SUPERIOR COURT OF NEW JERSE Y APPELLATE DIVISION DOCKET NO . A

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Plaintiffs

- Appellants,

v. JERSEY CITY BOARD OF EDUCATION, Defendant

- Respondent.

________________________

Argued February 5, 2020

– Decided Before Judges Fuentes, Haas and Enright. On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L

- 4178

- 16. David R. Giles argued the cause for appellants (Law Offices of David R. Giles, attorneys; David R. Giles, on the briefs)

.

1 Pursuant to R ule 1:38

- 3(d) (17), we use initials to identify plaintiffs. Furthermore, because their son's name has the same initials as his father, we will use a pseudonym to identify the child. NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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

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December 2 , 20202 A

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- 18T2 Cherie L. Adams argued the cause for respondent (Adams Gutierrez & Lattib oudere, LLC, attorneys; Cherie L. Adams, of counsel and on the brief; Leslie F. Prentice, on the brief). The opinion of the court was delivered by FUENTES, P.J.A.D. Plaintiffs S.T. and N.T. are the parents of S.T. (Samuel), a special needs
child who has been diagnosed with autism and related cognitive, social, and behavioral difficulties. O n May 2, 2011, plaintiffs filed a petition against the Jersey City Board of Education (Board) with the State Commissioner of
Education , on behalf o f their son Samuel , who was then seven years old

. Plaintiffs alleged the Board had violated Samuel's right to a "free appropriate public education" under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C.A. § 1400 to 148. The Commissioner referred th e petition to the Office of Administrative Law for a due process hearing before an Administrative Law Judge (ALJ). On August 11, 2011, plaintiffs' counsel apprised the ALJ that the parties had executed a Stipulation of Settlement and Release with the Boar d . In an order dated September 8, 2011, the ALJ found the parties voluntarily agreed to abide by the Stipulation of Settlement and Release attached, which "fully disposes of all issues in controversy between them and is consistent with the law."3 A

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On May 11, 2016, plaintiffs filed a civil action in the United States District Court for the District of New Jersey , claiming defendant violated the IDEA by failing to comply with the Settlement Agreement the parties reached in 2011.
In a sua sponte order dated September 14, 2016 , supported by a memorandum of opinion, the District Court Judge dismissed plaintiffs' complaint for lack of subject matter jurisdiction. The Judge found plaintiffs' complaint alleged facts that sought relief based on common law br each of contract. On November 5, 2016, plaintiffs filed a civil action in the Law Division alleging the Board breach ed the S ettlement A greement and s ought $88,000 in compensatory damages, representing the cost to transport Samuel to and from the school h e attended , $20,000 in consequential damages for the time Samuel's mother spent in accompanying her son to and from school , and counsel fees and costs. The relevant timeframe used by plaintiffs to determine the measure of damages was September 2011 to May 2016. On September 13, 2018, a civil jury returned a verdict in plaintiffs' favor. The jury found: (1) defendant breached the Stipulation of Settlement by not providing transportation to Samuel to and from school; (2) defendant did not prove plaintiffs waived the right to transportation under the parties' contract; and (3) plaintiffs were entitled to $2,280 in compensatory damages.4 A

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In this appeal, p laintiffs argue the trial judge erred when he denied their motion for a new trial , or a lternatively for a n additur , and in denying their
motion for an award of counsel fees. We disagree and affirm.
I Samuel was fourteen years old at the time of the trial. He had attended P.S. 31 in Jersey City between 2009 and 2010. In June of 2010, his parents began homeschooling Samuel for six months, using a program that was approved by the Board. Samuel's father S.T. testified that he and his wife decided homeschooling was the proper approach to deal with the inadequate education his son was receiving at P.S. 31 . He provided the following explanation in support of this decision:

T here were many issues. There wa s aid. Even [ the Board ] agreed that, you know, the teachers agreed [S amuel ] is not making any progress. And those are

– he used to say one word only. That was his only communication, only saying one word, I want

– he would say one water. He will say water . He'll say cookie. These are the two words he used to speak those days in my mind that's all.
S.T. testified that before he remov ed his son from P.S. 31, he and his wife requested the Board refer S amuel to an appropriate program. Although the Board ref

er red S amuel to the Epic S chool and Garden Academy , S.T. testified
th ose two programs did not accept his son

. In response, t he Board recommended5 A

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that S amuel continue to attend P.S. 31

. This prompted plaintiffs to file the due process hearing petition to protect and enforce their son's right to a free , appropriate education. In the petition filed on May 2, 2011, plaintiffs requested that S amuel receive specialized out

- of

- district schooling for children on the autism spectrum , a nd reimbursement f or expenses incurred in homeschooling
S amuel

