HOME FOR THE ARMENIAN AGED, INC v. ARAXIE SYMEONIDIS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1048-11T4

HOME FOR THE ARMENIAN AGED, INC.,

d/b/a THE ARMENIAN NURSING &

REHABILITATION CENTER,

Plaintiff-Appellant,

v.

ARAXIE SYMEONIDIS and

EUGENIE BABOUDJIAN,

Defendants-Respondents.

November 19, 2012

Submitted September 11, 2012 - Decided

Before Judges Alvarez and Waugh.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-0578-10.

Mark S. Carter, attorney for appellant.

Respondents have not filed a brief.

PER CURIAM

Plaintiff Home for the Armenian Aged (the Home) appeals the October 12, 2011 dismissal with prejudice after trial of its complaint against defendant Araxie Symeonidis. Final judgment by default had previously been entered against the second defendant, Eugenie Baboudjian. For the following reasons, we affirm.

Symeonidis and Baboudjian met in 2006. Symeonidis, a certified home health care aide, and Baboudjian, who was then living alone and was in her late eighties or early nineties, are Armenian. Symeonidis speaks English but has a limited ability to read or write English.

Shortly after becoming acquainted, Baboudjian and Symeonidis agreed that Baboudjian would move to Symeonidis's home in order for Symeonidis to care for her full-time. Baboudjian's attorney prepared a contract memorializing their understanding, and although not entirely clear from the record, Baboudjian signed two powers-of-attorney designating Symeonidis as her attorney-in-fact, one giving her access to Baboudjian's bank account, and the other a general power-of-attorney authorizing her to make arrangements for Baboudjian's medical care.

The agreement was mutually satisfactory. After Baboudjian fell a third time while in Symeonidis's home, however, the Hackensack University Medical Center, Baboudjian's treating hospital, instead of releasing her, transferred her to the Home on September 19, 2008. Symeonidis was not consulted about the decision and, in fact, learned of it only when she went to the hospital to visit and found Baboudjian was gone. In hospital records, Symeonidis was listed both as the power-of-attorney and next-of-kin, although only the former was accurate.

At trial, Matthew Russo, the Home's administrator, testified that Baboudjian, "despite seeming" coherent and lucid on the date of transfer, refused to sign the Home's twenty-two-page "Admissions Agreement." Therefore, a few days later, the Home obtained Symeonidis's signature instead. The Admissions Agreement purported to make Symeonidis personally liable for the cost of Baboudjian's care. The document also obliged Symeonidis to apply on Baboudjian's behalf for Medicaid coverage, if Baboudjian's own assets and Social Security benefits should prove insufficient.

Although Russo recalled telling Symeonidis to read and sign each page of the document, he remembered no other detail regarding their meeting. Despite testifying that Symeonidis was the party "responsible" for expenses pursuant to the Agreement, Russo candidly admitted that the Home had not expected Symeonidis to pay Baboudjian's bills because she was not related nor otherwise legally responsible. The Home did expect Symeonidis to apply for Medicaid benefits, however, and pay any balance due from Baboudjian's estate. Because Symeonidis unsuccessfully applied for Medicaid twice, the Home itself eventually applied for Medicaid benefits for Baboudjian through the Bergen County Board of Social Services. Though Baboudjian was not receiving Medicaid at the time of trial, Russo explained that after a penalty period, the Home would receive Medicaid reimbursement for Baboudjian's care commencing April 2012.

The trial judge found all the witnesses credible, including Jill Kerrs, a bookkeeper, who testified that the Home was owed $272,205.66 for services rendered to Baboudjian. Kerrs had no knowledge regarding individual charges, only that the amount was the total unpaid balance due for Baboudjian's care on the Home's books and records.

The trial judge noted that the fourteen separate counts in plaintiff's complaint included demands based on contract principles as well as other theories, such as quantum meruit. She also observed that Symeonidis's signature on the Agreement was not even necessary, as Baboudjian, the actual patient, was competent when she was transferred to the Home from the hospital. The judge found the Admissions Agreement to be a contract of adhesion because the lengthy form was boilerplate, presented to Symeonidis by the Home on a take-it-or-leave-it basis, and Symeonidis did not understand its terms, given her limited grasp of written English. Furthermore, the judge opined that "by implication" Symeonidis was forced to sign, as otherwise, Symeonidis feared Baboudjian would not receive necessary care. Although the contract did not violate public policy per se, and was not entered into through unconscionable means, Symeonidis perceived herself to have no real alternative but to sign it.

Additionally, the Home did not actually expect Symeonidis to pay for Baboudjian's nursing home care out of her own funds, because she and Baboudjian were not related. This factor may have also lulled Symeonidis into a false sense of security about the Admissions Agreement as she might have assumed that, despite her signature, she would not be held personally responsible.

