EXCEL PHARMACY, INC. VS. VALERIE ORTIZ (C-000120-18, HUDSON COUNTY AND STATEWIDE)

E
                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-2447-19

EXCEL PHARMACY, INC.,

          Plaintiff-Appellant,

v.

VALERIE ORTIZ and HEALTH
SMART PHARMACY &
CONVENIENCE STORE, LLC,

          Defendants-Respondents.


                   Argued March 22, 2021 – Decided May 14, 2021

                   Before Judges Sabatino, Currier and DeAlmeida.

                   On appeal from the Superior Court of New Jersey,
                   Chancery Division, Hudson County, Docket No. C-
                   000120-18.

                   Keith J. Roberts argued the cause for appellant (Brach
                   Eichler, LLC, attorneys; Keith J. Roberts, of counsel
                   and on the briefs; Richard B. Robins, on the briefs).

                   Raymond J. Seigler argued the cause for respondent
                   Valerie Ortiz (Chasan Lamparello Mallon & Cappuzo,
                   PC, attorneys; Raymond J. Seigler, of counsel and on
                   the brief).
            Nirmalan Nagulendran argued the cause for respondent
            Health Smart Pharmacy & Convenience Store, LLC
            (Miller, Meyerson, & Corbo, attorneys; Nirmalan
            Nagulendran and Gerald D. Miller, on the brief).

PER CURIAM

      Plaintiff Excel Pharmacy, Inc. appeals from the Law Division order

denying its motion to vacate the settlement agreement it reached with

defendants. We affirm.

      Plaintiff is a pharmacy located in Jersey City. Defendant Valerie Ortiz

was employed by plaintiff as a pharmacist from February 2014 to January 2018.

When Ortiz began her employment, she and plaintiff entered into an

employment agreement (Agreement). The Agreement included non-competition

and non-solicitation provisions that applied during and after Ortiz's

employment. Pertinent to this litigation, for two years after the termination of

her employment, Ortiz was

            not in any capacity (whether in the capacity as a
            Pharmacist, officer, director, partner, manager,
            consultant, agent or owner) . . . [to] advise, manage,
            render or perform services to or for any person or entity
            which is engaged in a business competitive to that of
            [plaintiff] . . . within ten miles of [plaintiff].




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      On January 11, 2018, plaintiff's owner advised Ortiz she was terminating

her employment for reasons unrelated to this lawsuit. The termination became

effective January 31, 2018.

      Defendant Health Smart Pharmacy & Convenience Store, LLC is a

pharmacy also located in Jersey City, less than a mile from plaintiff. Health

Smart is owned by Ortiz's sister, Vea Cayaba-Wong.

      In August 2018, plaintiff filed a verified complaint and order to show

cause in the Chancery Division alleging Ortiz had violated the restrictive

covenants in the Agreement by opening, working at, and owning Health Smart.

Plaintiff asserted Health Smart was owned by Ortiz's sister as a "straw person"

and that Ortiz conspired to open the competing pharmacy before she was

terminated.

      In opposing the application, Ortiz submitted an affidavit in which she

denied violating the Agreement and asserted plaintiff's claims about her

involvement with Health Smart were "wholly untrue." Ortiz further alleged that

plaintiff itself violated the Agreement when it did not give her a promised

ownership share in May 2016 and consistently failed to pay her the specified

salary and percentage of net profits. Ortiz contended plaintiff owed her between

$100,000 and $200,000 for her share of net profits under the Agreement.


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      Ortiz's sister submitted an affidavit on behalf of Health Smart stating Ortiz

was not employed by Health Smart as a pharmacist or in any other capacity.

      Within a week after defendants' submissions, the parties, with counsel,

reached a settlement and placed its terms on the record on August 27, 2018. 1

The parties agreed to a mutual release of all claims arising out of the Agreement

and stipulated that the restrictive covenants would remain in place until May 1,

2019. This was a reduction of the temporal terms originally established in the

Agreement.2

      Plaintiff's counsel specifically requested Ortiz testify that she understood

the restrictive covenants would remain in effect until May 2019. Ortiz agreed.

Plaintiff's counsel emphasized that was "the important bargain[ed-] for

consideration to make the case go away."

