Wildwood Man Will Appeal Fascinating Court Decision

WILDWOOD — Randy Senna, this city’s foremost arcade and amusement historian, won a landmark state Supreme Court decision two years ago that found boardwalk barkers’ speech, defamatory about competing businesses, is not protected against lawsuits.
Now, because of a misunderstanding with his attorney, he’s having trouble settling that lawsuit.
Senna, who owns a Fascination arcade on the Wildwoods’ Boardwalk, sued Walter Florimont, owner of a competing business, in October 2003. Senna claimed in court that Florimont and his employees, verbally defamed Senna and his business in an ongoing “smear campaign” using a microphone, calling him a “cheat and a crook.”
For those who don’t know, Fascination is an arcade game that’s a cross between bingo and skee ball in which players roll a ball along a wooden table at a grid of 25 holes. The first contestant to roll balls into five holes in a horizontal, vertical or diagonal line wins tickets redeemable for prizes.
Senna, who’s always been fascinated with Fascination, told the Herald that he was especially hurt by Florimont’s smear tactics because he grew up playing the game for hours in one of Florimont’s parlors.
“Walter was one of my mentor’s,” Senna said, noting that he pursued a career in arcades and amusements in part because of Florimont.
In its decision, the Supreme Court reversed the trial and appellate courts’ dismissal of the lawsuit and their finding that games of chance, being highly regulated by the state, are a matter of public interest and that speech against them is held to a higher standard, as that of the press, than that in a general defamation case.
“We now reverse and hold that the false and defamatory verbal broadsides of defendant’s employees, impugning the honesty of a business competitor, fall into the category of commercial speech that is not entitled to heightened protection,” Justice Barry T. Albin stated in the court’s opinion.
“Balancing the right to speak freely and the right to be secure in one’s own good name — determining how much protection should be given to speech at the expense of reputation — is at the heart of this case,” the opinion stated.
On Sept. 22, 2008, the Supreme Court remanded the case back to Superior Court.
Senna told the Herald that once he won the Supreme Court decision, he assumed he would be given a trial date.
“Unfortunately, the courts today instead of looking after people and trying to seek justice and trying to have things settled in a civil way,” Senna opined. “They are backlogged with all kinds of trials and they want to lessen the caseloads on their calendars and they try to force you to take settlements.”
That’s what the court did to him, he said.
“All I ever wanted was my day in court. Why should I have to fight the world just to have my day in court?” he said, stating that he simply wanted a jury to find that what Florimont did was wrong so that it doesn’t happen to somebody else next time.
At the initial settlement conference, Florimont offered Senna $15,000 to settle the lawsuit. Senna described that offer an “absurdity.”
“What is a person’s reputation worth?” Senna asked. “Not to mention the costs that were involved and the damage that he did to my business.”
Following the meeting, Senna told the Herald he felt bad.
“You’re suing your friend, you’re suing your idol,” Senna said. He thought of a solution.
“If they want to settle the case, I’ll take the $15,000, but I also want ownership of the Fascination machines from Walter’s store,” Senna told Scott Becker, his attorney, noting that he would lease the tables back to them for a dollar a year for the next 15 years.
“In addition to the sentiment of Walter being an old friend, this isn’t just a business to me. I’ve dedicated over 30 years of my life to the game of Fascination and the amusement industry,” Senna said. He noted that wanted to preserve the heritage of what the tables were in his arcade and amusement museum in the old Woolworth’s store on Pacific Avenue in Wildwood.
But there was a problem — the Fascination machines weren’t Florimont’s to sell.
“Turns out Walter had previously sold the business and the new owners didn’t want to sell the machines,” Senna said.
The next settlement offer involved $20,000, in which Senna said he would use the extra $5,000 to purchase the machines from the new owners as long as they would agree.
Senna said Becker and Florimont’s attorney “twisted” the settlement offer around to mean that Senna would accept an additional $5,000 without ownership of the machines. The attorneys made that deal without consulting Senna.
When Senna was presented with the deal, he told Becker, “there’s no settlement, that’s not what I agreed to.”
“My offer was always meant to be contingent on my getting the machines,” Senna told the court in a certification. “I never thought the money offered was adequate, but was willing to accept it if I was at least getting the machines.”
Becker answered, “I did not understand that the extra money he was requesting . . . was to purchase the machines and that the settlement was contingent on a purchase.”
The judge determined that Becker possessed the authority to settle the matter on behalf of his client, Senna. On Oct. 9, 2009, the court heard and denied Senna’s motion for reconsideration.
Senna appealed.
According to the decision, Senna did not contest the conclusion that he authorized Becker to settle the lawsuit, but instead argued that there was “no meeting of the minds,” between Becker and himself. Becker told the Herald that he agreed that there was no meeting of the minds.
The appeals judges noted that a “settlement agreement between the parties to a lawsuit is a contract.”
“Settlement of litigation ranks high in our public policy,” the decision stated. “Consequently, our courts have refused to vacate final settlements absent compelling circumstances…Before vacating a settlement agreement, our courts require clear and convincing proof that the agreement should be vacated.”
In the end, the appellate court found that Senna didn’t offer that “clear and convincing proof.”
Senna told the Herald he would again appeal this decision.
“It is the process that is important,” he said. “To deny someone their day in court, for any reason, twisted fact, error, or misunderstanding included, is a monstrous heresy…When a simple man, cannot simply have his day in court, there is nothing left; liberty and justice for all… that is how it is written. If it is not true, then let us tear it out of the founding documents that made this country.”
“Or let us stick to it then, and stand firmly by it,” he said.