On appeal from the Superior Court of New Jersey, Law Division, Bergen County, L-1390-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Winkelstein and Chambers.
Plaintiff Ruth Parker appeals pro se from the trial court's denial of her application to vacate the order of September 20, 2004, appointing a guardian ad litem for her, and to vacate the consent order of December 29, 2004, setting forth the terms of the settlement of the case. We reverse and remand, finding that the failure to provide plaintiff with notice of the guardian ad litem application was a fatal defect in the procedure below. Further, the record does not contain a sufficient factual basis to warrant approval of the settlement without plaintiff's consent.
Plaintiff, represented by Saltz Polisher, P.C. (formerly Saltz Hollaender, P.C.), commenced this employment discrimination case against defendant RCG Information Technology on February 27, 2003. In April 2004, plaintiff authorized her attorneys to demand $65,000 in settlement of the case which they did. The defense offered to settle the case for the sum of $35,000. Plaintiff failed to advise her attorneys whether or not this offer was acceptable. Plaintiff's counsel wrote and called plaintiff numerous times and counsel even visited her home, but she did not respond to their inquiries. On June 15, 2004, her attorneys sent plaintiff a letter, advising her of the offer and their numerous attempts to contact her, stating that the offer would likely be withdrawn if she did not respond by June 18, 2004, and warning that "[i]f you do not respond to our efforts to communicate, this firm will have no other alternative but to file a motion with the court to withdraw as counsel and terminate our representation of your interests." Counsel continued their efforts to contact plaintiff, including three more visits to her home, but she did not respond to the settlement offer. According to plaintiff's counsel, on the last visit, in mid July 2004, plaintiff told her attorney in a flat voice that "I am very ill. I am not able to process this information. I am not able to make a decision. Please leave."
Based on representations by defense counsel that the case was settled in principle subject to finalization of the settlement papers, the court entered an order dismissing the case on July 16, 2004. However, plaintiff had not agreed to the settlement.
In August 2004, plaintiff's counsel applied to the court for appointment of a guardian ad litem for plaintiff on the basis that plaintiff was unable to make decisions in her case. Inadvertently, plaintiff's counsel failed to send notice of the application to plaintiff. No medical certifications regarding her competency were submitted to the court. In support of the application, plaintiff's counsel submitted a certification recounting the numerous efforts to find out if plaintiff would accept or reject the order and stating in part that:
21. The local authorities and medical professionals with whom I have consulted confirmed, without opportunity of examination, that Ms. Parker is unable to comprehend the information provided to her.*fn1
22. In my professional judgment, Ms. Parker is incapable of making any decisions relating to this litigation and her self interests.
The court entered the order of September 20, 2004, appointing Russell A. Pepe, Esq. as guardian ad litem for plaintiff.
After a telephone conference with counsel for both parties and the guardian ad litem, the trial court entered a consent order dated December 29, 2004, settling the case for $35,000, and authorizing plaintiff's counsel to execute a settlement agreement and general release on behalf of plaintiff. The order also provided that the guardian ad litem was to receive $1,512.50 in fees from the settlement sum. The balance of $33,487.50 was to be deposited with the court, subject to plaintiff's counsel's application for counsel fees. Plaintiff received notice of the consent order on January 5, 2005, and at that time discovered that a guardian ad litem had been appointed for her and that the case had been settled. An order was entered dated February 18, 2005, awarding plaintiff's counsel $12,449.11 in attorneys' fees from the settlement proceeds.
On August 18, 2005, plaintiff moved pro se to vacate the order of September 20, 2004, appointing the guardian ad litem, and the order of December 29, 2004, approving the settlement. In support of her motion, she argued that her attorney's professional opinion "does not constitute a lawful determination of my mental capacity, capability or competence." She maintained that she had refused the settlement offer and that she told the attorneys that she no longer wanted them to represent her. She contended that her attorneys had attempted to harass her into accepting the settlement and that her disagreement with them did not render her incompetent. She accused her attorneys of fraud and maintained that they had made material misrepresentations to the court. She also noted that she had never received notice of the application for the appointment of a guardian ad litem, and that at the time of the application, the case had already been dismissed. The trial court ...