COMET MANAGEMENT COMPANY, LLC VS. NICOLE WOOTEN (L-0740-14, SUSSEX COUNTY AND STATEWIDE) ( 2020 )


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  •                                 NOT FOR PUBLICATION WITHOUT THE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-1892-17T1
    COMET MANAGEMENT
    COMPANY, LLC,
    Plaintiff-Respondent/
    Cross-Appellant,
    v.
    NICOLE WOOTEN, KATHLEEN
    TRUMBLE, and ALLURE
    PROPERTIES GROUP, LLC,
    Defendants-Appellants/
    Cross-Respondents.
    ______________________________
    Argued December 10, 2019 – Decided February 25, 2020
    Before Judges Accurso, Gilson and Rose.
    On appeal from the Superior Court of New Jersey, Law
    Division, Sussex County, Docket No. L-0740-14.
    George T. Daggett argued the cause for appellant/cross-
    respondent.
    Thomas N. Ryan argued the cause for respondent/cross-
    appellant (Laddey, Clark & Ryan, LLP, attorneys;
    Thomas N. Ryan and Jessica A. Jansyn, on the briefs).
    PER CURIAM
    Following a six-day jury trial, defendants Allure Properties Group, LLC,
    Nicole Wooten and Kathleen Trumble appeal a series of Law Division orders
    that culminated in an aggregate final judgment of $361,477.88, including
    counsel fees and costs of suit and pre-judgment interest. Defendants argue the
    motion judge erred by granting plaintiff's partial summary judgment motion on
    liability against Wooten and Trumble; dismissing Wooten's counterclaims for
    violations of the Conscientious Employee Protection Act (CEPA), N.J.S.A.
    34:19-1 to -14, and the New Jersey Law Against Discrimination (LAD), N.J.S.A.
    10:5-1 to -49; and denying reconsideration of those decisions. Defendants
    contend the trial judge erred by informing the jury of the motion judge's
    decisions establishing liability for breach of contract and breach of the duty of
    loyalty; and permitting the jury to consider plaintiff's claims for tortious
    interference with economic advantage and breach of the duty of loyalty. For the
    first time on appeal, defendants claim error with the jury instructions. Plaintiff
    Comet Management Company, LLC cross-appeals the portion of the final
    judgment that incorporated a prior order reducing its counsel fees and costs.
    We have considered these arguments in light of the record and applicable
    legal standards. For the reasons that follow, we affirm all orders under review.
    A-1892-17T1
    2
    I.
    Initially, we address defendants' challenges to the motion judge's
    decisions on summary judgment, employing the same standard of review that
    governs the trial court. Conley v. Guerrero, 
    228 N.J. 339
    , 346 (2017). We must
    decide "whether the evidence present[ed] a sufficient disagreement to require
    submission to a jury or whether it [wa]s so one-sided that one party must prevail
    as a matter of law." Brill v. Guardian Life Ins. Co. of Am., 
    142 N.J. 520
    , 536
    (1995); R. 4:46–2(c). In doing so, we view the facts from the record before the
    motion judge in a light most favorable to the non-moving defendants. 
    Brill, 142 N.J. at 523
    . Those facts are essentially undisputed. Because Wooten's CEPA
    and LAD claims depend upon the timing of certain events, we set forth the facts
    in the following chronology in some detail.
    A.
    Plaintiff manages condominium and homeowners associations. Wooten
    was hired by plaintiff in 2003 as the company's office manager. In fewer than
    two years, Wooten's responsibilities expanded to property management, which
    included working closely with the associations' board members.         In 2005,
    Wooten signed plaintiff's non-compete agreement. Among other things, Wooten
    agreed that "at any time during the period of employment and for a period of
    A-1892-17T1
    3
    one year immediately following termination of [her] employment" she would
    not:
    A) Sell, solicit or accept business or orders from
    existing or newly acquired customers of [plaintiff]
    within a [twenty-five-]mile radius of any of [plaintiff's]
    offices which are currently maintained within Vernon
    Township and Hamburg Township, . . . located in
    Sussex County, . . . with respect to services that are
    similar to or competitive with [plaintiff] or any of its
    affiliates . . . . [or]
    B) Interfere with, disrupt or attempt to disrupt
    relationships, contractual or otherwise, between
    [plaintiff], including [its a]ffiliates, and its existing or
    newly acquired customers, employees or vendors.
    The agreement permitted plaintiff to recover "any and all damages" plus counsel
    fees and expenses in the event of Wooten's breach.
