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Wolkoff v. Villane

March 14, 1996

ARLETTE WOLKOFF, PLAINTIFF-APPELLANT,
v.
CARL VILLANE, VILLANE CONSTRUCTION, JOHN DOE (SAID NAME BEING FICTITIOUS AND UNKNOWN), AND JOHN DOE (SAID NAME BEING FICTITIOUS AND UNKNOWN), DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Union County.

Approved for Publication March 14, 1996.

Before Judges Long, Muir, Jr. and Brochin. The opinion of the court was delivered by Brochin, J.A.D.

The opinion of the court was delivered by: Brochin

The opinion of the court was delivered by BROCHIN, J.A.D.

Plaintiff Arlette Wolkoff appeals from the Law Division's denial of her motion to vacate its order for the entry of judgment dismissing her case as settled. For the following reasons, we reverse and remand this matter for an evidentiary hearing.

Plaintiff sued defendants Carl Villane and Villane Construction Corporation for injuries which she allegedly sustained when the car that she was driving was struck from the rear by a vehicle driven by the individual defendant. The most serious of those injuries was a closed head injury. A clinical neuropsychologist whom plaintiff retained to testify at trial submitted a report which expressed the opinion that plaintiff suffered a "cerebral injury" and that, as a result, "she will have difficulty coping with novel situations or situations in which learning is prioritized." He also stated that plaintiff's "abstract thinking is impaired, she will have difficulty in complex decision making and in complex problem solving."

On December 7, 1994, the day the case was called for trial, the attorneys for the parties negotiated a settlement. The settlement Discussions took most of the morning and were conducted in or near the courtroom where the case was scheduled to be tried. Plaintiff alleges that she waited on another floor of the courthouse. Her attorney conferred with her from time to time and she rejected several offers. Finally, her attorney reported to the court that the parties had agreed to settle for $85,000, and an order was entered dismissing the case.

The next day, plaintiff told her attorney "not to accept" the settlement. According to plaintiff, "he refused," presumably because he had agreed to the settlement on the basis of what he understood to be his client's approval of its terms. On December 9, 1994, plaintiff telephoned the trial Judge's chambers and left a message for the Judge that she had not settled. On December 13, 1994, she wrote her attorney, requesting that he advise the court that her "understanding [was] that no settlement has been reached" and asking him to file a motion immediately. On February 7, 1994, represented by substituted counsel, she moved to vacate the settlement.

In the certification which plaintiff filed in support of her motion to set aside the settlement, she alleged:

3) On December 7, 1994 I came to the Union County Court House for what I believed was going to be the start of my trial on the injuries. I do not remember it all, but apparently a "settlement" was reached. Nothing was ever signed, nor was anything placed on the record.

4) On the day in question, I was in a lot of pain and under a lot of stress. I was in such pain that I could not find the handicapped entrance, I could not pour myself a cup of coffee, and found myself in a room with a glass ceiling in the court house basement alone and in pain. Because of my cognitive deficits and the overwhelming stress and pain, I had difficulty processing the information my attorney was giving to me and did not understand the terms and results of this alleged "settlement."

5) Although . . . my attorney was giving me information, I was incapable of processing that information. Although I remember figures were being mentioned, I could not retain them long enough to understand what they meant. I could not process the simplest of mathematical functions. I was unaware that we had reached a settlement. When I did leave the Courthouse I was aware that I had to meet [my attorney] at his office later that same afternoon, but because of the pain I want home to bed and stayed there.

7) On December 7, 1994, the day in question, I was in more pain than usual and had taken pain medication. . . . I was intimidated. The head injury I sustained in the accident interfered with my thought and memory process, as it does on many occasions, when aggravated by stress, fatigue and unusual pain.

Attached to plaintiff's certification are letters from a psychologist and a psychiatrist. The substance of both letters is that although neither of the writers can verify plaintiff's description of how she was feeling or what was happening to her cognitive processes during the settlement negotiations, her allegations ...


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