PANAGIOTI L. GIANNAKOPOULOS v. MID STATE MALL, MARK E. ZELINA, ENGINEER, and MASER CONSULTING, P.A.
DOCKET NO. A-1955-13T2
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
December 31, 2014
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION. APPROVED FOR PUBLICATION December 31, 2014 APPELLATE DIVISION.
MASER CONSULTING, P.A., Third-Party Plaintiff, v. YOKO KNOX, Third-Party Defendant.
Argued November 12, 2014 - Decided December 31, 2014
Before Judges Reisner, Koblitz and Haas.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-5232-11.
Richard W. Wedinger argued the cause for appellant (Barry, McTiernan & Wedinger, attorneys; Mr. Wedinger and Laurel A. Wedinger, on the briefs).
Nora Coleman (Haworth Coleman & Gerstman, LLC) argued the cause for respondent Mid State Mall.
Joseph T. Ciampoli argued the cause for respondents Mark E. Zelina and Maser Consulting, P.A. (Thompson Becker & Bothwell, L.L.C., attorneys; Mr. Ciampoli, on the brief).
The opinion of the court was delivered by REISNER, P.J.A.D.
Plaintiff Panagioti L. Giannakopoulos appeals from a September 12, 2013 order granting defendant Mid State Mall‘s motion for reconsideration and dismissing plaintiff‘s complaint against MidState1. Plaintiff also appeals from a September 12, 2013 order granting summary judgment in favor of defendants Maser Consulting, P.A., and Maser engineer Mark E. Zelina (collectively, Maser). Plaintiff further appeals from a December 6, 2013 order denying his motion for reconsideration.
To summarize, we conclude that in reconsidering a prior judge‘s decision to reinstate plaintiff‘s complaint, the trial court misapplied the standards set forth in
I
We engage in de novo review of the trial court‘s decision on the summary judgment motion and the motion to dismiss. Town of Kearny v. Brandt, 214 N.J. 76, 91 (2013). In fact, because the court considered documents outside the pleadings in deciding the latter motion, it is also treated as a summary judgment motion.
Viewed through the lens of the applicable legal standards, these are the facts. On May 19, 2008, plaintiff suffered
Two days after the accident, on May 21, 2008, plaintiff allegedly signed a durable power of attorney (POA) naming his brother as his fiduciary for all purposes relating to his property and finances. Among other things, the POA recited that in any future protective proceedings for his person or estate, plaintiff nominated his brother to serve as his guardian. The POA did not specifically authorize the brother to make decisions as to plaintiff‘s medical treatment. However, an August 5, 2013 certification from the brother attested that the POA was signed at the hospital‘s request so the brother could make medical decisions for plaintiff.2
Plaintiff was not present at the friendly hearing. Plaintiff‘s then-attorney stated to Judge Ciuffani that his client was mentally competent, though severely physically incapacitated. Plaintiff‘s brother, who held his POA, testified that he managed plaintiff‘s affairs on a daily basis. He also testified briefly that he had discussed the proposed settlement with plaintiff, and that the reason the settlement included a special needs trust for the daughter was that plaintiff wanted to be sure that her needs were met. A finding that plaintiff was mentally incapacitated on the date of the friendly hearing would require a court to find that the attorney misrepresented
Over a year later, on May 19, 2010, plaintiff‘s then-counsel filed a complaint against MidState, alleging negligence in the configuration of the turning lane from which the auto driver had exited. That complaint was filed within the two-year statute of limitations. On May 27, 2010, the attorney filed an amended complaint naming several “John Doe” defendants but not describing them with any particularity; that amendment was filed beyond the two-year limitations period.
The attorney attempted service on MidState by Federal Express (FedEx). However, the package was addressed to the mall premises on Route 18 and Tices Lane in East Brunswick, rather than to the Paramus offices of the corporation that owned the Mall. A FedEx invoice dated June 14, 2010 reported “Incorrect recipient address,” and reported that FedEx made a “1st attempt Jun 09, 2010 at 10:31 A.M.” but the package was “undeliverable.” However, the invoice also reported that the package was “Delivered” on “Jun 11, 2010 18:36.” Hence, viewing this
However, MidState submitted evidence that its corporate owner never received the complaint. MidState submitted a certification of the Mall‘s property manager, attesting that the Mall was owned by a corporation called MidState Hye, L.P., with offices in Paramus. She stated that the mall consisted only of retail stores and there was “no central office for ‘Mid State Mall’ anywhere at the mall itself.” She also attested that there was no location in the mall to leave packages addressed to Mid State Mall, other than one of the retail tenants, and that Midstate Hye, L.P. had never received a FedEx package containing plaintiff‘s May 19, 2010 complaint.
