LISA ALLEN VS. QUALCARE ALLIANCE NETWORKS, INC. (L-0527-17, UNION COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-0626-19T1

LISA ALLEN,

Plaintiff-Appellant,

v.

QUALCARE ALLIANCE
NETWORKS, INC., CIGNA
HEALTH AND LIFE
INSURANCE COMPANY, and
EDWARD DAVIS,

Defendants-Respondents.
____________________________

Submitted May 20, 2020 – Decided June 22, 2020

Before Judges Koblitz, Gooden Brown and Mawla.

On appeal from the Superior Court of New Jersey, Law
Division, Union County, Docket No. L-0527-17.

Hegge & Confusione, LLC, attorneys for appellant
(Michael James Confusione, of counsel and on the
briefs).

Littler Mendelson, PC, attorneys for respondents
(Jennifer Ivy Fischer, Amber M. Spataro and Matthew
 J. Hank of the Pennsylvania bar, admitted pro hac vice,
on the brief).

PER CURIAM

Plaintiff Lisa Allen appeals from an August 2, 2019 Law Division order

entered following a plenary hearing, and a September 27, 2019 order denying

reconsideration of the August 2 order. Both orders effectively denied plaintiff's

request to vacate a settlement and reinstate her wrongful termination complaint

against her employer QualCare Alliance Networks, Inc. (QualCare), QualCare's

parent company, Cigna Health and Life Insurance Company (Cigna), and

Edward Davis, a QualCare employee (collectively, defendants). We affirm.

On February 10, 2017, plaintiff filed a complaint against defendants

alleging violations of the New Jersey Law Against Discrimination (NJLAD),

N.J.S.A. 10:5-1 to -49; common law wrongful discharge; and breach of the

covenant of good faith and fair dealing. The complaint designated Glenn

Montgomery as plaintiff's trial counsel, and alleged that plaintiff "was

systematically harassed and wrongfully terminated for filing . . . complaints

regarding, inter alia, nepotism practices, an inappropriate romantic and/or sexual

relationship between . . . Davis and a female co-employee[,] and inappropriate

sexual harassing conduct against [p]laintiff by . . . Davis." Plaintiff sought

compensatory, general, and punitive damages.

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 Following the completion of discovery, Cigna and QualCare moved for

summary judgment on September 28, 2018, and trial was scheduled for January

28, 2019. The judge conducted oral argument on the motion on October 26,

2018, and reserved decision to allow the parties to discuss a settlement. Between

October 29 and November 5, 2018, the parties engaged in settlement

negotiations as evidenced by a series of telephone and email exchanges.

Beginning on October 29, Montgomery's associate notified plaintiff by email

that defendants made an offer of $25,000. He inquired whether plaintiff would

"be able to talk tomorrow around 11:00 [a.m.]?"

In an email dated October 31, captioned "Allen/Cigna Settlement

Negotiations," Montgomery's associate wrote:

Dear Ms. Allen:

Please allow this correspondence to confirm that
you have authorized this office to make a counter-
demand of [$95,000] to the offer of [$37,500] made on
behalf of the defendants.

We will be in touch as soon as we relay your
counter-demand to defendants' counsel and the
response to same.

At 10:44 a.m. on Friday, November 2, Montgomery's associate informed

plaintiff by email to "call us ASAP to continue negotiations." At 11:12 a.m.,

the associate sent plaintiff the following email:

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 Please contact us IMMEDIATELY . . . . As advised on
my telephone message, a counter-offer has been made,
but we need to respond ASAP so that defendants do not
withdraw from negotiations completely. We are
advised that we must get back to them TODAY with a
counter-demand. Again, please call us ASAP.

On Saturday, November 3, the associate notified plaintiff

[t]he defendants have made a counter-offer of $80,000,
to the authorized demand of $90,000. Please review the
attached proposed settlement agreement.

Please also contact [Montgomery] on his cell phone
TODAY to discuss the counter-offer. Again, the judge
will be making his decision on the [summary judgment]
motion on Monday.