      In April 2019, plaintiff filed a second order to show cause, alleging Ortiz

had violated the settlement agreement. An affidavit was later provided in May,

from Ricardo Valeroso who described a conversation he had with Ortiz in June



1
   The parties never signed a written settlement agreement. Correspondence
between counsel reflects an agreement on the essential terms but a dispute
regarding its effective date.
2
  The initial restrictive covenant regarding the non-competition clause was in
effect until January 31, 2020.
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                                        4
2018 in which Ortiz told him she had "a new pharmacy" called Health Smart .

According to Valeroso, Ortiz stated the pharmacy was "under her sister's name

because it was unethical for [Ortiz] to own the pharmacy because she had been

the pharmacist for Excel Pharmacy which was nearby Health Smart Pharmacy."

      On May 31, 2019, plaintiff issued a subpoena to McKesson Corporation,

a pharmaceutical supplier, for all records and communications related to or

arising out of contracts between McKesson and Health Smart. In response,

McKesson produced: (1) a certificate from the New Jersey Division of

Consumer Affairs (DCA), Board of Pharmacy, licensing "Health Smart

Pharmacy & Convenience Store LLC Valerie Joanne Ortiz" to operate as a

pharmacy effective April 11, 2018; and (2) various emails between Ortiz and

McKesson in May 2018 related to Health Smart's credit application and plans to

open the business.

      Plaintiff also submitted an Open Public Records Act (OPRA), N.J.S.A.

47:1A-1 to -13, request with the DCA on August 20, 2019 for "all documents

and filings for" Health Smart. The records produced included: (1) an application

for a permit to operate a pharmacy submitted by Cayaba-Wong on January 24,

2018; the typewritten application listed Minh Tran as the pharmacist-in-charge,

while a handwritten notation listed Ortiz on the permit application as a


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pharmacist to be employed by Health Smart and as the pharmacist-in-charge;

(2) photographs taken of the Health Smart premises during the DCA's inspection

on March 26, 2018 including a picture of a sign in Health Smart's window listing

Ortiz as the pharmacist-in-charge; (3) a DCA inspection report issued March 29,

2018 designating Ortiz as the recipient for the "Pharmacy Permit/CDS License

Approval Letter"; (4) a Health Smart Pharmacy Personnel Identification Form

indicating Ortiz was employed as a "consultant" and worked forty hours a week;

(5) an agreement dated May 1, 2018 in which Ortiz agreed to sublease the ground

floor of a building—Health Smart's place of business—to her sister; (6) a Notice

of Change of Pharmacist-in-Charge for Health Smart designating Ortiz as the

outgoing pharmacist-in- charge as of April 15, 2018 and Minh Tran as the

incoming pharmacist-in-charge as of April 16, 2018; Cayaba-Wong is listed as

the permit holder of Health Smart; and (7) a certificate of formation for Health

Smart as an LLC listing Cayaba-Wong as its registered agent and sole member

and manager.

      After reviewing this documentation, plaintiff no longer desired to enforce

the settlement agreement. Instead, it filed a motion to vacate the settlement

agreement and for leave to file an amended complaint.         Plaintiff asserted

defendants purposely deceived it regarding Ortiz's involvement with Health


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Smart and it would not have consented to the settlement agreement if it knew

Ortiz was violating the restrictive covenants.

      Defendants opposed the motion. Ortiz submitted an affidavit in which she

denied misleading the court or violating the Agreement.                 While she

acknowledged "assist[ing] [her] sister when [her sister] initially opened [Health

Smart][,]" she asserted this assistance ended before plaintiff filed its initial law

suit in August 2018. Ortiz stated she never owned Health Smart and was never

employed by the business. She further explained she did not believe she violated

the Agreement because she was never compensated by Health Smart.

      Ortiz also explained why her name appeared on the documentation

produced by McKesson and the DCA. She stated she originally leased a space

in May 2017 to allow her brother to open a business, but he returned to the

Philippines after his application for a business visa was denied in February or

March 2018. Ortiz further stated that once Health Smart became operational,

her sister began renting the space directly from the property owner.

