June 19, 2007
MAPFRE REINSURANCE CORPORATION, PLAINTIFF-RESPONDENT,
BAIG ASSOCIATES INC., LINDA BAIG, A/K/A ERMELINDA BAIG, DEFENDANTS-APPELLANTS.
On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-189-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 6, 2007
Before Judges Weissbard and Lihotz.
Defendant Ermelinda Baig appeals from the March 31, 2006, Law Division order enforcing settlement and entering judgment against her in the amount of $100,000. We affirm.
The pertinent facts are as follows. Baig Associates, Inc., sought a surety performance bond from First Indemnity of America Insurance Company (FIA), guaranteeing its completion of and payment to all third parties that provided services to the corporation, in its completion of a construction project for the Delaware River Port Authority (DRPA). On February 4, 1999, Baig Associates, through its president and owner Usman Baig, who is Ermelinda's husband, executed and delivered to FIA an agreement of indemnity. Ermelinda and Usman also executed the agreement consenting to indemnify FIA "from and against any and all liabilities for losses, costs and/or expenses and any actual losses, costs and/or expenses which FIA may sustain and/or incur by reason of FIA having executed a surety bond on behalf of Baig Associates." FIA procured bond no. H00784 from plaintiff Mapfre Reinsurance Corp. (Mapfre), in the penal sum of $1,298,709 for performance of the DRPA contract. The FIA indemnity agreement additionally provided, in pertinent part:
In the event [FIA] procures the execution of the Bonds by other sureties, or executes the Bonds with co-sureties, or reinsures any portion of said Bonds with reinsuring sureties, then all the terms and conditions of this Agreement shall inure to the benefit of such other sureties, co-sureties and reinsuring sureties, as their interests may appear.
On June 22, 2000, the DRPA issued notice to Mapfre that Baig Associates defaulted on its contract performance obligations. Thus, Mapfre was required to pay claims of $567,496.07. Usman filed for bankruptcy protection. Thereafter, on January 20, 2004, Mapfre filed its complaint against Baig Associates and "Linda Baig a/k/a Ermelinda Baig" for reimbursement and indemnification of losses it had sustained as a result of claims against the surety bond. A default judgment was entered against Baig Associates.
On December 14, 2005, the date the matter was scheduled for trial, Mapfre and Ermelinda, through their respective counsel, placed a settlement agreement on the record. Ermelinda agreed to pay, and Mapfre agreed to accept, $100,000 to satisfy all claims pursuant to the terms of a payment schedule. The sum of $20,000 was to be paid on January 30, 2006, and the remaining $80,000 would be paid in monthly installments, based on a "thirty year payout at an interest rate of seven percent"; all payments of principal and interest were due in five years. Ermelinda was to execute a note containing these terms, which was to be secured by a mortgage, co-signed by Usman, on their Holmdel residence.
Ermelinda declined to execute the settlement documents, causing Mapfre to file its motion to enforce the settlement agreement and enter final judgment. No opposition was submitted by Ermelinda. Usman, however, filed a document entitled "Defendant's Response and Pleading to the Court to Deny the Plaintiff's Motion." Ermelinda's trial counsel submitted a letter to the motion judge explaining his client's position. Counsel advised that Ermelinda's employment would terminate on April 30, 2006, an event not contemplated at the time of the settlement, and, therefore, she believed she could not comply with the settlement terms. Alternative settlement proposals were also made by counsel and Usman. Counsel noted his uncertainty in continuing his representation of Ermelinda, as Usman's papers raised a claim of lack of informed consent, which "implicat[ed] the issue of whether [counsel's] representation fell below the standards of the legal profession."
On the motion's return date, Usman spoke on behalf of Ermelinda, who did not appear, and her trial counsel appeared by telephone. The motion judge granted Mapfre's motion, determining that Ermelinda's decision to retire and the resultant loss of her employment had no effect on the enforcement of the settlement. The motion judge further determined that Ermelinda voluntarily entered into the settlement, understood its terms, and was adequately represented by counsel.
Ermelinda's brief on appeal contains no point headings, notwithstanding the requirements of Rule 2:6-2(a)(5). She lists nine items labeled as "error" in the merits brief and also includes several pages of argument on "history and background." In her reply brief, she repeats some of her prior discussion and adds additional matters. After a thorough review of the record and the applicable law, we conclude that there is no basis, as a result of one or an aggregate of all of these arguments, on which to reverse the judgment, and further, many matters raised are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). We will nevertheless address the following arguments gleaned from Ermelinda's submissions: (1) "Linda Baig," who was the named defendant, does not exist and if she does, Ermelinda is not Linda Baig; (2) Ermelinda was not served with the complaint; (3) Ermelinda did not sign the indemnification agreement; (4) Ermelinda does not competently read and write English and the motion to enforce the settlement was her first court appearance; and (5) Ermelinda's financial situation has changed, such that she cannot comply with the agreed settlement terms.
