NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-1292-15T1
NEW JERSEY INTERGOVERNMENTAL INSURANCE FUND,
Plaintiff-Appellant,
v.
LORRAINE SELECKY and JOEL I. RACHMIEL, ESQ,
Defendants-Respondents.
________________________________________________________________
Argued telephonically March 16, 2017 – Decided July 11, 2017
Before Judges Koblitz and Rothstadt.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-2833-15.
Barry M. Capp argued the cause for appellant (Ansell Grimm & Aaron, P.C., attorneys; Mr. Capp, of counsel and on the briefs).
Joel I. Rachmiel argued the cause for respondents.
PER CURIAM
Defendant Lorraine Selecky filed an action through her
attorney, defendant Joel I. Rachmiel, for malicious prosecution against the Borough of Roselle Park Police Department (Borough).
Selecky settled her claim with the Borough and entered into a
settlement agreement that contained a confidentiality clause,
prohibiting her and her attorney from disclosing the existence and
terms of the agreement. Plaintiff New Jersey Intergovernmental
Insurance Fund (NJIIF), the Borough's insurer, filed a complaint
against defendants alleging they breached the confidentiality
clause. It appeals from the Law Division's dismissal of its
complaint on summary judgment, arguing that the court erred by not
concluding defendants breached the agreement when they made
statements to a newspaper allegedly relating to the lawsuit and
by not enforcing the agreement's provision for liquidated damages.
We disagree and affirm.
The salient facts on summary judgment were not disputed and
are summarized as follows. Selecky had been convicted in municipal
court of a parking offense. She appealed that conviction and we
reversed and remanded for a new trial. See State v. Selecky, A-
1346-10 (App. Div. Jan. 11, 2012) (slip op. at 1, 11). On remand,
the court acquitted Selecky, and Rachmiel filed the complaint for
malicious prosecution on her behalf. The parties settled the
matter, and the court dismissed her complaint in accordance with
the parties' settlement agreement that also required the Borough
2 A-1292-15T1 to pay Selecky an agreed upon amount. Plaintiff then paid Selecky
on behalf of the Borough.
The confidentiality clause of the agreement restricted
Selecky's and her attorney's ability to discuss the terms of the
agreement with others. It also addressed the impact on that
restriction of any legally required disclosure of the agreement
by the Borough to others. It stated:
The Parties acknowledge and agree that . . . the Borough . . . may be obligated to disclose . . . this Agreement to persons under the New Jersey Open Public Records Act [(OPRA)1] or common law. Notwithstanding the foregoing, [defendants] agree that they shall not disclose, or cause to be disclosed, the terms of this Agreement, or the fact that this Agreement exists, except to their accountants and/or tax advisors, or to the extent otherwise required by law. . . . In the event that this Agreement is required to be disclosed pursuant to applicable law, [defendants] agree that their communication with any person or the media regarding the Action shall be limited to the statement that "the claim was resolved to my satisfaction."
[(Emphasis added).]
In the preamble to the agreement, the parties defined "the
Action" as the malicious prosecution suit that Selecky filed
against the Borough and identified it by its Law Division docket
number. There was no mention of the municipal court action against
1 N.J.S.A. 47:1A-1 to -13.
3 A-1292-15T1 Selecky. The agreement also designated "any violation of the
. . . confidentiality provision [to be] a material breach of th[e]
Agreement," entitling plaintiff to file "a summary action to
enforce same and . . . entitl[ing it] to 50% of the Settlement Sum
as liquidated damages[.]"
Within several days of the parties reaching the agreement,
an unrelated third party made an OPRA request to the Borough for
a copy of the settlement agreement and, on May 20, 2014, authored
a blog post about the settlement. The next day, a local newspaper
published a similar article. Later, a reporter from the Star
Ledger contacted defendants, and on June 1, 2014, the newspaper
published an internet posting and article about the settlement,
including comments attributed to defendants as follows:
"She was determined. She was going to do whatever it took," said Joel Rachmiel.
. . . .
"I knew I was right, and innocent," said Selecky . . . .
"People that I work with, they all said I was crazy," Selecky recalled.
"It was really suspect when he (the officer) sent the ticket in the mail," Rachmiel said.
4 A-1292-15T1 . . . .
"When you know you're right, you have to fight," she said last week, then added, "I'm happy this long journey has come to an end."
The article also quoted the Borough's attorney as saying,
"The borough is happy the matter has been resolved without any
finding of any improper behavior by any police officer."
Plaintiff contacted defendants, alleged their comments in the
Star Ledger constituted a breach of the settlement agreement, and
demanded the damages provided for in the confidentiality clause.
Defendants rejected plaintiff's contention, and plaintiff filed
this action.
Plaintiff moved for summary judgment, arguing that the
statements defendants made to the Star Ledger violated the
confidentiality provision of the settlement agreement. Defendants
cross-moved for summary judgment, contending that the comments
only dealt with the municipal court complaint, did not reference
the complaint against the Borough or the settlement agreement, and
the settlement agreement was already lawfully published twice
before the Star Ledger article as the result of the OPRA request.
