Opinion
DOCKET NO. A-2250-13T3
01-22-2015
GENA MITCHELL, an incapacitated person, and LAURA M. HALM as Guardian ad Litem and of her person and property, Plaintiff-Appellant, v. STEPHEN PROVENZANO and DIANNE PROVENZANO, Defendants, and DAVID R. GENTILE, M.D., F.A.C.S., individually and as servant, agent or employee of PROFESSIONAL ORTHOPAEDIC ASSOCIATES, KARL R. BLUM, M.D., individually and as servant, agent or employee of OCEAN ORTHOPEDIC ASSOCIATES, Defendants-Respondents.
Mark R. Sander argued the cause for appellant (Sander, Carson & Lane P.C., attorneys; Mr. Sander, of counsel and on the briefs). Sharon K. Galpern argued the cause for respondents David R. Gentile, M.D., and Professional Orthopaedic Associates (Stahl & DeLaurentis, P.C., attorneys; Ms. Galpern, on the brief). Peter V. LaGregor argued the cause for respondents Karl R. Blum, M.D., and Ocean Orthopedic Associates (Orlovsky, Moody, Schaaff, & Conlon, attorneys; Paul Schaaff, of counsel; Mr. LaGregor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez, Maven, and Carroll. On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-2711-08. Mark R. Sander argued the cause for appellant (Sander, Carson & Lane P.C., attorneys; Mr. Sander, of counsel and on the briefs). Sharon K. Galpern argued the cause for respondents David R. Gentile, M.D., and Professional Orthopaedic Associates (Stahl & DeLaurentis, P.C., attorneys; Ms. Galpern, on the brief). Peter V. LaGregor argued the cause for respondents Karl R. Blum, M.D., and Ocean Orthopedic Associates (Orlovsky, Moody, Schaaff, & Conlon, attorneys; Paul Schaaff, of counsel; Mr. LaGregor, on the brief). PER CURIAM
Plaintiff Gena Mitchell, by her guardian Laura M. Halm, appeals from an order entered by the Law Division on July 12, 2013, which denied her motion to dismiss the remaining counts of her complaint without prejudice, and an order entered on December 6, 2013, which denied her motion for reconsideration. For the reasons that follow, we affirm.
On August 5, 2006, plaintiff was struck by a vehicle owned by defendant Dianne Provenzano and operated by defendant Stephen Provenzano. Plaintiff filed a complaint in the Law Division on August 4, 2008, seeking damages from the Provenzanos for personal injuries sustained in the motor vehicle accident. The complaint also asserted medical malpractice claims against defendants David Gentile, M.D., Professional Orthopaedic Associates, Karl Blum, M.D., and Ocean Orthopedic Associates, the orthopedic physicians who treated plaintiff for her injuries. The claims against the Provenzanos were settled on August 19, 2009, leaving only the medical malpractice claims for trial.
While this matter was pending, on March 20, 2012, plaintiff was declared incapacitated in a separate guardianship proceeding in the Chancery Division. Susan Harmsen and Laura Halm were appointed guardians of plaintiff's person and property, respectively. On November 30, 2012, Halm was substituted as guardian of plaintiff's person after Harmsen sought to be relieved of that position.
The medical malpractice action was listed for trial on November 26, 2012. On November 19, 2012, the parties filed a stipulation of dismissal, which provided:
It is hereby stipulated and agreed that plaintiff's [c]omplaint against defendants is dismissed without prejudice and without costs against any party. Plaintiff may reinstate the [c]omplaint upon motion within one hundred and twenty (120) days of this [s]tipulation's filed date without defendants raising a [s]tatute of [l]imitations defense. Should the [c]omplaint not be reinstated within said one hundred and twenty (120) days, this [s]tipulation shall automatically convert to a voluntary dismissal with prejudice on the one hundred and twenty-first (121st) day and this matter shall be concluded forever.
On March 18, 2013, 119 days after the stipulation was filed, plaintiff filed an emergent motion to reinstate the complaint and stay the case indefinitely due to plaintiff's incompetency. At the motion hearing the next day, plaintiff's counsel requested more time to have plaintiff examined by additional physicians to determine her ability to testify at trial. Counsel represented that plaintiff's testimony "would be necessary . . . to proceed with the case."