Finally, the court concluded that the sum in dispute, $272,205.66, had not been proven by plaintiff by a preponderance of the evidence. Plaintiff did not proffer any testimony regarding the nature or value of specific services, or of specific charges, only testimony as to the total unpaid balance. Hence the trial court dismissed the complaint in its entirety.

Plaintiff raises two points for our consideration on appeal:

POINT I

THE TRIAL COURT'S ORDER OF DISMISSAL WITH PREJUDICE MUST BE REVERSED BECAUSE THERE WAS NOTHING TO SUPPORT A FINDING OF A CONTRACT OF ADHESION

POINT II

THE TRIAL COURT'S FINDING THAT EVEN IF LIABILITY CAN ATTACH TO DEFENDANT, THERE WAS NO PROOF OF DAMAGES IS IN ERROR UNDER THE PLAIN ERROR STANDARD

The Home disputes the trial judge's finding that the Admissions Agreement was a contract of adhesion. That this standardized preprinted contract was presented to Symeonidis, a person with limited English-language skills and no legal responsibility for the cost of Baboudjian's care, on a take-it-or-leave-it basis, however, weighs in favor of the finding. See Rudbart v. N. Jersey Dist. Water Supply Comm'n, 127 N.J. 344, 356 ("Thus, in determining whether to enforce the terms of a contract of adhesion, courts have looked not only to the take-it-or-leave-it nature or the standardized form of the document but also to the . . . parties' relative bargaining positions . . . ."), cert. denied, 506 U.S. 871, 113 S. Ct. 203, 121 L. Ed. 145 (1992); Ruszala v. Brookdale Living Cmtys., Inc., 415 N.J. Super. 272, 294-95 (App. Div. 2010) ("A contract of adhesion 'is . . . presented commonly in a standardized printed form, without opportunity for the adhering party to negotiate except perhaps on a few particulars.'" (quotation omitted) (quoting Rudbart, supra, 127 N.J. at 353)).

Symeonidis was not afforded the opportunity to consult with an attorney or given an Armenian-language version of the document. Therefore, the judge's opinion that this was a contract of adhesion, "evidencing indicia of procedural unconscionability," was not error. See Ruszala, supra, 415 N.J. Super. at 279.

Moreover, it was unrefuted that Symeonidis believed that if she did not sign, Baboudjian would not receive necessary care, in addition to her confusion about the meaning of the Admissions Agreement. Nothing in the record compels us to disturb these findings, based on the trial judge's determination that Symeonidis was a credible witness. See State v. Locurto, 157 N.J. 463, 474 (1998) ("Appellate courts should defer to trial courts' credibility findings that are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record.").

After finding that the Admissions Agreement was a contract of adhesion, the judge then addressed the further question of whether it would be unconscionable to enforce it, as not all contracts of adhesion are unenforceable. See Muhammad v. Cnty. Bank of Rehoboth Beach, 189 N.J. 1, 15-16 (2006), cert. denied, 549 U.S. 1338, 127 S. Ct. 2032, 167 L. Ed. 2d 763 (2007) (explaining that a contract of adhesion begins a "sharpened inquiry" into unconscionability based on factors such as bargaining power, the contract's subject matter, the public interest, and "the degree of economic compulsion motivating the 'adhering' party"). After taking into account the circumstances surrounding Symeonidis's signature, the judge also took into account Symeonidis's expressed belief the document only made it possible for the Home to care for Baboudjian. Russo himself said that the Home did not anticipate pursuing Symeonidis personally for the debt, thereby unwittingly conveying the false impression that signing the Admissions Agreement had "no urgency" and "no financial importance."

We agree with the trial judge's conclusion that under these circumstances it would be unconscionable to hold Symeonidis responsible. She was confused about the meaning of the Admissions Agreement, may have been innocently misled by the Home staff, had limited literacy language skills, and was not personally responsible for Baboudjian's care. Given the subject matter of the contract, the parties' relative bargaining positions, the degree of economic compulsion motivating the adhering party, and the public interests affected by such contracts, the judge did not err in determining that the contract was unenforceable due to substantive unconscionability. See Ruszala, supra, 415 N.J. Super. at 296. As the trial court said, it is not in the public interest to permit providers to make strangers responsible for nursing home expenses in excess of a quarter of a million dollars. See id.

Because we agree that this was an unenforceable contract of adhesion, we affirm dismissal of the complaint against Symeonidis with prejudice. Thus we do not reach plaintiff's second point, that the court was presented with adequate proofs regarding damages.