JEANETTE COCO v. ERNEST BEIER, JR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2512-09T1

JEANETTE COCO, a/k/a JENNIE

COCO,

Plaintiff-Appellant,

v.

ERNEST BEIER, JR., ELINOR M.

BEIER, KAREN BEIER KORKUCH,

JOEL C. MOYER, ESQ.,

Defendants/Third-Party

Plaintiffs,

and

THE TOWNSHIP OF EAST GREENWICH,

Defendant,

v.

E&Z CONSTRUCTION, INC. and

BEZR, LLC,

Third-Party Defendants-

Respondents.

_______________________________________

November 15, 2010

Submitted October 20, 2010 - Decided

Before Judges Gilroy and Ashrafi.

On appeal from Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-661-07.

Jennie Coco, appellant pro se.

Ware, Streitz & Thompson, attorneys for respondents (Gary D. Thompson, on the brief).

PER CURIAM

Plaintiff Jeanette "Jennie" Coco appeals from a final judgment dated December 9, 2009, entered upon her settlement of a property dispute with defendants and third-party defendants. We dismiss the appeal.

Plaintiff's pro se brief is difficult to decipher, but we have determined the following facts from the appellate record. Plaintiff was the owner of a sixty-five-acre farm in East Greenwich Township, Gloucester County. In 1987, she entered into two contracts simultaneously with defendant Ernest Beier, Jr. By one contract, she agreed to sell her farm to Beier for $320,000. By the second contract, Beier agreed to re-convey to plaintiff for one dollar a portion of the farm on which her house and some outbuildings were situated. Three different dimensional measurements appear in the second contract for the "homestead" to be re-conveyed to plaintiff. She claims that the dimensions were to be 245 by 228 feet, making a total area of 55,860 square feet.

According to plaintiff, at the closing on the sale of her farm, Beier said he would hire a surveyor to survey his portion of the property, and the metes and bounds of her homestead could be fixed at the same time at her expense. She alleges that Beier never sent a surveyor, and no deed was issued to her in 1987 in compliance with the second contract.

In 1988, Beier sold a lot to the side of plaintiff's property to another buyer. Plaintiff alleges that the sold lot encroached on her homestead. When she complained to Beier, he told her he would convey additional land to her on the other side of her lot. He also said he had not issued a deed to her because it would require major subdivision approval at significant cost. Plaintiff did not pursue the matter at that time but remained in her home without a deed of conveyance in accordance with the second contract.

Some years later, Beier's successors, defendants Karen Beier Korkuch and Elinor M. Beier, entered into a contract to convey the farmland to third-party defendant E&Z Construction, Inc., reserving the Coco homestead from the conveyance. E&Z Construction, Inc. conveyed its interest in the land to third-party defendant BEZR, LLC, which then applied to the Township for subdivision and development approvals.

In March 2005, the successor Beier defendants executed a deed prepared by defendant Joel C. Moyer, Esquire, conveying the homestead portion of the land to plaintiff. According to plaintiff, her son, Salvatore "Sam" Coco, reviewed the deed and determined that its metes and bounds did not describe square corners as her agreement required, and that the conveyance did not go to the center of the roadway fronting the property. He also determined that the developer intended to construct a major entranceway onto the tract adjacent to plaintiff's property and a traffic deceleration lane directly in front of her home.

Plaintiff engaged the services of an attorney and filed a complaint in April 2007 against the Beier defendants, attorney Moyer, and the Township. Her complaint sought a judgment voiding the 2005 deed to her on the ground that it was an unlawful conveyance because no subdivision approval had been obtained. The complaint also sought conveyance of additional land to her and compensatory and punitive damages. The defendants filed a third-party complaint against E&Z Construction, Inc. and BEZR, LLC.

On the trial date of the case, April 6, 2009, plaintiff and her attorney were present in the courthouse along with the attorney for the Beiers and Moyer and the attorney for the third-party defendant developers. The parties negotiated a settlement and placed it on the record in open court on the same date.

The transcript of the proceeding reveals the following. Plaintiff's attorney stated to the judge that plaintiff was outside the courtroom and would be represented in the proceeding by her son, who had power of attorney for her. He stated that plaintiff had illnesses and was "quite emotional" about the litigation and preferred not to be present in the courtroom.

The attorneys made a record of the terms of the settlement. The conveyance of land to plaintiff would be adjusted to include straight property lines and would total 55,404 square feet in area. Plaintiff would receive additional compensation of $13,500, and the parties would exchange releases. The adjusted property lines would have to be approved by the Township Planning Board.

The court then took testimony under oath from representatives of the parties. The court reviewed a durable power of attorney executed on June 13, 1988, giving Salvatore Coco authority to act on behalf of plaintiff. Coco testified that he understood and approved the terms of the settlement placed on the record. At a subsequent date not revealed in the record, plaintiff's attorney prepared and submitted a proposed final judgment stating the terms of the settlement. The court executed and entered the judgment on December 9, 2009.

On January 19, 2010, plaintiff filed a pro se notice of appeal from the judgment. She then moved in the trial court to stay the judgment, which the court denied by order dated March 19, 2010. On further motion before us, we also denied plaintiff's motion for a stay of the judgment by order dated August 30, 2010.

On appeal, plaintiff recites some of the facts summarized here and argues briefly that she has still not received the full area of land promised to her 55,860 square feet and that the land still does not go to the center of the roadway. She also argues that the outbuildings are in disrepair and should have been repaired or demolished by defendants. Third-party defendants respond in their brief that the case was settled and plaintiff may not pursue remedies beyond the terms of the settlement.

In her reply brief, plaintiff argues that she did not agree to the terms of the settlement. She states that her attorney entered into the settlement without her approval, and she has refused to execute a release in favor of defendants.

Settlement agreements are favored in the law. See Pascarella v. Bruck, 190 N.J. Super. 118, 124 (App. Div.), certif. denied, 94 N.J. 600 (1983). "[S]ettlement of litigation ranks high in our public policy." Brundage v. Estate of Carambio, 195 N.J. 575, 601 (2008) (quotingJannarone v. W.T. Co., 65 N.J. Super. 472, 476 (App. Div.), certif. denied, 35 N.J. 61 (1961)). "In general, settlement agreements will be honored 'absent a demonstration of fraud or other compelling circumstances.'" Nolan v. Lee Ho, 120 N.J. 465, 472 (1990) (quoting Pascarella, supra, 190 N.J. Super. at 125). Here, plaintiff is appealing directly from the judgment stating the terms of the settlement rather than from any further proceedings in the trial court challenging the enforceability of the settlement.

Judgments or orders entered by consent of the parties generally may not be appealed for the purpose of challenging their substantive provisions. See Winberry v. Salisbury, 5 N.J. 240, 255, cert. denied, 340 U.S. 877, 71 S. Ct. 123, 95 L. Ed. 638 (1950); N.J. Schools Constr. Corp. v. Lopez, 412 N.J. Super. 298, 308 (App. Div. 2010). Plaintiff appears to be bound by the settlement approved on the record by her son, who had power of attorney to act on her behalf.

Because plaintiff is appealing from the judgment settling the underlying lawsuit, we dismiss the appeal. Any remedy that plaintiff may have because she claims she did not authorize the settlement will not be heard in the first instance on appeal to this court.