On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Bergen County, Docket No. P-157-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman, Graves and St. John.
This appeal represents a part of the array of litigation pending between these and related parties. Plaintiffs Ronald Perelman, as Executor of the Estate of Claudia*fn1 Cohen (the Estate), his former wife, and Samantha Perelman, his and Claudia's daughter, appeal from an order of the Probate Part denying plaintiffs' application to have defendant Robert Cohen, Claudia's father, declared incapacitated for the purposes of litigation pending between the parties.
The probate matter arose from the separate complaint in the Chancery Division against Robert and defendant James Cohen, Robert's son, Claudia's brother and Samantha's uncle, which alleged, in part, that Robert failed to abide by a promise to Claudia,*fn2 that she would share equally in his estate.
Judge Koblitz, sitting in the Probate part, determined that Robert was not incapacitated and rejected the appointment of a guardian ad litem. She also declined to appoint independent counsel pursuant to Rule 4:86-4(b), as Robert was properly represented by counsel.
We conclude that the judge's determination that Robert was not incapacitated, despite his physical disabilities, was supported by substantial credible evidence. We also reject plaintiffs' additional arguments raised on the appeal and affirm.
I. Consideration of the facts and the merits of the appeal require a brief exploration of the unique procedural history of this litigation.
In April 2008, plaintiffs filed an amended complaint in the Chancery Division (the Chancery Action) against Robert and James, Estate of Claudia Cohen v. Cohen, No. C-134-08, alleging fraud, unjust enrichment, undue influence, tortious interference and promissory and equitable estoppel. This action related to an alleged oral promise Robert made to Claudia that she would share equally with James in Robert's estate.
The first phase of the trial considered whether a guardian ad litem should be appointed for Robert. Plaintiffs sought to establish that Robert, who suffers from Parkinson's Disease and a related condition identified as progressive supranuclear palsy, was incapacitated in his general decision-making and that a guardian ad litem should be appointed. The judge noted that no incapacitation complaint had been filed, and that she would not make such a determination regarding general incapacity in the Chancery Action.
Accordingly, plaintiffs filed another complaint in the Probate Part (the Probate Action) seeking a guardian to be appointed for Robert due to his alleged incapacity. Specifically, they sought a declaration that Robert was mentally incapacitated, and the appointment of an independent counsel, a guardian ad litem pending the determination of the guardianship application, and a permanent guardian. They also sought an injunction barring any further transfers of Robert's assets without court approval other than those needed for his care and welfare and the maintenance of his home.
Trial in the Chancery Action continued through May 2009. On June 1, 2009, Judge Koblitz rendered an oral decision declining to appoint a guardian ad litem for Robert for the purpose of conducting that litigation.
She then heard additional testimony in the Probate Action and denied plaintiffs' application.
II. We provide an expansive review of the facts adduced from the record.
Robert, who was eighty-three at the time of trial, was the owner of Hudson News, a nationwide distributor of newspapers, magazines and specialty items. His wife suffers from Alzheimer's disease. As of 2006, Robert's net worth was valued at approximately $400 million, and his assets included a house in Englewood, half-interest in an apartment in Manhattan, a nearly half interest in a Palm Beach estate, ownership of money market funds and bonds and a nearly half-interest in Hudson News.
Perelman was married to Claudia from 1985 to 1994 when they were divorced. They had a daughter, Samantha, who was born in 1990.
In the late 1990s, Robert observed that he had trouble maintaining his balance while walking. He consulted with Dr. Susan Bressman, M.D., a neurologist. By 2001, Robert began experiencing stiffness in his legs as well, and by 2003, his speech had become affected. After years of testing, a 2004 positron emission tomography (PET) scan revealed that Robert's brain abnormality, an atrophy or degeneration of his frontal lobe, had worsened dramatically since the previous PET scans in 1999 and 2000 and was consistent with Parkinson's Disease.
By 2005, Robert required the use of a wheelchair and had difficulty communicating clearly. That year, Bressman diagnosed Robert as suffering from progressive supranuclear palsy (PSP), a neurodegenerative disease that initially affects an individual's balance, and then motor movements such as the ability to speak and to swallow. It also can lead to general body stiffness and spasms as well as back and forth eye movement. Other symptoms include slowness in verbal responses and deterioration in the frontal lobe of the brain. PSP is similar to Parkinson's Disease but progresses more rapidly and is less responsive to treatment.
