ALFRED W. RICCO, JR v. OUR LADY OF LOURDES HOSPITAL MEDICAL CENTER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

ALFRED W. RICCO, JR.,

ADMINISTRATOR OF THE

ESTATE OF SOPHIA RICCO,

Plaintiff-Appellant,

v.

OUR LADY OF LOURDES (HOSPITAL)

MEDICAL CENTER; KRESSON VIEW

CENTER, GENESIS HEALTHCARE;

and INNOVA HEALTH & REHAB,

Defendants-Respondents.

____________________________________

October 29, 2013

Submitted October 21, 2013 Decided

Before Judges Harris and Guadagno.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-2976-11.

Alfred W. Ricco, Jr., appellant pro se.

Stahl & DeLaurentis, P.C., attorneys for respondent Our Lady of Lourdes (Hospital) Medical Center (Sharon K. Galpern, on the brief).

Orlovsky, Moody, Schaaff & Conlon, LLC, attorneys for respondents 2601 Evesham Road Operations, LLC d/b/a Kresson View Center i/p/a Kresson View Center and Genesis HealthCare, LLC i/p/a Genesis HealthCare (Alison G. Deaner, on the brief).

The Law Offices of Charles P. Hopkins, II, attorneys for respondent Innova Health & Rehab (Shawna K. Bishop and William Paulus, on the brief).

PER CURIAM

Plaintiff Alfred W. Ricco, Jr. as administrator of the estate of his mother Sophia Ricco appeals from a series of orders that culminated in the August 2, 2012 dismissal of his pro se medical malpractice complaint "in its entirety as to all defendants with prejudice pursuant to R. 1:21-1." We affirm.

I.

Eighty-seven year old Sophia J. Ricco died intestate on June 10, 2009. She was survived by plaintiff and his sister Eileen Libenson Vogel, who executed a renunciation of her right of administration in favor of plaintiff. Consequently, plaintiff applied for, and was granted, letters of administration by the Camden County Surrogate on August 4, 2009.

For some time prior to her death, plaintiff's mother had been treated by several medical facilities, including those owned and operated by defendants. On the second anniversary of his mother's death, June 10, 2011, plaintiff commenced the present action by filing a pro se complaint in his name as the administrator of his mother's estate against only one defendant: "the Genesis HealthCare skilled nursing facility known as Kresson View Center." Plaintiff alleged that his mother's death was caused by that defendant's "inferior care, care not of the kind or cali[b]er normally associated with a skilled nursing care facility, care below the standard of care normally associated with a skilled nursing care facility, and inferior care."

An amended pro se complaint was filed six months later, on December 21, 2011, which added defendants Our Lady of Lourdes Hospital and Innova Health and Rehab. Plaintiff now asserted that his mother's death was the result of "[t]he negligence and carelessness and/or recklessness of . . . [d]efendants[, which] constituted medical care below what is required in the State of New Jersey."

In swift succession, defendants Genesis and Innova moved to dismiss the complaint without prejudice, pursuant to Rule 1:21-1, because the real party in interest was Sophia Ricco's estate, and plaintiff was not licensed to practice law on behalf of the estate. On March 2, 2012, the Law Division entered an order denying the motion to dismiss without prejudice.

Based upon the limited record presented to the motion court, it ruled that plaintiff was a real party in interest as the administrator of his mother's estate, and he was permitted to litigate the allegations in the amended complaint notwithstanding his pro se status.

Among the representations that plaintiff made to the motion court is one contained in the following exchange:

THE COURT: I believe Mr. Ricco, are you the sole heir?

MR. RICCO: I am, Judge. I have letters here if you need this.

THE COURT: No. That's all right. There was information I think in your paperwork, Mr. Ricco, that let the Court know that you I'm sorry. I know you can't hear me very well. It's just you, right?

MR. RICCO: Yes, Judge.

THE COURT: Okay. And Sophia was your mother?

MR. RICCO: She was.

THE COURT: Okay. So, Mr. Ricco is the sole heir, as he stated.

