IN THE MATTER OF SAMUEL J. DANTONI

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

IN THE MATTER OF SAMUEL J. DANTONI

AND MARILYN H. DANTONI.

August 15, 2014

 

Submitted February 25, 2014 - Decided

 

Before Judges Messano and Rothstadt.

 

On appeal from Superior Court of New Jersey, Chancery Division, Burlington County, Docket No. 2010-1960.

 

Mark J. Dantoni, appellant pro se.

 

Richard M. Cohen, respondent pro se.

 

J. Llewellyn Mathews, Current Trustee of the Samuel J. Dantoni and Marilyn H. Dantoni Trust, respondent pro se.

PER CURIAM

This appeal represents the latest stage of a longstanding family feud, involving the rights and care of the litigants' father and late mother. Appellant Mark J. Danton seeksreversal of the Chancery Division's orders dated October 31, 2012 and May 14, 20131 denying his motion in aid of litigants' rights, and granting counsel fees to his father's attorney, respondent Richard Cohen, Esq.

The orders under appeal arose from motions filed to enforce the terms of an order approving a settlement and establishing a trust, which was to end the acrimonious battle between the adult-children of Samuel and the late Marilyn Dantoni, for control over their parents' income and assets. As Samuel and Marilyn have suffered from diminished capacity since the start of the litigation, they have had little to no part in these battles. Rather, the couple's son Mark Dantoni has purportedly spoken for Marilyn, while their daughter Joan Harris has purportedly spoken for Samuel. Unfortunately, neither the settlement order nor the trust declaration ended the litigation.

The last battle began when the former Trustee, Patricia Morton, filed a motion in aid of litigants' rights to compel Mark and Joan2 to transfer their parents' assets and income into the Trust in compliance with the settlement order. In addition, Cohen sought counsel fees from the trust which were incurred as a result of the litigation.

Mark now appeals3 the trial court's orders, and argues the following:

I. THE LAW OF THE CASE AS SET FORTH IN THE APRIL 30, 2012 ORDER WARRANTS A REVERSAL OF THE FEE AWARD TO RICHARD COHEN.

 

II. THE COURT ERRED WHEN IT DID NOT GRANT THE RELIEF SOUGHT BY MARK DANTONI AS IT RELATED TO JOAN BECAUSE JOAN NEVER FILED A RESPONSE TO MARK DANTONI'S CROSS MOTION NOR THE TRUSTEE'S MOTION AND THEREFORE WAS UNOPPOSED AND SHE WAS REQUIRED TO ACCOUNT FOR ASSETS IN ACCORDANCE WITH NJ STATUTE 3B:12-40.

 

III. THE COURT ERRED WHEN IT DID NOT REQUIRE THE TRUSTEE TO PROVIDE A DETAILED ACCOUNTING OF THE MONEY WITHDRAWN FROM THE TRUSTEE FOR HER FEES.

 

IV. THE COURT ERRED IN ORDERING MARK DANTONI, DURABLE POWER OF ATTORNEY FOR HIS MOTHER MARILYN DANTONI, TO REIMBURSE THE TRUSTEE ONE HALF OF THE LEGAL FEES OF THE TRUSTEE WITHOUT ANY PROOFS IN THE RECORD THAT HE HAD WILLFULLY VIOLATED ANY ORDER AND WITHOUT CONSIDERATION OF THE REQUIREMENTS AS SET FORTH [IN] COURT RULE 4:42-9.

 

V. THE COURT ERRED IN GRANTING LEGAL FEES TO RICHARD M. COHEN IN THE SEPTEMBER 27, 2012 ORDER BECAUSE THE JUDGE DID NOT SET FORTH ANY FINDINGS OF FACT OR CONCLUSIONS OF LAW WHICH WOULD HAVE SET FORTH THE REASONING FOR THE LEGAL FEE AWARD IN CONTRAVENTION OF THE APRIL 2012 ORDER.