Following oral argument, the court entered an order extending the initial 120-day period for an additional 90 days. The March 19, 2013 order provided:
1. The [c]ourt's prior filed [s]tipulation of [d]ismissal of [c]omplaint without [p]rejudice is hereby extended for 90 days as to all parties;Throughout the motion hearing, the trial judge reiterated that his order was only expanding the stipulation's allotted time period and was not changing any other terms of the parties' agreement.
2. The plaintiff may move within 90 days to reinstate or otherwise dispose of this matter;
3. The motion may be made so long as it is filed within 90 days of this date.
Also on March 19, 2013, plaintiff was examined by Beverlee A. Tegeder, Psy.D. In her evaluation report, Dr. Tegeder concluded that plaintiff is "mentally incompetent" and "unable to testify on her own behalf with regard to the malpractice suit." Dr. Tegeder also found it "highly unlikely" that this condition would improve.
After the ninety-day extension period expired on June 17, 2013, plaintiff filed a motion to permanently dismiss her complaint without prejudice. At oral argument on July 12, 2013, plaintiff's counsel requested that the court place the matter "on a permanent track of dismissal without prejudice . . . until [plaintiff] becomes competent." Plaintiff's counsel reiterated that if the case were reinstated, he could not proceed without plaintiff's testimony.
The parties disagree on the motion's exact filing date. Although the motion papers are dated June 18, 2013, defendants contend that the motion was filed on June 19, 2013. Regardless, it is undisputed that the motion was filed outside the 90-day period.
Following oral argument, in an order dated July 12, 2013, the court denied plaintiff's motion to permanently dismiss the case without prejudice. In his statement of reasons, the judge found that plaintiff's counsel had apparent authority to enter into the original stipulation and subsequent order for an extension. The judge further found that plaintiff did not comply with the terms of the original stipulation or subsequent extension order, observing that:
At the [March 19, 2013] hearing, the [c]ourt made it clear that the only modification to the [s]tipulation was extending the [120]
day time frame an additional [90] days to give [p]laintiff's counsel time to decide whether to proceed with the case or not. Defense counsel asked the [c]ourt if the motion to [r]einstate was not filed in [90] days, would the [s]tipulation be converted into a dismissal with[] prejudice. The [c]ourt clearly responded that whatever terms were in the original stipulation were still in effect except for the extension of the time period and clarifying that the motion to reinstate only had to be filed within the time period.
The [s]tipulation states that if [p]laintiff did not reinstate the [c]omplaint within the time period, the [s]tipulation would convert into a dismissal with prejudice. Plaintiff has not moved to reinstate the [c]omplaint and the terms of the original [s]tipulation are enforceable.
Plaintiff timely moved for reconsideration. On December 6, 2013, the court denied the motion, explaining:
Plaintiff's [m]otion to [p]ermanently [d]ismiss the [c]omplaint without [p]rejudice does not reflect a motion to reinstate the case or otherwise dispose of the matter, rather, [p]laintiff's motion does the exact opposite and would severely prejudice the [d]efendants if the case were to be stayed indefinitely. Plaintiff has had the benefit of [210] days in which to determine competency, properly move to reinstate the case, and/or make an application to the [c]ourt for a guardian ad litem.This appeal followed.
Plaintiff argues that she complied with the stipulation of dismissal by moving to reinstate her complaint before the initial 120 days expired. Additionally, she contends that she filed a motion to reinstate or otherwise dispose of the matter in accordance with the trial court's March 19, 2013 order which extended the stipulation's 120-day time period an additional 90 days.
Review of a trial court's interpretation of an agreement is de novo. Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Cantone Research, Inc., 427 N.J. Super. 45, 57 (App. Div.) (noting that review of contract interpretation is de novo), certif. denied, 212 N.J. 460 (2012). The reviewing court must evaluate the common intention of the parties and the purpose they tried to achieve. Tessmar v. Grosner, 23 N.J. 193, 201 (1957). The "court's role is to consider what is written in the context of the circumstances at the time of drafting and to apply a rational meaning in keeping with the expressed general purpose." Sachau v. Sachau, 206 N.J. 1, 5-6 (2011) (internal quotation marks and citations omitted).