The motion judge considered the parties' submissions and oral
arguments, granted defendants' cross-motion for summary judgment,
and denied plaintiff's motion. In her oral decision placed on the
record on October 9, 2015, the judge explained that she could not
5 A-1292-15T1 "see anything in th[e] agreement that was disclosed in these
papers" and that Selecky was only "talking about this municipal
court action . . . ." She found that Selecky's comments to the
Star Ledger "did not discuss" the malicious prosecution action and
that the comments had "nothing to do with" the Borough or the
police officer. In fact, she found that the statement made by the
Borough's attorney to the Star Ledger actually "went beyond what
was supposed to be said," because he commented on the settlement
agreement and "he should have just said [']it's been resolved to
the borough's satisfaction.[']" The judge also observed that the
information that plaintiff was concerned about had been disclosed
earlier in the blog post by the OPRA requestor. The judge entered
an order awarding summary judgment and dismissing the complaint.
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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-1292-15T1
NEW JERSEY INTERGOVERNMENTAL INSURANCE FUND,
Plaintiff-Appellant,
v.
LORRAINE SELECKY and JOEL I. RACHMIEL, ESQ,
Defendants-Respondents.
________________________________________________________________
Argued telephonically March 16, 2017 – Decided July 11, 2017
Before Judges Koblitz and Rothstadt.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-2833-15.
Barry M. Capp argued the cause for appellant (Ansell Grimm & Aaron, P.C., attorneys; Mr. Capp, of counsel and on the briefs).
Joel I. Rachmiel argued the cause for respondents.
PER CURIAM
Defendant Lorraine Selecky filed an action through her
attorney, defendant Joel I. Rachmiel, for malicious prosecution against the Borough of Roselle Park Police Department (Borough).
Selecky settled her claim with the Borough and entered into a
settlement agreement that contained a confidentiality clause,
prohibiting her and her attorney from disclosing the existence and
terms of the agreement. Plaintiff New Jersey Intergovernmental
Insurance Fund (NJIIF), the Borough's insurer, filed a complaint
against defendants alleging they breached the confidentiality
clause. It appeals from the Law Division's dismissal of its
complaint on summary judgment, arguing that the court erred by not
concluding defendants breached the agreement when they made
statements to a newspaper allegedly relating to the lawsuit and
by not enforcing the agreement's provision for liquidated damages.
We disagree and affirm.
The salient facts on summary judgment were not disputed and
are summarized as follows. Selecky had been convicted in municipal
court of a parking offense. She appealed that conviction and we
reversed and remanded for a new trial. See State v. Selecky, A-
1346-10 (App. Div. Jan. 11, 2012) (slip op. at 1, 11). On remand,
the court acquitted Selecky, and Rachmiel filed the complaint for
malicious prosecution on her behalf. The parties settled the
matter, and the court dismissed her complaint in accordance with
the parties' settlement agreement that also required the Borough
2 A-1292-15T1 to pay Selecky an agreed upon amount. Plaintiff then paid Selecky
on behalf of the Borough.
The confidentiality clause of the agreement restricted
Selecky's and her attorney's ability to discuss the terms of the
agreement with others. It also addressed the impact on that
restriction of any legally required disclosure of the agreement
by the Borough to others. It stated:
The Parties acknowledge and agree that . . . the Borough . . . may be obligated to disclose . . . this Agreement to persons under the New Jersey Open Public Records Act [(OPRA)1] or common law. Notwithstanding the foregoing, [defendants] agree that they shall not disclose, or cause to be disclosed, the terms of this Agreement, or the fact that this Agreement exists, except to their accountants and/or tax advisors, or to the extent otherwise required by law. . . . In the event that this Agreement is required to be disclosed pursuant to applicable law, [defendants] agree that their communication with any person or the media regarding the Action shall be limited to the statement that "the claim was resolved to my satisfaction."
[(Emphasis added).]
In the preamble to the agreement, the parties defined "the
Action" as the malicious prosecution suit that Selecky filed
against the Borough and identified it by its Law Division docket
number. There was no mention of the municipal court action against
1 N.J.S.A. 47:1A-1 to -13.
3 A-1292-15T1 Selecky. The agreement also designated "any violation of the
. . . confidentiality provision [to be] a material breach of th[e]
Agreement," entitling plaintiff to file "a summary action to
enforce same and . . . entitl[ing it] to 50% of the Settlement Sum
as liquidated damages[.]"
Within several days of the parties reaching the agreement,
an unrelated third party made an OPRA request to the Borough for
a copy of the settlement agreement and, on May 20, 2014, authored
a blog post about the settlement. The next day, a local newspaper
published a similar article. Later, a reporter from the Star
Ledger contacted defendants, and on June 1, 2014, the newspaper
published an internet posting and article about the settlement,
including comments attributed to defendants as follows:
"She was determined. She was going to do whatever it took," said Joel Rachmiel.
