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Sunday, November 26, 2017


The State appeals a special probation Drug Court sentence imposed under N.J.S.A. 2C:35-14 following defendant's conviction for second-degree leaving the scene of a fatal accident, N.J.S.A. 2C:11-5.1, third-degree causing death while driving with a suspended or revoked license, N.J.S.A. 2C:40-22(a); and third-degree endangering an injured victim, N.J.S.A. 2C:12-1.2(a). The State contends the court erred in its assessment of the factors required for imposition of a special probation sentence under N.J.S.A. 2C:35-14. 

The court concludes it is without jurisdiction to hear the appeal, finding the State lacked authority to appeal because the sentence is not illegal and N.J.S.A. 2C:35-14 does not authorize the State to appeal a special probation sentence. The court rejects the contention that N.J.S.A. 2C:44-1(f)(2) authorizes the State's appeal because defendant received a probationary sentence for a second-degree crime that is otherwise subject to a presumption of imprisonment under N.J.S.A. 2C:44-1(d). The court determines that the State's appeal authorized by N.J.S.A. 2C:44-1(f)(2) is limited to challenges to sentencing determinations under N.J.S.A. 2C:44-1(d), and does not apply to sentencing decisions made under N.J.S.A. 2C:35-14. 

Sunday, November 19, 2017



The State of New Jersey appealed from the sentencing judge's order denying its request to enter, as part of the plea agreement reached between it and defendant, a civil consent judgment for restitution due the victims of defendant's theft, and from an order denying reconsideration. The court affirmed, concluding the Legislature did not confer statutory authority on a sentencing judge to enter a civil consent judgment in favor of a crime victim.

Tuesday, November 07, 2017

guardians fee reduced here IN THE MATTER OF MARIA DELORES HELLER, an Alleged Mentally Incapacitated Person.

guardians fee reduced here IN THE MATTER OF 
an Alleged Mentally 
Incapacitated Person.
September 11, 2017

Submitted March 6, 2017 – Decided 

Before Judges Nugent and Currier.

On appeal from Superior Court of New Jersey, Chancery Division, Probate Part, Bergen County, Docket No. P-244-15.

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.