Here, plaintiff's actions were neither in compliance with the stipulation's express language nor the parties' intentions in entering into the agreement. The parties executed the original stipulation on November 19, 2012, to afford plaintiff's counsel sufficient time to determine plaintiff's ability to testify at trial without prejudicing defendants by prolonging the case indefinitely. If plaintiff's counsel determined it was appropriate to proceed to trial, he would move to reinstate the complaint within the allotted time period. If, however, the complaint was not timely reinstated, "the Stipulation shall automatically convert to a dismissal with prejudice." Essentially, then, the parties' stipulation afforded plaintiff's counsel an opportunity to decide how to proceed without the constraint of an imminent trial date, while providing defendants with a finite time period in which the matter would be concluded by either trial or dismissal with prejudice.
Plaintiff's first motion sought to reinstate the complaint and indefinitely stay the matter. However, an indefinite stay is clearly contrary to both the stipulation's language and the parties' intentions, and is the very antithesis of the reinstatement contemplated in the agreement. Moreover, as plaintiff's counsel expressly recognized at oral argument, an indefinite stay is "totally prejudicial to these [d]efendants." Accordingly, the trial judge initially determined that it would be more appropriate to extend the original 120-day period by 90 days rather than to stay the matter indefinitely.
Similarly, plaintiff's second motion failed to comply with both the terms of the original stipulation and the subsequent extension order. This motion was filed after the 90-day period expired. At this juncture, per the express terms of the stipulation, which survived the extension order, the dismissal had automatically converted to a dismissal with prejudice.
Besides being untimely, plaintiff's second motion did not seek reinstatement of the matter in accordance with the stipulation's terms. Rather, it sought to permanently dismiss the matter without prejudice. Like an indefinite stay, a permanent dismissal without prejudice conflicts with the express terms and purpose of the stipulation by unduly delaying the matter and causing defendants substantial prejudice.
Here, the case was already four years old when the stipulation was executed, and nearly five years old when the second motion was decided. At the time of the second motion, plaintiff's expert evaluation concluded that plaintiff was incompetent, unable to testify, and "highly unlikely" to improve. In an effort to avoid an unjust result, the trial judge extended the time period to undertake this evaluation, and explored the possibility of proceeding without plaintiff's testimony. However, plaintiff's counsel candidly conceded both that plaintiff's testimony was required to proceed to trial, and that defendants would be prejudiced by the requested delay of indefinite duration. Faced with these facts, while clearly sympathetic to plaintiff's plight, the trial judge properly dismissed the matter with prejudice in accordance with the parties' stipulation.
Plaintiff next argues that the judge erred by failing to, sua sponte, appoint a guardian ad litem to represent her in this litigation. Having reviewed the record, we disagree.
Rule 4:34-2 provides that:
If a party becomes mentally incapacitated, the court upon motion served as provided in R. 4:34-1(b) may allow the action to be continued by or against the party's guardian or guardian ad litem.
Rule 4:26-2(a), which governs representation by a guardian, provides:
[A] minor or mentally incapacitated person shall be represented in an action by the guardian of either the person or property, appointed in this State, or if no such guardian has been appointed or a conflict of interest exists between guardian and ward or for other good cause, by a guardian ad litem appointed by the court . . . .Unlike an attorney, a guardian determines what action is in the individual's best interest and advocates for that position. See Vill. Apartments of Cherry Hill v. Novack, 383 N.J. Super. 574, 579 (App. Div. 2006) (holding that a guardian ad litem should have been appointed where the designated guardian failed to appear at trial, leaving only the defendant's attorney to represent his interests).
Here, plaintiff had been adjudicated incapacitated and guardians of her person and property were appointed in March 2012, some eight months before the scheduled trial date in this matter. Halm, herself an attorney, then assumed both guardianship roles in November 2012. In certifications attached to plaintiff's March 18, 2013 motion, Halm and plaintiff's counsel both certify that they "have been in continuous contact concerning [plaintiff's] case and her condition." Additionally, Halm's certification indicates that she and plaintiff's counsel "are in agreement as to the pending motion." Since a guardian had already been appointed who was intimately acquainted and involved with the prosecution of plaintiff's medical malpractice action, and no conflict existed, appointment of a guardian ad litem was clearly not required. R. 4:26-2.
To the extent that we have not specifically addressed any of plaintiff's remaining arguments, we find them to be without sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION