CHERYL A. GALLO VS. ROBERT A. GALLO (L-0058-16, BERGEN COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4095-15T2
CHERYL A. GALLO,
Plaintiff-Appellant,
v.
ROBERT A. GALLO,
Defendant-Respondent.
—————————————————————————————-
Submitted August 1, 2017 – Decided August 11, 2017
Before Judges Hoffman and Currier.
On appeal from Superior Court of New Jersey,
Law Division, Bergen County, Docket No. L-
0058-16.
W. James Mac Naughton, attorney for appellant.
Scura, Wigfield, Heyer, Stevens & Cammarota,
LLP, attorneys for respondent (David E. Sklar,
on the brief).
PER CURIAM
Plaintiff Cheryl Gallo appeals from an April 22, 2016 Law
Division order dismissing her complaint against her ex-husband,
defendant Robert Gallo. Plaintiff argues (1) defendant gave no
consideration for a promise to dismiss an earlier action with
prejudice, and (2) a previous payment did not constitute an accord
and satisfaction of a $50,000 note. After a review of plaintiff's
contentions in light of the record and applicable legal principles,
we affirm.
I.
On August 8, 2008, plaintiff's mother lent $50,000 to
defendant. On October 19, 2008, plaintiff's mother lent $300,000
to defendant and plaintiff. Plaintiff's mother lent defendant and
plaintiff an additional $30,000 on June 27, 2009. Plaintiff and
defendant divorced in January 2015. In their Dual Judgment of
Divorce (DJD), the parties agreed to list their property for sale.
Upon sale of the property, "the parties agree[d] to pay . . . the
monies due [to plaintiff's] mother in an amount to be agreed upon
by the parties."
After filing a complaint against plaintiff and defendant for
the $380,000, the mother's attorney sent a letter to defendant’s
attorney, stating he would "file . . . a dismissal of this action
with prejudice provided the premises . . . is sold," and his client
"receives $286,170.14 . . . no later than close of business
September 30, 2015." The next day, on September 26, 2015,
plaintiff's mother assigned her "right, title and interest in" the
$50,000 note to plaintiff for $1.
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On September 28, 2015, plaintiff's mother received the
$286,170.14 at closing. On November 25, 2015, the trial court
dismissed the mother's complaint for lack of prosecution, pursuant
to Rule 1:13-7. On December 2, 2015, the mother's attorney filed
a stipulation of dismissal under Rule 4:37-1(a), stating she
"hereby stipulates to the dismissal of this action with prejudice."
Plaintiff then filed her complaint against defendant based
on the $50,000 note. Defendant filed a motion to dismiss
plaintiff's complaint because plaintiff's mother had already
dismissed the claim with prejudice. The trial court agreed and
dismissed plaintiff's complaint. Plaintiff now appeals.
II.
"Settlement of litigation ranks high in our public policy."
Nolan v. Lee Ho, 120 N.J. 465, 472 (1990) (quoting Jannarone v.
W.T. Co., 65 N.J. Super. 472, 476 (App. Div.), certif. denied, 35
N.J. 61 (1961)). "Public policy favors the settlement of
disputes." Willingboro Mall, Ltd. v. 240/242 Franklin Ave.,
L.L.C., 215 N.J. 242, 253 (2013). In furtherance of the strong
policy of enforcing settlements, "our courts 'strain to give effect
to the terms of a settlement wherever possible.'" Brundage v.
Estate of Carambio, 195 N.J. 575, 601 (2008) (quoting Dep't of
Pub. Advocate v. N.J. Bd. of Pub. Util., 206 N.J. Super. 523, 503
(App. Div. 1994)). We therefore will honor and enforce an
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agreement to settle a lawsuit in the absence of fraud or other
compelling circumstances. Pascarella v. Bruck, 190 N.J. Super.
118, 124-25 (App. Div.), certif. denied, 94 N.J. 600 (1983).
A settlement of a legal claim between parties is a contract
like any other contract. Nolan, supra, 120 N.J. at 472. A
settlement agreement is subject to the ordinary principles of
contract law. Thompson v. City of Atlantic City, 190 N.J. 359,
379 (2007). Interpretation of a contract is a question of law.
Selective Ins. Co. of Am. v. Hudson E. Pain Mgmt. Osteopathic Med.
& Physical Therapy, 210 N.J. 597, 605 (2012). The court's ultimate
goal is to determine the intent of the parties, as expressed in
the language they used in the contract. Onderdonk v. Presbyterian
Homes of N.J., 85 N.J. 171, 183-84 (1981); Celanese Ltd. v. Essex
Cty. Improvement Auth., 404 N.J. Super. 514, 528 (App. Div. 2009).
In divining the parties' intent, we read the contract as a whole,
in "accord with justice and common sense." Cumberland Cty.
Improvement Auth. v. GSP Recycling Co., 358 N.J. Super. 484, 497
(App. Div.) (quoting Krosnowski v. Krosnowski, 22 N.J. 376, 387
(1956)), certif. denied, 177 N.J. 222 (2003).
Plaintiff argues her mother never received consideration for
her promise to dismiss because defendant was already legally
obligated to pay the amount he did. Paragraph 29 of the DJD
states, "[T]he parties agree to pay . . . the monies due [to
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plaintiff's] mother in an amount to be agreed upon by the parties,"
but the DJD never established how much the couple would pay
plaintiff's mother. The mother's attorney and defendant's
attorney exchanged letters disputing the amounts owed, and they
eventually settled on $286,170.14, which she received. We cannot
conclude plaintiff's mother never received consideration without
rendering all settlement agreements unenforceable as a matter of
law — an absurdity clearly against public policy. See Nolan,
supra, 120 N.J. at 472.
Plaintiff only raised the issue of accord and satisfaction
on appeal. We address issues raised for the first time on appeal
only when they are "of sufficient public concern." State v.
Churchdale Leasing, Inc., 115 N.J. 83, 100 (1989). Plaintiff's
mother sued plaintiff and defendant for $380,000. Through her
attorney, plaintiff's mother communicated a settlement offer to
the parties, then attempted to assign part of her claim to
plaintiff for $1 before receiving the agreed-upon payment, and
then dismissed her complaint with prejudice. Plaintiff contends
defendant still owes the assigned claim, but we discern no public
interest in this issue.
Affirmed.
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