PER CURIAM.
Plaintiff MaryLynn Schiavi appeals the Law Division's November 13, 2012 order entering judgment in the amount of $35,074 in favor of defendant AT&T Corporation and dismissing her claims. We affirm.
We discern the following facts and procedural history from the record on appeal.
AT&T hired Schiavi in 1995 to work in its public relations department. In June 2000, it assigned several employees to work at its Short Hills location on a revenue recovery task force named the "Raiders of the Lost Revenue" (Raiders). While a member of the task force, Schiavi emailed AT&T senior executives, including the chief executive officer, to express her frustration regarding the assignment. A portion of the August 13 email stated: "Hopefully the morale of the Raiders will change over time, but I must tell you many of the faces of my colleagues have been filled with sadness and despair, and several people even mentioned the only option being suicide. And they didn't say this in a joking manner."
Maureen Brennan, AT&T's Human Resources Director, contacted Schiavi and asked her to identify which employees were potentially suicidal. According to Schiavi, Brennan "was very upset about my letter and she said she needed to know the names of the people who mentioned or threatened suicide. And I assured her that no one threatened suicide." However, Brennan testified that Schiavi told her that she "wasn't going to reveal her sources," meaning the names of the individuals who threatened suicide. Brennan testified that Schiavi eventually recanted her original statement and told her that nobody threatened suicide.
Based upon Schiavi's conduct, AT&T determined that Schiavi had violated its code of conduct and that the violation warranted termination. Schiavi was informed that she was being discharged on August 21, 2000. Although AT&T believed that Schiavi's "termination was justified" and that it was under no obligation to give her severance benefits or allow her to resign, it agreed to provide severance pay in exchange for a written agreement fully and finally ending the relationship between AT&T and Schiavi.
During the negotiations for the agreement, Brennan sent an email to Schiavi on September 15, in which she wrote
Brennan testified that she was "agreeing to... convey to any employer that called asking for [reasons] why [Schiavi] left AT&T... that she resigned. That was for any employers and, also, offer her the opportunity to tell her colleagues that she resigned." Schiavi reviewed the agreement and executed it on
September 19.
As part of the agreement, AT&T promised to pay Schiavi $19,948 in severance, that it would not contest her claim for unemployment benefits, and that it would not disparage her. With respect to her status as resigned, the agreement states: "Employee should direct inquiries from her prospective employers to Maureen Brennan. Ms. Brennan will relay to those prospective employers only that Employee resigned, the dates of Employee's employment, the position(s) held and her salary." The agreement makes no mention of how Brennan's termination status would be coded internally.
In the agreement, Schiavi agreed "that her employment with the Company ended at the close of business on August 21, 2000... and that she will not apply for or seek employment with the Company at any time thereafter." Schiavi understood this to mean that she could not work for AT&T ever again. She also agreed to keep all proprietary information confidential, to refrain from disparaging AT&T, and to keep the agreement itself confidential.
The agreement further provided that, if Schiavi materially breached the agreement's provisions with respect to the confidentiality of the agreement, the confidentiality of proprietary information, or non-disparagement, she would "be required to reimburse AT&T for the payment made pursuant to... this Agreement, less one thousand dollars ($1,000)." Additionally, Schiavi gave AT&T a broad release and agreed not to bring a claim against AT&T relating to her employment or its termination. If Schiavi breached those provisions, she was required to return "all consideration" received from the agreement, and pay all "attorneys' fees and costs" related to the lawsuit.
In September 2005, the manager of AT&T's Internet Security News Network (ISNN), posted a listing for a temporary contract assignment with an end date of March 21, 2006. Logistic Solutions, an AT&T contractor, hired Schiavi for the ISNN position on October 13, 2005. As part of her acceptance, Schiavi acknowledged that she "agree[d] to accept a temporary work assignment to AT&T," and that "the work assignment is a temporary one for a defined period of time, the length of which may be increased or decreased." She was engaged to work for the exclusive benefit of AT&T, and was being supervised by AT&T employees. Schiavi commenced work at AT&T's Bedminster office shortly thereafter.
Brennan encountered Schiavi in the Bedminster cafeteria in December 2005, and learned that Schiavi was working at AT&T as the employee of a contractor. Brennan notified Human Resources that Schiavi should not be working at AT&T under the terms of the 2000 agreement. In February 2006, Human Resources informed ISNN that Schiavi must be released because she was ineligible to work at AT&T. On February 22, 2006, Schiavi was informed that her assignment was ending.