 

VI. THE COURT ERRED WHEN IT DID NOT REQUIRE RICHARD M. COHEN, ESQ TO RETURN MONIES THAT HE WITHDREW FOR HIMSELF FROM THE ATTORNEY TRUST ACCOUNT, PRIOR TO TURNING OVER THE MONEY TO THE TRUSTEE, PATRICIA MORTON WITHOUT PERMISSION FROM OR AN APPLICATION TO THE COURT, WHEN SUCH FUNDS WERE FROZEN BY THE COURT.

 

Preliminarily, we note that we hold Mark's pleadings to a less stringent standard than we would an attorney, because he is filing pro se. See Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 596, 30 L. Ed. 2d 652, 654, reh g denied, 405 U.S. 948, 92 S. Ct. 963, 30 L. Ed. 2d 652, 819 (1972). However, we limit our review to only those issues raised in Mark's brief and reply, W.H. Indus., Inc. v. Fundicao Balancins, Ltda, 397 N.J. Super. 455, 459 (App. Div. 2008) ("An issue not briefed is deemed waived."); R. 2:6-2(a)(5) (Mark's brief must set forth legal arguments in point headings); see also Almog v. Israel Travel Advisory Serv., Inc., 298 N.J. Super. 145, 155 (App. Div. 1997) (refusing to consider issues raised in "copious footnotes" instead of point headings), appeal dismissed, 152 N.J. 361 (1998), and to issues not previously settled by the parties. See River Vale Planning Bd. v. E & R Office Interiors, Inc., 241 N.J. Super. 391, 402 (App. Div. 1990).

Applying these parameters, we have considered Mark's contentions in light of the record and applicable law, and we now affirm.

I.

The Parties and the Settlement Order

Samuel Dantoni and Marilyn Dantoni were husband and wife, married for over fifty-five years. Samuel currently resides at an assisted living facility in Maryland. Marilyn lived in the couple's home in Medford, until she died in 2013. The couple have four adult children, Joan, Mark, Patricia Brinster, and Carole Platas. Mark held a power of attorney from Marilyn, and is now executor of her estate. Joan holds a power of attorney from Samuel, and was also appointed as his guardian pursuant to a September 7, 2012 order by the Circuit Court for Arundel County, Maryland.

On January 31, 2011, Judge Michael Hogan entered an order approving the parties' settlement (settlement order) which required Samuel's and Marilyn's assets to be transferred into the "Samuel J. Dantoni and Marilyn H. Dantoni Trust," (Trust) for their benefit, including title to the couple's Medford home. The settlement order appointed Patricia Morton as Trustee, and empowered her "to take any action necessary to receive the income of Samuel and Marilyn." The settlement required the Trustee to file an annual accounting of her actions and the Trust's assets with the court.

The settlement also required anyone acting on Samuel's or Marilyn's behalf to ensure that the couple could speak with and visit each other. If the Trustee believed that either Joan or Mark wrongfully interfered with the parties' visitation rights, the Trustee was to bring an action to enforce litigants' rights; and if the application was granted, the wrongful party was required to pay the Trustee's counsel fees incurred in bringing the action. Finally, the settlement order dismissed with prejudice "[a]ll other potential matters relating to [Samuel and Marilyn]."

The parties filed numerous motions to enforce litigants' rights in the wake of the settlement order. On April 10, 2012, the court entered an order granting fees to the Trustee, Marilyn's attorneys, and Cohen. The order also required that any future motions made pursuant to the settlement order be first presented to the Trustee. The Trustee would then review the motion and advise the applicant whether or not she supported the motion, before it was submitted to the court. If the Trustee supported the motion, then the applicant was entitled to counsel fees and costs associated with the motion, subject to the court's review. If the Trustee did not support the motion, then the applicant was not entitled to fees.

The Award of Fees to Cohen

Marilyn was hospitalized in July 2012, and Samuel wanted to know her medical condition and visit her. In keeping with the April 10 order, Cohen addressed the matter to the Trustee. As a result, the Trustee filed a motion seeking the court's guidance as to how the parties' general medical information could be exchanged through Joan and Mark without violating HIPAA.4 In connection with the resolution of that application, on September 27, 2012, the court granted Cohen's application for counsel fees in accordance with the settlement order, subject to the court's review of them for reasonableness. It requested a new certification of services from Cohen.

