Panagioti L. Giannakopoulos v. Mid State Mall

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1955-13T2

PANAGIOTI L. GIANNAKOPOULOS,
APPROVED FOR PUBLICATION
Plaintiff-Appellant,
December 31, 2014
v.
APPELLATE DIVISION
MID STATE MALL,
MARK E. ZELINA, ENGINEER, and
MASER CONSULTING, P.A.,

Defendants-Respondents.
_______________________________

MASER CONSULTING, P.A.,

Third-Party Plaintiff,

v.

YOKO KNOX,

Third-Party Defendant.
________________________________

Argued November 12, 2014 - Decided December 31, 2014

Before Judges Reisner, Koblitz and
Haas.

On appeal from the Superior Court of
New Jersey, Law Division, Middlesex
County, Docket No. L-5232-11.

Richard W. Wedinger argued the cause
for appellant (Barry, McTiernan &
 Wedinger, attorneys; Mr. Wedinger and
Laurel A. Wedinger, on the briefs).

Nora Coleman (Haworth Coleman &
Gerstman, LLC) argued the cause for
respondent Mid State Mall.

Joseph T. Ciampoli argued the cause for
respondents Mark E. Zelina and Maser
Consulting, P.A. (Thompson Becker &
Bothwell, L.L.C., attorneys; Mr.
Ciampoli, on the brief).

The opinion of the court was delivered by

REISNER, P.J.A.D.

Plaintiff Panagioti L. Giannakopoulos appeals from a

September 12, 2013 order granting defendant Mid State Mall's

motion for reconsideration and dismissing plaintiff's complaint

against MidState1. Plaintiff also appeals from a September 12,

2013 order granting summary judgment in favor of defendants

Maser Consulting, P.A., and Maser engineer Mark E. Zelina

(collectively, Maser). Plaintiff further appeals from a

December 6, 2013 order denying his motion for reconsideration.

To summarize, we conclude that in reconsidering a prior

judge's decision to reinstate plaintiff's complaint, the trial

court misapplied the standards set forth in Rule 1:13-7(a). The

trial court also erred in failing to hold a N.J.R.E. 104 hearing

1
As discussed later in this opinion, defendant was misnamed in
the complaint as Mid State Mall, when its corporate name is
MidState Hye, L.P. We will refer to defendant as MidState.

2 A-1955-13T2
to evaluate plaintiff's claim that he was entitled to tolling of

the statute of limitations under N.J.S.A. 2A:14-21 due to his

mental incapacity. Consequently, we reverse and remand for

further proceedings consistent with this opinion.

I

We engage in de novo review of the trial court's decision

on the summary judgment motion and the motion to dismiss. Town

of Kearny v. Brandt, 214 N.J. 76, 91 (2013). In fact, because

the court considered documents outside the pleadings in deciding

the latter motion, it is also treated as a summary judgment

motion. R. 4:6-2(e); Jersey City Educ. Ass'n. v. City of Jersey

City, 316 N.J. Super. 245, 254 (App. Div. 1998), certif. denied,

158 N.J. 71 (1999). Accordingly, we review the factual record

in the light most favorable to plaintiff. Brill v. Guardian

Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). We review a

judge's decision on a reconsideration motion for abuse of

discretion. Cummings v. Bahr, 295 N.J. Super. 374, 389 (App.

Div. 1996). However, we owe no special deference to a trial

judge's legal interpretations in deciding any motion. Manalapan

Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378

(1995).

Viewed through the lens of the applicable legal standards,

these are the facts. On May 19, 2008, plaintiff suffered

3 A-1955-13T2
horrendous and life-changing injuries when an automobile making

a left turn out of the Mid State Mall parking lot struck

plaintiff's motorcycle. At the time of the accident, plaintiff

was proceeding past the mall with the right of way in his favor.

Two days after the accident, on May 21, 2008, plaintiff

allegedly signed a durable power of attorney (POA) naming his

brother as his fiduciary for all purposes relating to his

property and finances. Among other things, the POA recited that

in any future protective proceedings for his person or estate,

plaintiff nominated his brother to serve as his guardian. The

POA did not specifically authorize the brother to make decisions

as to plaintiff's medical treatment. However, an August 5, 2013

certification from the brother attested that the POA was signed

at the hospital's request so the brother could make medical

decisions for plaintiff.2

2
At his deposition, plaintiff was unable to positively identify
his signature on the POA. Further, as noted later in this
opinion, plaintiff's medical records indicate that he underwent
extensive surgery on the day of the accident, May 19, 2008, and
was in a coma for several months thereafter. It is possible
that the coma was medically induced a day or two after the
surgery and that plaintiff signed the POA in contemplation of
being placed in the coma. That would be consistent with
representations made to us at oral argument concerning
plaintiff's intent to permit his brother to make medical
decisions for him, and with the brother's August 5, 2013
certification.

4 A-1955-13T2
 Plaintiff never filed a lawsuit against the driver of the

car that hit him. Due to the extensive injuries plaintiff

suffered and the driver's obvious liability, her insurance

company offered to pay its entire policy within a day or two

after the accident. Because the settlement involved setting up

special needs trusts for plaintiff and his young daughter, who

was giving up any lawsuit rights she may have had in return for

a portion of the settlement, a hearing was held in January 2009,

before General Equity Presiding Judge Frank M. Ciuffani, who

approved the settlement and the trusts.3

Plaintiff was not present at the friendly hearing.

