On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-419-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Miniman and Waugh.
Plaintiff Alvaro Cores appeals the Law Division's order directing him to execute an agreement to settle the lawsuit that he and his wife, plaintiff Jenny Cores, filed against defendants Atlantic City High School (ACHS), Atlantic City Board of Education (Board), Dr. Thomas Kirschling, Paul Spinelli, and Kenneth Flood. The order also required his counsel to sign a stipulation of dismissal. We affirm.
We discern the following factual and procedural background from the record.
In January 2008, plaintiffs*fn1 filed a complaint alleging that defendants engaged in race-based discrimination and harassment against them. Both plaintiffs were employed by ACHS, Alvaro as an assistant principal and Jenny as a secretary. According to their complaint, Alvaro was diagnosed with a stomach infection that caused recurring absences from work. Alvaro claims that, upon his return to work, Spinelli, a social studies teacher at ACHS, and Flood, another assistant principal, created four flyers and distributed them throughout ACHS. He further claims that the flyers mocked his race and Hispanic heritage. He also contends that Spinelli and Flood made harassing comments in a similar vein.
In his complaint, Alvaro alleged that his superiors at ACHS and members of the Board failed to take appropriate remedial action when he reported the alleged discriminatory conduct. He specifically contends that the principal failed to follow through with promises of an investigation to determine who distributed the flyers and that Kirschling, the assistant superintendent in charge of human resources, never responded to his request for a transfer to another position. The complaint also alleges that there were acts of discrimination and harassment against Jenny.
After the litigation was started, defendants retained a forensic computer investigator to examine the school-issued computers given to Alvaro, Flood and Spinelli. The investigators concluded that three of the offensive flyers had been transferred to Alvaro's computer from another source, and that one flyer had been created on his computer. Defendants forwarded the report to Alvaro's then attorney, David Zatuchni, and to Jenny, who was proceeding pro se at that time. Defendants included a letter dated October 22, 2008, demanding that the complaint be withdrawn and that plaintiffs reimburse defendants' legal fees and costs.
After plaintiffs and Zatuchni received the report, Jenny signed a stipulation of dismissal with prejudice. Zatuchni began settlement negotiations with defendants in an e-mail dated November 5, 2008, which stated that Alvaro was "willing to dismiss his claims with prejudice if the parties are responsible for all their own fees and costs." The next day, defense counsel responded that his clients would accept Alvaro's terms if he would agree to sign a general release of all claims. In a November 7 e-mail, Zatuchni replied: "This is acceptable. Please forward me the paperwork at your convenience by e-mail in Word format." Defense counsel sent a letter dated December 16, 2008, to confirm the settlement and attached a copy of the proposed settlement agreement.
Having received neither an objection to the form of the agreement nor an executed copy for over a month, defense counsel wrote to Zatuchni on February 12, 2009, stating that, if the settlement agreement was not returned, defendants would file a motion to enforce settlement. On February 16, 2009, Zatuchni responded that Alvaro would execute the agreement if the release of claims was mutual and if the agreement included a mutual nondisparagement clause. Zatuchni's response set forth specific language to be added to the agreement drafted by defense counsel and stated that, "[i]f acceptable, [Alvaro] will sign the written Settlement Agreement and we can conclude this matter." According to defense counsel, he notified Zatuchni on March 18, 2008, that his clients agreed to the additional terms.
At some point thereafter, Alvaro retained new counsel. Defendants received a letter dated March 30, 2009, with a substitution of attorney form executed by Zatuchni and Alvaro's new counsel, Clifford L. Van Syoc. Defendants forwarded the settlement agreement with Alvaro's requested amendments to Van Syoc a few days later. On May 12, 2009, after having received no response from Van Syoc, defendants filed a motion to enforce settlement.
Plaintiffs filed an opposition to the motion, in which Alvaro certified that he never "freely and voluntarily agreed to drop [his] case in return for nothing" and that he only had "initial discussions regarding settlement" with his former counsel. In the certification, Alvaro also denied having created the flyers and explained that he saved copies of the flyers on his school-issued computer after he found them at ACHS. He also certified that it was his understanding that Zatuchni, who had agreed to represent Alvaro on a contingent-fee basis and to advance all costs, could not afford an expert to refute the investigator's report. Alvaro asserted that the cost issues led to settlement discussions and motivated Zatuchni to act ...