RICHARD K. CACIOPPO v. JOHN C. EMOLO

Annotate this Case


NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION


SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2236-08T2



RICHARD K. CACIOPPO, Individually

and as Guardian of the Person and

Property of TRACEY L. DEGROOT, an

Incapacitated Person,


Plaintiff/Cross-Appellant,


v.


JOHN C. EMOLO, GAIL BRAUN-EMOLO,


Defendants/Cross-Respondents,


and


JOSEPH E. COLLINI, EMOLO &

COLLINI, ESQS., JOHN EMOLO, SR.

and ROSE EMOLO,


Defendants.

_____________________________________


JOHN C. EMOLO and GAIL BRAUN-EMOLO,


Defendants/Third-Party Plaintiffs-

Appellants,


v.


RICHARD K. CACIOPPO, Individually,


Third-Party Defendant-Respondent.

______________________________________

August 19, 2011


Argued March 23, 2011 - Decided


Before Judges Axelrad, R. B. Coleman and Lihotz.


On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-6381-08.


Joseph E. Collini argued the cause for appellants/cross-respondents (Emolo & Collini, attorneys; Mr. Collini, on the brief).


Richard K. Cacioppo, respondent/cross-appellant, argued the cause pro se.


PER CURIAM

This appeal is related to the consolidated appeals arising out of Emolo v. Emolo (Docket Nos. A-2746-08 and A-3836-08). Tracey L. DeGroot, f/k/a Tracey Emolo, is the former wife of defendant John C. Emolo. On July 11, 2008, plaintiff Richard K. Cacioppo was named DeGroot's legal guardian. In this capacity, plaintiff filed a complaint seeking recovery for abusive litigation practices by defendants Emolo, his current wife Gail Braun-Emolo, Emolo's law partner Joseph E. Collini who represented Emolo in the contentious post-judgment matrimonial litigation with DeGroot, the firm Emolo & Collini, Esqs., and Emolo's parents Rose and John Emolo, Sr. In response, defendants filed a counterclaim and a third-party complaint, chiefly attacking the manner in which Cacioppo procured the judgment of guardianship.

On plaintiff's motion, the trial court dismissed the counterclaim/third-party complaint, with prejudice. The cross-motion filed by defendants seeking an order dismissing the complaint with prejudice was also granted.

Emolo and Braun-Emolo appealed from the order dismissing the counterclaim/third-party complaint, arguing the trial court erred in failing to provide an explanation for its conclusion. Cacioppo filed a cross-appeal from the order dismissing his complaint, asserting the court erred in concluding he failed to set forth viable claims for relief.

We have considered the arguments presented on appeal, in light of the record and applicable legal principles. We affirm the orders dismissing the claims of all parties.

As background, Emolo and DeGroot, who are divorced, were embattled in an extensive post-judgment evidentiary hearing on their respective applications to terminate or modify alimony. The hearing began on June 10, 2005. The parties rested on April 17, 2007, and the court rendered its final order on June 17, 2008.

Sometime in June 2008, Cacioppo sought to intervene in the matrimonial matter to join in the action on DeGroot's behalf or be appointed as the guardian ad litem. The Family Part judge denied this application on June 28, 2008.

Cacioppo then filed a complaint, venued in a county different from that where the matrimonial action was pending, seeking guardianship of DeGroot. On July 11, 2008, after review of the matter, Judge Peter E. Doyne entered an order appointing Cacioppo as guardian of the person and property of DeGroot.

In his capacity as DeGroot's guardian, Cacioppo sent a notice to Emolo and Braun-Emolo informing them of the many lawsuits he intended to pursue of behalf of his ward, DeGroot. His correspondence provided an "offer to compromise in settlement" of various claims. On DeGroot's behalf, Cacioppo agreed to accept an agreement that Emolo pay DeGroot permanent alimony of $25,000 per month, a "[o]ne time payment of $5,000,000," and transfer of title of a beach home "free of all encumbrances." Not surprisingly, given the excessiveness of the demands and the animus between all parties, the "settlement" offer was declined.