On Sunday, November 4, defense counsel sent Montgomery a revised

settlement agreement for $90,000, and stated defendants would be willing to pay

one-third of the amount on an IRS W-2 form1 "for settlement of any and all

claims, asserted and unasserted, by [plaintiff] for lost wages," and the remaining

two-thirds on a 1099-MISC form, 2 "representing consideration for settlement of

1
"[T]he IRS W-2 form is normally issued by an employer to an employee,"
documenting "[t]he withholding of taxes . . . consistent with an employer-
employee relationship." Poppe v. Taxation Div. Director, 6 N.J. Tax 108, 114
(Tax 1983).
2
The IRS 1099-MISC form is used for reporting income to independent
contractors and is "not subject to standard payroll deductions." Cavalieri v. Bd.
of Trs. of Pub. Emps. Ret. Sys., 368 N.J. Super. 527, 534 (App. Div. 2004).
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any and all non-wage claims, asserted and unasserted, including without

limitation claims for emotional distress and reputational harm." However,

defense counsel noted "[t]his is as far as we can go."

At 2:32 p.m. that day, Montgomery left the following voicemail for

plaintiff:

Listen, I've been talking with [defense counsel] and
they're willing to go to [ninety] with one-third only of
your net on a W-2 and the rest of your net on a 1099, so
you get all the money, as opposed to being taxed on it.
So you'll only be taxed on a third of your total net. So
I told them go ahead and settle the case. All right? . . . .
Just call me back to confirm you got this.

At 9:44 a.m. the following morning, Monday, November 5, Montgomery's

associate sent plaintiff an email to "contact [Montgomery] IMMEDIATELY as

the [c]ourt is about to render its decision." Later that day, at 12:08 p.m.,

Montgomery emailed defense counsel "offer accepted," and at 2:18 p.m.,

submitted a letter to the judge stating:

As indicated by the parties during the recent
conversation with Your Honor's clerk, this matter has
been amicably resolved. The [c]omplaint shall hereby
be dismissed with prejudice. It is also respectfully
requested that . . . defendants' motion for summary
judgment, as well as any other pending motion, be
withdrawn as moot.

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 The following day, November 6, Montgomery sent plaintiff "the

settlement agreement, general release, and confidentiality agreement" and asked

plaintiff to execute, date, and return it to him. Thereafter, on November 12,

Montgomery sent plaintiff "tax documents to be completed per the settlement

agreement" and explained that after counsel fees and costs, plaintiff would

receive $18,218.99 on the W-2 and $36,990.10 on the 1099-MISC.

On December 5, 2018, the judge entered an "order of

dismissal/disposition," indicating that the matter was "settled . . . per [the] letter

from plaintiff's attorney," and noting that the matter was "[s]ettled after [the trial

date] but before trial [and] without aid of [the c]ourt." See Jennings v. Reed,

381 N.J. Super. 217, 228-29 (App. Div. 2005) (explaining that placing the terms

of a settlement agreement on the record "is not a procedural requisite to either

its validity or enforcement" and "[t]here is no legal requirement that there be

court approval" of the agreement); Pascarella v. Bruck, 190 N.J. Super. 118, 124

(App. Div. 1983) ("That the agreement to settle was orally made is of no

consequence, and the failure to do no more than . . . inform the court of

settlement and have the clerk mark the case settled has no effect on the validity

of a compromise disposition.").

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 Ultimately, plaintiff refused to execute the settlement agreement. Several

months later, on May 15, 2019, Montgomery sent a letter to the judge requesting

a conference and stating that "[s]ignificant issues have arisen regarding the . . .

case." After the judge denied the request, on May 23, 2019, Montgomery filed

a motion to be relieved as counsel, which the judge also denied following a June

21, 2019 hearing. At the hearing, the judge explained that Montgomery's motion

was "moot because the case [was] closed," and rejected plaintiff's attempt to

argue the merits of her case without filing a motion to reinstate the complaint.

On June 25, 2019, Montgomery moved for reconsideration of the June 21

order, as well as reinstatement of plaintiff's complaint pursuant to Rule 4:50-1.