The complaint was dismissed for lack of prosecution on December 3, 2010. Instead of filing a motion to reinstate the original amended complaint, plaintiff‘s then-attorney filed a new complaint on July 19, 2011, naming as defendants MidState, Maser (misspelled as “Master“) and its engineer, Zelina. Plaintiff‘s counsel served this complaint on MidState at its corporate offices on August 1, 2011. When MidState filed a motion to dismiss based on the statute of limitations, the attorney realized his mistake and filed a cross-motion to reinstate the original complaint.
Plaintiff‘s attorney also certified that MidState had been “successfully served” with the original complaint; he submitted documentation from FedEx confirming delivery. In response, MidState asserted that the original complaint was never
The motion and cross-motion were heard before Judge Martin E. Kravarik on November 4, 2011. In contrast to what he told Judge Ciuffani, plaintiff‘s counsel told Judge Kravarik that the trust approved in the friendly settlement was negotiated and agreed to by plaintiff‘s brother Nick because plaintiff was incapable of making those decisions. The attorney told Judge Kravarik:
[O]n certain occasions when he [Nick] did try to discuss any of these matters with his brother, his brother would become very emotional and incoherent. He is heavily medicated and will be so for the rest of his life.
Suffice it to say that he is now struggling with the pain management and the continued addiction on these painkillers which is something that they give the patients regularly, unfortunately.
. . . .
[T]he fact is that he wasn‘t making any decision with tubes down his body and in his mouth and through his nose, and he continues to be in a state where he does not make any decisions on his own behalf.
However, the judge told defense counsel that if discovery revealed “that the relief granted was not warranted you may file an[] appropriate [m]otion for reconsideration.” The judge also directed plaintiff‘s counsel to immediately provide defense counsel with full access to plaintiff‘s medical records. The court‘s ruling was memorialized in an order dated November 4,
Following the motion before Judge Kravarik, plaintiff retained new counsel and the parties engaged in discovery on all issues. After the parties completed discovery, MidState filed a motion for reconsideration on or about August 6, 2013, and Maser filed a motion for summary judgment on the statute of limitations issue. In support of the reconsideration motion, which was to be heard by a second judge who was new to the case, MidState‘s counsel submitted the same materials that were presented to Judge Kravarik, plus the transcript of the hearing before Judge Ciuffani and portions of plaintiff‘s deposition.
During his deposition, plaintiff was able to answer questions, however, he could not remember the circumstances under which the original lawsuit was filed. He explained that “[b]ack then, after the coma, like after all that stuff happened I woke up. I was getting sick a lot and going to the hospital, going to a new nursing home. I was so out of it. You know, I was in so much pain. . . . And so I may have said stuff, but . . . a lot of stuff was blurry to me . . . at one point I tried to call my brother by dialing my cell phone. I was pushing my
Plaintiff‘s medical records, submitted in opposition to the reconsideration motion and Maser‘s summary judgment motion, indicated that plaintiff was conscious and alert immediately after the accident, but after surgery performed on May 19, 2008, he was “in a coma state for several weeks, on mechanical ventilation and parenteral nutritional support.” It appeared that he did not fully emerge from the coma state until July 9, 2008, when he was weaned from the ventilator. However, he was noted to be heavily medicated and in intractable pain. Hospital records reflect that plaintiff‘s brother and father consented to various medical procedures on his behalf during May, June, and July 2008.
Plaintiff also submitted a second report from Dr. Waller dated July 15, 2013. Based on his examination of plaintiff, Dr. Waller opined that plaintiff remained incapacitated due to his severe neurological injuries. None of the defendants submitted any medical expert reports to contradict Dr. Waller‘s July 2013 report or his earlier report.
Plaintiff also submitted a certification from his brother Nick, dated August 5, 2013, explaining in great detail the
In an oral opinion, on September 12, 2013, the newly-assigned motion judge (hereafter, the “second judge” or “the judge“) determined that plaintiff was competent at the time that his attorney appeared before Judge Ciuffani, “based on the representation of his attorney.” In other words, regardless of plaintiff‘s medical proofs concerning his incapacity, the second
The judge considered that “[o]nce an incompetent person or those on his behalf engages an attorney, to handle a litigated matter, the statute begins to run. . . . You can‘t litigate in piecemeal against one defendant one day and another defendant another day. And a third defendant another day.” The judge reasoned that Unkert v. General Motors Corp., 301 N.J. Super. 583, 591 (App. Div.), certif. denied, 152 N.J. 10 (1997), was not on point, because in that case the plaintiff was represented by counsel on a different matter from the tort suit in which he claimed tolling of the limitations period.
On October 3, 2013, plaintiff filed a motion for reconsideration of the second judge‘s September 12, 2013 orders. The motion included evidence supporting the merits of the underlying lawsuit, including the report of an engineering expert. Both sides submitted additional information concerning the FedEx service on MidState.