Cacioppo filed a fifty-five page multi-count complaint against all defendants, wherein he described a "malicious conspiracy with only one purpose[:] to physically, mentally, emotionally and financially injure and damage DeGroot and any other persons they believed were assisting or would in the future assist DeGroot[.]"

Along with an answer, defendants filed a counterclaim against Cacioppo in his capacity as guardian and a third-party complaint against him individually, essentially contending the guardianship was procured by fraud because DeGroot was not incompetent and notice was not given to Emolo as a necessary party.1 Also, defendants alleged Cacioppo was committing legal malpractice.

Cacioppo moved to dismiss the counterclaim/third-party complaint with prejudice for failure to state a claim upon which relief could be granted. Rule 4:6-2(e). Defendants Emolo, Braun-Emolo, Collini, and the law firm filed a cross-motion to dismiss the complaint with prejudice. Following oral argument, the court entered two orders. The first dismissed defendants' counterclaim/third-party complaint with prejudice. No statement of reasons was attached to that order. The second dismissed Cacioppo's complaint with prejudice, and was accompanied by a detailed statement of reasons.

Emolo and Braun-Emolo appealed, asserting error because the court failed to state the basis for its conclusion to dismiss the counterclaim/third-party complaint. Emolo and Braun-Emolo suggest "the fraudulently procured judgment of guardianship over DeGroot's person and property" allows Cacioppo to pursue baseless litigation "to injure and extort money and property from the third-party plaintiffs by abusing civil process." They maintain the claims stated in the third-party complaint and counterclaims should be permitted to be "preserved" so the issues may be raised "in other forums," such as the Chancery Division and, therefore, seek dismissal without prejudice. Cacioppo's appeal suggests the court's assessment of the allegations in the complaint were incorrect and the dismissal was erroneous. We review these two matters in turn.

Emolo and Braun-Emolo contend Cacioppo failed to disclose to the court facts that affected the guardianship proceedings. Principally, they asserted Cacioppo did not reveal DeGroot was involved in matrimonial litigation in another county in contravention of the requirement of Rule 4:5-1(b)(2).2 Further, in the matrimonial litigation, Emolo had contested DeGroot's asserted psychiatric problems and opposed Cacioppo's request to be appointed DeGroot's guardian ad litem, which the Family Part judge denied. Finally, Emolo and Braun-Emolo maintained they were necessary parties who should have been joined in the guardianship action pursuant to Rules 4:28-1(a)(2)(i)3 and 4:29-1(b).4

We agree with Emolo and Braun-Emolo that the motion judge failed to clearly articulate the factual underpinnings or legal basis for his conclusions. A trial court's obligation to make such findings of fact and conclusions of law is critical to an appellate court's "meaningful review." Ronan v. Adely, 182 N.J. 103, 110-11 (2004). This requirement is succinctly stated in Rule 1:7-4(a), which mandates the court "shall, by an opinion or memorandum decision, either written or oral, find the facts and state its conclusions of law . . . on every motion decided by a written order that is appealable as of right."

Generally, when a trial court has not made adequate findings and conclusions, we will remand for the court to do so. Foley, Inc. v. Fevco, Inc., 379 N.J. Super. 574, 588-89 (App. Div. 2005); Barnett & Herenchak, Inc. v. State of N.J., Dep't of Transp., 276 N.J. Super. 465, 470-73 (App. Div. 1994). However, if the appeal turns on an interpretation of the law and the legal consequences that flow from established facts, our review is de novo, making remand unnecessary. Manalapan Realty v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

Three claims of the counterclaim/third-party complaint attack the efficacy of Cacioppo's appointment as guardian and the other alleges "abuse of process-legal malpractice." All of the allegations are entwined with the matrimonial proceedings as Emolo believes any actions by Cacioppo are designed to secure a permanent alimony award for DeGroot.