    In 2008, Wooten became plaintiff's vice-president. As a result of her
    promotion, Wooten received an increase in salary and a company car. Hired in
    2009, Trumble became plaintiff's financial services manager, providing
    accounting services for plaintiff's clients that Wooten managed. Three of those
    clients are at issue here:      Heritage Lakes at the Quarry Condominium
    Association, Inc., and Indian Fields at Hardyston Homeowners Association,
    Inc., both of which were located in Hamburg; and Hidden Village Condominium
    Association, Inc., which was located in Vernon.
    A-1892-17T1
    4
    By the end of 2012, plaintiff's then president began increasing his son-in-
    law's management duties; the son-in-law became plaintiff's president in early
    2013. When deposed, Wooten said she was "stripped" of her title sometime in
    2013; she could not recall the exact date. Notably, she said her responsibilities
    for plaintiff began to diminish by June or July 2013. Wooten's salary was not
    decreased.
    In August 2013, Wooten complained to plaintiff's president that one of the
    company's maintenance workers, nicknamed Tennessee, 1 was living in an
    association's vacant unit without paying full rent. That unit was under rent
    receivership, the purpose of which is to reduce the association's delinquency
    rate. Wooten believed the president violated the rent-receivership "order" by
    permitting Tennessee to reside in the unit, which had an "excessive balance."
    In October 2013, Wooten complained to the president that Tennessee was
    spreading an untrue rumor that she and Tennessee had engaged in a sexual
    encounter.   Tennessee disclosed to the president a diametrically opposed
    version, claiming Tennessee and Wooten had, indeed, engaged in a sexual act.
    Following an internal investigation – which could not corroborate either account
    1
    Wooten identified the employee by his full name. We use the employee's
    nickname to protect his privacy and because it is relevant to the issues on appeal.
    A-1892-17T1
    5
    – the president implemented a written "plan of action" instructing Wooten and
    Tennessee to "stay away from each other and to stay away from the properties
    that either of them worked at." The following month, Tennessee was terminated
    for violating that mandate.
    In December 2013, the president moved Wooten's office to the Indian
    Fields and Heritage Lakes properties because she "spen[t] most of [her] time
    there and ha[d] a very close touch with those boards and th[at] was always the
    plan with the new building at [another property]." The president's email to
    Wooten acknowledged the "little office area" at that location, but told Wooten
    she could use the conference room "anytime" she wanted to, and asked her to let
    him know if she thought she would be unable to make that change. In t he same
    email, the president also advised Wooten that he intended to move Trumble into
    Wooten's office, and he would "set [him]self up in [Trumble's] office." Wooten
    asked the president why he intended to move Trumble, stating: "If you take
    from me[,] I don't care, my thoughts would be not to disrupt anyone else. I can
    sit in the conference room, but moving others, not sure about all of that . . . ."
    While Wooten was physically moving to her new office location, the
    president gave her a bottle of Jack Daniel's Tennessee Whiskey. Wooten was
    offended because, as noted, Tennessee was the former maintenance worker's
    A-1892-17T1
    6
    nickname. The president assured Wooten the liquor was intended as a holiday
    gift, which he had selected because he "recalled drinking Jack and Cokes with
    her husband . . . ." The president said he gifted other employees bottles of wine
    or liquor on that day, as he had done for the prior two or three years around the
    holidays.   Shortly thereafter, Wooten and Trumble began discussing the
    formation of a community property management company that would provide
    similar services as plaintiff. They co-founded Allure for that purpose on January
    31, 2014.
    According to Wooten's deposition testimony, while still employed by
    plaintiff, she told Heritage Lakes she had started Allure. Dissatisfied with
    plaintiff's work, Heritage Lakes asked Wooten whether she knew anyone who
    could perform a "clean-out or something like that for a rent receiver [sic] unit."
    Wooten replied:         "Sure, if you don't mind."    Allure began performing
    maintenance work for Heritage Lakes on April 24, 2014. Wooten acknowledged
    that Allure issued several invoices to Heritage Lakes for services rendered from
    April through August 2014, which included dog waste collection, beach repairs,
    and maintenance.        Allure provided the invoices to Heritage Lakes through
    plaintiff's "system."
    A-1892-17T1
    7
    While she was still employed by plaintiff, Wooten also told Indian Fields
    she had started Allure, which performed a "clean-out" for that association in the
    Summer of 2014. Trumble "pretty much arranged it." Wooten claimed that
    work was not something plaintiff could have performed because "anything that
    [plaintiff] did was a catastrophe."
