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In Nativo v. Grand Union Co., 315 N.J. Super. 185, 717 A.2d 429 (1998), the court held that neither § 108(c) nor applicable common-law principles operated to toll the state's personal injury statute of limitations during the time the bankruptcy law's automatic stay provision was in effect.
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Submitted September 15, 1998.
Decided October 1, 1998.
Appeal from the Superior Court, Law Division, Ocean County, Wefing, J.A.D.
Before Judges LONG, WEFING and CARCHMAN.
Abrams, Gatta, Falvo Sevrin, attorneys for appellant ( Douglas J. Gatta, on the brief).
Kiernan Strenk, attorneys for respondent ( Charles A. Strenk, on the brief).
The opinion of the court was delivered by
Plaintiff Carmela Nativo was shopping in a Grand Union supermarket in Brick Township, New Jersey on August 30, 1994. She alleged she was injured when a can of dog food fell from a shelf and struck her. She retained counsel who, in September 1994, notified a Grand Union claims representative. In January 1995, approximately five months after the incident, Grand Union filed a petition under Chapter 11 of the Bankruptcy Code with the United States Bankruptcy Court for the District of Delaware. This filing, of course, triggered the automatic stay provisions of 11 U.S.C. § 362(a) and precluded Ms. Nativo from instituting suit for her injuries. In May 1995, Ms. Nativo filed a Proof of Claim with the Bankruptcy Court. On July 3, 1996, the United States Bankruptcy Judge executed a Stipulation and Order which modified the automatic stay to the extent that plaintiff was permitted to litigate her claim against Grand Union. She agreed in return that she would not execute upon any judgment she might obtain but rather would file an amended Proof of Claim with the Bankruptcy Court within thirty days of any judgment. Appellant's counsel received a copy of this Stipulation and Order on July 19, 1996, forty-two days before the statute of limitations expired. N.J.S.A. 2A:14-2.
On September 6, 1996, seven days after the statute of limitations had run, plaintiff filed her complaint. In due course, Grand Union filed its answer and included the statute of limitations among its affirmative defenses. In May 1997, Grand Union filed a motion for summary judgment in which it argued that plaintiff's complaint should be dismissed since it was untimely. The trial court granted the motion, and plaintiff has appealed. We are constrained to affirm.
Plaintiff's argument is two-fold: she contends that the operation of the statute of limitations was stayed by the bankruptcy proceeding and further that she should be allowed to proceed with her complaint for equitable reasons. In support of her first position, she points to Section 108(c) of the Bankruptcy Code and several cases construing its language.
The statute provides in part:
Extension of time: [I]f applicable nonbankruptcy law . . . fixes a period for commencing or continuing a civil action in a court other than a bankruptcy court on a claim against the debtor . . . and such period has not expired before the date of the filing of the petition, then such period does not expire until the later of (1) the end of such period, including any suspension of such period occurring on or after the commencement of the case, or (2) 30 days after notice of the termination or expiration of the [automatic] stay. . . .
We recognize that certain courts have construed that language to mean that a state's statute of limitations is tolled for the length of time that an automatic stay under 11 U.S.C. § 362(a) is in effect. Garbe Iron Works, Inc. v. Priester, 99 Ill.2d 84, 75 Ill.Dec. 428, 457 N.E.2d 422 (1983); Major Lumber Co. v. G B Remodeling, Inc., 817 S.W.2d 474 (Mo.App. 1991). We consider more persuasive, however, those authorities which have rejected such a view. Rogers v. Corrosion Products, Inc., 42 F.3d 292, 297 (5th Cir.), cert. denied, 515 U.S. 1160, 115 S.Ct. 2614, 132 L.Ed.2d 857 (1995) (Section 108(c) "does not create a separate telling provision. . . . The statute plainly states that for the time period to be suspended, other federal or state law must mandate it and then be incorporated through 108(c). Otherwise, a party must file suit within the thirty-day grace period after the end of the stay."); Aslanidis v. United States Lines, Inc., 7 F.3d 1067, 1073 (2nd Cir. 1993) ("The reference in 108(c)(1) to `suspension' of time limits clearly does not operate in itself to stop the running of a statute of limitations; rather, this language merely incorporates suspensions of deadlines that are expressly provided in other federal or state statutes."). We are entirely unpersuaded by plaintiff's argument that the bankruptcy proceeding added anything to the limitations period because the limitations period had not expired when the July 3, 1996 Stipulation and Order were entered.
