IN THE MATTER OF HELEN F. PARENTE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0427-05T30427-05T3

IN THE MATTER OF

HELEN F. PARENTE,

An Alleged Incapacitated Person

_____________________________________

 

Submitted March 14, 2006 - Decided March 30, 2006

Before Judges Lefelt and Seltzer.

On appeal from the Superior Court of

New Jersey, Chancery Division, Probate

Part, Middlesex County, 204644.

Nathan E. Arnell and Associates, attorneys

for appellant Carol Ziznewski (Kenneth L.

Moskowitz, of counsel and on the brief).

Fink, Rosner, and Ershow-Levenberg, attorneys for respondents Helen F. Parente and Linda Parente (Linda S. Ershow-Levenberg, of counsel and on the brief).

PER CURIAM

On February 18, 2004, Carol Ziznewski (Carol) filed a complaint seeking a declaration that her mother, Helen F. Parente (Helen), was an incapacitated person. The complaint also sought to have Carol appointed as guardian for her mother. An answer was filed on behalf of Helen and on behalf of her other daughter, Linda Parente (Linda). The complaint was ultimately dismissed on February 17, 2005, and Carol does not appeal from that dismissal. Thereafter, Linda and Helen filed certifications in support of their application for fees pursuant to N.J.S.A. 2A:15-59.1. On August 15, 2005, the same judge who had dismissed Carol's complaint awarded total fees of $20,997.50 together with costs of $140 to Linda and Helen. Carol appeals from that decision.

The judge awarded fees by virtue of the authority contained in N.J.S.A. 2A:15-59.1. That statute permits the award of "all reasonable litigation costs and reasonable attorneys fees" to a prevailing defendant, if the complaint of a non-prevailing plaintiff is "frivolous." A complaint is frivolous if

(1) The complaint . . . was commenced, used or continued in bad faith, solely for the purpose of harassment, delay or malicious injury; or

(2) The nonprevailing party knew, or should have known, that the complaint . . . was without any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification or reversal of existing law.

[N.J.S.A. 2A:15-59.1(b).]

The award of fees under this statute is governed by principles that are now well-settled. The award may be based upon either subsection. Fagas v. Scott, 251 N.J. Super. 169, 189-90 (Law Div. 1991). The law however is to be given "a restrictive interpretation . . . consistent with the premise that in a democratic society, citizens should have ready access to all branches of government, including the judiciary." McKeown-Brand v. Trump Castle Hotel & Casino, 132 N.J. 546, 561-562 (1993). Therefore, under subsection (b) a "claim will be deemed frivolous or groundless when no rational argument can be advanced in its support, when it is not supported by any credible evidence, when a reasonable person could not have expected its success, or when it is completely untenable." Belfer v. Merling, 322 N.J. Super. 124, 144 (App. Div.), certif. denied, 162 N.J. 196 (1999).

A non-prevailing party cannot be found to have acted in bad faith, for the purpose of harassment, delay, or malicious injury simply because that party has made allegations that are ultimately determined to be false. "When the plaintiff's conduct bespeaks an honest attempt to press a perceived, though ill-founded and perhaps misguided, claim, he or she should not be found to have acted in bad faith." Id. at 144-45 (citing McKeown-Brand v. Trump Castle Hotel & Casino, supra, 132 N.J. at 563). Whether fees may be awarded under the statute is to be resolved by the application of an objective, rather than a subjective, test. Iannone v. McCale, 245 N.J. Super. 17, 29 (App. Div. 1990).

Given that background, we review briefly the information before the judge when he decided that Carol's complaint was frivolous. The record reflects that the Middlesex County Board of Social Services became involved with Helen in September 2003 as the result of allegations that funds required for Helen's care were not being provided for her. She was evaluated by a social worker, Gabrala LaPrince, who concluded that Helen "was unable to govern herself and manage her affairs." LaPrince was concerned that Linda, who was then living with Helen, "had a great deal of animosity and antagonism toward [Carol] . . . and that she was obviously influencing Helen Parente against her sister." LaPrince told Carol that "she should seek legal advice regarding a guardianship for her mother."