. Paragraph Three of the Stipulation of Settlement Agreement provided that "[f]rom September 6, 2011, . . . the [Board] will place [ S amuel] at Caldwell College 's Center for Autism and ABA[.]" P aragraph Four stated : " T he District will provide transportation to and from Caldwell[.]" Paragraph Eight provided :

T his Agreement constitutes a full and final settlement as to the claims set out in the Petition, and all possible claims under federal and s tate laws, and constitutes a knowing waiver of any right to bring any claims arising out of the terms of this Stipulation, except for its enforcement

. The Settlement Agreement did not include any admission of liability by the Board. S .T. confirmed at tr ial that he understood that none of the parties were admitting fault by entering into the S ettlement A greement

. Of particular relevance here, the Settlement Agreement did not include a provision that authorized the court to award counsel fees to the prevailing party in any potential
enforcement action

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S.T. testified that he was apprehensive about the Board's willingness to comply with the terms of the Settlement Agreement from the start. On Sep tember 1, 2011, h e left a voicemail with his son's case manager reminding her of the Board's obligation to take S amuel to and from school starting on September 6, 2011. Despite his preemptive measures, S.T. testified that

" unfortunately " the Board did not honor its responsibilities under the Settlement Agreement

. S.T. claimed he did not contact anyone in the school district to complain about these problems because his attorney had already sent a letter to the Board. However, on cross

- examination, S.T. con cede d: (1) that his attorney represented him only through 2012 ; and (2) he did not contact the Board about
S amuel 's transportation until 2016. At one point, the Board's counsel asked S.T. to explain " why you didn't follow due process here and file a lawsu it? " This prompted the following response:

So first thing it was

– we already came out of the last suit, and it was very, very financially, emotionally taxing on our family life. Those days were very, very bad for us, like, I'm reliving those days right now. And

. . . and on

. . . top of it

. . . I was providing the tra nsportation, I was spending sixteen hundred dollars on an average every week. How will I have the money to go file that again and start fighting the case again. I knew that fighting with [ the Board ] is going to consume7 A

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- and

- a - half years now, right, since we've

. . . been to the [c] ourt, and we are still going onto the process. I have spent thousands of dollars on it. The Board called the school district's Supervisor of Special Education , Karen Gullace , as a witness. Gullace began working for the Board in 2011 as a special education teacher and was promoted to Supervisor of Special Education

. She had worked for the Board in this capacity for the last nine and a half years.
He r duties include d " oversee [ing] the compliance of students' individual education plans, that they're being adhered to properly, that they're receiving services [.]" She wa s also responsible for " all due

- process cases for the district." Gullace testified that in 2011 , S amuel 's parents refused the Board's offer
to transport Samuel to the school. Plaintiffs did not request transportation for the remainder of the 2011

- 2012 school year, the 2013

- 2014 school year , the
2014

- 2015 school year , a nd part of the 2015

- 2016 school year

. Gullace elaborated on this issue in response to the following questions from defen se counsel: Q: Ms. Gullace, to your knowledge did the district

provide transportation to the plaintiff in 2011? A: The district offer ed transportation and the parent refused.8 A

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- 18T2 Q: Thank you. What is your understanding of why the parents refused?
A: Because

. . . they wanted the mother to ride the bus with the student. Q: Okay. Now let’s go back to generalizations here. Does the distric t provide transportation to and from school for parents of students? A: We do not. Q: Okay. And why is that? A: It’s a liability and an undue burden on taxpayers. Q: Okay. Thank you. Also speaking generally, when you’re arranging transportation for stu dents with special needs, are there aides on those buses? A: There are. Q: Okay. And are those aides trained?
A: Yes. Q: And is it your understanding that those aides are paid on a per diem rate? A: It is. Q: Okay. Thank you. In this case, getting back to specifically the student here, when would the transportation have been arranged to begin if it were to begin for the 2011/2012 school year? A: It would have been arranged in September of 2011.9 A

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The appellate record also includes S amuel 's case notes from September 22, 2011, which state : "9/22/11 2pm Called [phone number ] Mr. [ T ] stated that family will provide transportation to/from clinic in order for parent to accompany student. Parent refused district transportation CM asked Mr. [ T ] to contact the transportation department

. . . in order to discuss reimbursement requirements." Despite this evidence, plaintiffs claimed that between 2011 and 2016, they

were obligated to provide t ransportation for their son because the Board refused
to honor its obligation under the Settlement Agreement

. S.T. testified he hired four taxi drivers to take his son to and from school. He claimed he found these drivers through Craigslist , word