A fundamental legal impediment precludes defendants' action attacking the guardianship: defendants have no standing to do so. In re D.K., 204 N.J. Super. 205, 213-15 (Ch. Div. 1985). Therefore, counts one, three and four of the counterclaim/third-party complaint were properly dismissed with prejudice.

An action for guardianship of a mentally incompetent person is a summary action. R. 4:83-1. See also N.J.S.A. 3B:12-24. Rules 4:86-1 and 2 describe the contents of a verified complaint, including the relationship of the plaintiff to the alleged incompetent and the plaintiff's "interest in the action." N.J.S.A. 3B:12-25 discusses the priority of certain persons who may move for guardianship of an incapacitated person, identifying the authority of a spouse or domestic partner or the incapacitated person's heirs, or friends, or, in the appropriate case, the Office of the Public Guardian for Elderly Adults.

There are only a few trial court opinions that address standing of a plaintiff in a guardianship action. In In re Tierney, 175 N.J. Super. 614, 618 (Law Div.), aff'd, 177 N.J. Super. 245 (App. Div. 1980), the Chancery Division examined the objection filed by the alleged incompetent Jane Tierney. Apparently, Tierney developed concerns that her finances were being mismanaged by her childhood friend, Mary Sawyer, who held control of Tierney's financial affairs through a power of attorney. Id. at 617. Tierney revoked the power of attorney and executed a new one in favor of her lawyer. Ibid. Sawyer filed a guardianship action six days later. Id. at 618. Tierney opposed the application to appoint a guardian and sought to release funds to her lawyer, which Sawyer declined. Ibid.

The court considered the question of Sawyer's standing to request appointment as Tierney's legal guardian. Ibid. The trial court referred to In re Oswald, 132 N.J. Eq. 325 (Ch. 1942), the only available authority on the issue. The Tierney court followed Oswald's holding that a person seeking to be named as guardian is a relative and a "mere stranger" cannot bring an action. Tierney, supra, 175 N.J. Super. at 618 (citing Oswald, supra, 132 N.J. Eq. at 326).

Since Tierney was decided, only D.K., supra, touched on the issue of standing, but the holding addresses issues greatly disparate from those presented here. 204 N.J. Super. at 214-15. The trial court in D.K. reiterated the historical discussion of past opinions, also analyzed in Tierney that addressed standing in guardianships, making it clear "that a plaintiff must be a relative, or a creditor or must exhibit a relationship based upon contract, trust or confidence. A 'mere stranger' cannot bring an action. See also In re Schiller, 148 N.J. Super. 168 (Ch. Div. 1977)." D.K., supra, 204 N.J. Super. at 214 (quoting Tierney, supra, 175 N.J. Super. at 618).

No appellate court has examined the question posed here, that is, whether a former husband and his current wife have standing to assert claims attacking the judgment of guardianship of his former wife which has been granted to another. A review of the Chancery cases cited in Tierney leads to the conclusion that they do not.

The trial judge in Tierney observed, "Oswald, supra, [was] the only reported New Jersey case which directly addressed the issue of a proper plaintiff in mental incompetency proceedings . . . ." Tierney, supra, 175 N.J. Super. at 619 (footnote omitted). The Tierney court recognized the now statutory requirements that a plaintiff must state his or her relationship to the alleged incapacitated person, and if plaintiff is not the incapacitated party's spouse, domestic partner or next of kin, the interest of the plaintiff "reflects and substantiates the general rule that a proper complainant must be a relative or a person with a legal or equitable interest in the subject of the action." Id. at 622. See also N.J.S.A. 3B:12-25. The court further noted that a legal or equitable interest could mean a creditor of the alleged incapacitated person. Tierney, supra, 175 N.J. Super. at 622.