      Ortiz explained that her name appeared on certain forms because she

attended the March 2018 inspection of Health Smart when her sister and other

employees were unable to be present. Ortiz stated she informed the inspector

she was not employed by Health Smart. According to Ortiz, the inspector told


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her to put her name on Health Smart's permit application anyway because she

was present during the inspection. The inspector "told [her] that the paperwork

had to be put in [her] name . . . however, the owner could just call the Board of

Pharmacy before the license was issued, so that the correct name (Minh Tran)

could be put on the license."

      Ortiz further stated that:

            During the inspection, [the inspector] also advised me
            that in order for the process to move forward, he had to
            put my name on the application form. That is why my
            name was hand-written by [the inspector] and Ms.
            Tran's name is typed. [The inspector] also instructed
            me to print out a piece of paper with my name and
            Pharmacist in Charge and put it on top of Minh Tran's
            name so that he could take a picture of it.

      Cayaba-Wong also submitted an affidavit essentially corroborating the

statements made by Ortiz. She conceded that Ortiz assisted her "initially" when

she opened the pharmacy, but the "assistance ended prior to the commencement

of the lawsuit."    She stated further that Ortiz was never an employee or

pharmacist at Health Smart and Ortiz was not compensated for her "assistance."

      Ortiz's sister explained that Ortiz was not listed anywhere in the

paperwork when Cayaba-Wong filed the pharmacy permit application with the

Board of Pharmacy in February 2018.



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      Cayaba-Wong also advised that the initial inspection of the new pharmacy

was scheduled for March 23, 2018. Although Cayaba-Wong and Tran waited at

the pharmacy for the inspector to arrive, he never appeared. The inspector then

rescheduled the appointment for March 26, but neither Cayaba-Wong or Tran

were available to meet him that day. Therefore, Cayaba-Wong asked Ortiz to

show the inspector the proposed pharmacy.

      According to Cayaba-Wong, she later contacted the Board of Pharmacy

regarding the proper name for the pharmacist on the license. She stated she was

told to fill out a "Notice of Change of Pharmacist in Charge" form. She did so

and she later received two licenses in the mail – one listed Tran's name, the other

listed Ortiz. Defendants' opposition included a copy of the license from the

DCA issued April 11, 2018 and listing Minh Tran as the pharmacy license

holder.

      Additionally, defendants included an affidavit from Valeroso in which he

stated he was "correct[ing] material inaccuracies" in the earlier certifications he

had provided to plaintiff. He stated the conversations he described earlier

between he and Ortiz "did not occur as written" and he was "pressured to sign"

them by plaintiff's owner, who was aware the certifications "had information

that was completely untrue. . . ."


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      In a reply certification, plaintiff's owner contended Valeroso's statements

were "fabricated" and "obvious retaliation for a recent failed real estate

transaction between us and because I refused to loan him money."

      The Chancery Division judge issued an oral decision on September 27,

2019 denying plaintiff's motion to vacate the settlement agreement. The judge

noted plaintiff could only rescind the settlement agreement with clear and

convincing proof that the settlement was achieved fraudulently.

      The judge stated: "Although plaintiff submits evidence that might support

an allegation, those assertions [were] quite clearly refuted with substantial

evidence and explanation by defendants." Therefore, "[a]t best, because the

competing affidavits submitted, and the speculation of plaintiff in particular,

. . . the evidence [was] [] in equipoise and insufficient to permit a conclusion

that [was] based on the higher standard of proof, clear and convincing evidence."

A memorializing order was entered the same day.

      On January 14, 2020, the court entered a consent judgment that dismissed

the case with prejudice but preserved plaintiff's right to appeal the denial of its

motion to vacate the settlement agreement.

      On appeal, plaintiff contends defendants' material misrepresentation that

Ortiz did not violate the Agreement induced plaintiff to settle the case. Plaintiff


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                                       10
asserts the court erred in concluding it did not show clear and convincing

evidence of the misrepresentation and fraud in the settlement of the initial

lawsuit.

      The decision to vacate a judgment or order lies within the sound discretion

of the trial judge, guided by principles of equity. Hous. Auth. of Town of

Morristown v. Little, 

135 N.J. 274

, 283 (1994). Accordingly, we will only

reverse a trial court's ruling on a motion to vacate where there is an abuse of

discretion because its "'decision [was] made without a rational explanation,

inexplicably departed from established policies, or rested on an impermissible

basis.'" U.S. ex rel. U.S. Dep't of Agric. v. Scurry, 

193 N.J. 492

, 504 (2008)

(alteration in original) (quoting Flagg v. Essex Cnty. Prosecutor, 

171 N.J. 561

,

571 (2002)).

