                                NOT FOR PUBLICATION WITHOUT THE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-2194-18T3

ROSALYND SMITH,

          Plaintiff-Appellant,

v.

PATERSON BOARD
OF EDUCATION and
VIRGINIA GALIZIA,

     Defendants-Respondents.
___________________________

                   Submitted May 26, 2020 – Decided July 22, 2020

                   Before Judges Sumners and Natali.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Passaic County, Docket No. L-1742-15.

                   Rosalynd Smith, appellant pro se.

                   Schenck, Price, Smith & King, LLP, attorneys for
                   respondent (John D. McCarthy, of counsel and on the
                   brief).

PER CURIAM
        Plaintiff Rosalynd Smith was employed as a non-tenured teacher with

defendant Paterson Board of Education (the Board) for the 2012-2013 school

year.    She was supervised by defendant Virginia Galizia, the Alexander

Hamilton Academy Principal. Following the Board's decision not to renew her

non-tenured teaching contract for the 2013-2014 school year, Smith filed a Law

Division complaint alleging violation of the New Jersey Law Against

Discrimination, N.J.S.A. 10:5-1 to -42, and the New Jersey Civil Rights Act,

N.J.S.A. 10:6-1 to -2, and other causes of action.

        As a result of settlement discussions on the cusp of trial, the trial judge

was advised by the parties' counsel that a settlement agreement was reached.

Smith, however, claimed she did not agree to the settlement.            The judge

subsequently granted the Board's motion to enforce the settlement. Eighteen

months later, Smith moved to vacate the order enforcing the settlement. A

different judge denied the motion. For the reasons that follow, we reject Smith's

appeal of that order.

                                         I

        The parties and their counsel reported for trial of Smith's claims on May

15, 2017. In an effort to resolve the matter, the trial judge engaged the parties

in settlement negotiations, which included the judge having separate in chamber


                                                                           A-2194-18T3
                                         2
conferences with Board counsel, and with Smith and her counsel, Gina Mendola

Longarzo. After a few hours of negotiations, Board counsel advised the judge

a settlement had been reached subject to the Board's approval at its meeting on

May 17. According to the settlement terms, the Board could resolve the matter

by paying Smith $45,000 without her return to employment, or in the alternative,

pay her $10,000 and return her to employment. The settlement terms were not

placed on the record.

      On the morning of May 18, Board counsel advised Mendola Longarzo the

Board agreed to the settlement option of $45,000. Thus, as the judge had

directed on May 15, Smith and Board counsel personally appeared before the

judge that afternoon with Mendola Longarzo appearing by telephone because of

a scheduling conflict. Board counsel informed the judge the Board agreed to

settle the matter by paying Smith $45,000. Smith, however, stated she did not

agree to settling her complaint. After the judge conferenced with Smith and

Mendola Longarzo in chambers, the proceedings resumed on the record with the

judge stating Mendola Longarzo was allowed to withdraw as counsel and the

Board should file a motion to enforce the settlement agreement given Smith's

position that an agreement was not reached.




                                                                        A-2194-18T3
                                       3
      The Board promptly complied with the judge's directive by moving to

enforce the settlement agreement, which Smith, representing herself, opposed.

At the May 23 hearing on the Board's motion, Mendola Longarzo, who was

subpoenaed by the Board, testified Smith agreed to the settlement terms on May

15 subject to the Board's action at its meeting two nights later to accept one of

the two settlement options. The judge was informed the Board agreed to the

option to pay Smith $45,000 and not have her return to work. At the conclusion

of the hearing, the judge placed her decision on the record granting the Board's

motion based on her determination the parties reached a binding settlement

agreement. The judge confirmed her decision in an order entered that day.

Smith did not appeal the order.

      A month later, Board counsel mailed Smith a written settlement agreement

and release for her execution. Smith responded by email two weeks later stating

she would not sign the documents.

      On August 10, to satisfy its payment obligation to Smith, the Board filed

a motion to deposit the $45,000 settlement payment with the court.            On

September 1, the judge granted the motion.1



1
  For reasons that are not revealed in the record, it took until January 26, 2018
for the Board to deposit the settlement funds with the court.
                                                                         A-2194-18T3
                                       4
        On November 18, 2018, some eighteen months after the May 23, 2017

order enforcing the settlement agreement, Smith filed a motion to vacate the

order    under   Rule   4:21A,     essentially   attacking   Mendola   Longarzo's

representation in claiming she did not agree to the alleged settlement terms. The

Board opposed. Neither party requested oral argument.