In December 2006, Schiavi filed a complaint against AT&T, in which she alleged (1) breach of contract; (2) breach of the implied covenant of good faith and fair dealing; (3) tortious interference with prospective employment; (4) intentional infliction of emotional distress; (5) fraud; (6) defamation; and (7) respondent superior liability for the intentional and reckless acts of its employees.
On November 7, 2008, after the close of discovery, AT&T filed a motion for summary judgment on all claims and counterclaims. Schiavi filed a cross-motion for summary judgment on the issue of liability and opposed AT&T's motion as it related to the counterclaim. The motion judge granted AT&T's motion, dismissed Schiavi's complaint in its entirety, and granted AT&T's counterclaim in the amount of $19,948, plus attorney's fees and costs.
On January 23, 2009, Schiavi filed a motion for reconsideration addressing the issue of the damages and attorney's fees awarded to AT&T. On May 12, the same judge modified the damages by reducing it $1000 to $18,948 and denying an award of counsel fees.
Schiavi appealed and AT&T cross-appealed. On April 29, 2011, we reversed, finding that genuine issues of material fact precluded summary judgment.
Following a six-day trial in May 2012, a unanimous jury found that AT&T did not breach the agreement or the implied covenant of good faith and fair dealing, and did not tortiously interfere with Schiavi's contractual rights. The jury also found that Schiavi breached the agreement and was liable to AT&T for damages.
On May 29, Schiavi filed a motion for judgment notwithstanding the verdict (JNOV) and for a new trial. She argued that she had been improperly barred from making a motion for attorney's fees, that certain evidentiary rulings were improper, and that portions of the jury charge were improper. AT&T filed a cross-motion for entry of judgment in its favor. On November 13, the trial judge entered judgment for AT&T in the amount of $19,948 plus attorney's fees in the amount of $15,126, for a total judgment of $35,074. The record does not contain an order denying Schiavi's motion or explaining the reasons for such denial. This appeal followed.
Schiavi raises the following points
We turn first to Schiavi's argument that the trial judge erred in failing to hold that AT&T breached the parties' agreement. AT&T contends that Schiavi did not properly preserve that issue for appeal and, alternatively, that her claim fails as a matter of law. Although AT&T's argument that the issue was not preserved for appeal has considerable merit, we nevertheless address Schiavi's assertion directly.
In our earlier opinion, we held that
Whether AT&T breached the Agreement by requiring that Logistics terminate Schiavi, and disclosing that Schiavi was terminated for cause and was on the Do Not Hire list depends on a jury's resolution of disputed facts. The covenant of good faith and fair dealing is implied in every contract in New Jersey, and it requires that neither party shall do anything which interferes with the ability of the other party to enjoy the fruits of the contract.
The question of whether genuine issues of material fact precluded a decision in favor of either party as a matter of law was the subject matter of the first appeal. We held that they did. Consequently, the doctrine of law of the case precluded the trial judge from reaching a different result on remand, absent a significant change in the facts before him not present in this case.
The "law of the case" doctrine embodies "the principle that where there is an unreversed decision of a question of law or fact made during the course of litigation, such decision settles that question for all subsequent stages of the suit."
For those reasons, we reject Schiavi's argument that the trial judge erred in refusing to rule in her favor as a matter of law.
We next address the several arguments raised by Schiavi with respect to evidential issues.
Our standard of review for evidential rulings at trial is abuse of discretion. "Trial judges are entrusted with broad discretion in making evidence rulings."
Schiavi argues that her trial counsel should have been permitted to read from documents throughout the trial. AT&T responds that the trial judge did not err in his manner of conducting the trial.
In order to keep the proceedings moving so that "the case [would not] take forever," but to have the evidence presented to the jury in a judicious manner and contemporaneously with the testimony, the trial judge allowed the parties to display documents via video monitor and publish copies of the documents to the jury while witnesses were questioned regarding their content. In fact, it was Schiavi's trial counsel who made that request:
AT&T had no object to that procedure.
The trial judge then precluded both parties from extensive reading of documents into the record because they were in evidence. AT&T was prevented from having the agreement read into the record. Schiavi was prevented from having an email interpreting a prior version of the agreement read into the record. The trial judge's evenly-applied practice of precluding reading from documents in evidence was not an abuse of discretion under the circumstances of this case.
Having considered Schiavi's remaining evidential issues, we find them to be without merit and not warranting extensive discussion in a written opinion.