Notwithstanding the foregoing, defense counsel suggested that there might be "takers . . . ahead of Mr. Ricco, who he is, in fact, going to be representing if he represents the estate." The attorney told the court, "that's something that we need to flesh out if we're going to distinguish Kasharian [v. Wilentz, 93 N.J. Super. 479 (App. Div. 1967)]."

The judge agreed, and denied the motion to dismiss without prejudice, stating the following:

Well, what I will do is I will dismiss your motion without prejudice. If you have other further information that can shed light on the information that you need to know, then feel free to file another motion. So, I will dismiss your motion without prejudice, because there may be information that will allow me or another judge to reconsider it.

Genesis promptly moved for reconsideration of the judge's Rule 1:21-1 determination on the ground that plaintiff's sister was a putative heir of their mother's estate. Innova joined in the motion arguing, "The fact that Ms. Ricco has a daughter provides the necessary evidence that Rule 1:21-1 should apply to preclude Mr. Ricco from representing the interests of the estate, as he cannot qualify as the 'real party in interest.'"

At oral argument of the reconsideration motion, the judge acknowledged the existence of plaintiff's sister, recognizing that the renunciation she executed was limited to her right to serve as administrator of the estate. The judge observed that such a renunciation was not a waiver of her right to share, as an heir, in the net proceeds of the estate. Accordingly, the judge reconsidered and modified her earlier determination, now finding that plaintiff was not the only real party in interest vis- -vis the estate, and Rule 1:21-1 prohibited him, as a non-attorney, from representing the interests of third parties.

The judge rejected plaintiff's assertion that plaintiff, nevertheless, could pursue the estate's claims without regard to his sister's interests because as he put it, "My mother did not want my sister to share in any of her proceeds upon her death." The judge noted that such an allegation was not proper for adjudication in the context of the present malpractice action, and in reliance upon Kasharian stated,

It's not distinguishable and what the [c]ourt found in that case is nominal representatives or even active fiduciaries of the persons and beneficial interests not themselves lawyers should not be permitted to conduct legal proceedings in court involving the rights or liabilities of such persons without representation by attorneys duly qualified to practice law.

In other words, if it were just you and only you and not your sister then you could represent yourself in an action in this lawsuit. But it's not just you. . . . You and your sister have competing interests in this case. So it's not allowable under . . . Rule 1:21-1 to have you be the only person prosecuting this case as your own attorney.

Consequently, the motion judge entered an order (mistakenly dated May 4, 20121), which "dismiss[ed] the [c]omplaint and [a]mended [c]omplaint with prejudice pursuant to R[ule] 1:21-1." The order expressly stayed the dismissal "to allow plaintiff [thirty] days to have an attorney enter an appearance on behalf of plaintiff[.]" However, "if an entry of appearance by an attorney-at-law licensed to practice in New Jersey on behalf of plaintiff is not entered by June 15, 2012, the [s]tay of the [o]rder of [d]ismissal will be lifted and the [c]omplaint and [a]mended [c]omplaint will be dismissed with prejudice."

On or about June 14, 2012, plaintiff filed an application in the Law Division for emergency relief from the order. He contended that the motion court improperly relied on Kasharian since he acted as the general administrator of his mother's estate not as an administrator ad prosequendum. He also argued that he possessed standing to sue pursuant to N.J.S.A. 3B:10-25 since he was a real party in interest as outlined by Kasharian.

On July 13, 2012, a different judge denied relief. The rationale undergirding this decision was that the issues raised had already been adjudicated by the prior judge. Therefore, it was "ordered that the stay of dismissal entered by [o]rder of [the first judge] on May 4, 2012 and May 15, 2012[,] is lifted for the reason that no attorney has entered an appearance on behalf of the [p]laintiff by June 15." Thus, "[p]laintiff's [c]omplaint and [a]mended [c]omplaint shall be dismissed with prejudice."

On July 16, 2012, counsel for Our Lady of Lourdes Hospital requested that the motion court modify its July 13, 2012 order to accurately reflect that it applied to all defendants. On August 2, 2012, an amended order was entered dismissing with prejudice plaintiff's complaint and amended complaint as to all defendants. This appeal followed.

