The opinion
NOT FOR PUBLICATION WITHOUT THE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-1124-20
MERRITT CARR,
Plaintiff-Appellant,
v.
BOROUGH OF GLEN RIDGE,
Defendant-Respondent,
and
SHEILA BYRON-LAGATTUTA,
PAUL A. LISOCVICZ, MICHAEL
ROHAL, SEAN QUINN AND
TIMOTHY FARANDA,
Defendants.
______________________________
Argued December 1, 2021 – Decided January 5, 2022
Before Judges Whipple, Geiger and Susswein.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Docket No. L-7281-16.
Jason S. Haller argued the cause for appellant (Curcio
Mirzaian Sirot, LLC, attorneys; Jason S. Haller, of
counsel and on the briefs; Jessica A. Tracy, on the
briefs).
John N. Malyska argued the cause for respondent
(Meyner and Landis, LLP, attorneys; John N. Malyska,
on the brief).
PER CURIAM
Plaintiff Merritt Carr appeals from a December 18, 2020 order denying
his motion for specific performance to enforce and reform a settlement
agreement (Settlement Agreement) with defendant Borough of Glen Ridge
(Glen Ridge). We affirm.
I.
Plaintiff was a police officer with the rank of sergeant with the Glen Ridge
Police Department (GRPD) since 2002. On August 29, 2016, Dr. Daniel B.
Gollin, MD, performed a psychiatric and psychological evaluation of plaintiff.
By letter dated September 6, 2016, Dr. Gollin notified GRPD Chief Sheila
Byron-Lagattuta that plaintiff was "unfit for duty and unfit for modified light
duty due to the severity of his current psychiatric symptoms."
On October 24, 2016, plaintiff filed a complaint against the Borough of
Glen Ridge, Sheila Byron-Lagattuta, Paul. A. Lisovich, Michael Rohal, Sean
Quinn, Timothy Faranda, and John Does 1-5 (collectively, Glen Ridge).
Plaintiff alleged Glen Ridge took adverse employment actions against him in
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violation of the New Jersey Law Against Discrimination (LAD), the New Jersey
Conscientious Employee Protection Act (CEPA), the New Jersey Civil Rights
Act (CRA), and the New Jersey Family Leave Act (FLA).
On March 28, 2017, represented by an attorney with forty years of
experience in employment matters, plaintiff filed an application for a disability
pension. Pursuant to N.J.A.C. 17:1-6.2(d), his application has been held in
abeyance pending final resolution of the litigation.
On July 13, 2020, plaintiff and Glen Ridge executed the Settlement
Agreement to settle and release plaintiff's claims arising out of his complaint.
The agreement states, in pertinent part:
4. Disability Application. The Borough of Glen
Ridge agrees to do all things lawful, reasonable and
necessary to assist the successful processing of Carr's
pension application, including but not limited to prompt
execution of any revised documentation required by the
pension board of any other entity having authority over
the process. The Borough of Glen Ridge also agrees to
act in good faith to promptly address any ministerial or
substantive impediments that arise in Carr's application
process. Carr understands that the [Glen Ridge has] no
control over the actual ruling of the pension board and
this [r]elease shall remain in full force and effect
regardless of the decision of the pension board.
5. Waiver of Future Employment. [(Employment
Waiver)]. Carr agrees that he will not seek any future
employment with nor return to his future employment
as a police officer with the Borough of Glen Ridge
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3
regardless how his pension application is determined by
the State of New Jersey. Notwithstanding this
paragraph, [Glen Ridge] expressly acknowledge[s] that
Carr's employment status must remain in the status quo,
while he applies for his disability pension, including
but not limited to any appeals or review of any adverse
decisions. . . .
On July 17, 2020, Glen Ridge offered to amend the Employment Waiver
in favor of plaintiff. The proposed amendment would have required Glen Ridge,
if plaintiff obtained a disability pension, to reinstate plaintiff, and plaintiff to
resign within thirty days of his reinstatement. On July 20, 2020, plaintiff
rejected the proposed revision. On July 22, 2020, the parties entered a
stipulation of dismissal with prejudice and without costs. Plaintiff accepted
$675,000 in return for dismissing his claims.
Shortly after the parties executed the Settlement Agreement, plaintiff's
employment counsel reviewed the agreement and advised plaintiff that:
[T]he [p]ension [b]oard will require a substantive
clarification in the [a]greement in order to process the
[pension] application, with regard to the scope of the
employment waiver in paragraph [five] of the
[a]greement. This was deemed necessary because
under State [l]aw, the [p]ension [b]oard is permitted to
review a party's application for five years following
their retirement, in order to see if they have returned to
fitness for duty.
