September 26, 2017
appeal from Superior Court of New Jersey, Law Division, Essex
County, Docket No. L-1651-10.
Stephen R. Bosin argued the cause for
appellant/cross-respondent (Stephen R. Bosin, attorney;
Robert A. Vort, on the briefs).
H. Hanson argued the cause for respondent/cross-appellant
Idesco Corp. (Hill Wallack, LLP, attorneys; Gerard H. Hanson,
of counsel and on the brief; James Harry Oliverio, on the
A. Gaudioso argued the cause for respondent County Glass
& Metal Installers, Inc. (McElroy, Deutsch, Mulvaney
& Carpenter, LLP, attorneys; Peter A. Gaudioso, of
counsel and on the brief).
Matthew S. Mahoney argued the cause for respondent 1515 Broad
Street, LLC (Linda Baumann, of counsel; Matthew S. Mahoney,
on the brief).
Michael C. Urciuoli argued the cause for respondent The Walsh
Judges Carroll, Leone, and Mawla.
S.T. appeals from a July 1, 2014 order approving a settlement
in this litigation and directing the distribution of
settlement proceeds. She argues the settlement was improperly
approved on her behalf by a guardian ad litem (GAL) appointed
under Rule 4:26-2.
that under Rule 4:26-2(a)(4), a trial court may
appoint a GAL if there is good cause to believe that a party
lacks the mental capacity needed to participate in the
litigation. We also hold that, based upon the GAL's
investigation or other information, the court may give the
GAL the power to make decision(s) needed in the case,
including the decision to try or settle the case, if it finds
clear and convincing evidence that the party is mentally
incapable of making the decision(s). Because the trial court
properly found that plaintiff lacked the mental capacity to
decide whether to try or settle the case, we affirm.
complaint alleged as follows. On March 11, 2008, she was a
business invitee on the premises at 1515 Broad Street in
Bloomfield. When exiting the building, she was struck on the
head by a falling object and sustained severe and traumatic
injuries. As a result, she suffered and continued to suffer
great pain and anguish, confinement, and incapacitation for
her usual course of conduct and employment.
represented by trial counsel, filed a complaint alleging
negligence by defendants 1515 Broad Street, LLC (1515 Broad),
The Walsh Company, LLC (Walsh), and County Glass & Metal
Installers, Inc. (County Glass). County Glass filed a
third-party complaint against Virginia Glass Products Corp.
(Virginia Glass) and Idesco Corp. (Idesco). Plaintiff amended
her complaint to add Virginia Glass and Idesco as defendants.
Division judge denied Idesco's motion for summary
judgment, and its motion for reconsideration. We denied its
motion for leave to appeal.
judge dismissed plaintiff's claims against Virginia
Glass. The remaining defendants filed a joint offer of
judgment for $475, 000. They gave plaintiff until ten days
before trial to accept, or they would seek costs and fees
under Rule 4:58-3.
trial date approached, plaintiff's trial counsel filed a
motion and certification seeking the appointment of a GAL for
plaintiff. On September 27, 2013, the trial court entered an
order appointing Frederick D. Miceli, Esq. as GAL, and
staying the trial pending the GAL's review of the matter.
March 17, 2014, the GAL issued his report. In light of the
findings in the GAL's report, the trial court's April
22, 2014 order ruled the GAL should remain, and
"empowered and entrusted [the GAL] with any and all
decisions regarding the ultimate disposition of this case,
whether by trial or settlement."
July 1, 2014 hearing, plaintiff's trial counsel, the GAL,
and defendants reported they had arrived at a $625, 000
settlement. The trial court approved the settlement as fair,
reasonable, and in plaintiff's best interests. Plaintiff
appeals, represented by new counsel. Idesco filed a
contingent cross-appeal of the denial of summary judgment and
first issue is what rule governs the appointment of a GAL
under these circumstances. Plaintiff's counsel moved for
appointment of a GAL, invoking Rule 4:26-2(b)(3).
However, Rule 4:26-2(b)(3) applies after a default
or in a summary action:
On motion by a party to the action, the court may appoint a
guardian ad litem for a minor or alleged mentally
incapacitated person if no petition has been filed [under
Rule 4:26-2(b)(2)] and either default has been
entered by the clerk or, in a summary action brought pursuant
to R. 4:67 or in a probate action, 10 days have elapsed after
service of the order.
circumstance was present here.
plaintiff's counsel could properly bring concerns to the
trial court's attention. The Rules of Professional
Conduct (RPC) permitted plaintiff's counsel to
seek appointment of a GAL. See MLR., 135 N.J. at
175, 178. RPC 1.14 addresses "[w]hen a
client's capacity to make adequately considered decisions
in connection with the representation is diminished, whether
because of minority, mental impairment or for some other
reason." RPC 1.14(a). It provides:
When the lawyer reasonably believes that the client has
diminished capacity, is at risk of substantial physical,
financial or other harm unless action is taken and cannot
adequately act in the client's own interest, the
lawyer may take reasonably necessary protective action,
including consulting with individuals or entities that
have the ability to take action to protect the client and, in
appropriate cases, seeking the appointment of a guardian
ad litem, conservator, or guardian.
[RPC 1.14(b) (emphasis added).]
RPC 1.14 uses the phrase "diminished
capacity," plaintiff is incorrect in arguing that phrase
may not be used in this context.
trial court granted the motion without specifying the
subsection it relied upon. The court later ordered the GAL to
remain pursuant to Rule 4:26-2(b)(4), which provides
that a "court may appoint a guardian ad litem for a
minor or alleged mentally incapacitated person on its own
motion." Because the court ultimately ruled on its own
motion under Rule 4:26-2(b)(4), we examine the
propriety of its action under that subsection.
plaintiff contends that the trial court had to follow the
procedures in Rule 4:86 before it could hold she
lacked the capacity to handle her own affairs. Thus, she
essentially challenges whether the GAL was properly
misapprehends the differences between appointment of a
guardian of the person or property, versus appointment of a
GAL. Those differing appointments are governed by different
rules, which themselves recognize the distinction.
See R. 4:26-2(a) (permitting the appointment of a
GAL if no "guardian of either the person or the
property" has not been appointed); R. 4:86-4(d)
(allowing the appointment of a GAL to assist in the
litigation for appointment of a guardian for person or
appointment of a guardian over the person or property of an
incapacitated person is governed by Rule 4:86
(formerly Rule 4:83) and N.J.S.A. 3B:12-24 to -35.
Appointment of a general guardian under that rule gives the
general guardian the authority to "exercise all the
rights and powers of the incapacitated person" over
their person, property, or both. N.J.S.A. 3B:12-24.1(a). It
also gives the general guardian "all of the powers
conferred upon the guardian by law and the provisions of this
chapter." N.J.S.A. 3B:12-48. Those may include: title in
the person's property; control over expenditures for the
person; custody of the person; power over the person's
property, place of abode, care, and medical care; and the
ability to seek the person's admission to a psychiatric
facility. E.g., N.J.S.A. 3B:12-38, -43, -56(d),
-57(f), -59. The authority of the guardian lasts until the
person's death unless the guardian is removed or the
person is restored to competency. N.J.S.A. 3B:12-64.
the appointment of such a general guardian has the effect
"to restrain an allegedly incompetent person of his
liberty or deprive him of the control of his property and the
management of his personal affairs, '[s]uch an
adjudication must be sought in a constitutional manner in a
proceeding instituted for that ...