As a result of that advice, Carol retained counsel who ultimately represented to the judge considering the fee application that he had interviewed Helen and concluded that there was a basis for a suit seeking a declaration of incapacity. Counsel represented further that he had advised Carol that she had a basis to proceed. Carol did file a complaint. See R. 4:86. The complaint did not contain the affidavits of two physicians attesting to the incapacity of Helen. See R. 4:86-2(b). Nor did it contain an affidavit of a physician indicating an attempt to make a personal examination of Helen which was unsuccessful because Helen had refused or was unwilling to submit to such an examination. See R. 4:86-2(c). Instead, it contained a certification by Helen's treating physician that Helen had cancelled an appointment for "a follow-up evaluation of Ms. Parente's medical condition and general well being . . . ." Since it is extremely unlikely that Helen would have submitted to an examination by physicians chosen by Carol, we believe that certification was, under the circumstances present here, sufficient to fulfill the requirements of the Rule. The certification also contained the doctor's statement that "I also have concern about Ms. Parente's ability to care for herself."

Answers were filed by both Helen and Linda. Those answers disclosed that on November 24, 2003, shortly after having been seen by LaPrince, Helen had executed a "springing" durable Power of Attorney. The Power was to become effective only when Helen became unable "to manage [her] property and affairs effectively . . . ." See N.J.S.A. 46:2B-8.2a. and b. After the answers had been filed, the judge ordered a further evaluation by Social Services. That evaluation included examinations by two physicians. The examinations were conducted on October 20, 2004, and November 17, 2004. Both physicians reached the conclusion that Helen was incapacitated.

Nevertheless, the judge then dismissed the complaint on Linda's motion for summary judgment. He relied primarily on the execution of the November 24, 2003, Power of Attorney. The judge explained his decision:

A power of attorney was signed in 2003 and while there are allegations that she is incapacitated and doesn't understand what's going on with respect to that, there is no medical proof to that effect that is going on at this time.

When I had the hearing in . . . August there was a motion at that time to dismiss the complaint for failure to be able to show that [Helen] was incapacitated. And because of the allegations in there I was loath to do so and didn't do that but ordered an additional investigation by Adult Protective Services, and they have that and they are again of the opinion that as of now this lady is incapacitated. . . . [W]hether she is incapacitated at this time or not, there is a durable power of attorney with [Linda] who she selected at a time when there is no evidence really that [Helen was] incapacitated to do so. There are allegations but there are no proofs. Presumption is that she is of sound mind. And it's the animosity of the two sisters involved that is driving this case. As of this moment there is no proof that she was incapacitated at the time. She has a valid power of attorney and she is entitled to continue in that. There's no reason not to. So that I will dismiss the complaint.

When Helen and Linda filed their application for fees, Carol's attorney wrote a letter in response, representing that:

Carol Ziznewski also relied upon the advice of this counsel in authorizing the filing of the guardianship complaint. This counsel had concluded based upon his own interview with Helen Parente that she did not appear to have the requisite mental capacity to execute a durable power of attorney.

Hearing all of this information, the judge, nevertheless, awarded fees. He explained his decision to do so in a letter opinion dated August 15, 2005:

There appears to be a history of animosity between the two children of Helen Parente - Carol Ziznewski and Linda Parente. The complaint filed by Carol Ziznewski made serious allegations and the court out of an abundance of caution permitted the matter to be investigated and thus continue for approximately eleven months. Ultimately however, Carol Ziznewski could not sustain her burden of proof as to Helen's incapacity or that if incapacitated there was a need to ignore the durable power of attorney and have her, Carol Ziznewski, appointed as guardian of the person and property.

The issue of frivolous litigation was raised from the beginning and Carol could have abandoned the litigation shortly after it started or at any point. She did not. Nothing she did enhanced or benefited Helen Parente rather, as a result of her action, Helen Parente was forced to defend herself in the litigation an incur substantial legal fees.