In reaching its conclusion, the trial court discussed Oswald, as well as "a long line of earlier cases in which the New Jersey Chancery Court addressed the standing issue in dicta."

In In re Covenhoven, 1 N.J. Eq. 19 (Ch. 1830), the chancellor examined the alleged standing of various parties who sought to be named the guardian of the putative incapacitated person. Id. at 21. In discussing the application made by the putative ward's attorney, who also held his client's power of attorney, the court held the applicant did not have a sufficient legal or equitable interest to intervene in the incompetency proceedings, stating:

It is clear that a stranger has no right to interfere in a proceeding of this nature. He can neither sue out a commission, nor can he make himself a party to it by any application he may make to this court. I take it to be equally clear, that when a person has actual interests either equitable or legal, which are affected by the inquisition, he may apply to this court for relief. . . . Proceedings [for guardianship] are ex parte; and although they are not conclusive as to the rights of third persons, yet, when those rights are affected by the inquisition, it is equitable and just that the party aggrieved should have an opportunity of being heard in such mode as may best comport with justice and the rights of all interested.


[Ibid.]


Emolo and Braun-Emolo are legal strangers to DeGroot. They have neither a legal nor equitable interest in the guardianship action. We reject the suggestion that Emolo was a necessary party in that action as defined by Rule 4:28-1(a)(2)(i). The suggestion that the guardianship-centered claims should be "preserved" for future actions is nonsensical and legally meritless.

The fact that Cacioppo failed to inform Judge Doyne that DeGroot was embroiled in a matrimonial action clearly violates Rule 4:5-1(b)(2). We are mindful that this nondisclosure, if willful, arguably was designed to assure the judgment of guardianship was granted. However, we cannot speculate as to the impact of Cacioppo's withholding. Such a claim can and should only be raised before the issuing court by a person who has standing to do so.

The final cause inartfully pled in count two as "abuse of process-legal malpractice" implies Cacioppo, who is not a New Jersey lawyer, conspired with DeGroot to commit "legal malpractice" by breaching "legal and ethical" duties to Emolo and to the Family Part judge in the matrimonial matter. If the intention was to argue the presentation before the Family Part was frivolous, see R. 1:4-8, the issues must be presented before that court. Any relief permitted against self-represented litigants for engaging in vexatious legal process must be filed in the forum of the frivolous litigation; it is not the basis of a completely independent legal action. See Trocki Plastic Surgery Ctr. v. Bartkowski, 344 N.J. Super. 399, 404-05 (App. Div. 2001), certif. denied, 171 N.J. 338 (2002) (permitting a claim pursuant to Rule 1:4-8 against a pro se litigant).

Finally, we are unable to comprehend what possible legal malpractice claim is held against Cacioppo by these defendants. If the suggestion is somehow one of the unauthorized practice of law, such a claim also cannot be the basis of a civil action by an adversary; it is a regulatory matter. Accordingly, the dismissal of the legal-malpractice claim under count two will not be disturbed.

Turning our review to Cacioppo's contentions of error in his cross-appeal, we are not persuaded the trial court erred in ordering dismissal. He offers no real basis to set aside the trial court's articulated reasons, which we find are legally sound.

"Our review of a motion to dismiss for failure to state a cause of action [under Rule 4:6-2(e)] is governed by the same standard as that applied by the trial court." Donato v. Moldow, 374 N.J. Super. 475, 483 (App. Div. 2005) (citing Seidenberg v. Summit Bank, 348 N.J. Super. 243, 250 (App. Div. 2002)). Our inquiry is limited to "examining the legal sufficiency of the facts alleged on the face of the complaint." Printing Mart-Morristown v. Sharp Electronics, Corp., 116 N.J. 739, 746 (1989) (citing Rieder v. Dep't of Transp., 221 N.J. Super. 547, 552 (App. Div. 1987)). The test for determining the adequacy of a pleading is whether a cause of action is "suggested" by the facts. Ibid. (citing Velantzas v. Colgate-Palmolive Co., 109 N.J. 189, 192 (1988)).