Mark moved for reconsideration of the court's order granting Cohen's fees from the Trust, and was denied. He appealed the order, and we temporarily remanded the matter so the trial court could quantify the actual award. On May 14, 2013, the trial court granted Cohen's fees in the amount of $4,274, after considering his certification of services.

As expressed in its Statement of Reasons, the trial court found that "Mr. Cohen was successful in obtaining visitation rights for his client through the trustee s application for advice and direction, which was filed in response to the efforts made by Mr. Cohen on behalf of Samuel Dantoni." Moreover, "[t]he results obtained were beneficial to Samuel s interest in remaining in contact with Marilyn." As to the reasonableness of the fees, the court considered the R.P.C. 1.5(a) factors, and found the following:

Mr. Cohen possesses an advanced legal degree in estate planning and has been designated as a Certified Elder Law Attorney. The fixed fee and hourly rate are commensurate with Mr. Cohen s two-decades of experience and reputation, and with fees charged in the general area. . . . Bringing the various motions and otherwise defending Samuel s interests in this highly litigious matter required substantial time and labor. The court finds the time involved to be reasonable as well. The court has reviewed the certification of services in detail and does not observe excessive conferencing or preparation. Thus, the attorney s fees and costs are reasonable.

The Trustee's and Mark's Motions in Aid of Litigant's Rights

On September 21, 2012, the Trustee filed a motion through her attorney, Stephanie Briody, to compel Mark and Joan to transfer all the couple's assets and income into the Trust. The transfers had not been completed as required by the settlement order, and to some extent are still not complete today. The motion also requested counsel fees for Briody.

Under the terms of the settlement order, the parties agents5 were required to transfer all assets and income received on behalf of Samuel and Marilyn into the Trust. A separate provision of the order specifically required that the Medford home be transferred into the Trust as well. This was reiterated in the April 10 order, providing that "[t]he property located at . . . Medford, New Jersey shall be transferred into the Trust forthwith."

Those transfers had not yet been completed as of September 21, 2012, when the Trustee filed a new motion. That motion sought an order compelling the following relief:

(1) . . . the Agents to enforce the previous Orders of the Court and transfer all assets and income, of the parties, including Social Security and other government benefits, payments received on behalf of Samuel or Marilyn Dantoni, to The Trust;

 

(2) . . . the Agents to comply with previous Orders of the Court and account to the Trustee for any and all other assets or income received by any party or person on behalf of Samuel or Marilyn Dantoni from March 2011 to the present that have not already been transferred to the Trustee;

 

(3) . . . the Agents to apply to the Social Security Office to be designated as their respective parent s representative payee within ten (10) days and direct their social security funds be deposited into the Trust checking account (ending #9020);

 

(4) . . . each Agent to provide the Trustee with statements for the bank accounts they utilize for Marilyn Dantoni and Samuel Dantoni . . . with check images from April 2012 through the present date within ten (10) days[;]

 

(5) . . . Mark Dantoni to comply with the Order of Settlement entered on January 31, 2011 and the April 10, 2012 Order which provided that the Medford property be transferred to the name of the Trust, by producing his orignal Power of Attorney ("POA") for Marilyn Dantoni within five (5) days, so that the Deed previously executed can be recorded with the County Clerk s Office; OR in the alternative, appointing Pat Morton as fiscal agent for the sole purpose of executing another deed transferring the marital home to the Trust;

 

. . . .

 

(8) . . . the Agents to reimburse the Trust for Trustee s counsel fees associated with the enforcement of the Court s previous Orders, in the amount of $3,680.60.

 

Briody also addressed the still-outstanding items at the hearing. She said that Mark had signed the deed to the Medford home on behalf of Marilyn, but had not provided an original Power of Attorney (POA) which the County Clerk required in order to record the deed. She claimed Mark knew the original was necessary. In the alternative, Briody requested that if Mark did not provide the original POA, the Trustee be appointed as Marilyn s agent for the limited purpose of signing a POA. Briody also said that the Trustee had difficulty contacting Mark about the sale of the Medford home:

[Morton] was not in communication with Mark Dantoni. Despite her efforts to get in touch with him since the summer, since Marilyn Dantoni was hospitalized and the Court I think is well aware of the lack of communication and the efforts that all of us, the attorneys and the trustee have tried, have made in order to contact [Mark] Dantoni about the very essence of this whole case which was to keep communication open between the two parents. They ve always, the parents have always communicated with one another. Always wanted to visit with one another. Everybody agrees that was the purpose of the trust, to protect this elderly couple.

 

Briody also asked for information about Marilyn's life insurance, and requested that the Trust be designated as beneficiary. She requested a transfer of all monies from a joint account held between Mark and Marilyn, and said the Trustee could not effect these transfers herself because there had been no communication between Mark and the Trustee.

On October 4, 2012, Mark filed a pro se response and a cross-motion, essentially requesting an additional accounting by the Trustee of the Trust's assets and income; sanctions against Cohen; termination of Morton as Trustee; and an accounting and the return of certain assets by Joan. Specifically as to Joan, he requested:

6. Joan Harris to return all cash withdrawals that Patricia Morton calculated she withdrew from the joint account with Joan and Samuel Dantoni totaling $6,619.50 during the period January 2010 to June 2011.

 

7. Joan Harris to provide receipts for all purchases that Patricia Morton calculated to be made from the joint account with Joan and Samuel Dantoni totaling $9,969.28 during the period January 2010 to June 2011.

 

. . . .

 

11. That the court reconsider its recent order directing the payment of legal fees to Richard Cohen as this order is in violation of a previous order from the bench that the Trust was for the care and maintenance of Samuel and Marilyn Dantoni and no legal fees would be paid to anyone other than the Trustee. That Joan Harris either file pro se applications in the future and/or pay for her own legal services if she wishes to continue the services of Richard Cohen.

 

12. That Joan Harris be ordered to return all furniture, household items, Marilyn Dantoni's jewelry, family photo albums, John Deere Tractor, Lincoln Town Car and other items that she stole from the marital residence when she kidnapped my father and took him to Maryland against his will in April of 2010.

 

. . . .

 

14. That Joan Harris provide the bank account # and bank name for the account that Samuel J. Dantoni has in Maryland which she has not disclosed.

 

15. That Joan Harris return to the Trust and identify the location of $10,000 of gold coins that were purchased by Samuel Dantoni in 2011.

 

16. That Joan Harris provide the Credit card Statements of the TD Bank Credit Card account in the name of Samuel Dantoni that was paid off and closed in 2011.

 

In response to the Trustee's motion, Mark claimed that the Trustee had permitted the parties to use joint accounts for their respective parents expenses, and was only now making an issue of it. He said he had already provided an accounting to the Trustee on April 6, 2012. He also said the Trustee had historically favored Samuel over Marilyn when asked to cover certain expenses, and that this forced him to pay out-of-pocket for Marilyn's expenses. As to the requested counsel fees, he argued that they should not be paid from the Trust because they "should be considered part of Pat Morton s normal course of business and expense[ because t]he representation was for Pat Morton NOT [his] parents."

Mark also alleged that pursuit of the previous motion concerning Marilyn s medical information was frivolous, as the release of that information would violate HIPAA. He stated that the Trustee, Briody, and Cohen were "creat[ing] an issue to generate income."

The Trustee and Cohen both filed responses, but Joan did not. Judge Karen L. Suter held a hearing on October 19, 2012. Joan did not appear but participated via telephone. She addressed the Trustee's requests for items still due to the Trust but did not address any issues raised in Mark's cross-motion.

Judge Suter found that Mark's allegations against Joan dating prior to June 2011 were beyond the scope of the settlement agreement and order. For certain requests, Mark neither discussed nor provided proof of the alleged events. His allegations as to Joan's bank account and credit card appeared to relate to a period prior to January 31, 2011. The court also noted that "[t]here is no provision in the settlement agreement for forensic review of this period."

By order dated October 31, 2012, the court granted the Trustee's motion and ordered that all of the transfers be made. The court also granted the Trustee's request for counsel fees. It ordered Mark and Joan to reimburse the Trust for counsel fees in the amount of $3,680.60, in light of their "continued noncompliance with the court's prior order." The court denied Mark's entire cross-motion because it found that much of his requested relief was beyond the scope of the settlement order. The order also appointed J. Llewellyn Mathews, Esq. successor Trustee.6

II.

As noted above, the orders under appeal arose out of the parties' motions in aid of litigants' rights. A party may file a motion in aid of litigants' rights to compel compliance with a court order, to enforce the terms of a settlement agreement, R. 1:10-3, and to seek clarification "if there is a question concerning the meaning of an order." Asbury Park Bd. of Educ. v. N.J. Dep't of Educ., 369 N.J. Super. 481, 486 (App. Div.), aff'd in part, 180 N.J. 109 (2004); see R. 1:10-3. The court also has discretion to "make an allowance for counsel fees to be paid by any party to the action to a party accorded relief under [Rule 1:10-3]." R. 1:10-3. "The scope of relief . . . is limited to remediation of the violation of a court order." Abbott v. Burke, 206 N.J. 332, 371 (2011).

In our review of a trial court's determination of motions in aid of litigants' rights including the award of counsel fees and the imposition of sanctions we determine if the court properly exercised its discretion in these matters. Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 443-44 (2001); Cavallaro v. Jamco Prop. Mgmt., 334 N.J. Super. 557, 571 (App. Div. 2000); Woskosoff v. CSI Liquidating Trust, 205 N.J. Super. 349, 363 (App. Div. 1985). We will not disturb a discretionary ruling "unless an injustice has been done." Cavallaro, supra, 334 N.J. Super. at 571; see Cunningham v. Rummel, 223 N.J. Super. 15, 19 (App. Div. 1988).

Applying that standard here, we are satisfied that Mark's arguments are without merit warranting an extensive discussion in a written opinion. R. 2:11-3(e)(1)(E). As to each of his arguments we only note the following:

Attorneys Fees to Cohen

The court granted Cohen fees in the amount of $4,274 after carefully considering his certification and the requirements of R. 4:42-9(b) and the incorporated R.P.C. 1.5(a) factors. In addition, Cohen incurred the fees in connection with Samuel's request for visitation with Marilyn which was authorized under the terms of the settlement order, and for her medical information. The Trustee acknowledged the legitimacy of Cohen's actions and filed a motion for clarification as to how to address the request for medical information. Under these circumstances, we find no abuse of discretion.

The Denial of Mark's Cross-Motion to Compel Cohen to Return Money Withdrawn from Cohen's Attorney Trust Account for Fees Incurred On Behalf Of Samuel

 

Mark also argues that the trial court erred in not ordering Cohen to return monies that he withdrew from an attorney trust account for Samuel. He alleges that Cohen maintained this account prior to the settlement agreement and Trust declaration, and paid himself when such funds were frozen by the court. Specifically, Mark's said Cohen withdrew $1,407.40 on August 27, 2010, and $12,201.10 on January 18, 2011, without authorization from the court. His proof was a copy of a client trust ledger indicating the transactions.7

In its order and Statement of Reasons, the trial court denied Mark's request because 1) it was "beyond the scope of the settlement agreement and order approving the settlement" and therefore not properly before the court; and 2) Mark "ha[d] not provided any proof or documentation other than his assertions."

As an initial matter, the amount that Mark requests on appeal is inconsistent with the $17,202.10 requested in the original cross-motion. Second, his allegations are unsubstantiated, as the ledger simply indicates the transactions and is not proof that any violation occurred. Third, his allegations refer to transactions that took place prior to the settlement agreement and establishment of the Trust. His requests were therefore beyond the scope of what the trial court could grant, as relief is limited to the remediation of a violation of the settlement order. Abbott, supra, 206 N.J. at 371.