In support of her equitable argument, plaintiff points to the fact that she acted diligently in first notifying Grand Union of her claim and in filing her Proof of Claim and that Grand Union cannot suffer prejudice through a filing seven days after expiration of the period of limitations. The cases upon which plaintiff relies are all distinguishable, however.
In Galligan v. Westfield Centre Service, Inc., 82 N.J. 188, 412 A.2d 122 (1980), plaintiff filed a complaint in state court twenty-two days after the period of limitations had expired; at the time he did so, however, he still had pending a complaint in federal court which had been timely filed and the Supreme Court, noting that timely complaint, refused to bar his state action as untimely. Here, there was no timely companion action. In Zaccardi v. Becker, 88 N.J. 245, 440 A.2d 1329 (1982), the Supreme Court, based upon the actions of both counsel, precluded defendant from asserting a statute of limitations defense. Here, defense counsel did nothing to contribute to the delay in filing. In Ochs v. Federal Ins. Co., 90 N.J. 108, 447 A.2d 163 (1982), the Court found no equitable grounds upon which to extend a period of limitations. In W.V. Pangborne Co. v. New Jersey Dep't of Transportation, 116 N.J. 543, 562 A.2d 222 (1989), the Court did not invoke equitable estoppel to preclude the State from asserting a limitations defense although it did consider that certain of its actions created confusion and were a breach of its implied duty of good faith and fair dealing. Nothing in this record, however, would warrant a finding that defendant was in any way responsible for the late filing of this complaint.
Finally, the Court's recent opinion in Negron v. Llarena, 156 N.J. 296, 716 A.2d 1158 (1998), does not advance plaintiff's case, for in that matter as in Galligan, supra, plaintiff had filed a timely complaint in Federal District Court. The Court utilized that timely federal filing as a basis to permit her untimely state court action to proceed.
Forty-two days remained within which to file this complaint under N.J.S.A. 2A:14-2 after receipt of the July 3, 1996 Stipulation and Order. There is no basis in this record to preclude Grand Union from invoking its statutory limitations defense.
Affirmed.
MATTER OF JACOBS, 315 N.J. Super. 189 (1998) 717 A.2d 432 IN THE MATTER OF ROSE JACOBS, AN ALLEGED INCOMPETENT. Superior Court of New Jersey, Chancery Division, Probate Part, Monmouth County. Decided March 18, 1998.
Appeal from the Superior Court, Chancery Division, Monmouth County, Fisher, P.J. Ch.
Peluso Staufenberg (Lynn E. Staufenberg, Esquire, appearing) for plaintiff.
Theresa M. Simonson, for defendant Harvey Wartell.
Jonathan Rudnick, court appointed counsel for Rose Jacobs, an alleged incapacitated person.
FISHER, P.J. Ch.
This court is called upon to determine the extent to which a person, alleged to be incapacitated within the meaning of N.J.S.A. 3B:12-25 , may choose a new domicile. The particular question is whether Mrs. Rose Jacobs, alleged to be incapacitated, is now domiciled in New Jersey. If she is, then this guardianship action may proceed; if not, it must be dismissed.
The Legislature recently amended the statutes applicable to such actions so as to replace the references to "incompetents" with "incapacitated persons". At the present, our Court Rules remain unchanged and still use the term "incompetent", so it could he said that at the moment the way in which plaintiff has captioned this matter is not altogether incorrect. In obedience to the Legislature, this opinion will refer to Mrs. Jacobs as an "alleged incapacitated person."
Mrs. Jacobs is 85 years old. She has two children: Miriam Russo (Miriam), who commenced this action and Harvey Wartell (Harvey), who seeks dismissal asserting that Mrs. Jacobs is domiciled in Florida. Neither questions that Mrs. Jacobs was domiciled in Florida at the time her husband died in 1989. She then intermittently resided in Florida and New York until 1991 when she permanently located to New York to live with Harvey. In 1994, Harvey retired and moved, with Mrs. Jacobs, to Florida where she remained until October 1, 1997. While it may be unclear whether Mrs. Jacobs ever made a change in domicile from the time her husband died until October 1, 1997, there is no doubt that she never became domiciled in New Jersey until, if Miriam's position is sustained, October 1, 1997 or sometime thereafter.
Harvey's motion to dismiss for lack of jurisdiction requires a consideration of whether the events which occurred on and after October 1, 1997 should be viewed by the court as causing a change in Mrs. Jacob's domicile. The location of her domicile is of critical importance since a court should not exercise jurisdiction over an alleged incapacitated person solely on the basis of that person's residence or current location. As a general matter, such an action should be commenced only where the alleged incapacitated person is actually domiciled. See, Lamar v. Micou, 112 U.S. 452, 5 S.Ct. 221, 28 L.Ed. 751 (1884); In re Estate of Gillmore, 101 N.J. Super. 77, 90, 243 A.2d 263 (App.Div. 196 8), certif. denied 52 N.J. 175, 244 A.2d 304 (1968). A person can have many residences but only one domicile. Kurilla v. Roth, 132 N.J.L. 213, 215, 38 A.2d 862 (Sup.Ct. 1944). By insisting upon the alleged incapacitated person being domiciled within the forum jurisdiction, the opportunity for conflicting rulings by courts of different states is practically eliminated.
As noted above, Mrs. Jacobs should be viewed as a domiciliary of another state (probably Florida) unless, in some way, she became domiciled in New Jersey on or after October 1, 1997. At that time she was sent by Harvey from Florida to New Jersey to stay with Miriam. She did not pack all her belongings; as Miriam contends, she was sent to New Jersey with only two day's worth of clothing. She did not change any bank accounts or remove with her any important possessions and she had in her possession a return airline ticket to Florida for a flight on November 1, 1997. Since that time Harvey and Miriam have disagreed as to whether Mrs. Jacobs should return to Florida, leading to the filing of this action by Miriam and Harvey's motion to dismiss.
Domicile is in "a strict legal sense . . . the place where [a person] has his true, fixed, permanent home and principal establishment, and to which, whenever be is absent, he has the intention of returning, and from which he has no present intention of moving." See, Cromwell v. Neeld, 15 N.J. Super. 296, 300, 83 A.2d 337 (App.Div. 1951). It is well settled that a domicile may be acquired in one of three ways: (1) through birth or place of origin; (2) through choice by a person capable of choosing a domicile; and (3) through operation of law in the case of a person who lacks capacity to acquire a new domicile by choice. Gillmore, supra, 101 N.J. Super. at 87, 243 A.2d 263. Miriam's chief contention centers on the second method; Miriam claims that while Mrs. Jacobs is in such a mental condition that she will eventually be declared to be an incapacitated person, she may still have the capacity to choose a domicile.
