JOSEFA BARAZZA VS. COUNTY OF HUDSONÂ Â (L-3054-13, HUDSON 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NOT FOR PUBLICATION WITHOUT THE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-2063-15T3
JOSEFA BARAZZA,
Plaintiff-Appellant,
v.
COUNTY OF HUDSON,
Defendant-Respondent.
_______________________________
Argued October 24, 2017 – Decided November 15, 2017
Before Judges Carroll and Mawla.
On appeal from Superior Court of New Jersey,
Law Division, Hudson County, Docket No.
L-3054-13.
Brian F. Curley argued the cause for
appellant.
Raymond J. Seigler argued the cause for
respondent (Chasan Lamparello Mallon &
Cappuzzo, PC, attorneys; Cindy Nan Vogelman,
of counsel and on the brief; Qing H. Guo, on
the brief).
PER CURIAM
This appeal stems from the parties' conflicting
interpretations of their earlier settlement agreement. Plaintiff
Josefa Barraza1 appeals from a December 8, 2015 order rejecting
her interpretation of the settlement agreement. Consequently, the
court dismissed plaintiff's action against defendant County of
Hudson, which asserted claims for breach of the settlement
agreement and retaliation under the New Jersey Law Against
Discrimination (LAD), N.J.S.A. 10:5-1 to -49.2 We affirm,
substantially for the reasons set forth by Judge Lisa Rose in her
cogent oral opinion.
I.
Plaintiff has been employed since 2000 in Hudson County's
Social Services Department. In December 2006, plaintiff was
promoted from a permanent Civil Service position as a Human
Services Specialist 1 (HSS1) Bilingual to a provisional position
as a Social Worker (SW) Bilingual. To obtain permanent appointment
as a SW Bilingual, plaintiff was required to pass a State Civil
Service examination and rank sufficiently high on the
Certification of Eligibles List (list). Plaintiff subsequently
failed the exam. As a result, she was excluded from the May 10,
2010 list generated by the Civil Service Commission (CSC), and on
1
We note plaintiff's last name appears as Barraza in her complaint
but is alternately spelled Barazza in her notice of appeal.
2
The order dismissing plaintiff's complaint was entered on March
21, 2016. Plaintiff's notice of appeal does not reference the
March 21, 2016 dismissal order.
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August 2, 2010, she was returned to her former HSS1 Bilingual
position.
Following her demotion, in March 2011, plaintiff filed a
Notice of Charge of Discrimination with the United States Equal
Employment Opportunity Commission (EEOC) alleging age
discrimination. In April 2011, plaintiff filed a Charge of
Discrimination with the New Jersey Division on Civil Rights
alleging discrimination based on age and national origin.
On May 12, 2011, the parties entered into a Settlement
Agreement (the settlement agreement). Plaintiff agreed to
withdraw her discrimination claims and defendant agreed to re-
appoint her provisionally to SW Bilingual pending examination.
Specifically, the settlement agreement in pertinent part provided:
NOW, THEREFORE, in consideration of the
premises and conditions set forth herein, the
County and Josefa Barraza agree as follows:
1. The County agrees to [p]romote the employee
to the provisional title of Social Worker,
Bilingual English/Spanish, which shall be
subject to Civil Service Examination and
eligibility as per Title 4A.
Josefa Barraza agrees to withdraw [her]
complaint of discrimination based on national
origin and age in violation of Title VII of
the Civil Rights Act and the Age
Discrimination in Equal Employment Act, as
amended, which was filed on April 29, 2011
with the New Jersey Division on Civil Rights
and to notify the Division on Civil Rights of
the withdrawal.
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Plaintiff also agreed to waive any future claims based on acts
that occurred prior to the date of the settlement agreement.
Effective May 23, 2011, defendant promoted plaintiff
provisionally to SW Bilingual pending examination. On March 22,
2012, plaintiff took the Civil Service examination for permanent
placement to SW Bilingual. Plaintiff passed the exam, but her
score ranked her eighteenth out of twenty eligible candidates on
a list generated by the CSC the following month. Since there were
not eighteen SW Bilingual positions available for permanent
appointment, plaintiff was not promoted.3 On June 18, 2012,
plaintiff was again demoted to HSS1 Bilingual.
On June 27, 2013, plaintiff filed a complaint in the Law
Division alleging breach of the settlement agreement and a LAD
retaliation claim. In essence, plaintiff claimed that, since she
passed the Civil Service examination for the SW Bilingual position,
defendant was obligated under the settlement agreement to maintain
her in that position on a provisional basis pending her permanent
appointment from the certified eligibility list.