On July 29, 2019, the judge conducted a plenary hearing, after which the judge

denied both motions in an August 2, 2019 order. In the written statement of

reasons accompanying the order, the judge summarized the testimony at the

plenary hearing as follows:

[Plaintiff] testified that [her] counsel settled and
dismissed her case without her approval. [Plaintiff's]
position was that her counsel . . . was merely to be
engaged in settlement negotiations. Subsequently, a
disagreement between plaintiff and [Montgomery]
arose after the case settled as to the tax structure of the
settlement.[3] Plaintiff alleges that [Montgomery]

3
At the hearing, plaintiff admitted agreeing to "[t]he number" but testified
"[t]he number was only agreed to if the tax structure . . . [could] happen."
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 informed her that he would ask defendant's counsel for
additional money as part of the settlement. [Plaintiff]
further contends that [her] counsel . . . was aware of
"new discovery" prior to the settlement that would have
helped her case. [Plaintiff] further argues that her
retainer agreement states that only the plaintiff, and not
her attorney, can settle the case and that plaintiff's
counsel violated the retainer agreement by settling the
matter without her permission.

[Montgomery] admits that at approximately
12:08 [p.m.] on November 5, 2018[,] he sent an email
letter to defendant's counsel that their settlement offer
was accepted – [one-third] of settlement on a W2 and
the remaining [two-third] on a 1099. At 2:18 [p.m.] on
November 5, 2018, . . . Montgomery sent a letter to the
court advising that the case was settled. . . .
Montgomery further represented that on or about
November 3, 2018, he had discussed with plaintiff
taking the settlement offer or proceeding with the
summary judgment motion. Subsequently, . . .
Montgomery stated that plaintiff agreed to take the
settlement amount. . . . Montgomery set forth that
following the communications [in which] plaintiff
accepted a settlement offer, a dispute between him and
plaintiff arose regarding the tax consequences . . . based
on the tax apportionment of the settlement offer.

In making credibility findings, the judge "found [Montgomery's]

testimony to be credible." According to the judge, "Montgomery easily recalled

the dates that events leading up to the finalization of the settlement agreement

occurred." Montgomery even represented to the court "that after the dispute as

to the amount arose out of the tax structure contained within the settlement, he

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asked defendant Qualcare for more money and that defendant would not pay any

more money." Further, Montgomery "cited to email[s] and letters . . . to support

his representations on the record of the settlement agreement."

On the other hand, the judge found plaintiff's "testimony to be less

credible." According to the judge,

[plaintiff] has an obvious bias and interest in seeing her
case reinstated. [Plaintiff] was clearly upset at the
plenary hearing which clouded her ability to objectively
recall the substantive conversations with her attorney
prior to the settlement being finalized. . . . [Plaintiff]
kept referring to "new discovery" during the plenary
hearing however she failed to provide specifics as to the
"new discovery" that [Montgomery] was allegedly
aware of. [Plaintiff] additionally waited approximately
seven . . . months following the filing of the order of
dismissal to bring this motion (through her counsel) in
order to attempt to reopen her case.

Moreover, this [c]ourt found her testimony to be
biased by the fact that she frequently referred to herself
as the "little person" throughout the hearing to attempt
to demonstrate how she feels she has been prejudiced
throughout the hearing. [Plaintiff] consistently referred
to her attorney as well as defendants and their
representatives as being the "big people" against her.
[Plaintiff] made reference to how defendant Cigna
(Qualcare) was "getting a good bargain probably with
this settlement." . . . She represented to the [c]ourt that
if the [c]ourt failed to reinstate her complaint, she
would be even further prejudiced because she would be
forced to appeal the [c]ourt's decision which would be
adverse to her.

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 Applying the applicable subsections of Rule 4:50-1, the judge concluded

plaintiff "failed to meet her burden" to justify "reinstat[ing her] complaint and

vacat[ing] the December 5, 2018 order." The judge acknowledged the "dispute

between plaintiff and [her] counsel as to whether plaintiff agreed to settle this

case," but found that because the dispute was "between plaintiff . . . and her

counsel," and not "between plaintiff and the defendants," it was an "insufficient"

basis to "warrant vacating the [dismissal] order."