It has been generally expressed by a number of jurisdictions — in a way which merely begs the question — that one who has been adjudged mentally incapacitated or who has been shown to be mentally deficient at the time of a change in domicile has been alleged to have occurred, may possess sufficient mental capacity to elect a new domicile. See, for example, Restatement Contracts 2d § 23 ("A person who is mentally deficient may acquire a domicil of choice if he has sufficient mental capacity to choose a home"). See also, In re Sherrill's Estate, 92 Ariz. 39, 373 P.2d 353 (1962); Estate of Phillips, 269 Cal.App.2d 656, 75 Cal.Rptr. 301 (1969); Matthews v. Matthews, 141 So.2d 799 (Fla.App. 1962); In re Estate of Peck, 80 N.M. 290, 454 P.2d 772 (1969), cert. denied 396 U.S. 942, 90 S.Ct. 376, 24 L.Ed.2d 242 (1969); Groseclose v. Rice, 366 P.2d 465 (Okla. 1961); and the cases cited in Annotation, "Change of State or National Domicil of Mental Incompetent", 96 A.L.R.2d 1236 (1964). These authorities, while apparently recognizing a lesser mental capacity for the choosing of a domicile than the ability to care for one's self or property, do not define that capacity or clarify the distinction.
A few older decisions of our courts appear to create a higher obstacle for an effective choice of domicile by an incapacitated person. See, In re Collins', 11 N.J. Misc. 233, 235, 165 A. 285 (Surr.Ct. 1932)("An incompetent person is generally assumed in law not capable of forming an `intention' to change domicile"); cf., In re Child, 16 N.J. Eq. 498 (Chan. 1864). A more recent decision which discussed the ability of an incapacitated person to choose a new home found her "so advanced in senility at the time she left her New York home to live in New Jersey that she did not possess the requisite mental capacity to make a new domicile by choice." Gillmore, supra, 101 N.J. Super. at 87, 243 A.2d 263. But that statement could as easily support a conclusion that the level of incapacity which would warrant the appointment of a guardian is the same as the standard necessary to make an effective choice of domicile as not.
It is true that courts should refrain from limiting an incapacitated persons rights whenever possible. Even those who are generally incapacitated vary widely in their degree of alertness and in their ability to communicate. Our Supreme Court has found that a person may be competent to make a medical decision regarding a course of medical treatment even if previously adjudicated in need of a guardian. In re Conroy, 98 N.J. 321, 382, 486 A.2d 1209 (1985). Because there are many levels of mental capacities and because the appointment of a guardian is a significant restriction of a persons liberty and pursuit of happiness, the Supreme Court has directed trial courts to "preserve as much as possible their right of self-determination while discharging the judicial responsibility to protect their best interests." In re M.R., 135 N.J. 155, 167, 638 A.2d 1274 (1994). The Court in M.R. said that "someone who is unable to manage his or her own affairs may still be capable of deciding where and with whom to live." 135 N.J. at 169, 638 A.2d 1274. That would appear to resolve the legal issue raised herein except the context in which that comment was made by the Supreme Court is strikingly different. M.R. was a mildly to moderately retarded 21 year old woman with Down's Syndrome. The question in M.R. concerned which divorced parent would be M.R.'s primary caregiver. It is important to observe that the Court's words about M.R.'s ability to choose "where and with whom to live", even if she was in need of a guardian, were directed toward M.R.'s choice between parents residing in the same jurisdiction. Moreover, in that context, the Court recognized that her choice "if proved incorrect, can be corrected". 135 N.J. at 169, 638 A.2d 1274. The Court did not have before it a choice by the incapacitated person to live outside the jurisdiction which might not be so easily correctable for reasons expressed elsewhere in this Opinion.
Our Supreme Court has drawn no bright lines with respect to the scope of autonomy of incapacitated persons; however, in light of Conroy and M.R., the Court would no doubt conclude that those who, have been or will be determined to be incapacitated persons may still, upon an appropriate showing of capacity, choose a different state as their own domicile. As with the ability to choose between medical choices or which parent's home to primarily live in, the choice of a "[d]omicile is very much a matter of the mind — of intention," Lyon v. Glaser, 60 N.J. 259, 264, 288 A.2d 12 (1972). It is beyond quarrel in the wake of these cases, and particularly M.R., that a person in need of a guardian may nonetheless have the capacity to choose a domicile. Ultimately, with respect to any natural and inalienable, right, including the right to choose a home, whether an incapacitated person will be permitted self-determination depends upon the facts presented.