II.

The resolution of this case revolves around the Law Division's application of Rule 1:21-1 and Kasharian. When "construing the meaning of a court rule or a statute, our review is de novo, and therefore we owe no deference to the trial court's legal conclusions." Willingboro Mall, Ltd. v. 240/242 Franklin Ave., LLC., 215 N.J. 242, 253 (2013) (citing Murray v. Plainfield Rescue Squad, 210 N.J. 581, 584 (2012) (citations omitted); Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366, 378 (1995)). However, a motion court's factual findings "should not be disturbed if there is sufficient credible evidence in the record to support the findings." State v. Adams, 194 N.J. 186, 203 (2008) (citing State v. Locurto, 157 N.J. 463, 470 (1999)).

Rule 1:21-1 outlines the guidelines for the general practice of law in New Jersey, and who may advocate in its courts. It stipulates, "No person shall practice law in this State unless that person is an attorney holding a plenary license to practice in this State . . . ." R. 1:21-1(a).

Four limited exceptions to Rule 1:21-1 exist, but only one applies here. "With respect to pro se appearances, this rule permits such appearances by only the real party in interest and thus prohibits sub appearances by non-lawyer fiduciaries where the action involves another's beneficial interests." Pressler & Verniero, Current N.J. Court Rules, comment 1(a) on R. 1:21-1 (2014).

The current appeal questions whether the motion court properly determined that plaintiff did not qualify as a real party in interest under the first exception to Rule 1:21-1's provisions. Rule 4:26-1 outlines the scope of a real party in interest. The Rule states the following:

Every action must be prosecuted in the name of the real party in interest; but an executor, administrator, guardian of a person or property, trustee of an express trust or a party with whom or in whose name a contract has been made for the benefit of another may sue in the fiduciary's own name without joining the person for whose benefit the suit is brought.

[R. 4:26-1]

Therefore, "the real party in interest rule is ordinarily determinative of standing to prosecute an action."2 Pressler & Verniero, Current N.J. Court Rules, comment 2.1 on R. 4:26-1 (2014).

Here, the issue remains whether plaintiff's status as administrator of his mother's estate qualifies him as a real party in interest to bring this action. Kasharian guides our analysis. In that case, a father as an administrator ad prosequendum brought a wrongful death action on behalf of his son. Kasharian, supra, 93 N.J. Super. at 481. The trial court dismissed the suit on the grounds that "the administrator ad prosequendum is merely a nominal representative of the class mentioned since he acts as fiduciary for the general administrator who is charged with distribution of the funds recovered." Ibid. We set aside this decision, subject to the proviso that the father obtained an attorney to represent him in the matter. Id. at 483.

The rationale undergirding Kasharian was that the father was "not a party within the meaning of the rule. He does not prosecute this action to realize his own personal participating interest in the recoverable fund but solely as administrator ad prosequendum in the interests of the entire class of the next of kin of the decedent." Id. at 482 (emphasis in original). Under the Rule, a party means the person or entity beneficially interested or personally sought to be held liable, not a nominal representative or fiduciary for such persons. Ibid.

Plaintiff argues that the motion court misapplied Kasharian due to a fundamental misunderstanding that he "is not pursuing his claim on behalf of his sister but on behalf [of] himself and the care and treatment of his late mother." He maintains that he "is not representing anyone other than himself and the deceased litigating on his own behalf and on behalf that of his decedent."

This argument is wholly unpersuasive and misses the point. Plaintiff's pleadings indicate that he does not seek relief exclusively for himself, but for himself and his estranged sister as a statutory heir. The renunciation completed by Vogel on July 2, 2009, relinquished her right only to be the administrator of the mother's estate. It did not, however, repudiate any interests Vogel may have as an heir to her mother's estate. N.J.S.A. 3B:1-3 addresses the devolution of property upon death. The statute states that:

Upon the death of an individual, his real and personal property devolves to the persons to whom it is devised by his will or to those indicated as substitutes for them in cases involving lapse, renunciation or other circumstances affecting the devolution of testate estates, or in the absence of testamentary disposition, to his heirs, or to those indicated as substitutes for them in cases involving renunciation or other
circumstances affecting devolution of intestate estates, subject to rights of creditors and to administration.