II
A.
MidState and Maser stand in different procedural postures, because plaintiff filed a timely complaint against MidState, but filed the complaint against Maser more than a year beyond the two-year statute of limitations. We begin by considering the second judge‘s decision to grant MidState‘s reconsideration motion and dismiss the complaint against that defendant.
The Rules are to be construed so as to do justice, and ordinarily an innocent plaintiff should not be penalized for his attorney‘s mistakes. See Baskett, supra, 422 N.J. Super. at 385; Weber v. Mayan Palace Hotel & Resorts, 397 N.J. Super. 257, 263 (App. Div. 2007). In applying the good cause standard for reinstating a complaint under
Moreover, the provision of
B.
Next, we address the complaint against Maser. Because it was filed out of time, and Maser had no prior notice of plaintiff‘s cause of action, the Maser complaint cannot relate back to the date of filing of the original complaint against MidState.9 See
The two-year statute of limitations for commencing a personal injury lawsuit,
If a person entitled to commence an action or proceeding specified in
N.J.S.A. 2A:14-1 to2A:14-8 . . . is . . . a person who has a mental disability that prevents the person from understanding his legal rights or commencing a legal action at the time the cause of action or right or title accrues, the person may commence the action . . . within the time as limited by those statutes, after . . . having the mental capacity to pursue the person‘s lawful rights.[
N.J.S.A. 2A:14-21 .]
The version of this statute in effect at the time of the accident referred to the person being “insane” rather than having “a mental disability.” See L. 1951, c. 344. However, the term “insane” had been interpreted in a way that corresponds to the modern term “incapacity.”
To obtain the benefit of
In applying equitable principles concerning the statute of limitations, courts have emphasized
that the effect of a statute of limitations is to deny access to our courts. Unswerving, mechanistic application of statutes of limitations would at times “inflict obvious and unnecessary harm upon
individual plaintiffs” without materially advancing the objectives they are designed to serve. [Jones v. Jones, 242 N.J. Super. 195, 203 (App. Div.), certif. denied, 122 N.J. 418 (1990) (quoting Galligan v. Westfield Centre Servs. Inc., 82 N.J. 188, 192 (1980)).]
Where there are material factual issues concerning a tolling claim, particularly issues concerning a plaintiff‘s mental state, the court should hold an evidentiary hearing. Id. at 202, 206; Estate of Nicolas, supra, 388 N.J. Super. at 582-83.
As previously noted, in deciding a summary judgment motion, the court must give the non-moving party the benefit of all favorable inferences that can be drawn from the evidence. See Agurto v. Guhr, 381 N.J. Super. 519, 522 (App. Div. 2005). We conclude the second judge erred in ignoring the legally competent lay and medical testimony as to plaintiff‘s incapacity, and instead basing the decision on the unsworn representation of plaintiff‘s counsel in the friendly hearing. At most, that representation, plus the brother‘s brief testimony at the same hearing, created a material dispute of fact as to plaintiff‘s mental capacity. Viewed in the light most favorable to plaintiff, the motion evidence was sufficient to establish that plaintiff was incapacitated for purposes of
We also cannot agree that either the signing of the POA or the friendly hearing vitiated the tolling of the statute of limitations, if plaintiff was in fact rendered mentally disabled by the accident. We acknowledge language in Kyle stating that in applying the equitable exception for a plaintiff whose later incapacity was caused by defendants’ actions, a court must consider “whether plaintiff‘s suit was started within a reasonable time after restoration of sanity or after the appointment of a guardian or committee who knew or should have
Nor did the friendly hearing result from litigation against the driver. Rather, it resulted from the insurance company‘s voluntary offer of its entire policy. Hence, the second judge‘s reasoning, that the limitations period was not tolled because plaintiff had an attorney “working for him,” is not persuasive to us. The friendly hearing was not the equivalent of the later personal injury suit. The record does not indicate how, when, or by whom the original attorney was retained to file the lawsuit against MidState. However, a guardian ad litem was not appointed for plaintiff until Judge Kravarik entered the order on November 4, 2011.
In Unkert, we held that the appointment of a guardian did not vitiate an incapacitated plaintiff‘s right to the tolling provided by
In this case, it is premature even to decide whether Kyle or Unkert applies, because the record is incomplete. Further, depending on the facts found after a
Given the other mistakes made by plaintiff‘s former attorney, we have no confidence that plaintiff or his brother were properly counseled as to the purpose of the POA or that plaintiff, who had suffered massive injuries including paralysis and brain damage, was in any condition to understand the rights he was giving his brother under the broad wording of the POA. Finally, as Maser‘s counsel candidly conceded at the oral argument of this appeal, there is no legally competent evidence of any prejudice from the delay in filing or serving the complaint against Maser.
Reversed and remanded. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION