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Migliorino v. Glascoe


October 10, 2008


On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-2564-05.

Per curiam.


Argued September 24, 2008

Before Judges A. A. Rodríguez and Kestin.

Plaintiffs appeal from a September 20, 2007 order, entered on the motion of defendants Michael E. Glascoe and the Board of Education of the City of Paterson (collectively, the Paterson defendants), enforcing a settlement and dismissing the complaint "in its entirety and with prejudice." We affirm the order to the extent it reflects the trial court's determination that issues bearing upon plaintiff's entitlement to certain employment benefits and damages had been fully resolved by the settlement. In respect of the trial court's denial of plaintiffs' application for a counsel fee and costs award, however, we reverse and remand for further proceedings.

The four-count amended complaint alleged that plaintiff Roy L. Migliorino had been a teaching staff member in the Paterson public schools for about forty years. On July 23, 2004, he and plaintiff Reginald McCall had registered as domestic partners pursuant to New Jersey law; and, on September 15, 2004, they had been lawfully married in Massachusetts.

On October 13, 2004, Migliorino had applied to the employer, pursuant to a collective bargaining agreement that provided health benefits to the family or spouse of school district employees, for medical, prescription and dental coverage under the State Health Benefits Program (SHBP) for McCall. According to the complaint, "two sets of applications were submitted, one for spousal benefits and one for benefits under the... Domestic Partnership Act[,]" N.J.S.A. 26:8A-1 to-13. When, by mid-January 2005, no response to the application had been received, counsel wrote to the employer on Migliorino's behalf requesting action. Counsel for the school district responded a week later, stating that the requested benefits would not be provided. Subsequently, counsel for the employer advised that the decision not to provide the requested benefits had been made for the State-operated school district by the "Acting State Superintendent."

On May 4, 2005, defendant Michael E. Glascoe became the new state-appointed superintendent of the school district. Migliorino reapplied for the health benefits he sought and, on September 13, 2005, the school district's Director of Personnel/Human Resources wrote stating: "Currently, the Paterson Public Schools District does not offer health benefits to domestic partners of our employees."

In the spring of 2006, anticipating his retirement from the school district's employ, Migliorino applied for the same health benefits coverage to defendant Division of Pensions and Benefits; once again submitting separate applications for McCall as spouse and domestic partner. The Division replied that the "application to add your domestic partner ha[d] not been processed" because the former employer did not participate in the SHBP and had not adopted a resolution authorizing the inclusion of domestic partners. No specific resolution of the application for spousal benefits was announced.

The complaint, dated October 17, 2006, went on to assert that "[a]ll State employees are entitled to health benefits for their partners under the Domestic Partnership Act.... [and] are entitled to benefits for their partners/spouses whether the same sex or not." It pled federal and State constitutional and statutory rights violations and sought judgment requiring that "defendants... enroll Reginald McCall in the [SHBP] and enjoining defendants from discriminating against plaintiffs and all others similarly situated on the basis of sexual orientation." The complaint also sought compensatory damages, punitive damages, and costs and counsel fees.

The matter came before the trial court, initially, in a January 19, 2007 hearing on plaintiffs' motion for "partial summary judgment and injunctive relief[.]" The supporting papers on the motion asserted only the right to mandatory and prohibitory injunctive relief. The form of order submitted by plaintiffs contained four clauses effecting the injunctive relief sought, and provided, in a fifth clause: "Plaintiffs may make application for damages and counsel fees pursuant to the Rules of Court by separate application or, if these issues are not susceptible to resolution by motion, may proceed to trial thereon."

The verbatim record of the proceedings on January 19, 2007, discloses that a settlement of the primary issue was effected notwithstanding the school district's refusal to recognize domestic partnerships as eligible for employment benefits. This result was achieved, in the terms recited by the motion judge, when the deputy attorney general representing the Commissioner of Education and the Division of Pensions and Benefits (collectively, the State defendants), recognizing Migliorino's retired status at the time, "indicated that the State of New Jersey will accept the application. They... will process the application in... the normal course, and they will grant benefits to Mr.... McCall... with full rights of a.... [domestic] partner [or] civil union." The judge noted further that this was "[s]o you don't have to wait[,]... you don't have to go through.... all those procedures. And... we have resolved the dispute that is now before the Court." The settlement followed upon the Supreme Court's decision in Lewis v. Harris, 189 N.J. 415 (2006), and the enactment of legislation regarding civil unions, N.J.S.A. 37:1-28 to-36.

The order entered by the court on that date, January 19, 2007, struck out all the provisions of the form of order that had been submitted by plaintiffs, and added a handwritten entry: "The motion [for partial summary judgment and injunctive relief] is denied as moot as a result of the settlement placed this date on the record."