    Wooten resigned from plaintiff's employ on August 27, 2014, effective
    two days later. In an email to the president she stated: "I am humble just
    because of my experiences working for [plaintiff]." On August 28, Heritage
    Lakes notified plaintiff it did not intend to renew its three-year contract, which
    expired on August 31. That same day, Trumble tendered her resignation, but
    stated she "would continue her employment through September 2014 . . . to
    facilitate the transition for [plaintiff]." Plaintiff claims it terminated Trumble
    on September 2, 2014 when the company "discovered [she] had met with
    Heritage Lakes to solicit its business on behalf of Allure . . . ." On September
    2, Heritage Lakes retained Allure as its property management company.
    Plaintiff's two-year contract with Hidden Village expired on June 30,
    2013; the contract was renewed on a month-to-month basis thereafter. But, in
    October 2014, two of Hidden Village's board members approached Wooten,
    requesting Allure provide property management services for its association.
    A-1892-17T1
    8
    Wooten claimed she had not told Hidden Village's board about Allure while she
    was employed by plaintiff. In January 2015, Hidden Village became Allure's
    client.
    A few months after Wooten and Trumble resigned, plaintiff filed a ten -
    count verified complaint in the Law Division. Relevant here, plaintiff asserted
    claims for breach of contract against Wooten and Allure; breach of the duty of
    loyalty against Wooten, Trumble and Allure; and tortious interference with
    economic advantage against Wooten and Allure.2 Plaintiff sought counsel fees
    and costs on each count of its complaint. Defendants collectively filed a verified
    answer; Wooten asserted counterclaims for violations of the CEPA and LAD,
    and plaintiff's internal harassment policy.
    B.
    Following discovery, the motion judge granted plaintiff's partial summary
    judgment motion on liability against Wooten for breach of contract and against
    Wooten and Trumble for breach of the duty of loyalty, and dismissing Wooten's
    2
    For reasons that are unclear from the record, the jury returned a verdict against
    all three defendants, individually, for tortious interference with prospective
    economic advantage.
    A-1892-17T1
    9
    counterclaims for CEPA and LAD violations.3 In a cogent statement of reasons
    accompanying the order, the motion judge squarely addressed the legal
    principles governing non-compete agreements and the duty of loyalty,
    concluding Wooten's non-compete agreement was valid and enforceable, and
    that she violated the agreement "by accepting business from Heritage Lakes,
    Hidden Village and Indian [Fields]." The judge determined Allure, as a separate
    entity and a non-party to the agreement, was not jointly liable for Wooten's
    breach of contract. The judge also concluded Wooten and Trumble breached
    their duties of loyalty by "actively engaging in competition with their current
    employer" by co-founding Allure while they were still employed by plaintiff
    and accepting business from plaintiff's clients.    Finally, the judge rejected
    Wooten's contention that plaintiff violated the CEPA or the LAD, or otherwise
    treated her unfairly to prevent enforcement of the covenant not to compete.
    3
    Although the motion judge's written decision thoroughly sets forth his reasons
    for denying Wooten's CEPA and LAD claims, the accompanying orders granting
    partial summary judgment do not include dismissal of those claims, or that
    Wooten's common law claim was still viable. The order denying reconsideration
    generally refers to the statement of reasons, which again rejected Wooten's
    CEPA and LAD claims. Prior to jury selection, the trial judge memorialized an
    off-the-record conference held in chambers stating: "[T]he parties agree that all
    the counterclaims have been dismissed by [the motion judge]."
    A-1892-17T1
    10
    On appeal, defendants primarily contend the motion judge erroneously
    determined Wooten violated the non-compete agreement by "accepting"
    business from plaintiff's former clients. Because Heritage Lakes and Hidden
    Village had ended their contracts with plaintiff before those associations became
    Allure's clients, defendants claim the non-compete agreement's "[p]rohibition
    against 'acceptance' is contrary to case law and against public policy." In a
    somewhat overlapping argument, defendants contend the motion judge failed to
    apply the governing law to plaintiff's breach of the duty of loyalty claims.
    Defendants argue the judge failed to consider that the associations had been
    dissatisfied with plaintiff's work, positing plaintiff derived a benefit from the
    work performed by Allure because plaintiff "wasn't immediately terminat ed" by
    the associations. Defendants contentions are misplaced. We address those
    contentions in reverse order.
    1.
    Contract or no contract, employees owe an "undivided loyalty" to their
    employers "while [they are] still employed." Auxton Comput. Enters., Inc. v.
    Parker, 
    174 N.J. Super. 418
    , 423-24 (App. Div. 1980). If an employee is not
    subject to a non-compete agreement, he "may anticipate the future termination
    of his employment and, while still employed, make arrangements for some new
    A-1892-17T1
    11
    employment by a competitor or the establishment of his own business in
    competition with his employer." 