We consider and accept as true the facts alleged in plaintiff's complaint to ascertain whether they set forth a claim against defendants upon which relief may be granted. Donato, supra, 374 N.J. Super. at 483. We search in depth and with liberality to determine if a cause of action can be gleaned even from an obscure statement, particularly if further discovery is taken, giving plaintiff every reasonable inference. Printing Mart-Morristown, supra, 116 N.J. at 746 (internal citations omitted).

In the written statement accompanying its order of dismissal, the trial court reviewed the claims as set forth in each count of the complaint. The court found the underlying support for the first three counts related to statements in prior legal actions that constitutes protected speech and, therefore, is not actionable. Loigman v. Twp. Comm. of Middletown, 185 N.J. 566, 580 (2006). Counts four and five purport to be a special grievance, which the court concludes was not properly pled. Examining count six, the trial judge determined the allegation suggested a breach of duty; however, Cacioppo articulated no duty, which defendants failed to "monitor," "control" or "supervise," which was not a cause of action. The claims for intentional infliction of emotional distress are listed in the seventh count of Cacioppo's complaint. Contrary to the trial court's opinion, an underlying tort is not necessary to support such a claim. Govito v. W. Jersey Health Sys., Inc., 332 N.J. Super. 293, 320-21 (App. Div. 2000). However, to recover, a plaintiff must show he or she has suffered emotional distress so severe that no reasonable person could be expected to endure it. Schillaci v. First Fid. Bank, 311 N.J. Super. 396, 406 (App. Div. 1998). In this matter, all that is asserted is the normal stressors accompanying discordant divorce litigation.

Count nine for nuisance was unaccompanied by an infringed property right. The last counts seeking an injunction and alleging conspiracy are inarticulate and unsupportable. The trial judge noted she was "at a loss to understand what [Cacioppo was] trying to prohibit or restrain" and the statements do not articulate elements necessary for relief.

It is clear Cacioppo's complaint states no basis to grant relief, making dismissal of the complaint appropriate. See Sickles v. Cabot Corp., 379 N.J. Super. 100, 106 (App. Div.) (stating "a court must dismiss the plaintiff's complaint if it has failed to articulate a legal basis entitling plaintiff to relief"), certif. denied, 185 N.J. 297 (2005).

We concur with the trial judge's observation that "the claims presented in the complaint are simply a continuation of the ongoing and longstanding litigation in the [matrimonial] matter." Further, other legal actions alleging the same claims had been reviewed and dismissed. Cacioppo had changed the county of venue and refiled the same contentions. The alleged claims had been or could have been presented in the previous litigation and are now barred. The action was correctly dismissed.

Affirmed.

1 Specifically, defendants' pleading alleges:

Cacioppo was appointed guardian, without a hearing, in the uncontested proceeding, in which he failed to provide notice to the Court pursuant to Rule 4:5-1(b) of other pending matters that related to the proceeding, other actions contemplated and that non-party Emolo was [a] non-party with an interest in the litigation pursuant to Rule 4:28 and/or Rule 4:29-1(b).

2 Rule 4:5-1(b)(2) requires a first pleading, such as a guardianship petition, to certify "whether the matter in controversy is the subject of any other action pending in any court . . . or whether any other action . . . is contemplated; and, if so, the certification shall identify such actions and all parties thereto."

3 Rule 4:28-1(a)(2)(i) provides for the mandatory joinder of a person as a party to an action if "the person claims an interest in the subject of the action and is so situated that the disposition of the action in the person's absence may . . . as a practical matter impair or impede the person's ability to protect that interest[.]"


4 Rule 4:29-1(b) pertinently allows a court, on its own motion, to order the joinder of persons "whose existence was disclosed by the notice required by R. 4:5-1(b)(2)" because of potential liability "to any party on the basis of the same transactional facts."