On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-3191-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: December 19, 2012
Before Judges Axelrad and Haas.
Defendant Ronald Ford, Jr. appeals from the October 21, 2011 order enforcing settlement of the complaint filed by the New Jersey Division on Civil Rights (DCR), alleging he, as sole owner and manager of a coffee shop in Camden, and the operating corporate entity, defendant City Coffee, Inc. (City Coffee) (collectively referred to as defendants) engaged in a pattern and practice of subjecting female employees to sexual harassment. Ford contends there was not a meeting of the minds and he never signed a Final Consent Judgment (consent judgment). He further asserts error by the trial court in denying a stay to him and declining to place the retrial on the inactive list based on appellant's military duties. We are not persuaded by either of these arguments. We affirm substantially for the reasons articulated by Judge Robert G. Millenky in his comprehensive oral opinion following argument on the DCR's motion to enforce settlement, but remand for clarification of the specific terms of paragraph thirteen of the consent judgment and issuance of an amended order.
The facts of the case are straightforward and are not in dispute. On June 20, 2007, the DCR filed suit against defendants on behalf of several female employees asserting claims under the Law Against Discrimination (LAD). Following a trial in June 2010, the jury found defendants unlawfully sexually harassed one former employee but did not unlawfully harass others. In October 2010, DCR successfully moved for a new trial after it was learned that Ford may have paid certain witnesses who testified at trial on his behalf. Judge Millenky ordered a new trial on all issues, including the allegations that led to the jury verdict against defendants, and vacated the $7500 jury award.
In December 2010, defendants' trial counsel was permitted to withdraw as counsel, and new counsel entered an appearance on defendants' behalf. After several adjournments, the retrial was scheduled for June 6, 2011. On the eve of the trial, the parties began discussing settlement. The terms of the settlement were that defendants would pay $15,000 in cash to DCR to settle the claims. Defendants would also agree to pay an additional $60,000, which would be suspended and vacated at the end of two or three years,*fn1 provided defendants paid the initial amount; implemented certain policy changes, procedures, training and employee notices with respect to harassment and discrimination in the workplace; and committed no further LAD violations during that period. Following a conversation between counsel on June 3, 2011, during which they confirmed the terms of the settlement, defense counsel sent Judge Millenky a letter advising the case had been settled, the DCR was drafting the documents, and requesting the matter be "marked settled." The letter was copied to Ford.
Ford refused to execute the consent judgment that was sent to his attorney. Defense counsel raised a concern about paragraph twenty-one (providing that the sum due would not be dischargeable in bankruptcy), as well as the designation of the suspended amount as civil penalties. DCR filed a motion to enforce the settlement.
In opposition, Ford filed a certification stating he had personal knowledge of the facts in the settlement negotiations, "nothing was ever mentioned to [him] about the debt in this matter being designated a non-dischargeable bankruptcy debt," and "plaintiff never stated anything about the $60,000 was going to be designated a civil penalty." Ford further stated he was advised that the $60,000 "was compensation for attorney's fees and costs incurred by the State in this matter." He also certified when he and his attorney received the draft written settlement agreement, his "attorney advised [him] of the important collateral consequences of that designation of the matters [as] non-dischargeable and civil penalties[,]" and he was thus not willing to sign the document because it "incorporates material terms that [he has] not agreed to." Ford did not dispute any other provisions of the consent judgment.
At oral argument on October 21, 2011, defense counsel reinforced this position, advising the court that only two of the thirty-eight paragraphs in the proposed consent judgment were objectionable. Defense counsel stated that his clients' position was that the court could either enforce the settlement agreement without the two provisions or schedule the retrial.
After reciting the record before him, Judge Millenky found there was no factual dispute that an agreement was reached to settle the case based on the terms set forth in the proposed consent judgment with the exclusion of the two provisions cited by Ford, which had not been discussed by the parties. Accordingly, he granted DCR's motion to enforce the settlement but struck the two provisions Ford found objectionable, paragraphs thirteen and twenty-one ($60,000 classified as a "civil penalty" and deemed non-dischargeable in bankruptcy), memorialized in an order of the same date.*fn2 This appeal ensued.
The crux of Ford's challenge to the settlement agreement on appeal is that his decision as to whether or not the $60,000 suspended obligation could be discharged in bankruptcy was a material term of the agreement. Judge Millenky amply responded to Ford's concern. He excised from the draft consent judgment the boiler-plate provision inserted by the DCR with respect to non-dischargeability of the debt in bankruptcy, as it undisputedly was not a term discussed or agreed to by the parties. The judge also deleted the civil penalty provision. It is clear from the record that Ford was involved in the settlement negotiations and consented to all the other terms contained in the draft agreement, as represented by his attorney to Judge Millenky at oral argument. It is immaterial that Ford did not sign the consent judgment; he is bound as a matter of law by its terms as modified by the October 21, 2011 order, which will be clarified and amended on remand.
Ford's contentions with regard to his position in the army are irrelevant and without merit to the issue on appeal. As a Major in the Army Reserves, stationed locally, his duty assignments required him to attend military funerals and provide casualty assistance to families in New Jersey and Pennsylvania who have lost a service member. On March 28, 2011, Ford requested in writing to have the underlying matter placed on the inactive list because of his military assignments, submitting documentation of his assignments. By letter of April 8, 2011, Judge Millenky denied the request, advising of the May 9 trial date, subsequently adjourned, and informing Ford that if he "receives a military assignment that cannot be adjusted and that may compel his absence for several days, we can work around that."
Ford never asked for specific days off to accommodate his sporadic military commitments. He was present during the entire trial and apparently was able to operate his business in Camden before and after the trial. Moreover, Ford makes no claim that his attorney settled the case without reaching him because he was deployed and unable to be reached. In fact, Ford's own certification confirms he was involved in the settlement negotiations and had "personal knowledge of the facts." As such, Ford's military status had ...