Robert's condition prompted observations by others. According to Robert's former attorney, in June 2005, James told London that Robert's "mind was gone," and that Robert "can't function." However, Alan Dlugash, Perelman's accountant, testified that he had a conversation with Robert in November 2005 at which time, Robert discussed, in detail, his assets and the income he was providing to Claudia.
The condition required careful monitoring. As early as the end of 2005, Robert began having hallucinations. He was hospitalized for ten days in January 2006 for pneumonia. Bressman stated that in 2006, Robert reported having hallucinations; as a result, she decreased the dosage of a drug Robert was taking for his condition, amantadine, and the hallucinations stopped.
Bressman saw Robert in August 2007, and she noted that he was alert, attentive and oriented. In an affidavit submitted shortly thereafter, Bressman opined that Robert was mentally competent and had the ability to discuss and give intelligent consideration to all issues, including financial matters.
In November 2007, Bressman witnessed a will signed by Robert. At the time, Bressman believed Robert's cognition was only mildly impaired, in that he primarily suffered slowness of thought and difficulty coming up with names. However, she added that he was able to understand situations and actions that needed to be taken, although the PSP required him to take time in responding to questions.
By 2007, Robert's ability to walk had deteriorated, and his speech deteriorated as well, taking on a slow and strained quality. He suffered from an increased risk of falling, unintelligible speech and dysphagia (difficulty swallowing).
The swallowing problem required the insertion of a feeding tube. Robert took two medications to combat his PSP, as well as an antidepressant and a muscle relaxant.
In December 2008, Robert again had hallucinations. Bressman discontinued the amantadine, and the hallucinations stopped. He had fainting spells the same month, and by 2009, Robert could not use his hand to sign any documents.
Paul Greene, M.D., a neurologist, saw Robert in 2007 and 2008. He stated that Robert's PSP condition had worsened considerably between the visits. His speech was slurred, making him difficult to understand. Nonetheless, Robert was responsive and answered questions in an appropriate manner.*fn3
Various health care providers testified regarding Robert's evolving medical condition. Harvey Klein, Robert's physician, noted that Robert had a percutaneous endoscopic gastrostomy (PEG) tube inserted to help him eat and prevent him from choking. According to Klein, the only time Robert had hallucinations was when he was on the drug, Eldepryl. Maura O'Dea, a registered nurse who provided care for Robert for several years preceding trial, stated that Robert had deteriorated during the three years she had been his nurse, including rigidity of body, spasms, voice and vision impairments. She described incidents in 2006 and 2008 when Robert had hallucinations. His medication was adjusted after each incident and, according to O'Dea, he did not have any hallucinations thereafter.
At the time of trial, Robert went to his office several days a week and read documents placed on his desk. O'Dea described him as "very strong willed" and said he read all the documents related to the litigation. She described his reaction to the lawsuit as "angry and upset." O'Dea, who conducted cognitive assessments on her patients, stated that Robert had responded appropriately on a cognitive basis during their interactions, and he was oriented as to time, place and person.
Donna Fabiano, Robert's executive assistant, also testified that as of the time of trial, Robert still went into his office several days per week for four or five hours per day. However, he arrived later than he used to and did not use the phone.
Bressman next saw Robert in January 2009. He did not report any hallucinations, but his speech had become more arduous and time-consuming. Bressman saw Robert at his home in April 2009 because he was having increasing problems swallowing. She believed that Robert understood everything they were discussing, and he remained mentally competent.
In Robert's videotaped deposition of November 5, 2008, he was aware of the date and day of the week and denied having hallucinations as a result of the medication he was taking. When asked if he knew "why [he was] here today," Robert responded, "Bullshit case." He further stated that it was his idea to submit an affidavit as part of the litigation, and he had prepared it with his attorney.
