On appeal from Superior Court of New Jersey, Law Division, Cape May County, Docket No. L-576-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 29, 2010
Before Judges Wefing and Payne.
Plaintiff, Randy Senna, appeals from an August 28, 2009 order enforcing a settlement with defendants Walter Florimont and 2400 Amusements, Inc. t/a Olympic Enterprises (Florimont).*fn1
This matter arises out of a defamation action filed on October 16, 2003 by Senna against a business rival, Florimont, who at the time operated a competing boardwalk game known as Fascination. On March 31, 2006, the trial court granted defendant's motion for summary judgment, and we affirmed in an unreported opinion, holding that the trial court had properly applied an actual-malice standard in granting summary judgment on Senna's defamation claim. Senna v. Florimont, No. A-4605-05 (App. Div. May 30, 2007). The Supreme Court reversed and remanded the matter for further proceedings, holding "that the false and defamatory verbal broadsides of defendant's employees, impugning the honesty of a business competitor, fell into the category of commercial speech that is not entitled to heightened protection under the actual-malice standard." See Senna v. Florimont, 196 N.J. 469, 474 (2008).
On remand, Florimont again moved for summary judgment. While the motion was pending, extensive settlement negotiations took place within and outside of Senna's presence. At some point Senna offered to settle the matter for $15,000 plus an amount of up to $5,000 to be used to purchase Fascination machines from Florimont's business successor. However, Florimont declined to settle on those terms because the settlement was contingent upon the participation of a non-party.
Following denial of summary judgment on May 28, 2009, settlement negotiations were renewed and, that day, a $20,000 cash-only settlement offer was allegedly accepted by Senna. Counsel for Florimont, Frank L. Corrado, has certified that, after Florimont accepted the settlement, Corrado contacted counsel for Senna, Scott E. Becker, and "specifically asked Mr. Becker to confirm that plaintiff had authorized this 'cash-only' settlement and that there was no requirement that the equipment be purchased." Becker confirmed Corrado's understanding.
On June 3, 2009, Corrado e-mailed drafts of a settlement agreement and stipulation of dismissal to Becker. However, Becker responded by stating that Senna would not agree to the settlement. The e-mail stated:
Randy advised me last night that he never agreed to the settlement. Apparently, its not about the amount. Rather, because he thought he was going to [be] able to use the extra money to make the deal for the equipment. After speaking with him 2 or more times, after Thursday, I believed he understood the terms, but he disagrees. I had already let Kim [a court employee] know the matter was settled. At this point, unless he is able to make his deal with the new owners today, I will have to report his problem to the court. I also advised him that I would seek to withdraw from the case.
I apologize for the trouble, but I don't believe I have ever had ...