A-1124-20
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On December 18, 2020, plaintiff filed a motion for specific performance
to enforce and reform the Settlement Agreement, seeking to add the following
supplement to paragraph five of the Settlement Agreement (Restoration
Provision):
It is expressly understood that any police employment
waiver contained herein will not apply to a restoration
order issued by the [New Jersey] Police and Firemen's
Board of Trustees pursuant to N.J.S.A. 43:16A-8(2).
On the same day, the trial court entered an order denying plaintiff 's motion for
the following stated reason:
Plaintiff's [m]otion is [denied] per the opposition filed
by [d]efendant; the settlement agreement was
negotiated and entered into with all parties represented
by counsel and the aforesaid agreement was entered
into as a result of this arm[']s length negotiation
between the parties. There is no basis to reform the
agreement.
This appeal followed.
II.
Plaintiff first argues that the trial court erred when it declined to order
specific performance of paragraph four of the Settlement Agreement. Paragraph
four provides, in pertinent part:
The Borough of Glen Ridge agrees to do all things
lawful, reasonable and necessary to assist the
successful processing of Carr's pension application,
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5
including but not limited to prompt execution of any
revised documentation required by the pension board .
. . . The Borough of Glen Ridge also agrees to act in
good faith to promptly address any ministerial or
substantive impediments that arise in Carr's application
process. . . .
Plaintiff asserts he bargained for the right to amend the Settlement
Agreement to comport with pension law and that the Settlement Agreement
requires Glen Ridge to assist in the successful processing of his pension
application but concedes that the Settlement Agreement as written does not
comply with pension law. Without an amendment to correct this substantive
impediment, plaintiff argues that the pension board would construe the
Settlement Agreement as an effective resignation from borough employment.
An irrevocable resignation disqualifies an application from obtaining a
disability pension. Cardinale v. Board of Trustees, 458 N.J. Super. 260 (App.
Div. 2019). Thus, plaintiff argues that paragraph four requires the parties to
execute the Restoration Provision to supplement the Settlement Agreement. He
characterizes the Restoration Provision as "a simple amendment – a statement
clarifying that the Settlement Agreement does not encroach upon [the pension
board's] reinstatement authority under [p]ension [l]aw." 1
1
Under N.J.S.A. 43:16A-8(2), the Board of the New Jersey Police and
Firemen's Retirement System may order a beneficiary who retired on a disability
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A settlement of a legal claim between parties is a contract like any other
contract, Nolan v. Lee Ho, 120 N.J. 465, 472 (1990), which "may be freely
entered into and which a court, absent a demonstration of 'fraud or other
compelling circumstances,' should honor and enforce as it does other contracts."
Pascarella v. Bruck, 190 N.J. Super. 118, 124-25 (App. Div. 1983) (quoting
Honeywell v. Bubb, 130 N.J. Super. 130, 136 (App. Div. 1974)). "[We] will not
interfere with a trial judge's factual findings and conclusions concerning a
settlement agreement that are amply supported by the record." Lahue v. Pio
Costa, 263 N.J. Super. 575, 597 (App. Div. 1993).
"The interpretation of a contract is subject to de novo review by an
appellate court. See Jennings v. Pinto, 5 N.J. 562, 569-70 (1950). . . .
Accordingly, we pay no special deference to the trial court's interpretation and
look at the contract with fresh eyes." Kieffer v. Best Buy, 205 N.J. 213, 222-23
(2011).
"The plain language of the contract is the cornerstone of the interpretive
inquiry; 'when the intent of the parties is plain and the language is clear and
unambiguous, a court must enforce the agreement as written, unless doing so
retirement back to duty if the medical board finds that the beneficiary can
perform their former duty or any available duty with their employer.
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would lead to an absurd result.'" Barila v. B'd of Educ. of Cliffside Park, 241
N.J. 595, 616 (2020) (quoting Quinn v. Quinn, 225 N.J. 34, 45 (2016)).
If we conclude that a contractual term is ambiguous, we
"consider the parties' practical construction of the
contract as evidence of their intention and as
controlling weight in determining a contract's
interpretation." [Matter of C'ty of Atlantic, 230 N.J.
237, 255 (2017)] (quoting C'ty of Morris v. Fauver, 153
N.J. 80, 103 (1998)). "In a word, the judicial
interpretive function is to consider what was written in
the context of the circumstances under which it was
written, and accord to the language a rational meaning
in keeping with the express general purpose." [Owens
v. Press Pub. Co., 20 N.J. 537, 543 (1956).]