        On December 10, 2018, a different judge entered an order denying Smith's

motion and directing her to sign a release so the $45,000 settlement funds could

be turned over to her. In his statement of reasons accompanying the order, the

judge noted the motion was denied because Smith failed to file a timely motion

to reconsider the May 23, 2017 order under Rule 1:7-4(b) within twenty days of

the order; failed to file with this court a timely appeal of the May 23, 2017 order

under Rule 2:4-1 within forty-five days; and failed to file with the trial court a

timely motion to vacate an order under Rule 4:50-2 (mistakenly cited as Rule

4:5-2). Putting aside these procedural deficiencies, the judge addressed the

merits of Smith's contentions.        The judge determined "in reviewing the

settlement conferences and agreement . . . occurring in May 2017," Smith "was

fully and duly represented by" Mendola Longarzo, who was authorized to settle

her claims for $45,000, which the Board accepted.

        Before us, Smith argues:


                                                                           A-2194-18T3
                                         5
POINT I

THE TRIAL COURT ERRED IN DENYING
PLAINTIFF’S   MOTION    TO   VACATE
SETTLEMENT AGREEMENT, BECAUSE THE
SETTLEMENT WAS ASCERTAINED THROUGH
UNETHICAL PRACTICES AND BREACHING OF
CLIENT ATTORNEY MORALS.

POINT II

THE TRIAL COURT ERRED IN DENYING
PLAINTIFF’S    MOTION    TO     VACATE
SETTLEMENT      AGREEMENT,     BECAUSE
PLAINTIFF SHOULD BE ALLOWED TO FREELY
EXPRESS ONE’S OWN WISHES AND DESIRE TO
NOT ACCEPT PROPOSED SETTLEMENT. AN
OPPORTUNITY      TO    PRESENT     ALL
FACTS/ARGUMENTS BEFORE A JURY DURING A
TRIAL PROCEEDING SHOULD BE ONE’S
CHOICE.

POINT III

THE SETTLEMENT AGREEMENT WAS FALSLY
SOLIC[I]TED AND ABOLISHED PLAINTIFF’S
RIGHTS TO REFUSE ALTHOUGH PLAINTIFF
CLEARLY STATED THAT SHE WAS NOT
WILLING TO ACCEPT SUCH A MINUSCULE
AMOUNT.

POINT IV

EVEN IF PLAINTIFF’S DESIRE TO MOVE
FORWARD WITH A TRIAL APPEARED TO BE A
FLUKE, THIS COURT SHOULD ADOPT THE
"EQUAL AND FREE RIGHTS OPPORTUNITY"
DOCTRINE    SO  PLAINTIFF   CAN    BE

                                         A-2194-18T3
                  6
            COMPENSATED FOR HER LOSSES ONCE TRIAL
            HAS BEEN CONDUCTED AND CONCLUDED.
            (Not raised below)

                                       II

      We first address the procedural grounds upon which the judge denied

Smith's motion to vacate the May 23, 2017 order. Given Smith's improper

citation of the Rule 4:21A, which addresses settlements reached through court-

mandated arbitration, the judge considered the motion under Rule 4:50-2 and

found it untimely.

      Rule 4:50-1(a)-(e) authorizes a court to relieve a party from a final

judgment or order for reasons such as: mistake or inadvertence; certain newly

discovered evidence; fraud; the judgment or order is void; or the judgment or

order has been satisfied. Subsection (f) of Rule 4:50-1 provides a catch-all

provision authorizing a court to relieve a party from a judgment or order for

"any other reason justifying relief from the operation of the judgment or order."

The essence of subsection (f) is to achieve equity and justice in exceptional

situations that cannot be easily categorized. DEG, LLC v. Twp. of Fairfield,

198 N.J. 242, 269-70 (2009) (citing Court Inv. Co. v. Perillo, 48 N.J. 334, 341

(1966)).




                                                                         A-2194-18T3
                                       7
      Rule 4:50-2 requires a motion for relief under Rule 4:50-1 to be filed

within a "reasonable time."    However, where the relief sought is based on

reasons set forth in Rule 4:50-1(a) ("mistake, inadvertence, surprise, or

excusable neglect"), (b) ("newly discovered evidence") or (c) ("fraud"), the

motion must be filed within one year of entry of the judgment. Ibid.