3
The "Rule of Three" governs the discretion of the appointing
authority by generally requiring selection from the three highest
scoring candidates. See N.J.S.A. 11A:4-8. See also N.J.A.C.
4A:4-4.8(a)(3) ("Upon receipt of a certification, an appointing
authority shall . . . [a]ppoint one of the top three interested
eligibles (rule of three) from an open competitive or promotional
list [.]").
4 A-2063-15T3
While the litigation was pending, plaintiff was reached on
the list and defendant permanently appointed her to the SW
Bilingual position effective May 11, 2015. Accordingly,
plaintiff's claims for the differential in pay and benefits between
the two positions narrowed to the period between her June 18, 2013
demotion and her May 11, 2015 promotion.
The initial August 17, 2015 trial date was postponed to
September 9, 2015. The trial was then rescheduled for September
16, 2015, when plaintiff submitted a motion in limine that sought
the court's interpretation of the settlement agreement as a matter
of law. Specifically, the in limine motion requested the court
to interpret the settlement agreement to provide that plaintiff
was entitled to maintain her provisional SW Bilingual position
from May 23, 2011, until she was permanently assigned that title
consistent with Civil Service rules and regulations. The motion
was supported by deposition transcripts of plaintiff and
defendant's designated representative, Roger Quintana.4
The case was not reached for trial on September 16 and it was
again relisted for December 7, 2015. On December 4, 2015,
defendant submitted its trial brief seeking dismissal of
plaintiff's complaint.
4
See R. 4:14-2(c) (authorizing a governmental agency to designate
a person to testify on its behalf).
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The trial was assigned to Judge Rose, who conducted oral
argument on plaintiff's motion on December 7, 2015. During
argument, the parties agreed to waive a jury trial and allow the
in limine motion to be treated as a timely-filed dispositive motion
for summary judgment. Plaintiff's counsel argued that the
interpretation of the settlement agreement was the central issue
in the case. Counsel elaborated:
So it's a question of law, what does the
contract say, and it's a question of law, what
do the Civil Service Regulations say and do
those control the contract, or is the contract
controlling as a matter of law. So you have
an interpretation and then application, both
of which are legal issues for the Court.
On December 8, 2015, Judge Rose rejected plaintiff's
interpretation of the settlement agreement, setting forth her
reasons in a thorough and well-reasoned oral opinion. The judge
then granted the parties a recess to assess the procedural posture
of the case in light of her ruling. When the case resumed,
plaintiff's counsel advised the court:
[I]n terms of what I would present factually
to support a [LAD] retaliation claim
essentially would be the actions that breached
the settlement agreement. And so it really
is the demotion in June [] 2012 pending the
permanent appointment in June [] 2015.
So if the County is to take the position . . .
that they abided [by the settlement agreement]
and acted properly[,] based on your Honor's
ruling, I'm not sure what is left that I could
6 A-2063-15T3
prove differently in terms of a presentation
and in stating a claim in that context in light
of the legal ruling.
And, you know, candidly, for the record as
well, that[] I've always said that this was
the pivotal issue.
. . . .
It either went one way or the other, and all
the rest of the chips fall in place.
Following this concession, Judge Rose granted defendant's
oral motion to dismiss. The judge entered a memorializing order
on December 8, 2015, denying plaintiff's motion in limine. On
March 21, 2016, the court issued an order dismissing the case.
II.
In this appeal, plaintiff contends the trial court should
have interpreted the parties' settlement agreement to require
defendant to continue plaintiff in her provisional SW Bilingual
title from May 23, 2011, until her permanent appointment to that
position on May 11, 2015. Plaintiff also argues the trial court
erred in dismissing the complaint in the absence of a summary
judgment motion by defendant, and by deviating from controlling
summary judgment standards.
"'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
7 A-2063-15T3
N.J. 61 (1961)). Settlement agreements should be honored in the
absence of evidence of fraud or some other compelling
circumstances. Ibid. (citing Pascarella v. Bruck, 190 N.J. Super.
118, 125 (App. Div.), certif. denied, 94 N.J. 600 (1983)). Among
its other benefits, "[s]ettlement spares the parties the risk of
an adverse outcome and the time and expense - - both monetary and
emotional - - of protracted litigation." Willingboro Mall, Ltd.
v. 240/242 Franklin Ave., LLC, 215 N.J. 242, 253-54 (2013) (citing
State v. Williams, 184 N.J. 432, 441 (2005)).