    Id. at 423.
    "The mere planning, without more,
    is not a breach of an employee's duty of loyalty and good faith to his employer."
    
    Id. at 424.
    But, an employee "may not solicit his employer's customers for his
    own benefit before he has terminated his employment," and an employee may
    not "do other similar acts in direct competition with the employer's business,"
    or "contrary to the employer's interests" while still employed. 
    Id. at 423,
    425;
    accord Chernow v. Reyes, 
    239 N.J. Super. 201
    , 202 (App. Div. 1990).
    In Cameco, Inc. v. Gedicke, 
    157 N.J. 504
    , 516 (1999), our Supreme Court
    recognized that a breach of loyalty claim generally requires a fact-specific
    analysis, explaining "[t]he scope of the duty of loyalty that an employee owes
    to an employer may vary with the nature of their relationship.          Employees
    occupying a position of trust and confidence, for example, owe a higher duty
    than those performing low-level tasks." Generally, "the adjudication of such
    claims summons rules of reason and fairness." 
    Ibid. To guide trial
    courts, the
    Court later identified four factors relevant to the determination of whether an
    employee-agent breaches the duty of loyalty:
    (1) The existence of contractual provisions relevant to
    the employee's actions; (2) the employer's knowledge
    of, or agreement to, the employee's actions; (3) the
    status of the employee and his or her relationship to the
    A-1892-17T1
    12
    employer, e.g., corporate officer or director versus
    production line worker; and (4) the nature of the
    employee's [conduct] and its effect on the employer.
    [Kaye v. Rosefielde, 
    223 N.J. 218
    , 230 (2015) (internal
    quotation marks omitted).]
    As the motion judge correctly concluded, "Wooten and Trumble breached
    the duty of loyalty when they accepted business and were in competition with
    [p]laintiff, while still employed by [p]laintiff."    According to Trumble's
    deposition, plaintiff had no knowledge of Allure while Wooten and Trumble
    were still employees. Both defendants held high-level management positions
    while employed by plaintiff. Further, the non-compete agreement prohibited
    Wooten from "accept[ing] business" from plaintiff's clients "during the period
    of employment." We are therefore satisfied that the conduct of Wooten and
    Trumble "went beyond making arrangements for the future and [they] were
    actively engaging in competition," thereby breaching their duty of loyalty to
    plaintiff.   We also are satisfied that Wooten breached the non-compete
    agreement by accepting business from Heritage Lakes and Indian Fields while
    she was still employed by plaintiff.
    2.
    Defendants' primary challenge to the non-compete agreement is grounded
    in public policy concerns. They also claim plaintiff mistreated Wooten, thereby
    A-1892-17T1
    13
    rendering the non-compete provision unenforceable.          Defendants do not
    otherwise challenge the reasonableness of the agreement's restrictions.
    Initially, we note the non-compete agreement signed by Wooten
    prohibited competition both during and for one year after her employment with
    plaintiff ended.   The undisputed facts established Wooten breached the
    agreement by competing with plaintiff while she was still employed by plaintiff.
    Wooten notified Hidden Village, Indian Fields and Heritage Lakes that she had
    started her own company when those associations still had effective
    management agreements with plaintiff. Allure began performing services for
    two of those clients before they had terminated their business relationships with
    plaintiff.
    Moreover, the restrictive covenant was reasonable.       A non-compete
    agreement is enforceable if it satisfies the test for reasonableness set forth in
    Karlin v. Weinberg, 
    77 N.J. 408
    (1978), as reaffirmed in Community Hospital
    Group, Inc. v. More, 
    183 N.J. 36
    , 57 (2005), and Pierson v. Medical Health
    Centers, P.A., 
    183 N.J. 65
    , 69 (2005). The Karlin test, also known as the Solari
    or Solari/Whitmyer test,4 requires the court to determine whether: "(1) the
    4
    Solari Indus., Inc. v. Malady, 
    55 N.J. 571
    (1970); Whitmyer Bros., Inc. v.
    Doyle, 
    58 N.J. 25
    (1971).
    A-1892-17T1
    14
    restrictive covenant was necessary to protect the employer's legitimate interests
    in enforcement, (2) whether it would cause undue hardship to the employee, and
    (3) whether it would be injurious to the public." Cmty. Hosp. Grp., 
    Inc., 183 N.J. at 57
    . Courts should also consider three other factors "in determining
    whether the restrictive covenant is overbroad: its duration, the geographic limits,
    and the scope of activities prohibited. Each of those factors must be narrowly
    tailored to ensure the covenant is no broader than necessary to protect the
    employer's interests." 
