                                NOT FOR PUBLICATION WITHOUT THE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-3337-17T2

ONSLO ROSE,

           Plaintiff-Appellant,

v.

ROWAN UNIVERSITY,

           Defendant-Respondent.


                    Argued January 16, 2019 – Decided April 26, 2019

                    Before Judges Alvarez and Nugent.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Camden County, Docket No. L-0835-15.

                    Deborah L. Mains argued the cause for appellant
                    (Costello & Mains, LLC, attorneys; Deborah L. Mains,
                    on the brief).

                    Christine P. O'Hearn argued the cause for respondent
                    (Brown & Connery, LLP, attorneys; Christine P.
                    O'Hearn, Laurel B. Peltzman, and Christopher A.
                    Barrett, on the brief).

PER CURIAM
      Plaintiff Onslo Rose appeals from a February 16, 2018 decision enforcing

a settlement agreement between him and his former employer Rowan

University. Because we concur that the parties did not reach a meeting of the

minds regarding essential terms, we reverse.

      After a trial date was fixed in the underlying Law Against Discrimination

case, N.J.S.A. 10:5-12, counsel engaged in the following e-mail exchange:

      From Rose's counsel:

            In speaking with the client, he was adamant about
            getting a number in the six figures. However, in talking
            to him, if we can agree on a number just under
            $100,000, meaning $95,000, we can get the case
            resolved. Please let me know if [d]efendant is
            agreeable to $95,000, and we can settle the case.
            Unfortunately the number would have to be $95,000
            and nothing less than that.

      From Rowan's counsel:

            I can likely do this but there will have to be a no-rehire
            provision in there for [defendant] and any other state
            operated agencies. I will confirm with the client.
            Thanks.

      From Rowan's counsel:

            We are settled at $95k provided we have the usual state
            required release and forms, as well as a confidentiality,
            non disparagement and no rehire for state employment
            provisions in the release. Please confirm and I will
            prepare the release.


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      From Rose's counsel:

            Sorry for just getting back now. Without disclosing too
            much, I have had some issues finalizing the number
            with . . . [p]laintiff. What I would like to do if
            [d]efendant consents, is ask the [c]ourt to convert the
            1/16 trial call to a settlement conference. I will have
            . . . [p]laintiff appear and I am ok if [d]efendant does
            not appear in person. Let me know if you are ok with
            that, and I will send the letter out today.

      As counsel discussed, some two weeks later, the judge conducted a

settlement conference.   At that time, plaintiff confirmed on the record his

rejection of the proposed settlement, which Rowan's attorney consequently

withdrew. The matter was rescheduled for trial.

      Ten days later, Rowan moved to enforce the proposed settlement. Having

read counsel's e-mail exchange, the judge found as a fact that plaintiff had made

an offer, accepted by defendant with some additional terms, and that plaintiff

then reneged on the amount, not on the proposed additional terms. He further

found that the items Rowan wished Rose to sign, including "the usual State

required release and forms, as well as confidential, non-disparagement and no

rehire for State employment in the release was not challenged or disputed by the

plaintiff." He concluded that the parties had agreed on payment of $95,000 in

full settlement of plaintiff's claims and held that Rowan had met its burden of

proving a valid settlement agreement existed under contract law.

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      At the close of the judge's oral statement of reasons, Rose's attorney asked

if the judge considered Rowan's additional requirements to have been essential

or nonessential terms. A few days later, via telephone conference, the judge

explained that he had not been previously squarely presented with the question

of whether the additional forms Rowan expected Rose to sign were essential

terms of the agreement. He said the issue was not "fairly before me[,]" and

reiterated that the term essential to the formation of a contract was the sum to

be paid in settlement. Because Rose's counsel did not object to the signing of

the paperwork, and focused instead on the amount of the payment, the judge did

not find the execution of the state-required documents was an essential term.

      An appellate court's "review of a contract, generally, is de novo, and

therefore we owe no special deference to the trial court's . . . interpretation."