. . . .
"I knew I was right, and innocent," said Selecky . . . .
"People that I work with, they all said I was crazy," Selecky recalled.
"It was really suspect when he (the officer) sent the ticket in the mail," Rachmiel said.
4 A-1292-15T1 . . . .
"When you know you're right, you have to fight," she said last week, then added, "I'm happy this long journey has come to an end."
The article also quoted the Borough's attorney as saying,
"The borough is happy the matter has been resolved without any
finding of any improper behavior by any police officer."
Plaintiff contacted defendants, alleged their comments in the
Star Ledger constituted a breach of the settlement agreement, and
demanded the damages provided for in the confidentiality clause.
Defendants rejected plaintiff's contention, and plaintiff filed
this action.
Plaintiff moved for summary judgment, arguing that the
statements defendants made to the Star Ledger violated the
confidentiality provision of the settlement agreement. Defendants
cross-moved for summary judgment, contending that the comments
only dealt with the municipal court complaint, did not reference
the complaint against the Borough or the settlement agreement, and
the settlement agreement was already lawfully published twice
before the Star Ledger article as the result of the OPRA request.
The motion judge considered the parties' submissions and oral
arguments, granted defendants' cross-motion for summary judgment,
and denied plaintiff's motion. In her oral decision placed on the
record on October 9, 2015, the judge explained that she could not
5 A-1292-15T1 "see anything in th[e] agreement that was disclosed in these
papers" and that Selecky was only "talking about this municipal
court action . . . ." She found that Selecky's comments to the
Star Ledger "did not discuss" the malicious prosecution action and
that the comments had "nothing to do with" the Borough or the
police officer. In fact, she found that the statement made by the
Borough's attorney to the Star Ledger actually "went beyond what
was supposed to be said," because he commented on the settlement
agreement and "he should have just said [']it's been resolved to
the borough's satisfaction.[']" The judge also observed that the
information that plaintiff was concerned about had been disclosed
earlier in the blog post by the OPRA requestor. The judge entered
an order awarding summary judgment and dismissing the complaint.
This appeal followed.
On appeal, plaintiff argues the court erred in "granting
defendants' motion . . . since the communications made by
defendants clearly violated the terms of the confidential
settlement and release." It also contends that the "liquidated
damage provision is enforceable and not an unlawful penalty."
We review the trial court's grant of summary judgment de novo
and apply the same standard as the trial court. Cypress Point
Condo. Ass'n, Inc. v. Adria Towers, L.L.C., 226 N.J. 403, 414
(2016) (citing Mem'l Props., LLC v. Zurich Am. Ins. Co., 210 N.J.
6 A-1292-15T1 512, 514 (2012)). Summary judgment must be granted if there is
no genuine issue of material fact challenged and the moving party
is entitled to judgment as a matter of law. R. 4:46-2. No special
deference is afforded to the legal determinations of the trial
court when no issue of fact exists. Templo Fuente De Vida Corp.
v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199
(2016) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan,
140 N.J. 366, 378 (1995)).
We conclude from our de novo review of the motion record that
summary judgment was properly entered in favor of defendants. We
affirm substantially for the reasons expressed by the motion judge
in her oral decision. We add the following brief comments.
"[P]arties' [to an] agreement cannot override the public's
right of access under OPRA," Asbury Park Press v. Cty. of Monmouth,
406 N.J. Super. 1, 9 (App. Div. 2009), aff’d, 201 N.J. 5 (2010),
but they will still be bound to keep information confidential
pursuant to a negotiated agreement, even if that information is
later disclosed under OPRA. Here, the parties' agreement expressly
provided for the type of information that defendants could disclose
about the terms of the settlement agreement in this action or even
its existence if the Borough disclosed the settlement agreement
in response to an OPRA request.
7 A-1292-15T1 The statements defendants made to the Star Ledger did not
breach the agreement. The parties defined the scope of the
restriction upon defendants' right to make comments to those
related to the settlement agreement in "the Action," which they
specifically defined to mean the malicious prosecution matter, not
the municipal court case. The statements defendants made, as
compared to the Borough's attorney's comments, did not concern the
malicious prosecution at all and had nothing to do with "the terms
of th[e settlement] Agreement, or the fact that th[e] Agreement
exists[.]" Plaintiff's arguments to the contrary are without
merit. If the parties intended to expand the scope of the
confidentiality requirement, they could have simply identified the
municipal court action as being part of "the Action" and included
it as a subject matters as well as the terms of the settlement.
Because we conclude that the judge properly awarded summary
judgment to defendants, we need not address plaintiff's remaining
argument regarding the enforceability of the confidentiality
clause's liquidated damage provision.
Affirmed.
8 A-1292-15T1