Order Requiring Mark to Pay the Trustee's Legal Fees

We find no abuse of the court's discretion in its award of legal fees against Mark, because the award was contemplated in the trust agreement and was supported by law. A trustee may "employ and compensate attorneys for services rendered to the estate or trust or to a fiduciary in the performance of the fiduciary's duties." N.J.S.A. 3B:14-23(l). The settlement order authorizes the Trustee "to take any action necessary to receive the income of [Samuel and Marilyn]." The settlement order and Trust declaration provide that "any Agent determined to have wrongfully interfered with the parties rights may be required to pay their counsel fees as well as the counsel fees incurred by [the Trustee] in bringing the action." The Trust declaration states that the "Trustee shall be entitled to receive reasonable compensation for services rendered and to reimbursement for all reasonable expenses."

The Trustee was entitled only to reimbursement of fees incurred in the administration of the Trust, and cannot be reimbursed for fees arising out of frivolous claims. Such compensation could not be deemed "reasonable" under the terms of the Trust declaration. However, Mark has failed to demonstrate how the Trustee's motion in aid of litigants rights was frivolous. He claims to have provided at least one requested accounting, but does not contest the Trustee's claims about several other outstanding transactions.8 His remaining arguments consist of unsubstantiated or irrelevant allegations as to the Trustee's administration of the Trust. Moreover, he does not contest the Trustee's claims that he has failed to respond to her communications.

The court was correct in finding that Mark had not complied with the terms of the settlement and April 10 order, and that his non-compliance necessitated the Trustee's motion.9 Briody s fees were a "reasonable expense" incurred in filing that motion, for which Mark can be held responsible. Furthermore, even if the Trust declaration did not explicitly allow it, under Rule 1:10-3, "[t]he court in its discretion may make an allowance for counsel fees to be paid by any party to an action to be paid to a party accorded relief under this rule."

Mark also argues that the court was required to consider certain factors set forth in Rule 4:42-9 in determining the amount of Briody s fees. However, Mark cites to factors referenced in Rule 4:42-9(a)(1), and delineated in Rule 5:3-5(c), which are only applicable in family actions, and therefore have no application to the Trustee's claim for fees in this case.

 

The Court's Denial of Relief in Mark's Favor Against Joan

We are equally satisfied that the court did not abuse its discretion in denying Mark's cross-motion seeking relief against Joan. Again, relief in this matter is limited to remediating violations of the settlement order. Abbott, supra, 206 N.J. at 371. Therefore, the trial court properly denied Mark's requests as to Joan, because 1) many were based on events alleged to have occurred prior to the date of the settlement agreement; 2) he provided no proof of the alleged events; and 3) his requests were largely redundant, as Joan was already bound under the terms of the settlement order, Trust declaration, April 10 order, and October 31 order to transfer all assets and income into the Trust, and to provide an accounting of all properties to the Trustee. Mark raised no arguments as to why the court should require Joan to do more.

Mark also argued that Joan must account for funds she has expended as Samuel's guardian as required by N.J.S.A. 3B:12-40, which states:

If another person has been appointed guardian of the estate, all of the ward's estate received by the guardian of the person in excess of those funds expended to meet current expenses for support, care and education of the ward must be paid to the guardian of the estate, and the guardian of the person must account to the guardian of the estate for funds expended.

This New Jersey Statute law is, however, inapplicable because Joan was appointed guardian of Samuel by order dated September 7, 2012 by the Circuit Court for Anne Arundel County, Maryland. The order provides that Joan "shall have all those powers and duties set forth in MD. Code Ann., Est. & Trust 13-708." Jurisdiction over his guardianship therefore lies with the Maryland courts, Mack v. Mack, 618 A.2d 744, 750 (Md. 1993) ("The administration of guardianship affairs remains subject to judicial control by the equity court that appointed the guardian."); see Kicherer v. Kicherer, 400 A.2d 1097, 1100 (Md. 1979) ("In reality the court is the guardian; an individual who is given that title is merely an agent or arm of that tribunal in carrying out its sacred responsibility."), and it is subject to Maryland guardianship laws. Md. Code Ann., Est. & Trusts 13-704 to 13-710.10 Maryland maintained jurisdiction over Joan's guardianship which was therefore not subject to order by the Chancery Division here.