    Id. at 58.
    Ultimately, a court must assess an agreement's
    reasonableness on a case-by-case basis. 
    Pierson, 183 N.J. at 69
    .
    Defendants claim the non-compete agreement fails to satisfy the third
    Karlin factor, suggesting a restrictive covenant that prevents a former employee
    from "accepting" business from her prior employer's former clients should be
    declared void as against public policy. In A.T. Hudson & Co. v. Donovan, 
    216 N.J. Super. 426
    , 432-33 (App. Div. 1987), we determined an employer's interest
    in protecting customer relationships outweighed the public's interest in "an
    unrestricted choice of management consultants."           We distinguished the
    commercial services rendered by a management consultant from the
    professional services rendered by an attorney to a client, a doctor to a patient or
    an accountant to a client. 
    Id. at 433-34.
    A-1892-17T1
    15
    Weighing "the competing interest of the customers against plaintiff's
    business interest," the motion record here is devoid of any evidence that a one-
    year, twenty-five-mile restriction on providing property management services to
    plaintiff's existing or newly acquired clients was unreasonably injurious to the
    public. See 
    id. at 433.
    As the motion judge explained, "[a]bsent from the record
    before the [c]ourt [we]re any certifications on behalf of [d]efendants certifying
    that enforcement of the covenant would restrict the public's access to other
    qualified property managers within the [twenty-five-mile] area." The judge
    elaborated:
    Similarly, absent is evidence in the record showing any
    undue burden on finding customers from the twenty-
    five-mile radius restriction. Defendant Wooten is a
    property manager and her services to the public are in
    [a] for-profit, commercial context. Unlike the lawyers
    in Dwyer [v. Jung, 
    133 N.J. Super. 343
    (Ch. Div. 1975),
    aff'd, 
    137 N.J. Super. 135
    (App. Div. 1975)], or the
    doctors in [Community Hospital Grp., Inc.], a property
    manager does not stand in a special relationship to the
    public [footnote omitted]. Accordingly, there is no
    negative impact on the public interest.
    We agree with the motion judge that defendants failed to support their
    claim and that their argument lacks merit. In reaching our conclusion, we reject
    defendants' reliance on the Chancery court's observation in Mailman, Ross,
    Toyes & Shapiro v. Edelson, 
    183 N.J. Super. 434
    , 442 (Ch. Div. 1982), that "a
    A-1892-17T1
    16
    covenant which attempts to 'protect' the clients from contact with the former
    employee operates to restrict the solicitation rights of the public[,]" thereby
    binding "those who were never parties to the agreement."
    More than two decades ago, we explained our discord with Mailman's
    implication that "covenants restricting professionals in their practice are
    necessarily so 'injurious to the public' that they should rarely, if ever , be
    enforced." Schuhalter v. Salerno, 
    279 N.J. Super. 504
    , 511 (App. Div. 1995).
    Indeed, we rejected a categorical "assertion of invalidity of restrictive covenants
    that 'impinge on the public's right to free access to the professional of its
    choice,'" the same type of categorical rule for which defendants now advocate.
    
    Id. at 512.
    Adopting that sort of bright-line approach would contravene our
    Supreme Court's mandate that non-compete agreements be assessed on a case-
    by-case basis. 
    Pierson, 183 N.J. at 69
    .
    Notably, unlike here, the non-compete agreement in Mailman prohibited
    a certified public accountant from "accept[ing], solicit[ing] or offer[ing]
    accounting services" to his employer's clients for a two-year period following
    his 
    termination. 183 N.J. Super. at 436
    . After resigning from his position, the
    employee accepted employment from one of his former employer's clients. 
    Id. at 437.
    Applying the Solari test, the Chancery court denied injunctive relief to
    A-1892-17T1
    17
    the employer. 
    Id. at 442.
    But, unlike Wooten, the employee in Mailman
    "accepted employment from a client[,] which had already terminated its
    relationship with [the employer] before seeking out [the employee's] services."
    
    Id. at 441
    (emphasis added). Further, unlike here, the non-compete agreement
    at issue in Mailman entirely lacked a territorial limitation, which served as a
    "pure restriction on competition." 