Schiavi argues that the judge should have admitted into evidence a press release from the Equal Employment Opportunity Commission (EEOC) and an article from the
The voice message from AT&T attorney Judith Kramer and the file folder with notations, which Schiavi argues should have been admitted, were, at best, of limited relevance to the issues being tried. We find no abuse of the trial judge's broad discretion in his decision to exclude them. There is no basis to conclude that, had they been admitted, the result would have been different.
We turn next to Schiavi's argument that the trial judge gave an erroneous charge. We focus on the charge concerning extrinsic evidence, because we find no merit in Schiavi's contentions that the judge should have given her requested charges rather than the more generalized charge actually given.
We have described the standard of review concerning jury charges as follows:
The trial judge instructed the jury in the following manner regarding extrinsic evidence:
Although not identical, the charge as given was similar to portions of New Jersey's Model Jury Charge for contract interpretation.
However, the judge did not include the model charge's discussion of how the jury is to proceed if it cannot determine the meaning of an ambiguous word or phrase from the intrinsic evidence offered by the parties. The omitted language provides as follows:
The omission of the additional language was not discussed at the charge conference. We note that, in the middle of the charge, counsel for AT&T sought a sidebar conference. The judge stated that he would take objections following completion of the charge. Once the charge ended, the judge saw counsel at sidebar, but the transcript states that this could not be transcribed for reasons that are not explained. There is nothing in the record to suggest that Schiavi's trial counsel raised this issue at sidebar, and she does not assert that he did. "Where there is a failure to object, it may be presumed that the instructions were adequate.... [and] that trial counsel perceived no prejudice would result."
In addition, there is nothing in the record demonstrating that the omission of the language was specifically raised in Schiavi's post-verdict motion. In fact, the issue is mentioned only in passing in Schiavi's appellate brief and is not the focus of her argument on appeal. Her argument instead is focused on the judge's refusal to use her proposed charge language, which did not include the language at issue.
Having reviewed the charge as a whole in light of the record, we see no reason to reverse. AT&T clearly wanted to sever its relationship with Schiavi, which is why it proposed the severance agreement and included language precluding future employment "with the Company." Clearly, Schiavi's return to an AT&T workplace as a contract worker, rather than an employee, would have been inconsistent with the overall purpose of the agreement as developed at trial. Schiavi acknowledged at trial her understanding "that [she] could never work for AT&T again," and that there was nothing in the agreement that she could "work for AT&T as long as [she was] a contractor" or "a temporary employee."
Although we held in our earlier opinion that there were sufficient issues of fact to warrant a trial so that Schiavi could present her argument that extrinsic evidence demonstrated that she was not precluded from returning as a contract employee, it was her burden to convince the jury on that issue. We see nothing in the record to suggest that the jury was unable to determine the parties' actual intent from the evidence before it.
Consequently, we conclude that any error resulting from the judge's omission of the language was not plain error "clearly capable of producing an unjust result,"
Finally, Schiavi argues that the trial judge's determination that the agreement's stipulated damage provisions are enforceable was erroneous.
In our earlier opinion, we summarized the difference between stipulated damages and liquidated damages:
There are two damages clauses in the agreement. Paragraph eight sets damages at the amount paid to Schiavi under the contract, less $1000, in the event she violates the provisions concerning the confidentiality of the agreement, the confidentiality of proprietary information, or non-disparagement. Paragraph eleven governs breaches of paragraphs nine and ten of the agreement, which contain waivers of the right to sue for various claims and a general release, respectively. In the event of such a breach, Schiavi is required to return the funds paid on signing the contract and reimburse any "Releasee" for attorney's fees and costs.
A liquidated damages provision may be an appropriate mechanism to remedy a breach of contract where the actual damages flowing from the breach are difficult to measure.
The court will not enforce liquidated damages provisions if they place an unfair penalty on the party that has breached the contract. In
We find, in the context of this case, nothing in the record to suggest that the damage provisions are unreasonable or grossly disproportionate to the actual harm sustained by AT&T. The trial judge made the same determination after hearing all of the evidence. At the time the agreement was negotiated, AT&T took the position that it was entitled to terminate Schiavi for cause and without severance pay. Nevertheless, in order to ensure a clean break with no residual claims or litigation, it agreed to give her severance pay in return for certain promises, including the promise not to return to the company or file suit. By breaching the contract, Schiavi deprived AT&T of the benefit of its agreement, and we see nothing unreasonable in the requirement that she forfeit the severance pay she received in return for the promises she breached.
The attorney's fees provision is not a liquidated damages provision in that the fees are determined at the time of suit and are based on the fees actually incurred. Such a provision is not prohibited in a contract such as this, although they generally occur in the context of commercial agreements.
Affirmed.