Mark's Demand for Additional Information from the Former Trustee

Mark also appeals the denial of his request for a more detailed accounting by Morton, the former Trustee. He asks the court to require more specific information relating to how her hours were derived, and her hours spent working on the estate.

As the court stated in its Statement of Reasons,

Mark alleges that Morton effectively pays herself $6,000 per hour for her services. . . . [U]nder the terms of the January 31, 2011 Order, Morton must account once annually. Mark has provided no substance to his allegations, and thus, the court will not order more frequent accountings. The court notes that Ms. Morton s hourly rate is much less than what Mark Dantoni alleges.

We agree. Mark's arguments for this relief were totally unsupported and lacked any merit.

Affirmed.

1 This order amended the court's September 27, 2012 order after we reviewed that order and remanded the matter as explained infra.

2 We refer to the parties by their first name for the purpose of clarity. We intend no disrespect.

3 We note that Mark lacks authority to prosecute all but one of the issues he raises on appeal. As stated in Rule 1:21-1(a)(4):

A person not qualifying to practice pursuant to the first paragraph of this rule [i.e. a New Jersey-licensed attorney] shall nonetheless be permitted to appear and prosecute or defend an action in any court of this State if the person . . . is a real party in interest to the action or the guardian of the party.

 

"'Party,' . . . means the person or entity beneficially interested or personally sought to be held liable, not a nominal representative or fiduciary for such persons (with the exception of guardians of parties)." Kasharian v. Wilentz, 93 N.J. Super. 479, 482 (App. Div.), certif. denied, 48 N.J. 447 (1967).

Mark filed the underlying cross-motion as his mother's power of attorney, and he now appeals pro se as executor of her estate. As the Trust is in his parents' names, Mark will not be beneficiary until his father passes away. Therefore, where he seeks to enforce the settlement order's terms, Mark is neither "a real party in interest," nor is he "guardian of the party." He can only challenge the order requiring him to reimburse former Trustee Morton for half the cost of her legal fees. Notwithstanding this defect, however, we address the merits of his remaining contentions to put this matter to rest. C.f. Crescent Park Tenants Assoc. v. Realty Equities Corp., 58 N.J. 98, 107-08 (1971) ("[T]hroughout our law we have been sweepingly rejecting procedural frustrations in favor of just and expeditious determinations on the ultimate merits.").

4 Health Insurance Portability and Accountability Act (HIPAA), 42 U.S.C.A. 1320d-6 (prohibiting wrongful disclosure of individually identifiable health information).

5 "Agents" refers to Mark and Joan.

6 Morton apparently resigned in frustration.

7 In his reply brief, Mark also alleged that Samuel had fired Cohen before being declared incapacitated. However, he provides no support for this allegation.

8 Mark further argues in his reply brief that the settlement order did not require him to become representative payee for Marilyn's Social Security benefits, as the Trustee now requests. Nevertheless, he attempted to redirect the payments to the Trust, but the administration said that it would not authorize the change unless Mark was guardian of Marilyn, which he was not. He argues that for this reason, he should not be sanctioned. However, most of his reply brief neither responds to nor contests the Trustee's assertions that he has failed to fully comply with the settlement order.

9 The current Trustee, Mathews, says that Mark has still not arranged to deposit Marilyn's Social Security benefits into the Trust; nor has he delivered a properly executed Seller's Residency Certification, which is also a mandatory prerequisite to recording the Medford house deed.

10 Joan s guardianship would only be subject to New Jersey law if she filed a petition to transfer the guardianship pursuant to N.J.S.A. 3B:12B-18.