Atalese v. U.S. Legal Servs. Grp., L.P., 219 N.J. 430, 445-46 (2014) (citing

Kieffer v. Best Buy, 205 N.J. 213, 222-23 (2011)). "The interpretation of

contracts and their construction are matters of law for the court subject to de

novo review." Sealed Air Corp. v. Royal Indem. Co., 404 N.J. Super. 363, 375

(App. Div. 2008) (citing Fastenberg v. Prudential Ins. Co. of Am., 309 N.J.

Super. 415, 420 (App. Div. 1998)).




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      A valid settlement agreement requires an offer and acceptance by the

parties, "and the terms of the agreement must ‘be sufficiently definite [so] that

the performance to be rendered by each party can be ascertained with reasonable

certainty.'" GMAC Mortg., LLC v. Willoughby, 230 N.J. 172, 185 (2017)

(quoting Weichert Co. Realtors v. Ryan, 128 N.J. 427, 435 (1992)). "A written

contract is formed when there is a ‘meeting of the minds' between the parties

evidenced by a written offer and an unconditional written acceptance." Morton

v. 4 Orchard Land Tr., 180 N.J. 118, 129-30 (2004) (quoting Johnson & Johnson

v. Charmley Drug Co., 11 N.J. 526, 538-39 (1953)).           There must be an

"unqualified acceptance to conclude the manifestation of assent." Weichert, 128

N.J. at 435-36 (quoting Johnson & Johnson, 11 N.J. at 539). "[I]f parties agree

on essential terms and manifest an intention to be bound by those terms, they

have created an enforceable contract." Id. at 435. As a corollary to the above,

"[w]here the parties do not agree to one or more essential terms, however, courts

generally hold that the agreement is unenforceable." Ibid.

      "A counteroffer operates as a rejection because it implies that the offeree

will not consent to the terms of the original offer and will only enter into the

transaction on the terms stated in the counteroffer." Berberian v. Lynn, 355 N.J.

Super. 210, 217 (App. Div. 2002) (citing Fish v. Schultz, 5 N.J. Super. 403, 405


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                                       5
(App. Div. 1949); 1 Williston on Contracts § 5.3 (4th ed. 1990)), aff'd as

modified, 179 N.J. 290 (2004).       "A counteroffer terminates the power of

acceptance when it relates to the same matter as the original offer and proposes

a ‘substituted bargain differing from that proposed by the original offer.'" Ibid.

(quoting Restatement (Second) of Contracts § 39(2), cmt. a (Am. Law Inst.

1981)).

      The burden of proving that a settlement was reached is on the party

seeking to enforce the settlement. Amatuzzo v. Kozmiuk, 305 N.J. Super. 469,

475 (App. Div. 1997). On a disputed motion to enforce settlement, the trial

court should hold a hearing to establish the facts "unless the available competent

evidence, considered in a light most favorable to the non-moving party, is

insufficient to permit the judge, as a rational factfinder, to resolve the disputed

factual issues in favor of the non-moving party." Id. at 474-75. The evidence

in this case was straightforward and did not require a hearing.

      We differ with the court's characterization of the e-mail exchanges,

however. Rowan's seeming acceptance of the $95,000 was in fact a counter-

offer, containing previously unmentioned terms requiring acceptance before the

matter could be resolved. Rowan would not have settled for any amount without

the execution of "state required release and forms, as well as a confidentiality,


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                                        6
non-disparagement and no rehire for state employment provisions in the

release."    Those state-required forms were not incidental to the contract.

Without Rose's signature on the specified documents, Rowan had no authority

to settle with Rose. Further, Rose may have been unwilling to settle if required

to assent to those terms.   Thus, the response became a counteroffer.        See

Berberian, 355 N.J. Super. at 217.

      Even if Rose's attorney's response focused solely on the money to be paid,

that does not diminish the fact Rowan's response, before any consideration of

the attorney's statements, was a rejection and counteroffer. Rowan's response

was not the necessary unqualified acceptance manifesting assent required for the

creation of an enforceable settlement agreement. Weichert, 128 N.J. at 435-36.

      There was no meeting of the minds evidenced by an offer and

unconditional acceptance. See Morton, 180 N.J. at 129-30. There was no

agreement.

      Reversed and remanded for trial.




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