Review of a trial court's interpretation of an agreement is
de novo. Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Cantone
Research, Inc., 427 N.J. Super. 45, 57 (App. Div.), certif. denied,
212 N.J. 460 (2012). The reviewing court must evaluate the common
intention of the parties and the purpose they tried to achieve.
See Tessmar v. Grosner, 23 N.J. 193, 201 (1957). The court's
initial task is to determine the parties' intent, which in an
appropriate setting, is "a purely legal question that is
particularly suitable for decision on a motion for summary
judgment." Pressler & Verniero, Current N.J. Court Rules, comment
5 on R. 4:46-2 (2017); see also Khandelwal v. Zurich Ins. Co., 427
N.J. Super. 577, 585 (App. Div.) (noting interpretation of a
contract "is generally appropriate to resolve . . . on summary
judgment"), certif. denied, 212 N.J. 430 (2012).
8 A-2063-15T3
The "court's role is to consider what is 'written in the
context of the circumstances' at the time of drafting and to apply
'a rational meaning in keeping with the expressed general
purpose.'" Sachau v. Sachau, 206 N.J. 1, 5-6 (2011) (quoting Atl.
N. Airlines, Inc. v. Schwimmer, 12 N.J. 293, 302 (1953)). "To the
extent that there is any ambiguity in the expression of the terms
of a settlement agreement, a hearing may be necessary to discern
the intent of the parties at the time the agreement was entered
and to implement that intent." Quinn v. Quinn, 225 N.J. 34, 45
(2016) (citing Pacifico v. Pacifico, 190 N.J. 258, 267 (2007)).
In her oral opinion, Judge Rose squarely addressed the issues
raised by plaintiff in light of the applicable legal principles.
First, the judge found "that the terms of the settlement agreement
at issue are clear; that is[,] the consideration intended by the
County was to reinstate plaintiff to her social worker/bilingual
[position] subject to the Civil Service examination and
eligibility as per Title 4A."
Judge Rose also considered the parties' written agreement in
the context of the governing Civil Service laws and regulations.
The judge noted:
As set forth previously, had plaintiff been
allowed to remain in the position as a
provisional employee, she would have displaced
someone entitled to the appointment
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permanently from the certified list generated
by the [CSC]. N.J.A.C. 4A:4-1.5.
[Plaintiff] was given the opportunity. She
took the test. It's where she placed on the
test [that] was out of the control of the
County and within her control.
The County could not pass over departmental
employees ranked ahead of her because she did
not have preference as a provisional
employee.[5] There simply were not enough
vacancies to reach where she placed on the
list and, as such, she was returned to her
previous . . . permanent vacancy.
[Plaintiff] remained on the list and remained
eligible for future vacancy when the County
could reach her rank.
Judge Rose rejected plaintiff's contention that the
settlement agreement lacked consideration. Plaintiff based this
argument on Quintana's deposition testimony that plaintiff would
have received the provisional promotion to SW Bilingual regardless
of whether she signed the settlement agreement. The judge noted
Quintana's further testimony that the provisional appointment
provided plaintiff a remedy for her discrimination complaint.
Moreover, plaintiff "was given the benefit of a provisional
5
See N.J.A.C. 4A:4-1.5(a)(1) (stating that a provisional
appointment may be made only when "[t]here is no complete list of
eligibles, and no one remaining on an incomplete list will accept
provisional appointment." Moreover, "'the best that can be said'
of a candidate on an eligible list is that he has 'a right to be
considered for appointment.'" In re Foglio, 207 N.J. 38, 44-45
(2011) (quoting Nunan v. N.J. Dep't of Pers., 244 N.J. Super. 494,
497 (App. Div. 1990), certif. denied, 126 N.J. 335 (1991)).
10 A-2063-15T3
position subject to Civil Service examination and eligibility
requirements," and thus received the added salary and benefits
associated with the SW Bilingual position from May 22, 2011 to
June 18, 2012. The judge also found that "in withdrawing her
discrimination complaint, plaintiff received the benefit of
avoiding protracted litigation" and achieved certainty of result.
Based on these rulings, the judge concluded "the breach of
contract claim is not viable and the LAD claim premised on breach
of settlement agreement is not viable." Absent any viable claims,
dismissal of the complaint was warranted.
Having reviewed the record, briefs, and arguments of counsel,
we find no basis to disturb Judge Rose's thoughtful analysis of
the issues presented and affirm, substantially for the reasons set
forth in her opinion. We add only that plaintiff's arguments
regarding dismissal of the complaint fail on the following
procedural and substantive grounds.