In a motion dated July 2, 2007, returnable July 20, 2007, the Paterson defendants sought "an [o]rder enforcing the settlement[.]" Counsel's certification in support of the motion declared that plaintiffs had taken the position, in negotiations leading to the settlement of January 19 and since, that the issues in the matter included reimbursement of plaintiffs "for costs spent on health care premiums, totaling approximately $10,600 [and] attorneys' fees[.]" The certification also stated: "as the [January 19] oral argument approached, the parties had not been able to settle the case." Nevertheless, "[b]ased on the discussion on January 19, 2007, and given the above, it was the Paterson Defendants' position and understanding that the case had been completely settled."

Subsequently, also according to counsel for the Paterson defendants, the parties had met with the trial court judge on May 11 "to discuss the status of this case." Plaintiffs maintained "that the case was not over because issues relating to back premiums and attorneys' fees remained" and that counsel for plaintiffs and the Paterson defendants "had had discussions with the State's attorney about the back premiums and attorneys' fees immediately following [the January 19] oral argument[.]" Counsel for the Paterson defendants contended, however, that they had not been included in any post-January 19 discussions about remaining issues and that defense counsel had so acknowledged in the May 11 conference with the court.

Plaintiffs' counsel, in their certifications, emphasized that the motion before the court on January 19 had been for "partial summary judgment" and that "[w]hen all counsel left the hearing on the motion... we all knew there were multiple issues remaining, issues that had been discussed during the settlement talks[,]" comprised of "a. Paying all of Plaintiffs' out-of-pocket Health Insurance Premiums; and b. Paying all counsel fees; c. Punitive Damages." Plaintiffs' counsel also asserted that discussion continued immediately following the January 19 argument between one of the attorneys for the State defendants, plaintiff Migliorino, and his two attorneys; that the attorney for the Paterson defendants did not participate in the discussion; that the subject matter of this conversation was the completion of the enrollment form for the SHBP; and that "there was clearly an understanding that the above referenced three issues remained to be resolved."

Following receipt of a trial notice on March 12, 2007, plaintiffs' counsel issued a notice in lieu of subpoena regarding the unresolved issues. Their responsive certifications asserted that plaintiffs' counsel learned, for the first time at a May 11, 2007 conference with the court, of the Paterson defendants' position that the matter had been completely settled, when those defendants sought leave to file the motion to enforce the settlement. Plaintiffs' counsel emphasized that no releases had been exchanged following the settlement on January 19.

The motion to enforce the settlement came before the trial court on September 20, 2007. After hearing argument from counsel for plaintiffs and the Paterson defendants, the court entered the order from which this appeal has been taken, requiring "[p]laintiffs... to comply with the settlement agreement reached by the parties on January 19, 2007[,]" and dismissing the complaint "in its entirety and with prejudice[.]" The judge struck from the form of order presented by the Paterson defendants a clause providing for "reimburse[ment of] defendants'... attorneys' fees and costs incurred in filing the... motion[.]

On the question whether the parties had reached a "global settlement" of the substantive issues, we defer to the findings and determination of the motion judge, and affirm substantially for the reasons he gave. See, e.g., Jannarone v. W.T. Co., 65 N.J. Super. 472 (App. Div.), certif. denied, 35 N.J. 61 (1961). We accept the motion judge's evaluation that the record reflected a meeting of the minds between the parties that all substantive claims had been resolved by the terms of the settlement. See Johnson & Johnson v. Charmley Drug Co., 11 N.J. 526, 538 (1953). The result reached furthers the public policies favoring the settlement of lawsuits. See, e.g., Jennings v. Reed, 381 N.J. Super. 217, 226 (App. Div. 2005). Accordingly, plaintiffs' claims for compensatory and punitive damages are no longer viable.

The question of plaintiffs' entitlement to a counsel fee and costs award is a separate issue, however, given the various, independent statutory and common law bases for that claim. In that respect, the motion judge erred in ruling--without considering the "catalyst theory" approach to the determination whether a litigant is a "prevailing party"--that, because the matter had settled, plaintiffs had not satisfied the "prevailing party" standard. See Mason v. City of Hoboken, 196 N.J. 51, 79 (2008) (establishing, as a matter of State law, a broad application of the "catalyst theory" in determining whether, for the purposes of considering a counsel fee award, a party has prevailed); Teeters v. Division of Youth and Family Servs., 387 N.J. Super. 423 (App. Div. 2006) (rejecting the narrower "prevailing party" rubric that applies under federal statute). Several potential statutory and common law bases exist here for plaintiffs' counsel fee and costs award request. The trial court should have considered each by the "catalyst theory" standard rather than rejecting them for the reason stated.

Affirmed in part; reversed in part; remanded for consideration of plaintiffs' application for an award of counsel fees and costs.


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