[Barila, 241 N.J. at 616.]
"A basic principle of contract interpretation is to read the document as a whole
in a fair and common sense manner." Hardy ex rel. Dowdell v. Abdul-Matin,
198 N.J. 95, 103 (2009). A contract "should not be interpreted to render one of
its terms meaningless." Porreca v. City of Millville, 419 N.J. Super. 212, 233
(App. Div. 2011).
Specific performance of a contract is an equitable remedy. Allstate New
Jersey Ins. Co. v. Lajara, 222 N.J. 129, 146 (2015). Decisions regarding the
granting of equitable remedies are typically left to the sound discretion of the
trial courts, and are not disturbed "unless there is a clear showing of abuse of
discretion." Feigenbaum v. Guaracini, 402 N.J. Super. 7, 17 (App. Div. 2008)
A-1124-20
8
(quoting Kurzke v. Nissan Motor Corp. in U.S.A., 164 N.J. 159, 165 (2000)).
Abuse of discretion occurs when a decision: 1) has no rational explanation, 2)
departs from established policies without explanation, or 3) rests on an
impermissible basis. Ibid.
Based on our review of the record, we conclude the trial court properly
declined to order specific performance to reform the Settlement Agreement for
the following reasons. First, because the intent of the parties was plain and the
language of the agreement was clear and unambiguous, the court must enforce
the agreement as written. Barila, 241 N.J. at 616. The Settlement Agreement
plainly requires Glen Ridge to "prompt[ly] execut[e] . . . any revised
documentation required by the pension board." Plaintiff, however, does not seek
mere revised documentation. Rather, plaintiff seeks to reform the Settlement
Agreement itself by inserting the Restoration Provision. Plaintiff attempts to
characterize the proposed provision as a simple amendment, but a plain reading
of the provision suggests that it would constitute a substantive change to the
applicability of the Settlement Agreement. Because plaintiff already accepted
the settlement funds and his claims have been dismissed with prejudice, revising
a key material provision would unravel the Settlement Agreement and send the
parties back to the drawing board. Thus, reading the agreement as to
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contemplate a revision of the Settlement Agreement would lead to an "absurd
result." Ibid.
Second, plaintiff did not demonstrate "fraud or any compelling
circumstance" that would justify reforming the Settlement Agreement.
Pascarella, 190 N.J. Super. at 124-25. As the trial court found based upon
sufficient evidence in the record, both parties were represented by counsel when
negotiating and executing the Settlement Agreement. In particular, plaintiff was
represented by counsel in this litigation as well as an experienced employment
attorney in his pension application. After the parties executed the Settlement
Agreement, Glen Ridge offered to revise it and plaintiff declined.
Finally, plaintiff concedes that both parties knew about the issues that may
arise in his pension application: "[Glen Ridge], as well as [plaintiff], both kne w
that the [p]ension [b]oard retained the authority to reinstate Carr under the
[p]ension [l]aw." But plaintiff asserts he was unaware that the Settlement
Agreement did not comply with pension law until after the agreement was
executed. Even if we were to accept this claim as true, it does not constitute
"fraud or any compelling circumstance" that would justify reforming the
Settlement Agreement. Therefore, we discern no abuse of the court's discretion
in declining to order specific performance to reform the Settlement Agreement.
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We also reject plaintiff's argument that the court erred in declining to
order reformation of the Settlement Agreement on the basis of mutual mistake.
New Jersey follows the Restatement (Second) of Contracts rule on mutual
mistake. St. Pius X House of Retreats, Salvatorian Fathers v. Diocese of
Camden, 88 N.J. 571, 580 (1982). The rule states:
Where a writing that evidences or embodies an
agreement in whole or in part fails to express the
agreement because of a mistake of both parties as to the
contents or effect of the writing, the court may at the
request of a party reform the writing to express the
agreement, except to the extent that rights of third
parties such as good faith purchasers for value will be
unfairly affected.
[Restatement (Second) of Contracts § 155 (Am. Law
Inst. 1981).]
"For a court to grant reformation there must be 'clear and convincing
proof' that the contract in its reformed, and not original, form is the one that the
contracting parties understood and meant it to be." St. Pius X House of Retreats,
88 N.J. at 580-81 (quoting Central State Bank v. Hudik-Ross Co., 164 N.J.
Super. 317, 323 (App. Div. 1978)).
Plaintiff presented no clear and convincing evidence that the Settlement
Agreement differs from what the parties intended. Plaintiff conceded that he
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learned of his unilateral mistake—post-settlement—of the need to insert the
Restoration Provision.
Affirmed.
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