First, it is axiomatic that we review final orders and
judgments, not the opinions that support them. Do-Wop Corp. v.
City of Rahway, 168 N.J. 191, 199 (2001). There is no doubt that
the trial court's opinion interpreting the settlement agreement
in defendant's favor left plaintiff with no viable claim and thus
resulted in dismissal of the complaint. However, plaintiff's
notice of appeal only identifies the court's December 8, 2015
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order denying the in limine motion, and not the subsequent March
21, 2016 order that dismissed the case. It is equally well-settled
that we review "only the judgment or orders designated in the
notice of appeal[.]" 1266 Apartment Corp. v. New Horizon Deli,
Inc., 368 N.J. Super. 456, 459 (App. Div. 2004) (citing Sikes v.
Twp. of Rockaway, 269 N.J. Super. 463, 465-66 (App. Div.), aff'd
o.b., 138 N.J. 41 (1994)); see also R. 2:5-1(f)(3)(A). Stated
differently, any arguments raised by plaintiff that fall outside
the four corners of the Notice of Appeal fall outside the scope
of our appellate jurisdiction in this case, and are therefore not
reviewable as a matter of law.
Second, in her brief, plaintiff concedes she filed the in
limine motion "since a summary judgment motion could not comply
with the requirement [of Rule 4:46-1] that the motion be made
returnable not later than [thirty days] before the scheduled trial
date." However, as we recently emphasized:
We have repeatedly condemned the filing or
consideration of in limine motions that seek
an action's termination. See Cho v. Trinitas
Reg'l Med. Ctr., 443 N.J. Super. 461, 464, 470
(App. Div. 2015), certif. denied, 224 N.J. 529(2016); Klier v. Sordoni Skanska Constr. Co.,
337 N.J. Super. 76, 83-85 (App. Div. 2001).
Our court rules simply do not countenance the
practice of filing dispositive motions on the
eve of or at the time of trial. An in limine
motion, filed at such late date, is
permissible only when it addresses preliminary
or evidentiary issues. Even then, such
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motions are "disfavor[ed]," Cho, supra, 443
N.J. Super. at 470; State v. Cordero, 438 N.J.
Super. 472, 484-85 (App. Div. 2014), certif.
denied, 221 N.J. 287 (2015), and should be
heard "only sparingly," Bellardini v.
Krikorian, 222 N.J. Super. 457, 464 (App. Div.
1988).
[L.C. v. M.A.J., ___ N.J. Super. ___, ___
(App. Div. 2017) (slip op. at 3).]
In any event, after the imminent trial date was adjourned and
the case rescheduled, Judge Rose aptly recognized this was "a
dispositive motion . . . for summary judgment disguised as a motion
in limine." The following colloquy ensued at oral argument:
THE COURT: Again, it sounds like a summary
judgment motion. If there's no factual issue,
it's a summary judgment motion, is it not?
PLAINTIFF'S COUNSEL: In effect. In effect.
And my thought was, given the procedural hang-
ups that we've discussed already, let's just
bring it in, waive the jury, present it to the
[c]ourt and get it done, and if the [c]ourt
decides testimony is needed, then we do it.
If we don't, then the [c]ourt decides it
summarily.
The judge was cautious in confirming that defense counsel
consented to treat the motion as a summary judgment motion and had
adequate opportunity to respond to it. Only then did the judge
determine that plaintiff was not entitled to summary judgment
because interpretation of the settlement agreement was a matter
of law and the terms of the agreement were clear on its face and
13 A-2063-15T3
contextually did not support the meaning that plaintiff ascribed
to them.
Finally, following her ruling on the interpretation issue,
the judge granted a recess to allow counsel to assess the
procedural posture of the case. Plaintiff's counsel then candidly
conceded that interpretation of the settlement agreement was the
"pivotal issue" and plaintiff was effectively left with no viable
claims after the judge ruled on the motion. "We are satisfied
that the concession by [plaintiff's] counsel on the motion for
summary judgment forecloses [plaintiff's] contrary argument on
appeal." Ji v. Palmer, 333 N.J. Super. 451, 459 (App. Div. 2000)
(citing Misani v. Ortho. Pharm. Corp., 44 N.J. 552, 555-56, appeal
dismissed, 382 U.S. 203, 86 S. Ct. 398, 15 L. Ed. 2d 270 (1965);
First Am. Title Ins. Co. v. Vision Mortgage Corp., 298 N.J. Super.
138, 143 (App. Div. 1997)).
Affirmed.
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