    Ibid. Given the focus
    of defendants' argument, we need not review the
    remaining Karlin factors. For the sake of completeness, we observe – as did the
    motion judge – that plaintiff's management agreements generally exceeded one
    year in duration, therefore the covenant's one-year restriction was "consistent
    with [p]laintiff's interests in protecting its client relationships . . . ." Further, as
    the property manager for each of the three properties, Wooten had "substantial
    dealings" with plaintiff's clients. See 
    Solari, 55 N.J. at 586
    (suggesting that
    following a remand hearing, a one-year limitation on an employee may be
    appropriate for actual or prospective customers with whom the employee had
    "substantial dealings" during his employment).
    Regarding the "undue hardship" factor, the Court has recognized, "where
    the breach results from the desire of an employee to end his relationship with
    his employer rather than from any wrongdoing by the employer, a court should
    A-1892-17T1
    18
    be hesitant to find undue hardship on the employee, he in effect having brought
    that hardship on himself." Karlin, 77 N.J at 423-24; see also Cmty. Hosp. Grp.,
    
    Inc., 183 N.J. at 102
    ("If the employee terminates the relationship, the court is
    less likely to find undue hardship as the employee put himself or herself in the
    position of bringing the restriction into play.").
    As the motion judge noted, Wooten "voluntarily left her employment
    relationship with [p]laintiff" in August 2014 and became Allure's property
    manager. Importantly, Wooten's non-compete agreement did not prevent her
    from providing property management services entirely, and as such, her ability
    to earn a living was not impaired. For example, Wooten acknowledged Allure
    provided management services to associations other than plaintiff's clients,
    including associations located in Nutley and Toms River. We agree with the
    motion judge that the record before him was devoid of evidence "showing any
    undue burden on finding customers from the twenty-five-mile radius
    restriction."
    Defendants' contention that Wooten's alleged unfair treatment by plaintiff
    somehow voided the non-compete provision lacks sufficient merit to warrant
    discussion in our written opinion.        R. 2:11-3(e)(1)(E).   We simply add
    defendants' reliance on Solari is misplaced. Unlike the defendant in that case,
    A-1892-17T1
    19
    Wooten never "expressed the thought that she was being deliberately forced out"
    nor did plaintiff terminate her employment. 
    Solari, 55 N.J. at 573
    .
    3.
    We also find no merit in Wooten's contention that the motion judge
    erroneously dismissed her CEPA and LAD counterclaims. She argues the judge
    misunderstood the relevance of her move to a closet-sized office without a desk,
    chairs or a telephone, and the insulting gift of whiskey that bore Tennessee's
    nickname. She claims the president took those "adverse actions" in retaliation
    for her reporting Tennessee's unlawful living arrangements and his false rumor -
    spreading, causing her constructive discharge and thereby violating the LAD
    and CEPA. Wooten's argument is unavailing.
    To establish a prima facie CEPA claim, the employee must prove
    (1) he or she reasonably believed that his or her
    employer's conduct was violating either a law, rule, or
    regulation promulgated pursuant to law, or a clear
    mandate of public policy;
    (2) he or she performed a "whistle-blowing" activity
    described in N.J.S.A. 34:19-3(c);
    (3) an adverse employment action was taken against
    him or her; and
    (4) a causal connection exists between the whistle-
    blowing activity and the adverse employment action.
    A-1892-17T1
    20
    [Dzwonar v. McDevitt, 
    177 N.J. 451
    , 462 (2003).]
    Relevant here, CEPA prohibits an employer from taking "retaliatory
    action" against an employee for protected whistleblower conduct. N.J.S.A.
    34:19-3.   "Retaliatory action" is defined as "the discharge, suspension or
    demotion of an employee, or other adverse employment action taken against an
    employee in the terms and conditions of employment." N.J.S.A. 34:19-2(e).
    What constitutes an "adverse employment action" must
    be viewed in light of the broad remedial purpose of
    CEPA, and our charge to liberally construe the statute
    to deter workplace reprisals against an employee
    speaking out against a company's illicit or unethical
    activities. Cast in that light, an "adverse employment
    action" is taken against an employee engaged in
    protected activity when an employer targets him for
    reprisals – making false accusations of misconduct,
    giving negative performance reviews, issuing an
    unwarranted suspension, and requiring pretextual
    mental-health evaluations – causing the employee to
    suffer a mental breakdown and rendering him unfit for
    continued employment.
    [Donelson v. DuPont Chambers Works, 
    206 N.J. 243
    ,
    257-58 (2011).]