      As stated, plaintiff asserts it demonstrated by clear and convincing

evidence that Ortiz made a material misrepresentation regarding her compliance

with the Agreement's non-competition provisions.           Plaintiff asserts the

documents produced by McKesson and the DCA "unquestionably prove[]" Ortiz

violated the Agreement. We disagree.

      There is a strong public policy in favor of enforcing settlement

agreements, which is "based upon 'the notion that the parties to a dispute are in


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                                      11
the best position to determine how to resolve a contested matter in a way which

is least disadvantageous to everyone.'" Brundage v. Est. of Carambio, 

195 N.J.

575

, 601 (2008) (quoting Peskin v. Peskin, 

271 N.J. Super. 261

, 275 (App. Div.

1994)). Accordingly, courts "strain to give effect to the terms of a settlement

wherever possible." Jennings v. Reed, 

381 N.J. Super. 217

, 227 (App. Div.

2005) (citation omitted).

      Settlement agreements will only be vacated upon a showing of "'fraud or

other compelling circumstances.'"        

Brundage, 195 N.J. at 601

(quoting

Pascarella v. Bruck, 

190 N.J. Super. 118

, 125 (App. Div. 1983)). Moreover, a

party alleging fraud bears the burden of proving such fraud through clear and

convincing evidence. Nolan by Nolan v. Lee Ho, 

120 N.J. 465

, 472 (1990).

      To establish a claim of common law fraud, a party must demonstrate the

following elements: "(1) a material misrepresentation of a presently existing or

past fact; (2) knowledge or belief by the defendant of its falsity; (3) an intention

that the other person rely on it; (4) reasonable reliance thereon by the other

person; and (5) resulting damages." Allstate New Jersey Ins. Co. v. Lajara, 

222

N.J. 129

, 147 (2015) (citation omitted). Where, as here, a party seeks an

equitable remedy in lieu of monetary damages, the party need not prove the

defendant's scienter.

Id. at 148.

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                                        12
      The Chancery Division did not misapply its discretion in finding plaintiff

did not present clear and convincing evidence that defendants acted fraudulently

in the procurement of the settlement agreement. Although plaintiff submitted

some evidence in support of its motion, defendants countered that evidence with

their own documentation and explanations.

      Ortiz explained why she was present during the inspection and why there

were handwritten notations on the permit application. The document changing

the pharmacist in charge from Ortiz to Tran corroborated her explanation of the

events. These explanations were not contradicted.

      Moreover, in short order, within days after defendants submitted

opposition to the initial order to show cause, the parties reached a resolution of

their issues with the assistance of counsel. The settlement was placed on the

record. The transcript reflects the parties all desired a mutual release of any and

all claims arising out of the Agreement. To secure the mutual release of claims,

plaintiff was willing to reduce the length of the Agreement's non-competition

and non-solicitation provisions from two and three years respectively, to only

an additional six months.

      Plaintiff did not provide any evidence to support its contention that it

relied upon Ortiz's assertion that she had not violated the Agreement in deciding


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to settle. In fact, to the contrary, counsel stated during the settlement proceeding

that the important consideration for resolving the dispute was that, going

forward, Ortiz comply with the restrictive covenants until May 2019. Plaintiff

has not presented any evidence that Ortiz did not comply with the restrictions

during the pertinent time period.

      Many factors go into a party's decision to settle a dispute. Here, plaintiff

did not present any of its reasons for settlement when counsel placed the terms

of the settlement agreement on the record, other than its demand that Ortiz

comply with the restrictive covenants until May 2019. It is as likely as any other

reason that plaintiff was willing to reduce these restrictive covenants in

exchange for Ortiz's agreement not to pursue her counterclaims.            Without

anything more presented in the record, the Chancery judge could not find

plaintiff relied on Ortiz's denial of any violation in making the decision to settle

its claims.

      We are satisfied the court's determination that the evidence was "in

equipoise" was supported by the record and not a mistaken exercise of

discretion.   Plaintiff's evidence was insufficient to support a clear and

convincing conclusion of fraud to overturn the settlement agreement.

      Affirmed.


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