning individuals exposed to

asbestos or talc and developed lung cancer, asbestosis and/or mesothelioma.

Prior to being elevated to the bench, he was an Assistant Prosecutor in Middlesex

County and Somerset County. Judge Le Blon was also an Associate with the firm

of Raymond R. & Ann W. Trombadore, P.C., Somerville, New Jersey and was

hired by Raymond R. Trombadore, Esq. to assist in his practice as he ascended to

the position of President of the New Jersey State Bar Association. He was engaged

in the general practice of law with emphasis on planning and zoning practice,

criminal defense, family law and general civil practice.

Raymond Trombadore was President of the New Jersey State Bar Association in

1986 - 87, Chair of the American Bar Association's Commission on Attorney

Discipline from 1990 - 1992, Chair of the New Jersey Disciplinary Review Board

from 1990 - 1995, and recipient of the ABA's Michael Frank Award for his work

in the field of attorney ethics.

Judge Le Blon received his B.A. from Rutgers College, Rutgers University, and his

J.D. from Gonzaga University School of Law, where he was the Executive Editor

of the Gonzaga Law Review. He was the Law Clerk to the Juvenile and Domestic

Relations Court and clerked for the Honorable Rosemary Karcher Reevey, J.S.C.,

Honorable Joseph Sadofski, J.S.C. and Honorable George J. Nicola, J.S.C.,

Middlesex County Superior Court

BIOGRAPHY OF JOSEPH L. MARCZYK, PRESIDING JUDGE, CIVIL DIVISION

Judge Marczyk is the Presiding Judge of the Civil Division, Vicinage I, Atlantic

and Cape May Counties. He was appointed to the Judiciary in January, 2010. He served

in the Civil Division until August, 2012 when he was assigned to the Family Division. He

was reassigned to the Civil Division in August, 2014.

Prior to his appointment, Judge Marczyk primarily specialized in medical

malpractice litigation with the law firm of Crammer, Bishop, Marczyk & O’Brien. He

attended The College of William & Mary in Williamsburg, Virginia. Thereafter, he

attended law school at Widener University School of Law, evening division, while

working as a legislative aide for the New Jersey State Senate and General Assembly.

Following law school, he served as a judicial law clerk for The Honorable Richard J.

Williams, A.J.S.C., in Atlantic County before entering private practice.