    By reporting what she perceived to be Tennessee's unlawful occupancy of
    the rent-receivership unit, Wooten presented sufficient evidence that she
    engaged in protected whistleblowing activity.        But, Wooten failed to
    demonstrate plaintiff demoted, suspended or discharged her, reduced her rank
    A-1892-17T1
    21
    or compensation, or constructively discharged her in response to that
    whistleblowing activity. Maimone v. City of Atlantic City, 
    188 N.J. 221
    , 236
    (2006). Indeed, as Wooten candidly acknowledged, she could not recall when
    she was allegedly demoted, she never received a pay-cut, and her responsibilities
    began to diminish in June or July 2013 before she reported Tennessee's unlawful
    conduct in August 2013 and rumor-spreading in October 2013.
    We agree with the motion judge's determination that Wooten's office
    relocation and the gifting of "Tennessee" whiskey did not constitute adverse
    employment action under the CEPA. See Shepard v. Hunterdon Dev. Ctr., 
    336 N.J. Super. 395
    , 416 (App. Div. 2001) ("Neither rudeness nor lack of sensitivity
    alone constitutes harassment, and simple teasing, offhand comments, and
    isolated incidents do not constitute discriminatory changes in the terms and
    conditions of one's employment."), aff'd in relevant part, 
    174 N.J. 1
    (2002). As
    the motion judge recognized, the president testified that every year around
    Christmas, he "gave all employees either a bottle of wine or some type of gift as
    a thank-you." The president also relocated Trumble's office on the same day
    that he relocated Wooten's. We therefore discern no error in the judge's decision
    dismissing Wooten's CEPA claim.
    A-1892-17T1
    22
    Defendants rely upon the same conduct to support Wooten's LAD claim.
    Because "[i]t is beyond dispute that the framework for proving a CEPA claim
    follows that of a LAD claim,"5 Donofry v. Autotote Sys., Inc., 
    350 N.J. Super. 276
    , 290 (App. Div. 2001), we find Wooten's LAD claims are without sufficient
    merit to warrant discussion in our written opinion. R. 2:11-3(e)(1)(E). We
    affirm the judge's dismissal of those claims for the reasons expressed by the
    motion judge.
    II.
    We have considered defendants' challenges to the trial judge's decisions
    and find them equally meritless. Accordingly, we affirm those decisions without
    discussion, ibid., other than to note defense counsel acknowledged the judge's
    preliminary statement to the jurors – informing them liability had been
    established and was not an issue before them – was "acceptable" to defendants;
    defense counsel did not request a jury instruction regarding the lack of evidence
    that defendants "solicited" plaintiff's clients; and the claims of breach of the duty
    5
    Under the LAD, a claimant must demonstrate: (1) the employee was in a
    protected class; (2) the employee engaged in protected activity known to the
    employer; (3) the employee was thereafter subjected to an adverse employment
    consequence; and (4) that there is a causal link between the protected activity
    and the adverse employment consequence. Woods-Pirozzi v. Nabisco Foods,
    
    290 N.J. Super. 252
    , 266, 274 (App. Div. 1996).
    A-1892-17T1
    23
    of loyalty and tortious interference with economic advantage are cognizable in
    a single action. See Lamorte Burns & Co. v. Walters, 
    167 N.J. 285
    , 309 (2001).
    III.
    On its cross-appeal, plaintiff contends the trial judge erroneously reduced
    its fee and cost award. Plaintiff renews its argument that the work its counsel
    performed in litigating its three claims – breach of the non-compete agreement,
    breach of the duty of loyalty, and interference with prospective economic
    advantage – cannot be differentiated.            Accordingly, plaintiff contends it is
    entitled to fees and costs for all the work performed. Notably, defendants have
    not addressed plaintiff's cross-appeal.
    It is well-settled that reviewing courts will disturb a trial court's fee award
    "only on the rarest of occasions, and then only because of a clear abuse of
    discretion." Rendine v. Pantzer, 
    141 N.J. 292
    , 317 (1995); see also Litton Indus.
    v. IMO Indus., 
    200 N.J. 372
    , 386 (2009); Packard-Bamberger & Co. v. Collier,
    
    167 N.J. 427
    , 444 (2001). "Where the lower court's determination of fees was
    based on irrelevant or inappropriate factors, or amounts to a clear error in
    judgment, the reviewing court should intervene." Garmeaux v. DNV Concepts,
    Inc., 
    448 N.J. Super. 148
    , 155-56 (App. Div. 2016).
