On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Docket No. L-255-01.
The opinion of the court was delivered by: Parrillo, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 24, 2005
Before Judges Lintner, Parrillo and Gilroy.
Plaintiffs, Ralph and Sylvia Jennings, husband and wife, appeal from the Law Division's grant of defendants' motion to enforce a consent order of settlement entered into among the parties and placed on the record in open court. For the following reasons, we affirm.
Plaintiffs sued their neighbors, John and Rebecca Reed, together with a number of other individuals and entities (collectively defendants)*fn1 , in a dispute over use of a common driveway by easement shared by the Jennings and the Reeds. In their seventeen-count complaint, plaintiffs alleged that defendants repeatedly trespassed, tore down and removed mature trees, shrubs, flora and grass; changed the grade of, and fresh water runoff on, the rear portion of their property; dumped excavated dirt and debris in the same location without permission; and engaged in a conspiracy designed to annoy, harass and intimidate them. Defendants answered, denying these allegations and asserting various defenses and counterclaims.
Following discovery, unsuccessful mediation, weeks of settlement conferences involving exchanges of draft proposals, and adjournment of the first trial date, a peremptory trial date was fixed for January 26, 2004. On January 22, 2004, the eve of trial, as a result of a final settlement conference conducted by the judge, the attorneys for the parties negotiated a settlement. The settlement discussions lasted more than three-and-one-half hours during which Ralph Jennings (Jennings) participated with counsel and successfully negotiated alterations to the agreement. At the conclusion of negotiations, counsel advised Jennings not to sign the settlement agreement if he believed it was achieved through duress. Jennings proceeded to execute the settlement agreement on behalf of himself and his wife, Sylvia, who was not present at the conference. The settlement agreement was then placed on the record, but outside the presence of Jennings, who by then had left the courthouse to call another attorney and to visit his psychiatrist across the street.
More than three weeks later, on February 17, 2004, plaintiffs on their own sent an ex parte letter to the judge indicating displeasure with the settlement, although failing to identify any provision or term thereof with which they disagreed. Yet, despite their expressed objection and the court's rejection of their ex parte communication as improper, plaintiffs never thereafter moved to vacate the settlement. Instead, on February 18, 2004, their counsel sought to be relieved from further representation, and two days later, on February 20, 2004, defendants cross-moved to enforce the agreement. By order of April 30, 2004, counsel's request was granted, but defendants' enforcement motion was adjourned to allow plaintiffs time to obtain substitute counsel and file opposition, which they did on May 30, 2004.
Plaintiffs' opposition was based on the dual claims that Jennings lacked both the mental capacity to consent and the authority to consent on behalf of the absent Sylvia. In support of these claims, plaintiffs submitted four certifications: one from each of them; one from their "personal" lawyer, Steven Caputo; and one from Ralph's psychiatrist, Dr. Jay Kuris. Although he admits being "given the authority to negotiate a settlement on [Sylvia's] behalf", Jennings certified that he ". . . signed the settlement even though I did not agree to it . . ."; and ". . . made it abundantly clear to my counsel that I believed I was being coerced into signing the settlement agreement . . . ." Likewise, although she too did not deny giving her husband authority to negotiate a settlement, Sylvia insisted she did not "authorize anyone . . . to enter any settlement on the record . . ."; and ". . . did not approve of the [settlement terms]". (emphasis added).
Caputo, who was not plaintiffs' attorney of record in this matter and never entered an appearance, made a similar distinction, certifying that ". . . Mrs. Jennings had not given anyone . . . the authority to enter a settlement on the record . . . ." (emphasis added). Caputo also certified that he . . . confirmed with Sylvia Jennings that the agreement was totally overreaching and unacceptable to her"; and ". . . determined that she was not in agreement with the settlement agreement . . .".
Finally, Dr. Kuris, who examined Jennings shortly after the settlement agreement was executed, opined that he "was in no condition nor capable of making a rational decision that afternoon." Dr. Kuris attributed Ralph's anxiety to a longstanding condition:
Due to length of these stressful situations and being forced to endure years of severe emotional stress, beyond which any reasonable person could endure, has resulted in their psychiatric injuries becoming more entrenched and chronic.
Defendants did not submit any medical testimony as to Jennings' mental condition. However, defendants' attorney filed a certification in which he stated that on the day of settlement, plaintiffs' counsel advised that Jennings had the authority to negotiate a settlement on behalf of his wife; that many of the changes demanded by Jennings during the conference were incorporated into the final agreement; that Jennings was advised by his counsel not to sign the agreement if under duress; and that Jennings informed his attorney, in the presence of defendants' counsel, that ...