The judge accepted defense counsel's argument that defendants "had no

reason to doubt whether plaintiff's counsel had apparent authority to settle the

matter," as Montgomery had been representing plaintiff since the inception of

the case. Thus, according to the judge, "reinstating the complaint" eight months

after it was dismissed would "prejudice[]" defendants by "requir[ing] defendants

to resume their defense and re-litigate a matter that defendants reasonably

believed was marked settled." Conversely, plaintiff would not be "prejudiced

by the [c]ourt's decision" as "there [were] several avenues that plaintiff [could]

take if she [felt] that her attorney wrongfully settled the present matter without

her authority."

Additionally, the judge rejected plaintiff's argument that the claimed "new

evidence" she presented to her attorney "following the summary judgment but

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before the alleged settlement date of November 5, 2018 [was] sufficient to

justify re-opening plaintiff's case." The judge explained:

The discovery period ended on September 23, 2018.
Any evidence that plaintiff possessed prior to the
conclusion of the discovery period and was not turned
over to the defendants prior to the discovery end date
would be barred. Moreover, even if the discovery was
only brought to light subsequent to the expiry of the
discovery period, plaintiff never filed a motion to
reopen discovery prior to [the] case being marked as
settled. Plaintiff has failed to describe what the "new
evidence" is, merely referring generally to the fact that
she presented "new evidence." If the new evidence is
the voicemail left by plaintiff's counsel to plaintiff on
or about November 4, 2018, which was played at the
July 29, 2019 plenary hearing, this [c]ourt finds that the
voicemail message lends credence to plaintiff's
counsel's version of the events that he was able to
negotiate the [one-third] W2, [two-third] 1099
settlement as he had previously discussed with the
plaintiff.

Armed with new counsel, on August 22, 2019, plaintiff moved for

reconsideration of the August 2 order pursuant to Rule 4:49-2, to which

defendants objected. In a supporting certification, plaintiff reiterated that she

had not authorized Montgomery to accept the settlement agreement on her

behalf and provided emails and letters sent between January and May 2019 in

support. On September 27, 2019, the judge denied plaintiff's motion. In an

accompanying written statement of reasons, citing Cummings v. Bahr, 295 N.J.

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Super. 374, 384 (App. Div. 1996), the judge found that plaintiff "failed to meet

the high threshold required for reconsideration,"4 and "failed to show where th[e

c]ourt acted in an 'arbitrary, capricious or unreasonable manner' . . . or where

th[e] court 'either did not consider or failed to appreciate the significance of

probative competent evidence.'" According to the judge, plaintiff's arguments

were "either re-arguments of those already presented to and considered by the

[c]ourt or arguments that plaintiff could reasonably have made at the July 29,

2019 hearing."

The judge explained that he had not erred in applying Rule 4:50-1 when

considering plaintiff's initial motion because "[t]he December 5, 2018 order

[was] a final order," that "resolve[d] all claims and controversies in this matter

as to all parties." Additionally, relying on Palombi v. Palombi, 414 N.J. Super.

274, 289 (App. Div. 2010), the judge determined that "the evidence that plaintiff

[was] presenting for the first time on [her] reconsideration motion [was] not

properly before the [c]ourt" because the evidence "predate[d] the July 29, 2019

. . . hearing" and thus "could reasonably have been presented" at the hearing.

4
The judge acknowledged that "plaintiff largely appeared to be representing
herself at the July 29, 2019 . . . hearing considering the contentious relationship
between plaintiff and her former counsel." However, the judge stated "this fact
in and of itself is insufficient to relax the stringent case law and standards
pertaining to reconsideration that is binding on th[e c]ourt."
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Nonetheless, the new evidence did "not change th[e] [c]ourt's previous finding

that the present dispute is one between plaintiff and her former counsel, . . .

rather than a dispute between plaintiff and the defendants warranting

reinstatement of the present matter."

On appeal, plaintiff argues the judge "misapplied New Jersey law in

finding that there was apparent authority binding plaintiff to the settlement," and

"misapplied New Jersey law in applying the [Rule] 4:50 standard to plaintiff's

motion to reinstate her case" as "[t]here was no final judgment or order within

the meaning of [Rule] 4:50." We disagree.

