On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-1566-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 11, 2012 -
Before Judges Alvarez and St. John.
Plaintiffs Patrick Harrington and Kimberly Gitto-Harrington appeal from the order of the Law Division entered on October 27, 2011, marking the matter settled and dismissing the complaint of plaintiffs, with prejudice, as to defendant.
The underlying facts are not germane to this opinion, but suffice it to say, defendant ruined the bride's wedding dress when defendant's laundry facility washed her dress instead of steaming it. All steps taken by defendant thereafter to ameliorate the problem only made it worse. For example, a friend of the Harringtons' flew a substitute dress from California to the site of the wedding in Hawaii. Defendant attempted to alter that dress, however, it was not to the couple's satisfaction.
Pretrial motions by defendant resulted in counts of the complaint being dismissed. Thereafter, by letter dated August 17, 2011, defendant made an offer of judgment to plaintiffs in the amount of $10,000. The offer was tendered by the Law Offices of Floyd G. Cottrell, P.A., by William G. McGuinn. Defendant was represented in this matter by two firms, the Cottrell firm, and the Law Offices of Jerry N. Friedland.
On Friday, October 14, 2011, Mr. McGuinn received an email from Mr. Harrington advising that plaintiffs were accepting defendant's offer. Attached to the email were two documents, of the same date. These were a letter from Mr. Harrington to Mr. McGuinn confirming the settlement and a copy of the acceptance with a cover letter to the court, which Mr. Harrington indicated would be filed on Monday, October 17. The Harringtons' acceptance of defendant's offer of judgment stated that they "accept defendant's offer of judgment dated April 17, 2011 in the amount of ten thousand dollars ($10,000.00), to settle any and all claims arising from the complaint of plaintiffs." (Emphasis added). On Saturday, October 15, Mr. McGuinn received an email from Mr. Harrington asking that McGuinn "notify Hilton's other counsel, Jerry Friedland, that the matter has been resolved."
Subsequent to accepting defendant's offer of judgment, plaintiffs marked up the previously executed form of acceptance of defendant's offer of judgment and deleted and inserted certain information. After the words "to settle" in the originally executed document, they deleted "any and all claims," and inserted "the negligence claim (Claim I)." At the end of that sentence they then added, "which remains open as of this date. The negligent misrepresentation claim (Claim III) is scheduled to be reconsidered on October 21, 2011. Plaintiff shall continue to pursue Claim III." Although not relevant to this opinion, plaintiffs' "Claim III" had been dismissed almost eleven months earlier.
On October 17, 2012, Mr. Harrington sent an email advising that the settlement only pertained to the claim of negligence and not the claim contained in Count III of plaintiff's complaint. The next day, Mr. Harrington sent a letter to McGuinn "clarifying" that the accepted offer of judgment pertained only to the negligence claim.
On October 21, 2012, the trial judge heard argument on the Harringtons' motion for reconsideration of dismissal of Count III, which was denied, and defendant's assertion that the matter was settled. After reviewing the documents, the trial judge determined that the plaintiffs cut a deal with these attorneys. You tell them it's settled. You sign a stipulation.
You send it back to them. And then after the weekend is over you send something into the court saying basically "Well, no, I'm only settling these active claims. I still want to litigate the claim [which was] . . . dismissed . . . ten months ago[.]"
In his decision, the judge stated that,
I'm satisfied both parties settled this case. When you sign an acceptance of defendant's offer of judgment and you say you settle it and then, you know, a few days later you write something on it saying, "Well, I'm not excluding this ...