The appeal and cross-appeal in this unsuccessful guardianship action involve the trial court's denial of compensation to a guardian pendent lite and the fee award to her attorneys. Maria Delores Heller, the alleged incapacitated person, appeals from an order that required her to pay counsel fees to the attorneys who represented the guardian pendente lite ("temporary guardian") as well as the premium for the temporary guardian's bond. The temporary guardian cross-appeals from the same order, arguing the court erred by reducing the fee her attorneys sought and by denying her application for compensation. We have reviewed the trial court's decisions and order for an abuse of discretion and found none. We thus affirm the August 6, 2015 order in its entirety.
The underlying facts are essentially undisputed. Heller, a septuagenarian during the guardianship proceedings, suffers from late-stage Amyotrophic Lateral Sclerosis (ALS). She is bedridden and requires round-the-clock medical care. On July 6, 2015, the temporary guardian, a New York attorney and a former legal associate of Heller's late husband, filed, through New Jersey counsel, an order to show cause and a verified complaint. The temporary guardian sought to have a court declare Heller incapacitated and appoint her as permanent guardian. 
In support of her application, the temporary guardian submitted two physicians' certifications opining Heller suffered from ALS, which rendered her mentally incapacitated and unable to govern her own affairs. One physician concluded Heller needed a feeding tube without which she was at a high risk of developing aspiration pneumonia and slowly starving herself to death. In addition to the physicians' certifications, the temporary guardian alleged Heller had withdrawn a large sum of money from a bank account, prompting the bank to contact Adult Protective Services.
The court appointed counsel to represent Heller. On July 8, 2015, based on the physicians' certifications, the court appointed the temporary guardian as pendente lite guardian of MDH's person and property.1 The order vested the temporary guardian with the authority to "arrange interim financial, social, medical or mental health services" deemed necessary to address MDH's needs and avoid substantial harm to her person or property. The order also authorized the temporary guardian "to receive reasonable fees for her services as well as reimbursement for reasonable expenses upon approval of the [c]ourt [to be paid] from the estate." 
On July 16, 2015, the temporary guardian filed an emergent application to have Heller examined, and, if necessary, to have doctors insert a feeding tube to save her life. The court entered a consent order that required Heller's medical examination to take place as soon as possible and authorized the temporary guardian to approve the administration of life-saving medical intervention, including the insertion of a feeding tube. After doctors examined Heller, they discharged her from the emergency room, finding a feeding tube was unnecessary. 
A few days after Heller's examination, the temporary guardian decided to withdraw her guardianship application. She represented to the court that she no longer wished to continue as guardian pendente lite for Heller "in any capacity." After hearing oral argument and reviewing two new physicians' certifications concluding Heller had the capacity to make decisions relating to her medical care, the court dismissed the guardianship proceeding, finding Heller had capacity and should be permitted to "die with whatever dignity she so chooses to die with."
The court also relieved the temporary guardian of her duties as pendente lite guardian. The court entered an implementing order on July 23, 2015. The temporary guardian had thus served in that capacity from July 8, 2015 to July 23, 2015, a total of fifteen days.2 For her services, the temporary guardian sought compensation of $44,973.66 and expenses of $3938.52. Her attorneys sought fees of $35,946.25 and reimbursement of $1678.32 for expenses. 
The court denied the temporary guardian's application for compensation, but awarded her attorneys $25,924.27, $23,000.00 of which the court ordered reimbursed to the temporary guardian, who had paid her attorneys that sum. The court also ordered Heller to pay a bonding agency $1790 for the bond premium owed for the bond the temporary guardian had posted.3
Heller paid the bond premium but not the temporary guardian's counsel fees. Rather, she "appealed" the fee award to the trial court, alleging the court had erred by awarding fees to the temporary guardian's attorneys. Heller argued the attorneys were unsuccessful, the court having dismissed the guardianship action. She also argued the temporary guardian's motive in filing the action was for personal gain. Lastly, she argued the attorneys' fees were excessive.
A court has authority to fix compensation for a guardian ad litem, his or her attorney, and appointed counsel under Rule 4:86-4(e), which states: "The compensation of the attorney for the party seeking guardianship, appointed counsel, and of the guardian ad litem, if any, may be fixed by the court to be paid out of the estate of the alleged incapacitated person or in such other manner as the court shall direct."  Rule 4:42-9, which enumerates actions in which the award of fees are allowable, also authorizes such fees: "In a guardianship action, the court may allow a fee in accordance with R. 4:86-4(e) to the attorney for the party seeking guardianship, counsel appointed to represent the alleged incapacitated person, and the guardian ad litem."  R. 4:42-9(a)(3). 
Both rules vest the court with discretion to fix compensation; the rules do not mandate that a court do so. A court has discretion to decline to award a fee. Moreover, if a court in its discretion chooses to award a fee, the court may consider counsel's lack of success in determining what fee is reasonable.  Cf. Szczepanski v. Newcomb Med. Center, 141 N.J. 346, 355 (1995) (noting that the method for calculating reasonable fees – a product of hours reasonably expended on litigation times a reasonable hourly rate – may be excessive if a plaintiff has achieved only partial or limited success). "[F]ee determinations by trial courts will be disturbed only on the rarest of occasions, and then only because of a clear abuse of discretion."  Packard-Bamberger & Co. v. Collier167 N.J. 427, 444 (2001). 
Heller does not dispute the court's discretion to award fees to the attorneys for the temporary guardian. Rather, she contends the court abused its discretion because the temporary guardian's "motive in being appointed guardian in this case [was] money," the temporary guardian "misrepresented the mental state of Heller in her Verified Complaint in order to get appointed," and "[t]o require Heller, who was found to be mentally competent, to pay this amount of money for a legal proceeding that was dismissed without a trial or plenary hearing [eighteen] days after its inception is unconscionable." 
The trial court determined the temporary guardian's "application was brought in good faith . . . and not for [plaintiff's] own gain." The court also determined "litigation costs were necessary and could not be avoided." These findings are supported by adequate, substantial, and credible evidence in the record and are therefore binding on appeal.  Triffin v. Automatic Data Processing, Inc.411 N.J. Super. 292, 305 (App. Div. 2010) (citing Rova Farms Resort, Inc. v. Investors Ins. Co.65 N.J. 474, 484 (1974)). 
Nor do we find any abuse of discretion by the trial court in the amount of fees it awarded. Attorneys seeking fees under the actions enumerated in Rule 4:42-9 must file "an affidavit of services addressing the factors enumerated by RPC 1.5(a)." R. 4:42-9(b). A judge considering a fee application in a guardianship action should also consider the plaintiff's motivation in pursuing the guardianship action, whether the plaintiff has a potential interest in the incapacitated person's estate, and the financial circumstances of both plaintiff and the alleged incapacitated person.  In re Landry381 N.J. Super. 401, 410 (Ch. Div. 2005). Of course, the court must also consider the reasonableness of the hourly rate and the amount of time the attorneys "devoted to the matter."  Ibid.
Here, the court considered all of the foregoing factors as well as the life-threatening situation extant when the temporary guardian filed the guardianship application. The court determined Heller's estate was substantial. These findings are amply supported by substantial and credible evidence and therefore should not be disturbed on appeal.  Triffinsupra, 411 N.J. Super. at 305.
Similarly, on the cross-appeal, we conclude the trial court did not abuse its discretion by denying compensation to the temporary guardian. As previously noted, the temporary guardian served in that capacity for fifteen days, from July 8 to July 23, 2015; yet, she submitted a bill for services rendered from January 2, 2015 through July 29, 2015. Moreover, as the trial court explained, the time the temporary guardian allegedly spent performing certain services appears to be excessive, and the temporary guardian billed for "attorney services" when she was functioning not as an attorney, but a guardian pendente lite. The temporary guardian is not licensed to practice law in the State of New Jersey. 
The temporary guardian's application for compensation included an extraordinary number of hours for which she did not perform services as a temporary guardian, demonstrated excessive time allegedly spent for other services, and apparently included services for attorneys' fees to which she was not entitled. The billing irregularities also called into question the application for compensation that the court properly exercised its discretion in denying it.
We have considered the parties' remaining arguments and found them to be without sufficient merit to warrant further discussion.  R. 2:11-3(e)(1)(E).