Ermelinda failed to raise below the first three issues challenging her identity, her execution of the indemnity agreement, and proper service of process. Thus, the issues are deemed waived and may not be considered. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973); Mancuso v. Rothenberg, 67 N.J. Super. 248 (App. Div. 1961). "[W]e will not consider a defense which was not timely presented to the trial court, unless the questions raised on appeal relate to jurisdiction or to matters of great public interest." Colegrove v. Behrle, 63 N.J. Super. 356, 368 (App. Div. 1960). Briefly, we note that that the caption designation, using the alternative "Linda Baig a/k/a Ermelinda Baig," is not determinative of liability. The defense of lack of personal jurisdiction is required to be raised by motion before the trial judge, R. 4:6-2 and R. 4:6-3, and is waived once a party appears in the action, without objection, as was the case here. See Bascom Corp. v. Chase Manhattan Bank, 363 N.J. Super. 334 (App. Div. 2003); see also Hupp v. Accessory Distribs. Inc., 193 N.J. Super. 701, 709 (App. Div. 1984). And finally, the affirmative defense regarding the validity of the agreement was required to be presented in Ermelinda's answer. R. 4:6-2; see also Douglas v. Harris, 35 N.J. 270, 281-82 (1961).
We additionally determine that the record offers no support for the position that Ermelinda is incapable of reading and understanding English. To the contrary, her appellate pleadings exhibit a command of the language. So too, the colloquy on December 14, 2005, reflected no lack of understanding of the proceedings or terms of settlement by Ermelinda's, as demonstrated by the following exchange:
[DEFENDANT'S COUNSEL]: Mrs. Baig, you've . . . been in Court this morning and participated in the settlement discussion?
[DEFENDANT'S COUNSEL]: And do you understand the terms of the settlement?
[DEFENDANT'S COUNSEL]: Are you entering into the settlement voluntarily?
[DEFENDANT'S COUNSEL]: Have I, as your attorney answered . . . any and all questions that you've had?
[DEFENDANT]: You have.
[DEFENDANT'S COUNSEL]: And are you satisfied with the representation?
THE COURT: Do you have any questions for me, M[rs.] Baig?
[DEFENDANT]: No, Your Honor.
THE COURT: You understand, then, that the judgment is going to be against you?
[DEFENDANT]: Yes, Your Honor.
THE COURT: And . . . you have to make payments every month?
[DEFENDANT]: Yes, Your Honor.
THE COURT: Any questions then?
[DEFENDANT]: No, ma'am. No, Your Honor.
Ermelinda's final argument asserts that a change in her economic circumstances, resulting from her decision to retire in April 2006, should relieve her of the settlement. There is a strong public policy favoring settlement of litigation. Nolan v. Lee Ho, 120 N.J. 465, 472 (1990). Consequently, courts "strain to give effect to the terms of a settlement wherever possible." Jennings v. Reed, 381 N.J. Super. 217, 227 (App. Div. 2005) (quoting Dep't of Pub. Advocate v. N.J. Bd. of Pub. Util., 206 N.J. Super. 523, 528 (App. Div. 1985)).
"[A]n agreement to settle a lawsuit is a contract which, like all contracts, may be freely entered into and which a court, absent a demonstration of fraud or other compelling circumstances, should honor and enforce as it does other contracts." Pascarella v. Bruck, 190 N.J. Super. 118, 124-25 (App. Div.) (citations omitted), certif. denied, 94 N.J. 600 (1983). "Clear and convincing proof" that the agreement was achieved through coercion, deception, fraud, undue pressure, or if a party was not competent to voluntarily consent to the agreement, must be shown before a court will vacate a settlement. Jennings, supra, 881 N.J. Super. at 227; see also Peskin v. Peskin, 271 N.J. Super. 261, 276 (App. Div. 1994). In this matter, Ermelinda has failed to demonstrate her agreement to settle was anything other than a deliberate choice and she has "simply failed to demonstrate that [her] election among reasonable alternatives [i.e., to settle or proceed to trial] was the product of anything other than [her] own free will." Jennings, supra, 381 N.J. Super. at 228.
We are convinced that the trial court's findings are fully supported by the record and its conclusions are consistent with controlling legal principles. We discern neither error nor misapplication of discretion in the order under appeal.
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