Rule 4:50-1 provides that

the court may relieve a party . . . from a final judgment
or order for the following reasons: (a) mistake,
inadvertence, surprise, or excusable neglect; (b) newly
discovered evidence which would probably alter the
judgment or order and which by due diligence could not
have been discovered in time to move for a new trial
under [Rule] 4:49; (c) fraud . . . , misrepresentation, or
other misconduct of an adverse party; (d) the judgment
or order is void; (e) the judgment or order has been
satisfied, released or discharged, or a prior judgment or
order upon which it is based has been reversed or
otherwise vacated, or it is no longer equitable that the
judgment or order should have prospective application;
or (f) any other reason justifying relief from the
operation of the judgment or order.

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 Rule 4:50-1 applies to final orders and judgments, and "does not

distinguish between consent judgments and those issued after trial. So long as

the judgment is final, the rule is applicable." DEG, LLC v. Twp. of Fairfield,

198 N.J. 242, 261 (2009). "[A]n order is considered final if it disposes of all

issues as to all parties." Silviera-Francisco v. Bd. of Educ. of City of Elizabeth,

224 N.J. 126, 136 (2016). "Significantly, Rule 4:50-1 is not an opportunity for

parties to a consent judgment to change their minds; nor is it a pathway to reopen

litigation because a party either views his [or her] settlement as less

advantageous than it had previously appeared, or rethinks the effectiveness of

his [or her] original legal strategy." DEG, 198 N.J. at 261. "Rather, the rule is

a carefully crafted vehicle intended to underscore the need for repose while

achieving a just result." Ibid. Thus, the rule "denominates with specificity the

narrow band of triggering events that will warrant relief from judgment if justice

is to be served" and "[o]nly the existence of one of those triggers will allow a

party to challenge the substance of the judgment." Id. at 261-62.5

5
Subsection (a) of Rule 4:50-1 "encompass[es] situations in which a party,
through no fault of its own, has engaged in erroneous conduct or reached a
mistaken judgment on a material point at issue in the litigation." DEG, 198 N.J.
at 262. This subsection "is intended to provide relief from litigation errors 'that
a party could not have protected against,'" id. at 263 (quoting Cashner v.
Freedom Stores, Inc., 98 F.3d 572, 577 (10th Cir. 1996)), and "an attorney's

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 Although courts are empowered under Rule 4:50-1 "to confer absolution"

from judgments and orders, DEG, 198 N.J. at 261, relief "is granted sparingly."

F.B. v. A.L.G., 176 N.J. 201, 207 (2003) (citing Pressler & Verniero, Current

N.J. Court Rules, cmt. 1.1 on R. 4:50-1 (2003)). "On appellate review, the trial

judge's determination 'will be left undisturbed unless it represents a clear abuse

of discretion.'" DEG, 198 N.J. at 261 (quoting Little, 135 N.J. at 283). "'[A]buse

of discretion' . . . arises when a decision is 'made without a rational explanation,

inexplicably departed from established policies, or rested on an impermissible

error of law is not sufficient to relieve a party from a final judgment or order."
Ibid. (quoting Posta v. Chung-Loy, 306 N.J. Super. 182, 206 (App. Div. 1997)).
Subsection (b) allows a party to "obtain relief from a judgment based on newly
discovered evidence," if the party seeking relief can demonstrate that the
evidence (1) "would probably have changed the result," (2) "was unobtainable
by the exercise of due diligence for use at the trial," and (3) "was not merely
cumulative." DEG, 198 N.J. at 264. Subsection (c) allows a judgment to be set
aside when an adverse party engaged in fraud, misrepresentation, or misconduct
and that falsity could not have been discovered by reasonable diligence.
Gilgallon v. Bond, 279 N.J. Super. 265, 274 (App. Div. 1995). Subsection (e)
"is rooted in changed circumstances that call the fairness of the judgment into
question." DEG, 198 N.J. at 265-66. Subsection (f) is the "so-called catch-all"
that provides relief in "exceptional situations" that "warrant redress" but are not
otherwise listed in Rule 4:50-1. DEG, 198 N.J. at 269-70. To obtain relief under
Subsection (f), a movant must show that the enforcement of the order "would be
unjust, oppressive or inequitable." Greenberg v. Owens, 31 N.J. 402, 411 (1960)
(Jacobs, J., dissenting) (citation omitted). The boundaries under this subsection
"are as expansive as the need to achieve equity and justice." Hous. Auth. of
Morristown v. Little, 135 N.J. 274, 290 (1994) (quoting Palko v. Palko, 73 N.J.
395, 398 (1977)).
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basis.'" Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002) (quoting