[N.J.S.A. 3B:1-3]

In cases that lack testamentary disposition, such as the present matter, the deceased's real and personal property only passes to heirs subject to the rights of creditors and to administration. An administrator acquires power over title to such property, as a trustee, for the benefit of creditors and heirs.

Based upon the Law Division proceedings, plaintiff acknowledged that he was the sole administrator of his mother's estate. He did not, however, understand the concept that his sister remained an heir, despite relinquishing her right to administer her mother's estate. Plaintiff's continual insistence that the supposed estrangement between Vogel and his mother makes him the sole heir in this matter is both unproven and irrelevant under current law.

There is no evidence in the pleadings that Vogel renounced any right of inheritance she possesses as an heir. Such a renunciation is governed by N.J.S.A. 3B:9-2. The statute states:

Any person who is an heir, or a devisee or beneficiary under a will or testamentary trust, or appointee under a power of appointment exercised by a will or testamentary trust, including a person succeeding to a disclaimed interest, may disclaim in whole or in part any property or interest therein, including a future interest by delivering and filing a disclaimer under this chapter.

[N.J.S.A. 3B:9-2]

Pursuant to this statute, such a disclaimer must be in writing, signed, and acknowledged by the person repudiating her interest. Since there is no evidence that Vogel ever executed a written waiver, she retains her right to inherit as an heir of her mother's estate regardless of estrangement.

The existence of Vogel's right to inherit draws the contours of this case under Kasharian. Plaintiff's status as an administrator makes him a representative of a class to inherit from his mother's estate. Therefore, he does not seek solely his own interest, but those of the class that he represents. Kasharian, supra, 93 N.J. Super. at 482. According to Rule 1:21-1's provisions, a non-lawyer fiduciary may not make a pro-se appearance where the action involves another's beneficial interests. Pressler & Verniero, Current N.J. Court Rules, comment 1(a) on R. 1:21-1 (2014). In this case, plaintiff cannot make a pro se appearance since his action involves Vogel's interests as an heir to her mother's estate.

Plaintiff's attempt to distinguish the term general administrator from an administrator ad prosequendum (as addressed in Kasharian) is misguided. An administrator ad prosequendum "[is] limited to the litigation of particular specified causes or matters in dispute." Lange v. Semanske, 108 N.J. Eq. 538, 539 (Ch. Div. 1931). Conversely, a general administrator is an individual "appointed to administer an intestate decedent's entire estate." Black's Law Dictionary, 47 (7th ed. 1999).

Although Kasharian involved an administrator ad prosequendum, that distinction does not affect the broader principle that an individual is not a real party in interest when that individual sues as a representative of a class. As the motion court acknowledged, if plaintiff sued as the sole heir to his mother's estate, its original disposition recognizing plaintiff as the only real party in interest would be appropriate since plaintiff would then be seeking only to further his own interests in the matter. However, plaintiff's status as a fiduciary makes him responsible to protect and advance the rights of persons other than just himself. Since he is not an attorney, he cannot prosecute the action without violating Rule 1:21-1.

We have reviewed the remainder of plaintiff's appellate arguments and conclude that they are meritless. R. 2:11-3(e)(1)(E). Plaintiff was treated indulgently in the Law Division, and the thirty-day window that was provided for him to retain counsel on behalf of the estate was not a mistaken exercise of discretion. When he failed and refused to obey the order requiring compliance with Rule 1:21-1, the complaint was properly dismissed with prejudice.

1 A corrective order was entered on May 15, 2012.

2 To have standing, the plaintiff must have a "'sufficient stake and real adverseness with respect to the subject matter of the litigation [and a] substantial likelihood of some harm . . . in the event of an unfavorable decision.'" Jen Elec., Inc. v. Cnty. of Essex, 197 N.J. 627, 645 (2009) (alteration in original) (quoting In re Adoption of Baby T., 160 N.J. 332, 340 (1999)).