1  The July 8, 2015 order is an amended order. The temporary guardian represents the original order was entered on July 7, 2015. 
2  The temporary guardian served for sixteen days if the day the court entered the July 8, 2015 amended order appointing her is counted, or seventeen days if July 7, 2015 is counted.  See n.1, supra
3  The court also awarded Heller's counsel fees and costs, a decision not challenged on this appeal.

ALJ can suspended for death with accident EW JERSEY MOTOR VEHICLE COMMISSION, Petitioner-Respondent, v. GERARD J. REDMOND,

ALJ can suspended for death with accident EW JERSEY MOTOR 




October 16, 2017

Argued September 18, 2017 – Decided 

Before Judges Sabatino and Whipple.

On appeal from New Jersey Motor Vehicle Commission.

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.



Respondent, Gerard J. Redmond, appeals from a final decision of the Commissioner of Motor Vehicle (Commissioner) suspending his driver's license after a motor vehicle accident involving a fatality. We remand for the following reasons.
On May 8, 2011, respondent was stopped at a traffic light at an intersection in Jackson Township when a large insect entered his passenger side window and startled him. When he tried to swat the insect, his foot slipped off the brake, and respondent's vehicle entered the intersection, where it collided with a vehicle operated by the decedent. The decedent had the green light as he was travelling through the intersection.
A Jackson police officer arrived at the scene and interviewed both drivers. The officer described both individuals as alert, calm, and able to answer questions. Respondent reported no injury to the officer, described the accident, and was issued a summons for failure to observe a traffic control device.  N.J.S.A. 39:4-81. The officer testified the decedent, an elderly man, complained of lower back pain. The decedent was taken to the hospital, where he died six weeks later. 
The death certificate issued contemporaneously with the decedent's death listed respiratory failure caused by bi-lateral pneumonia as the cause of death. However, in 2014, the decedent's estate obtained opinions from three medical experts and secured an amendment to the certificate, listing the cause of death as a motor vehicle accident. Decedent's estate has since filed suit against respondent.
After the Jackson police learned of decedent's death, they referred the case to the fatal accident unit of the State Police. On February 24, 2015, the State of New Jersey Motor Vehicle Commission (the Commission) suspended respondent's license, pursuant to N.J.S.A. 39:5-30, for sixteen months because his actions in failing to observe a traffic control device contributed to a fatality. Respondent appealed the suspension, and the matter was heard in the Office of Administrative Law.
At the outset of the hearing, the Administrative Law Judge (ALJ) granted the decedent's daughter leave to participate, limited to reading an impact statement. At the close of the hearing, she read the impact statement into the record and disclosed that the decedent had contracted MRSA during the hospital stay. 
After considering the testimony of the officer and respondent, and reviewing the medical reports, the ALJ determined respondent caused the motor vehicle accident with the decedent. The discussion then turned to the cause of the decedent's death. 
The ALJ found no reason to reject the amended death certificate and accepted the motor vehicle accident as the cause of death. The ALJ concluded respondent contributed to the fatality and affirmed the suspension, while modifying it to six months because of respondent's good driving record.
Respondent appealed the decision to the Commission. The Commission issued a Final Decision on May 27, 2016, upholding the ALJ's determination and suspension. Respondent was granted a stay of the suspension pending this appeal, which followed.
On appeal, respondent argues the ALJ committed reversible error in determining the decedent's death was a result of the accident and abused her discretion by imposing a suspension.1
We have a limited role in reviewing administrative agency decisions. Brady v. Bd. of Review152 N.J. 197, 210 (1997). We will not overturn such decisions unless they are "arbitrary, capricious or unreasonable" or "not supported by substantial credible evidence in the record as a whole."  N.J. Soc'y for Prevention of Cruelty to Animals v. N.J. Dep't of Agric.196 N.J. 366, 384-85 (2008) (quoting Henry v. Rahway State Prison81 N.J. 571, 579-80 (1980)); In re Tukes449 N.J. Super 143, 156 (App. Div. 2017). 
N.J.S.A. 39:5-30(a) empowers the Commission to suspend a motorist's driving privileges for violation of any of the provisions of the motor vehicle statutes and imposes no limitation on the length of the suspension. The Commission may rest his or her decision upon a mere preponderance of the evidence.  Cresse v. Parsekian81 N.J. Super. 536, 548-49 (App. Div. 1963), aff'd43 N.J. 326 (1964). "In proceedings before an administrative agency . . . it is only necessary to establish the truth of the charges by a preponderance of the believable evidence and not to prove guilt beyond a reasonable doubt."  Atkinson v. Parsekian37 N.J. 143, 149 (1962) (citations omitted).