      We review a court's determination of a Rule 4:50-1 motion under an abuse

of discretion standard. U.S. Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 467

(2012). There is "an abuse of discretion when a decision is 'made without a

rational explanation, inexplicably departed from established policies, or res ted

on an impermissible basis.'" Ibid. (quoting Iliadis v. Wal-Mart Stores, Inc., 191

N.J. 88, 123 (2007)).

      Applying these principles, we conclude the judge did not abuse his

discretion in denying Smith's motion. The judge properly ruled Smith's motion

to vacate the May 23, 2017 order was untimely because it was made eighteen

months after it was entered. Although it is not clear if Smith's motion fits the

criteria under Rule 4:50-1(a), which must be filed within a one-year time limit,

her motion is still untimely even under the reasonable time limits of Rule 4:50-

2. Smith has not presented any reason to conclude otherwise. In fact, neither




                                                                         A-2194-18T3
                                       8
her motion to vacate nor her appellate brief explain why it took her so long to

file the motion to vacate.

      Like the judge, we also address the merits of Smith's appeal. Our state

has a strong public policy in favor of settlements.       Brundage v. Estate of

Carambio, 195 N.J. 575, 601, (2008). Essentially, a settlement agreement is a

contract. See Nolan v. Lee Ho, 120 N.J. 465, 472 (1990) (citing Pascarella v.

Bruck, 190 N.J. Super. 118, 124 (App. Div. 1983). "As a general rule, courts

should enforce contracts as the parties intended." Pacifico v. Pacifico, 190 N.J.

258, 266 (2007) (citations omitted).        "[P]arties may orally, by informal

memorandum, or by both agree upon all the essential terms of a contract and

effectively bind themselves thereon, if that is their intention, even though they

contemplate the execution later of a formal document to memorialize their

undertaking." Comerata v. Chaumont, Inc., 52 N.J. Super. 299, 305 (App. Div.

1958). It is well settled that "[a] contract arises from offer and acceptance, and

must be sufficiently definite 'that the performance to be rendered by each party

can be ascertained with reasonable certainty.'" Weichert Co. Realtors v. Ryan,

128 N.J. 427, 435 (1992) (quoting Borough of W. Caldwell v. Borough of

Caldwell, 26 N.J. 9, 24-25 (1958)). If the parties agree on the essential terms

and agree to be bound by those terms, they have created an enforceable contract.


                                                                          A-2194-18T3
                                        9
Ibid.     Nevertheless, "a demonstration of 'fraud or other compelling

circumstances,'" can invalidate a settlement agreement. Pascarella v. Bruck, 190

N.J. Super. 118, 125 (App. Div. 1983) (quoting Honeywell v. Bubb, 130 N.J.

Super. 130, 136 (App. Div. 1974)).

        We find no fault with the December 10, 2018 order denying Smith's

motion to vacate the May 23, 2017 order enforcing the settlement agreement

between her and the Board. The first judge, faced with disputed material facts

as to whether a settlement was reached, conducted a hearing. See Eaton v. Grau,

368 N.J. Super. 215, 222 (App. Div. 2004) (holding a plenary hearing should be

held on a motion to enforce a settlement agreement "where the evidence shows

the existence of a genuine issue of material fact") (citation omitted).     She

determined the parties – through their counsel – had agreed the Board could

settle Smith's claims by deciding at its May 17 meeting to pay her $45,000 or to

pay her $10,000 and reinstate her. Since the Board approved the $45,000

payment option, the agreement was held to be consummated. In reviewing the

record, the second judge properly decided not to disturb the May 23 order

because there was credible evidence to support enforcement of the settlement

agreement. See Griepenburg v. Twp. of Ocean, 220 N.J. 239, 254 (2015)

(recognizing appellate review "give[s] deference to the trial [judge] that heard


                                                                        A-2194-18T3
                                      10
the witnesses, sifted the competing evidence, and made reasoned conclusions" )

(citing Rova Farms Resort, Inc. v. Inv'rs Ins. Co., 65 N.J. 474, 483-84 (1974)).

      Having carefully considered Smith's arguments, we find they have no

merit to warrant discussion in this opinion. R. 2:11-3(e)(2).

      Affirmed.




                                                                         A-2194-18T3
                                      11