I find that Carol Ziznewski

". . . knew, or should have known that the complaint was without any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification or reversal of existing law," N.J.S.A. 2A:15-59.1(b)(2).

Here Carol filed a complaint without the certifications required by R. 4:86-2(b). Furthermore once the answer was filed and it became apparent that Helen Parente had executed a power of attorney in favor of Linda Parente the suit was continued until judgment of dismissal.

In reviewing the judge's determination to award fees, we recognize that his factual determinations are accorded deference, but only to the extent they are grounded in substantial credible evidence in the record. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974). The legal consequences that flow from the facts thus found are not entitled to any deference. Manalapan Realty v. Twp. Comm. of Twp. of Manalapan, 140 N.J. 366, 378 (1995).

The award of fees was premised on the judge's conclusion that Carol knew, or should have known, that her complaint had no basis in law or equity. We cannot find any support in the record for that conclusion. Initially, it is important to note that the question is not whether Carol prevailed on her complaint; it is, rather, whether any "rational argument can be advanced in its support," or if it is "supported by any credible evidence," or if "it is completely untenable." Belfer v. Merling, supra, 322 N.J. Super. at 124. The evidence demonstrated, as the judge acknowledged, that at the time of the dismissal, two physicians had opined that Helen was incapacitated. Similarly, there was evidence in the form of the LaPrince affidavit that, shortly before the complaint was filed, a trained Social Worker believed Helen to be incapable of managing her affairs. There was, moreover, a history of psychiatric disorder. Even if that evidence was ultimately unpersuasive, there is no basis for concluding that no rational person could expect the complaint to succeed.

The judge believed, however, that the execution of the Power of Attorney in 2003 insulated Helen from a declaration of incapacity and the appointment of a guardian as the result of her mental condition at a later time. The record demonstrates that LaPrince had opined that Helen could not have understood the execution of the Power of Attorney. That opinion, if accepted, would have been sufficient to invalidate the Power of Attorney, even in the face of conflicting expert opinion. See
State v. Bertone, 39 N.J 356, 367-68 (1963) (no distinction in assessing weight and sufficiency of lay and expert testimony regarding sanity), cert. denied, 375 U.S. 853, 84 S. Ct. 113, 11 L. Ed. 2d 80 (1963); State v. Scelfo, 58 N.J. Super. 472, 477-78 (App. Div. 1959) (lay and expert sanity testimony to be evaluated in same manner by fact-finder), certif. denied, 31 N.J. 555 (1960).

Moreover, and more fundamentally, the execution of a durable Power of Attorney does not preclude the appointment of a guardian. See N.J.S.A. 46:2B-8.4. A durable Power of Attorney remains effective despite the appointment of a guardian, but the agent is required to account to the appointed fiduciary. N.J.S.A. 46:2B-8.4a. Accordingly, the prior execution of the Power of Attorney was irrelevant with respect to the appointment of a guardian or a declaration of incapacity.

Because the parties were focused on the effect of the Power of Attorney, they did not directly address the need for a guardian. Nevertheless, LaPrince's fact-based opinion that Linda was influencing Helen against Carol and Carol's certification that she and her children had been excluded by Linda from any contact with Helen, all suggest a basis for the belief that Linda's unsupervised control of Helen was not in Helen's best interests.

Finally, Carol's actions were in accord with the advice she had received from both the Social Worker who evaluated Helen and the attorney she had consulted with respect to filing the complaint. Accordingly we cannot agree with the judge that Carol did not have a legal basis for her complaint and that she knew or should have known that she did not have such a basis. All of the evidence before the judge was to the contrary. Fees were inappropriately ordered.

Reversed.

 

Given the identical last names of two of the disputants, we have, for ease of reference and without any disrespect, referred to the litigants by their first names.

The Power of Attorney cites the statute as N.J.S.A. 46:2(b)-8(b).

(continued)

(continued)

11

A-0427-05T3

March 30, 2006