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S.T. v. 1515 Broad Street, LLC

Superior Court of New Jersey, Appellate Division

August 6, 2018

S.T., Plaintiff-Appellant/ Cross-Respondent,
VIRGINIA GLASS PRODUCTS, Third-Party Defendant, and IDESCO CORP., Third-Party Defendant-Respondent/Cross-Appellant.

          Argued September 26, 2017

          On 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).

          Gerard 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 briefs).

          Peter 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 Company, LLC.

          Before Judges Carroll, Leone, and Mawla.


          LEONE, J.A.D.

         Plaintiff 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.

         We hold 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.


         Plaintiff's 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.

         Plaintiff, 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.

         A Law Division judge denied Idesco's motion for summary judgment, and its motion for reconsideration. We denied its motion for leave to appeal.

         The 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.

         As the 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.

         On 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."

         At a 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 reconsideration.


         The 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.

         Neither circumstance was present here.

         Nonetheless, 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).]

         Because RPC 1.14 uses the phrase "diminished capacity," plaintiff is incorrect in arguing that phrase may not be used in this context.

         The 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.

         However, 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 appointed.

         Plaintiff 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 property).

         The 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.

         Because 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 ...

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