    A-1892-17T1
    24
    Recognizing our jurisprudence "generally disfavors the shifting of
    attorneys' fees, [but] a prevailing party can recover those fees if they are
    expressly provided for by statute, court rule, or contract," 
    Packard-Bamberger, 167 N.J. at 440
    , the trial judge limited plaintiff's fee award to its breach of
    contract claim because the non-compete agreement expressly provided for fees
    in the event of a breach. The judge elaborated:
    [B]ecause only one of the three issues, the breach of
    contract claim, has a basis to recover attorney[s'] fees,
    the court will calculate these costs by dividing the costs
    by three, and providing one[-]third of the fees and costs
    for the breach of contract claim. The court concurs that
    the time is not broken down in the time slips because
    the three claims are intertwined. The court has
    reviewed the factors set forth in [the Rules of
    Professional Conduct (RPC)] 1.5 [6] and finds the fees as
    6
    RPC 1.5(a) delineates the factors to be considered by the court in determining
    the reasonableness of counsel fees:
    (1) the time and labor required, the novelty and
    difficulty of the questions involved, and the skill
    requisite to perform the legal service properly;
    (2) the likelihood, if apparent to the client, that the
    acceptance of the particular employment will preclude
    other employment by the lawyer;
    (3) the fee customarily charged in the locality for
    similar legal services;
    (4) the amount involved and the results obtained;
    A-1892-17T1
    25
    submitted are reasonable and the hourly rates are
    reasonable. The court also finds that allocating
    attorney[s' fees] equally between the affirmative claims
    and the counterclaims . . . is reasonable and appropriate
    based on the court's review of the billing.
    Citing our decision in Silva v. Autos of Amboy, Inc., 
    267 N.J. Super. 546
    (App. Div. 1993), which applied the United States Supreme Court's decision in
    Hensley v. Eckerhart, 
    461 U.S. 424
    (1983), plaintiff argues that precedent
    precludes the approach utilized by the trial judge. We disagree.
    In Silva, we observed that when a plaintiff presents claims for which fees
    are permitted by statute along with claims for which such fees cannot be
    awarded, attorneys' fees for all of the time devoted by counsel to the case can
    be awarded if the work on the unrelated claims "can[] be deemed in pursuit of
    the ultimate result 
    achieved." 267 N.J. Super. at 556
    (citing 
    Hensley, 461 U.S. at 434-35
    ). A suit will not be considered a collection of separate discrete claims
    (5) the time limitations imposed by the client or by the
    circumstances;
    (6) the nature and length of the professional
    relationship with the client;
    (7) the experience, reputation, and ability of the lawyer
    or lawyers performing the services;
    (8) whether the fee is fixed or contingent.
    A-1892-17T1
    26
    if it rests on "a common core of facts" or is "based on related legal theories."
    
    Ibid. (internal quotation marks
    omitted) (quoting 
    Hensley, 461 U.S. at 435
    ).
    We are persuaded the judge reasonably reduced plaintiff's award by two -
    thirds because Wooten's breach of the non-compete agreement primarily
    involved Wooten's actions while she was employed by plaintiff, while its claims
    for unlawful interference with prospective business advantage pertained to the
    conduct by Wooten, Trumble, and Allure after both individuals resigned from
    plaintiff's employment. In that regard, the trial judge's decision tracks our
    direction in Silva – that when the same core facts are relevant to claims for which
    fees are to be awarded and other claims – "the court must focus on the
    'significance of the overall relief obtained . . . in relation to the hours reasonably
    expended on the 
    litigation.'" 267 N.J. Super. at 556
    (quoting 
    Hensley, 461 U.S. at 435
    ). Because the "significance" of plaintiff's relief obtained for its breach
    of contract claim, i.e., $93,928.31 – which was expressly permitted under the
    non-compete agreement – was much less when compared with the significance
    of its non-contractual claims, i.e., $187,856.62 for the unlawful interference
    with prospective business advantage, and an aggregate $19,705.68 for its breach
    of the duty of loyalty claims, we conclude the judge's award was reasonable.
    A-1892-17T1
    27
    Moreover, we have observed: "In fixing counsel fees, a trial judge must
    ensure that the award does not cover effort expended on independent claims that
    happen to be joined with claims for which counsel is entitled to attorney fees."
    Grubbs v. Knoll, 
    376 N.J. Super. 420
    , 431 (App. Div. 2005); see also Chattin v.
    Cape May Greene, Inc., 
    243 N.J. Super. 590
    , 614 (App. Div. 1990) (holding the
    court must consider plaintiff succeeded on two claims that did not provide for
    counsel fees when awarding fees on the third claim), aff'd o.b., 
    124 N.J. 520
    (1991). Accordingly, we discern no error in the judge's fee award in the present
    case, which reasonably distinguished the work plaintiff's counsel performed in
    connection with its breach of contract claim from the other work performed.
    Affirmed.
    A-1892-17T1
    28