Miriam claims that it is Mrs. Jacobs' desire to remain in New Jersey and to be declared domiciled here. Certainly, if Mrs. Jacobs were a person who has lucid periods and an ability to, at times, think and communicate clearly, her views on that subject would be of interest. The medical evidence presented, however, does not factually support the legal argument Miriam has raised. As required by R. 4:86-2, Miriam appended two medical certifications. The certification of Dr. Joel S. Ross indicates that he found Mrs. Jacobs to have "significant cognitive deficits and memory loss"; he concluded that she is "unfit and unable to govern herself and to manage her affairs and will continue so to be indefinitely." Dr. Isaac J. Dweck stated under oath that he does "not believe [Mrs. Jacobs] is capable of making any financial or medical decisions [and that he does] not believe she is fully capable of comprehending information given to her"; he concluded that Mrs. Jacobs is "unable to make an informed decision." No exception to these sweeping conclusions was suggested by either medical expert. Accordingly, there is no medical evidence to support Miriam's argument that while Mrs. Jacobs may lack the ability to manage and govern her affairs "she can still express her desires on where she wants to live" in a rational or meaningful way Psb at 5. It may be true that a court of competent jurisdiction, upon declaring her to be an incapacitated person, should consider Mrs. Jacobs' desires as to where she wants to live in making such an order as is just and proper. However, in the face of the medical proof submitted, it cannot be said that any expressions of Mrs. Jacobs, whom all interested parties believe to be an incapacitated person, should be equated with the mental process needed to rationally choose a domicile. In short, a court should be open to considering what Judge Carton referred to as an incapacitated person's "glimmerings of rationality," Gillmore, supra, 101 N.J. Super. at 87, 243 A.2d 263, in regard to a choice of residence. But a court should also be quite careful not to base a ruling on such "glimmerings" when the medical evidence eliminates that persons ability to make any informed decision.
After oral argument, plaintiff's counsel submitted a supplemental brief neither requested nor permitted by the court. Nevertheless, the court has reviewed and considered this supplemental brief as well as defendant's response.
Counsel for Harvey Wartell agrees that Mrs. Jacobs is an incapacitated person as does Mrs. Jacobs, through her court appointed attorney.
Miriam has not urged the third method by which a domicile could be changed: by operation of law. Gillmore sets forth the factors and circumstances which a court will evaluate in determining whether a new domicile has, in fact, been established by operation of law. The question which this court must answer is whether Rose Jacobs established such a "settled connection" with New Jersey since her arrival in October of 1997, that she can be considered to have become domiciled here even if she was personally unable to make that choice. See, Gillmore, supra, 101 N.J. Super. at 87, 243 A.2d 263. Mrs. Jacobs retains and possesses a home in Florida. Her assets and bank accounts are located there, as are members of her family, friends, doctors and health aides. The day care center in which she resided is in Florida, and her personal possessions, such as clothing and jewelry, remain there. Unlike the incapacitated (then, incompetent) person in Gillmore, the ties which Mrs. Jacobs maintains with her Florida domicile remain numerous and strong.
Accordingly, this court finds that Mrs. Jacobs was, in October 1997, and is now, mentally incapable of choosing a new domicile and that the circumstances outlined above do not suggest that her domicile was changed to New Jersey by operation of law.