When asked if he had read the complaint in the case, Robert indicated that he had. He knew that James was a party to the lawsuit, he was not a plaintiff, but like Robert, a defendant. Robert gave an affirmative response when asked whether his family business was at stake in the lawsuit. He stated that he was suffering from Parkinson's Disease, but that the disease had no effect on his mental capacity.
Robert also testified at trial from his office as plaintiffs' witness. He was asked about his assets and changes he had made to his will, and demonstrated, by way of yes and no answers, familiarity with his holdings.
He stated that he had asked Bressman, but not Greene, for a letter attesting to his mental capacity. He could not recall who witnessed the 2007 and 2008 versions of his will and denied ever promising Claudia that any of her future children would receive a share of his estate, or, contrary to Perelman's claim, that he ever intended to divide his estate equally amongst his children. Robert also agreed that it was always his intention to give the bulk of his business assets to James, and that James never pressured him to make such transfers.
He answered in the negative when asked whether he wanted the court to appoint a guardian for him, and in the affirmative when asked if he wanted his current counsel to continue to represent him.
Plaintiffs offered a number of expert witnesses in the Chancery Action. Michelle Tagliati, M.D., and Martin Goldstein, M.D., both neurologists, submitted a joint report in which they concluded that the findings of their neurological examination revealed that Robert suffered from "profound cognitive deterioration consistent with the diagnosis and degenerative pattern typical of PSP." In particular, they found that Robert showed "severe deficiencies in those cognitive functions routinely recruited to execute proper judgment, including acquiring, retaining and processing information." These "executive functions" represented higher level cognitive processes necessary for an individual to use and mentally manipulate information, respond to novel situations and make informed judgments.
They opined that Robert suffered from the Richardson Syndrome form of the disease, which tends to have a more severe onset. In addition, they found that Robert's medication regimen contributed to his cognitive problems and did not believe that prior tests assessing Robert's cognitive abilities had been specific enough.
Tagliati examined Robert on November 11, 2008, at her hospital office. She found that his registration, attention and calculation were normal, and he could recall three words after a five minute interval. In addition, he could name objects and repeat sentences, his reading and comprehension abilities were intact, and he was able to execute simple commands. On a Mini Mental Status Examination (MMSE), Robert's score was 28 out of 30. More detailed testing revealed that he was able to perform basic mental exercises, such as naming nine animals in one minute, and identifying colors. In addition, Tagliati found that Robert had a fairly well-preserved language fluency.
However, Robert had difficulty with more concrete thinking, such as executing complex orders in sequence, identifying love and hate as opposites rather than emotions, keeping his eyes open on one clap while closed on two claps and following Tagliati's instruction to look at her after looking at his nurse.
Tagliati described "perseveration," the repetition of a particular response after a new subject has been introduced, which was the result of frontal lobe dysfunction caused by the PSP. She described Robert's disability as so advanced that he was completely dependent in every aspect of his daily life. She concluded that he suffered from the Richardson Syndrome because he had not responded to the drugs given him. She claimed that the results of Robert's 2006 CAT scan showed a fairly advanced degree of frontal lobe atrophy, or loss of brain tissue.
Tagliati concluded that because of his inability to process complex information, she did not believe he could make proper decisions regarding his finances.
Goldstein examined Robert on November 13, 2008, and January 14, 2009. He described Robert as having significantly impaired speech. Robert scored low average on an information multiple choice test, and impaired on a similarities multiple choice test, proverb interpretation and matrix reasoning. He also noted that Robert incorrectly reported both the designation and the duration of his neurological condition.
According to Goldstein, Robert perseverated during the examination, which Goldstein described as a symptom of impairment of the frontal lobe. He diagnosed Robert with the Richardson's Syndrome subtype of PSP and cognitive impairment and found that Robert was suffering from bradyphrenia, or slow mental functioning. Goldstein added that PSP does not affect areas of the brain that are involved in memory and coding but, as in Robert's case, causes atrophy or shrinkage in the frontal lobe.
Tagliati issued a supplemental report based on a review of additional documents in which she found that atrophy appeared to be particularly severe in the frontal lobes. This confirmed her prior conclusion that Robert demonstrated profound impairments in the cognitive domains crucial for meaningful and accurate information processing, and that ...