MAGDALENA C. GUZMAN v. MARIA RIVERA

NOT FOR PUBLICATION WITHOUT THE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. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-0434-16T1

MAGDALENA C. GUZMAN,
and RAUL RIVERA GUZMAN in his
personal character and as
attorney-in-fact of MAGDALENA
C. GUZMAN,

        Plaintiffs-Respondents,

v.

MARIA RIVERA,

     Defendant-Appellant.
________________________________

              Submitted February 28, 2018 – Decided March 29, 2018

              Before Judges Manahan and Suter.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Middlesex County, Docket
              No. C-000045-15.

              Kasuri Byck, LLC, attorneys for              appellant
              (Anthony R. Troise, on the brief).

              Law Offices of Kenneth L. Gonzalez &
              Associates,    attorneys   for    respondents
              (Kenneth L. Gonzalez, on the brief).

PER CURIAM
     Defendant Maria Rivera appeals from a September 16, 2016

order enforcing a settlement.          We affirm.

     Plaintiff Magdalena C. Guzman suffers from multiple health

issues.      Throughout her adult life, a number of plaintiff's

children served as her primary caregiver and power of attorney,

which included Maria Rivera and Raul Rivera Guzman.               In July 2009,

plaintiff appointed defendant as power of attorney.

     Plaintiff became severely ill in January 2013.               At that time,

defendant    used    her    position    as     power    of   attorney    to   take

responsibility for plaintiff's accounts and property, subsequently

transferring the deed of the Keasbey, New Jersey property to

herself.

     On    March    25,    2015,   plaintiff    filed    a   complaint   against

defendant in order to transfer the deed of the property back into

her possession.       A trial was scheduled to commence on April 21,

2016.     Prior to the trial's commencement, a settlement agreement

was reached between the parties.            The settlement was placed on the

record.     The following colloquy took place between defendant's

counsel and defendant during the hearing:

                 Q. And [] it is your understanding that
            the parties have come to a settlement
            regarding these [] items which I'm about to
            annunciate for you. First that the property
            located at 178-180 [Judy] Drive, in [Keasbey],
            New Jersey, will be transferred back to the


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         name of your mother, Magdelena [sic] Guzman,
         is that correct?

         A.   Yes.

              . . . .

              Q. Have you understood the terms that I
         just explained to you that we've been
         discussing that make up this — agreement
         today?

         A.   Yes

              Q.      Have    []       you   accepted   them
         voluntarily?

         A.   Yes.

              Q. Has anybody promised you anything in
         exchange for this [] settlement?

         A.   No.

              Q. Okay. And has anybody forced you to
         accept these terms?

         A.   No.

              Q. Very good. You understand that by
         entering into the settlement today we will be
         closing this case completely and that it will
         not continue and you will not be able to bring
         up these issues again, in the court? []

         A.   Yes.

              Q. Okay. Very good. And have you been
         satisfied with my services provided today?

         A.   Tremendously.

    Due to defendant's failure to comply with the settlement

agreement, plaintiff filed a motion to enforce the settlement in

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1 July 2016.   Two weeks later, defendant filed a cross-motion for

reconsideration, in which she argued that her attorney used undue

influence and intimidation to coerce her to accept the terms of

the settlement agreement.

     A hearing was conducted on September 16, 2016.                    At the

conclusion of the hearing, the judge placed her findings on the

record and entered an order enforcing the settlement agreement.1

     On appeal, defendant raises the following point:

                 POINT I

                 THE COURT    CAN SET ASIDE A SETTLEMENT
                 AGREEMENT    IF THE PARTY SEEKING THE
                 SETTLEMENT   AGREEMENT TO BE SET ASIDE CAN
                 PROVE   AN    EXTRAORDINARY   CIRCUMSTANCE
                 SUFFICIENT   TO VITIATE THE AGREEMENT.

     "[A]bsent   a   demonstration       of   'fraud   or   other   compelling

circumstances,' [a court] should honor and enforce [a settlement

between parties] as it does other contracts." Pascarella v. Bruck,


190 N.J. Super. 118, 124-25 (App. Div. 1983). A settlement between

parties must be set aside if the "settlement agreement is achieved

through coercion, deception, fraud, undue pressure, or unseemly



1
  The order under review enforces the settlement but does not
address the motion for reconsideration.     We add that the order
sought to be reconsidered was dated April 21, 2016. Defendant's
cross-motion was filed on August 10, 2016, outside of the permitted
timeframe for filing. R. 4:49-2. The appellate record does not
contain an order denying the reconsideration motion. Defendant's
notice of appeal only references the September 16, 2016 order.

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conduct, or if one party was not competent to voluntarily consent

thereto . . . ."   Peskin v. Peskin, 
271 N.J. Super. 261, 276 (App.

Div. 1994); see also Nolan v. Lee Ho, 
120 N.J. 465, 472 (1990).

The party seeking to set aside the settlement has the burden to

prove    extraordinary   circumstance   sufficient   to   vitiate   the

settlement agreement.     Wolkoff v. Villane, 
288 N.J. Super. 282,

291-92 (App. Div. 1996).

     Defendant claims on appeal, as she did before the judge, that

she was unduly pressured into the settlement agreement by her

counsel and that the settlement agreement should therefore be set

aside.    However, as the judge found and we agree, the record is

devoid of proof of any coercion, deception, fraud, undue pressure,

or unseemly conduct.     Further, the record is also devoid of proof

that defendant was not competent to voluntarily consent to the

settlement.   In the absence of these requisite proofs, we conclude

the judge appropriately determined that defendant failed to meet

her burden to demonstrate extraordinary circumstances.

     Affirmed.




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