In the final analysis, it is important to recognize and emphasize that, contrary to what Miriam argues, such a result does not hamper or eliminate the rights of incapacitated persons. It is critical that a court cautiously consider the upshot of a finding of a change in domicile. The record includes an impressive array of proof that Mrs. Jacobs remains domiciled in Florida. For this court to exercise jurisdiction in the face of the likelihood that a Florida court could also properly exercise jurisdiction over Mrs. Jacobs presents the possibility of an unseemly conflict between jurisdictions. For example, compare In re Dorrance's Estate, 115 N.J. Eq. 268, 170 A. 601 (Prerog.Ct. 1934), supplemented 116 N.J.Eq 204, 172 A. 503 (Prerog.Ct. 1934), aff'd 13 N.J. Misc. 168, 176 A. 902 (Sup.Ct. 1935), aff'd 116 N.J.L. 362, 184 A. 743 (E. A. 1936), cert. denied 298 U.S. 678, 56 S.Ct. 949, 80 L.Ed. 1399 (1936) with In re Dorrance's Estate, 309 Pa. 151, 163 A. 303 (1932), cert. denied 288 U.S. 617, 53 S.Ct. 507, 77 L.Ed. 990 (1933). In the Pennsylvania litigation it was concluded that Dr. Dorrance was domiciled in Radnor, Pennsylvania at the time of his death and was assessed transfer inheritance, taxes of nearly $15,000,000; the Supreme Court of the United States denied the Estate's petition for certiorari. In New Jersey, it was determined that the Pennsylvania decision was not binding, that Dr. Dorrance was domiciled in Cinnaminson, New Jersey at the time of his death and that it was proper to assess transfer inheritance taxes in excess of $12,000,000; the Supreme Court of the United States denied the Estate's petition for certiorari. To add insult to this injury, the New Jersey courts denied any deduction to the Estate for the taxes paid to Pennsylvania because the statute authorizing deductions for "transfer taxes paid or payable to other states" must have meant "transfer taxes for which there was a legal liability on the part of the estate, under the laws of this state or binding this state." 116 N.J.Eq. at 207, 172 A. 503. Since our Prerogative Court viewed the Pennsylvania holding that Dr. Dorrance was domiciled in Pennsylvania to be "erroneous and illegal," id. at 206, 172 A. 503, it found that there should be no deduction because the Estate had no legal liability to pay taxes to Pennsylvania. The well-established law that a person can have only one domicile, and that such a tax may only be constitutionally assessed and levied upon by one state, that is, the state where the decedent was domiciled at the time of death, must have provided little comfort to the Dorrance family.
Happily, Harvey has shown restraint and not commenced an action in Florida. Such an event would have presented the potential for a multi-jurisdictional squabble over Mrs. Jacobs, the likely appointment of more than one guardian and a struggle over the future location of her person and the disposition of her property. Since this court will dismiss the present action for lack of jurisdiction, this possibility has been avoided. But, it is important to recognize how a cautious approach to determining the domicile of an alleged incapacitated person is not harmful but beneficial to the rights of such persons who, in their twilight years, need not and should not become a res fought over by warring children and welcoming courts. It is better that courts skeptically view whether a change in the domicile of an incapacitated person has occurred; if too much reliance is placed on the "glimmerings of rationality" of an incapacitated person, then the risk of a multi-jurisdictional dispute and a repeat of Dorrance is enhanced. See also, Texas v. Florida, 306 U.S. 398, 410-411, 59 S.Ct. 563, 83 L.Ed. 817 (1939).
Miriam appears to argue that since Mrs. Jacobs is physically present in this State no other court will be able to hold that she is domiciled elsewhere. In other words, Miriam appears to believe that a court in Florida will not be able to obtain jurisdiction to determine whether a guardian should he appointed for Mrs. Jacobs if Mrs. Jacobs is present in New Jersey. That is not an accurate statement. Again, persons who are not capable of choosing a new domicile do not lose their domiciles when crossing state lines. For that matter, neither do persons of sound mind. As Lord Eldon said long ago, "If a man resident in the city of London, were conveyed by force into Essex, he would still for this purpose he resident in the city. A men cannot be said to reside in a piece, to which he has been carried, while he has not mind enough to intend a change of residence." Child, supra, 16 N.J.Eq. at 498 (emphasis added).
This court will not exercise subject matter jurisdiction over this action and, for that reason only, the complaint will be dismissed.
It was earlier observed that all the litigants to this action, including the court appointed counsel for Mrs. Jacobs, agree that she should be declared "an incapacitated person". Notwithstanding, this court, in light of its lack of jurisdiction, has made no such finding on that issue.