Here, the ALJ's findings and conclusions with respect to respondent's violation are supported by witness testimony and other evidence presented at the hearing. In its final decision, the Commission adopted the ALJ's findings and conclusions in whole, including the reduction of respondent's license suspension. We need not discuss whether respondent violated N.J.S.A. 39:4-81, failure to observe a traffic control, because he pled guilty to that violation in municipal court. The focus of our discussion is limited to whether the resulting accident caused the decedent's death. 
Among other things, the ALJ determined (1) respondent acknowledged failure to observe the traffic light caused the accident, (2) the decedent passed away because of the accident, and (3) the unrebutted death certificate indicated the accident was the cause of death. The ALJ then rejected respondent's unsupported suggestions that decedent's estate amended the death certificate to gain advantage in a related civil lawsuit or that the decedent died because of other conditions contracted in the hospital.
Based upon our review of the record, we take no issue with these determinations by the ALJ.
We next consider respondent's argument that the imposition of a six-month suspension was arbitrary and unreasonable. Generally, "in reviewing administrative agency decisions, we accord substantial deference to an agency head's choice of remedy or sanction, seeing it as a matter of broad discretion, especially where considerations of public policy are implicated."  In re Herrmann192 N.J. 19, 34-35 (2007) (quoting Div. of State Police v. Jiras305 N.J. Super. 476, 482 (App. Div. 1997), certif. denied153 N.J. 52(1998)). Here, the penalty was within the numerical parameters of the Commissioner's delegated authority under N.J.S.A. 39:5-30(a). However, in Cresse, we said 
The Director must weigh each case individually, to determine whether a suspension is required at all for the purposes above mentioned, and, if so, for how long. Among other things, he should consider the facts which constitute the particular violation; whether the motorist was willful or reckless, or merely negligent, and, if merely negligent, how negligent; how long the motorist has been driving; whether this is his first offense; whether he has been involved in any accidents; his age and physical condition; whether there were any aggravating circumstances, such as drinking, or, on the other hand, whether there were extenuating circumstances. Upon these and all the other facts and circumstances, he should determine whether it reasonably appears, as a matter of prophylaxis and not of punishment, that the motorist should be kept off the highway, and, if so, for how long. 
[Cressesupra, 81 N.J. Super. at 549.]
Here the ALJ considered respondent's minimal driving record and gainful employment, and determined respondent's actions were not willful or reckless but merely negligent. The decision to suspend respondent's driving privileges for six months, as a means of "prophylaxis and not of punishment," was based on respondent's "refus[al] to accept that the accident he caused had effects subsequent to the incident itself." This finding stemmed from respondent's legal argument he should not be subject to suspension based upon a death certificate amended three and one half years after decedent's death. Based on our review of the record, we do not consider this an appropriate aggravating factor, and consider the imposition of a term of suspension for six months on that basis an abuse of discretion. We thus remand the matter to the Commission to determine anew on proper factors whether a suspension is required, and if so, for how long. 
Remanded for reconsideration of the term of suspension, consistent with this opinion. We do not retain jurisdiction.
1  We note respondent's amended notice of appeal (NOA) only lists the April 14, 2016 order of the ALJ and not the final decision of the Commission, however, respondent does discuss the final decision in his case information statement.  Rule 2:5-1(f)(3)(A) provides, "it is only the judgments or orders or parts thereof designated in the [NOA] which are subject to the appeal process and review." Pressler & Verniero, Current N.J. Court Rules, cmt. 6.1 on R. 2:5-1 (2011). Nonetheless, we may consider orders not referenced in the NOA if the civil case information statement (CIS) places the adversary on notice of the intended scope of appeal. See Ahammed v. Logandro394 N.J. Super. 179, 187-88 (App. Div. 2007). We may also consider an order not identified in the NOA where "the basis for the motion judge's ruling on [an order and subsequent order] may be the same. In such cases, an appeal [from the subsequent order] may be sufficient for an appellate review of the [earlier order], particularly where those issues are raised in the CIS," Fusco v. Board of Education of Newark349 N.J. Super. 455, 461 (App. Div.), certif. denied174 N.J. 544 (2002), by "clearly indicat[ing]" the earlier order is "one of the primary issues presented by the appeal."  Synnex Corp. v. ADT Sec. Servs., Inc.394 N.J. Super. 577, 588 (App. Div. 2007).