- of

- mouth, and a taxi company. He p aid each driver between $95 and $120 per day. In response to defense counsel's questions on cross

- examination, S.T. could not provide the addresses for any of the drivers, did not know two of the drivers' last name s , could not recall the name of the taxi company who employed one of the drivers, was unable to provide timelines for the drivers who worked for him, and was un able to produce any documentary evidence of the services provided by the se alleged drivers over the relevant five

- year period

. S.T. was only able to produce five checks that he wrote for one alleged driver

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S.T. testified he paid approximately $88,000, mostly in cash, to transport his son to school over a five

- year period . The only documentary evidence plaintiffs produced to support thi s claim were five checks totaling $2,280 for
taxis services provided between November 2011 and December 2011. S.T. provided the following explanation for how he arrived at $88,000 :

S o the way

. . . I was doing it, I think it's in 2012 in April there were two drivers left, and both were charging $100. So

. . . I don't have to pay for anything else other than how many days my son is absent from the school. So that was the one which I was tracking it. My son is now severe [ly] sick, he's not going to school, I track it that he's not going to school. And most of the days he was going to school. So that's how I used to calculate and, you know, sum my expenses. Plaintiffs' measure of damages also inclu ded N.T.'s services , in the form of accompanying her son to and from school

. Plaintiffs valued this service at approximately $20,000

. S.T. reached this figure by multiplying the hours his wife spent accompanying their son by the minimum gross hourly rate . S.T. testified N.T.'s services were necessary

because my son's behaviors are very, very

– he can be very terrible some days. So he can approach the driver, he still does it. If you are sitting in the car, (indiscernible), if you're in a car he can reach the driver and, you know, hurt him or he can open the door. He can open the windows. Someone needs to be around him to make s ure that he doesn’t do any of those things.11 A

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. . . he's trying to hurt [the] driver, he's trying to hurt the driver without my wife, so everybody will be safe.
O n cross - examination, S.T. conceded that the S ettlement A greement did not require the Board to allow N.T. to accompany their son , nor provide for N.T. to be paid for her time at a minimum hourly rate

. Finally, S.T. testified that he 's ha d a car and a driver's license since 2013 . However, he did not make any attempt to transport his son to school during this relevant time period

. John Zupko, the Board's Transportation Coordinator , testified that there are two situations in which the school district would reimburse parents for the cost of transportation: (1) students attending private sch ools and (2) special

needs parents who enter into parental transportations contracts. A lthough parental transportation contracts are negotiable, Zupko made clear compensation is based on " a per mileage rate. " T he State mileage rate at the time was thirt y - eight cents per mile. Furthermore, parents were not permitted to make their own private transportation arrangements. According to S.T. , the first time the Board provided Samuel transportation
to and from school was on June 2, 2016. This occurred only after plaintiffs' attorney filed the IDEA action in the District Court. S.T. testified that on May 25, 2016,12 A

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- 18T2 the bus company called at my home, and the driver who has accent from different country and he said he's . . .

. My wife told me that somebody c alled . . . her from the bus company telling her that this person Paul is going to be picking up my son tomorrow morning.
S.T. claimed he and his wife were concern ed about the authenticity of the caller because they had not been contacted by a representative of the Board. The caller only identified himself as being from the bus company.

It was the bus company told us that okay, I'm going to come and pick up [your] son . And knowing that my son is having those disabilities where, you know, if I leave him around

. . . around our house, he can't come back to house. How can I leave him

. . . with someone else whom I have no, you know, verification [

. ] . . . [H] ow would I kn ow that this is a genuine person? S.T. also testified that he was concern ed about the aide who was required to be on the school bus to ensure the safety of his special needs son:

And does the person who is be

– as an aide, aide must be able to communic ate with my son. Does the aide understand English or not? Does aide is properly trained [sic]. And on the top of it, is there any way

. . . my wife can transition that knowledge which she has it in, you know, where she tells them that okay how to handle my son if he is aggravated, if he is trying to hurt himself or hurt someone else, how to handle that. S.T. testified that after he received this telephone call, he contacted his attorney to determine whether this was a legitimate call from the school d istrict

. He also wanted the school district to provide some kind of transition plan. S.T.13 A

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also called the Board's transportation department and the Special Education Supervisor Karen Gullace . Although S.T. wanted his wife to help transition his son, Gullace told him that N.T. could not ride on the school bus with Samuel

. The matter was eventually ostensibly resolved. On June 2, 2016, Samuel resumed going to school using transportation prov ided by the Board. He missed only a few school days from May 26 to June 2, 2016

