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Garvin v. DeJesus

A-3734-03T3 (N.J. Super. App. Div. 2005) (Unpublished)

CONTRACTS—In a negotiation, such as for a settlement, asking the other party’s attorney if he or she could get more money paid constitutes a counteroffer and a rejection of the offer on the table.

A woman alleged that two bail bondsmen “barged” into her apartment, kicked her to the floor, “exposing her underwear,” and with handguns drawn, demanded that she and her son produce identification. The bail bondsmen then left the apartment after determining that the woman was not the person they were seeking and that they were in the wrong apartment. The bondmen were later arrested and convicted of simple assault and possession of a weapon for an unlawful purpose. The woman filed a civil complaint for damages against the bondsmen and against the company she thought was their employer, who in turn filed a third-party complaint against an independent contractor the named employer claimed to be one that employed the bondsmen at the time of the assault. The woman never filed a direct claim against the independent contractor. Following a motion for summary judgment, the lower court dismissed the complaint against the named employer. Thus, in the absence of a direct claim against the independent contractor, it was effectively dismissed from the lawsuit.

Following rejection of an arbitrator’s award by the bondsmen, the parties entered into settlement negotiations. The woman claimed that the independent contractor’s attorney offered $25,000 to settle the case. The woman’s attorney then contacted the independent contractor’s attorney and stated that his client wanted $35,000, but that they were not rejecting the original offer. The contractor’s attorney said that $25,000 was the bottom line, to which the woman’s attorney responded that that amount would be fine, but they still wanted to see if they could get another $5,000. However, later that night the woman allegedly accepted the $25,000 offer, and her attorney notified the contractor’s attorney by leaving a message. Her attorney’s secretary then notified the court that a settlement had been reached. However, on the date the trial was supposed to begin, the woman’s attorney did not appear. The bondsmens’ attorney did appear, however, and denied that the case was settled. The Court then denied the woman’s motion to enforce the settlement, stating that she had never filed a direct claim against the independent contractor, who had allegedly offered to pay $25,000, and that the parties never agreed to a settlement. The lower court concluded that the woman failed to submit sufficient evidence to show that a binding settlement agreement was reached. It held that the woman’s attorney had asked the independent contractor’s attorney to try and get another $5,000 out of his client and this request constituted a counteroffer. If true, that would have resulted in the rejection of the original offer. Therefore, according to the lower court, when the woman’s attorney contacted the independent contractor’s attorney to accept the $25,000, the offer was no longer on the table.

Alternatively, the woman asked that if the lower court found that no settlement had been reached, it should grant leave to file against the contractor nunc pro tunc. However, leave to file nunc pro tunc is a procedural remedy to correct defects that would unfairly prejudice one of the parties and is normally granted where the court’s procedure defeats legislative intent. Here, the lower court held that it had no authority to grant leave to amend nunc pro tunc where, through fault of no one else, a plaintiff had notice of a third party defendant and fails to file a direct claim by the statutory deadline. In this case, the woman failed to file a direct claim, even though she knew that the employer, who was the contractor’s only connection to the case, was being let out of the case on summary judgment. The lower court held that to grant leave would have materially altered the rights of the parties to the litigation. Therefore, it declined to grant leave to amend nunc pro tunc. The Appellate Division affirmed, holding that the lower court’s findings were supported by adequate, substantial, and credible evidence.


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