Achacoso-Sanchez v. Immigration and Naturalization Service, 779 F.2d 1260,

1265 (7th Cir.1985)). "The discretion afforded to a trial court under the Rule

also includes the duty to consider evidence in the record that militates against

the grant of relief." Little, 135 N.J. at 290.

In denying plaintiff relief under Rule 4:50-1, the judge considered the

applicability of the doctrine of apparent authority. "[A]n attorney for a private

party may settle a lawsuit based on actual or apparent authority to do so."

Seacoast Realty Co. v. W. Long Branch Borough, 14 N.J. Tax 197, 202-03 (Tax

1994). Apparent authority arises when "the client's voluntary act has placed the

attorney in a situation wherein a person of ordinary prudence would be justified

in presuming that the attorney has authority to enter into a settlement, not just

negotiations, on behalf of the client." Amatuzzo v. Kozmiuk, 305 N.J. Super.

469, 475 (App. Div. 1997).

Thus, in private litigation, where the client by
words or conduct communicated to the adverse
attorney, engenders a reasonable belief that the attorney
possesses authority to conclude a settlement, the
settlement may be enforced. However, the attorney's
words or acts alone are insufficient to cloak the attorney
with apparent authority.

[Id. at 475-76.]

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See also LoBiondo v. O'Callaghan, 357 N.J. Super. 488, 497 (App. Div. 2003)

(stating that creation of apparent authority is based on "the actions of the

principal, not the alleged agent."). Nonetheless, the client bears a heavy burden

of overcoming the presumption that his or her attorney is presumed to possess

the authority to act on his or her behalf, Jennings, 381 N.J. Super. at 231, and

the fact-finder must consider the totality of the circumstances to determine

whether apparent authority exists. N.J. Lawyer's Fund for Client Prot. v. Stewart

Title Guar. Co., 203 N.J. 208, 220 (2010).

Here, plaintiff essentially urges us to reweigh the evidence considered by

the judge at the plenary hearing in concluding that Montgomery had apparent

authority to finalize the settlement based on plaintiff's actions. However, we

shall not disturb the judge's factual findings, as we are not "convinced that they

are so manifestly unsupported by or inconsistent with the competent, relevant

and reasonably credible evidence as to offend the interests of justice." Rova

Farms Resort, Inc. v. Inv'rs Ins. Co., 65 N.J. 474, 484 (1974) (citation omitted);

see also Seidman v. Clifton Sav. Bank, S.L.A., 205 N.J. 150, 169 (2011).

Likewise, we discern no error of law, which we review de novo,

Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995),

in the judge's conclusion that the settlement was consummated and became

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enforceable on November 5, 2018, when Montgomery accepted defendants'

offer, despite the fact that plaintiff later refused to execute a written settlement

agreement. See Lahue v. Pio Costa, 263 N.J. Super. 575, 596 (App. Div. 1993)

("Where the parties agree upon the essential terms of a settlement, so that the

mechanics can be 'fleshed out' in a writing to be thereafter executed, the

settlement will be enforced notwithstanding the fact the writing does not

materialize because a party later reneges."); Jennings, 381 N.J. Super. at 229

("Execution of a release is a mere formality, not essential to formation of the

contract of settlement."). Similarly, we perceive no abuse of discretion in the

judge's determination that none of the triggering events denominated under Rule

4:50-1 justified relief from the December 5, 2018 order dismissing plaintiff's

complaint with prejudice.

Affirmed.

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