. Gullace testified that in May 2016, the Board r eceived a request for
S amuel 's transportation from his parents' attorney . However, w hen the school bus arrived to pick up S am uel, his mother insisted on accompanying him on the bus. When the school bus driver denied her request, the mother refused to permit Samuel to board the bus

. II The jury trial began on September 12, 2018 and ended on September 17, 2018. The jury returned a verdict in plaintiffs' favor. By a vote of five

- to

- one, the jury found: (1) plaintiffs proved by a preponderance of the credible evidence
that the Board breac hed the Stipulation of Settlement by not providing Samuel transportation to and from school; and (2) the Board did not prove by a preponderance of the credible evidence that plaintiffs waived their right to transportation under the parties' contract . By a vote of six

- to

- zero, the jury14 A

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found plaintiffs proved by a preponderance of the credible evidence that they suffered monetary damages specifically due to the Board's breach of contract

. The jury awarded plaintiffs $2 , 28 0 in compensatory damages

. The tri al judge denied plaintiffs ' motion for new trial or, alternatively, additur. The judge also denied plaintiffs' motion for costs and attorneys' fees. "[A] trial judge should not interfere with the quantum of damages assessed by a jury unless it is so disproportionate . . . as to shock [the judge's] conscience and to convince him that to sustain the award would be manifestly unjus t." Baxter v. Fairmont Food Co. , 74 N.J. 588, 596 (1977). Therefore, "the judge cannot validly intrude unless 'it clearly and convincingly appears that there was a miscarriage of justice under the law.'" Ibid. (quoting R. 4:49

- 1). We review the trial judge's ruling by appl yin g the same legal standard. However, we "must take allowance for factors which were eviden t to the trial court and jury but which cannot be gleaned from the written record." Fritsche v. Westinghouse Electric Corp. , 55 N.J. 322, 330 (1970); see also Dolson v. Anastasia , 55 N.J. 2, 7 (1969 ) . Unlike the trial court, "[a]n appellate court is unable to get the 'feel for the case' and lacks the opportunity to observe and hear witnesses who appear before the trial judge and jury[.]" Fritsche , 55 N.J. at 330.15 A

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P laintiffs argue the jur ors ' damage verdict is a miscarriage of justice because they improperly limited the award to documented costs. According to
p laintiffs , the jury verdict cannot stand because they made reasonable efforts to mitigate damages. The Board argues that plaintiffs' arguments overlook the jury's basic function to make its own credibility determinations

. The Board urges us to uphold the jury verdict because it was grounded on the proof presented by the parties

. We agree with the Boa rd's position. J uries have broad latitude to determine damages. The standard for granting a new trial is therefore necessarily high. Johnson v. Scaccetti , 192 N.J. 256, 281 (2007). Rule 4:49

- 1(a) provides that "[t]he trial judge shall grant the motion if, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice." See also Rule 2:10

- 1. Generally, " [a] jury's verdict, including an awa rd of damages, is cloaked with a 'presumption of correctness.'" Cuevas v. Wentworth Group , 226 N.J. 480, 501 (2016) (quoting Baxter , 74 N.J. at 598). This is because "'[o]ur civil system of justice places trust in ordinary men and women of varying experi ence and backgrounds, who serve as jurors, to render judgments concerning liability and16 A

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damages.'" Orientale v. Jennings , 239 N.J. 569, 589 (2019 ) (quoting Johnson , 192 N.J. at 279). Therefore, in deciding whether to grant a motion for new trial
or addit ur, "the court must give 'due regard to the opportunity of the jury to pass upon the credibility of the witnesses.'" Cuervas , 226 N.J. at 501 (quoting He v. Miller , 207 N.J. 230, 248 (2011) , overruled by Cuervas , 226 N.J. 480 ). "The jury's views of the facts and the credibility of the witnesses as expressed in its verdict are entitled to deference from both the trial and appellate courts." He , 207 N.J. at 252. Here, there is no factual or legal basis to find, by clear and c onvincing evidence, that the jury verdict was a miscarriage of justice. The jury made a credibility determination and found $2 , 280 was the amount that properly compensated plaintiffs for the breach of this contract. We discern no basis to interfere.
F inally, there is no legal basis to grant plaintiffs' motion for an award of counsel fees. The trial court properly concluded that the Settlement Agreement did not have any provision for attorneys' fees to a prevailing party in an enforcement action. Unde r these circumstances, the "American Rule , " which provides "the prevailing litigant is ordinarily not entitled to collect a reasonable attorneys' fee from the loser," prevails. Redine v. Pantzer , 141 N.J. 292, 321

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22 (1995) (quoting Alyeska Pipeline Serv. Co. v. Wilderness Society , 421 U.S. 240, 247 (1975)). Affirmed.