Plaintiff's then-attorney stated to Judge Ciuffani that his

client was mentally competent, though severely physically

incapacitated. Plaintiff's brother, who held his POA, testified

that he managed plaintiff's affairs on a daily basis. He also

testified briefly that he had discussed the proposed settlement

with plaintiff, and that the reason the settlement included a

special needs trust for the daughter was that plaintiff wanted

to be sure that her needs were met. A finding that plaintiff

was mentally incapacitated on the date of the friendly hearing

would require a court to find that the attorney misrepresented

3
Although the hearing resulted from a settlement reached without
the filing of a personal injury lawsuit, we will refer to the
proceeding as a "friendly" hearing. See R. 4:44-1; R. 4:44-3.

5 A-1955-13T2
or overstated plaintiff's mental capacity, and that the brother

either intentionally misstated plaintiff's cognitive ability or

believed that plaintiff wanted what the brother thought was best

for him, despite plaintiff's inability to make meaningful

decisions. We discuss the facts relating to this issue later in

this decision.

Over a year later, on May 19, 2010, plaintiff's then-

counsel filed a complaint against MidState, alleging negligence

in the configuration of the turning lane from which the auto

driver had exited. That complaint was filed within the two-year

statute of limitations. On May 27, 2010, the attorney filed an

amended complaint naming several "John Doe" defendants but not

describing them with any particularity; that amendment was filed

beyond the two-year limitations period.

The attorney attempted service on MidState by Federal

Express (FedEx). However, the package was addressed to the mall

premises on Route 18 and Tices Lane in East Brunswick, rather

than to the Paramus offices of the corporation that owned the

Mall. A FedEx invoice dated June 14, 2010 reported "Incorrect

recipient address," and reported that FedEx made a "1st attempt

Jun 09, 2010 at 10:31 A.M." but the package was "undeliverable."

However, the invoice also reported that the package was

"Delivered" on "Jun 11, 2010 18:36." Hence, viewing this

6 A-1955-13T2
evidence in the light most favorable to plaintiff, the complaint

was delivered to the mall premises.

However, MidState submitted evidence that its corporate

owner never received the complaint. MidState submitted a

certification of the Mall's property manager, attesting that the

Mall was owned by a corporation called MidState Hye, L.P., with

offices in Paramus. She stated that the mall consisted only of

retail stores and there was "no central office for 'Mid State

Mall' anywhere at the mall itself." She also attested that

there was no location in the mall to leave packages addressed to

Mid State Mall, other than one of the retail tenants, and that

Midstate Hye, L.P. had never received a FedEx package containing

plaintiff's May 19, 2010 complaint.

The complaint was dismissed for lack of prosecution on

December 3, 2010. Instead of filing a motion to reinstate the

original amended complaint, plaintiff's then-attorney filed a

new complaint on July 19, 2011, naming as defendants MidState,

Maser (misspelled as "Master") and its engineer, Zelina.

Plaintiff's counsel served this complaint on MidState at its

corporate offices on August 1, 2011. When MidState filed a

motion to dismiss based on the statute of limitations, the

attorney realized his mistake and filed a cross-motion to

reinstate the original complaint.

7 A-1955-13T2
 In support of that motion and in opposition to the

dismissal motion, plaintiff's then-attorney filed certifications

in which he attested that his client had been incapacitated

since the time of the accident. The attorney attested that due

to plaintiff's injuries, he was "institutionalized at the

Madison Center" in Old Bridge. The attorney submitted medical

records which he contended showed his client's incapacity.

Plaintiff also filed an October 30, 2011 expert report from Dr.

Leon H. Waller, noting that the accident caused plaintiff to

suffer a closed head injury with traumatic brain injury, mood

disorder and cognitive dysfunction, along with a host of

physical disabilities including paraplegia. Dr. Waller opined

that the medications required to treat these conditions "by

themselves diminish one's cognitive skills," thereby aggravating

and compounding plaintiff's existing "underlying cognitive

dysfunction as a direct result of the accident." Dr. Waller

opined that plaintiff "did not possess the cognitive capacity to

competently decide the course of his medical care or make

decisions regarding his legal rights and representation."

Plaintiff's attorney also certified that MidState had been

"successfully served" with the original complaint; he submitted

documentation from FedEx confirming delivery. In response,

MidState asserted that the original complaint was never

8 A-1955-13T2
personally served, and that service by FedEx was insufficient

under Rule 4:4-3. MidState also contended that the medical

records demonstrated that plaintiff was not mentally

incapacitated, but MidState did not submit an expert report to

contradict Dr. Waller's report.

The motion and cross-motion were heard before Judge Martin

E. Kravarik on November 4, 2011. In contrast to what he told

Judge Ciuffani, plaintiff's counsel told Judge Kravarik that the

trust approved in the friendly settlement was negotiated and

agreed to by plaintiff's brother Nick because plaintiff was

incapable of making those decisions. The attorney told Judge

Kravarik:

[O]n certain occasions when he [Nick] did
try to discuss any of these matters with his
brother, his brother would become very
emotional and incoherent. He is heavily
medicated and will be so for the rest of his
life.

Suffice it to say that he is now
struggling with the pain management and the
continued addiction on these painkillers
which is something that they give the
patients regularly, unfortunately.

. . . .

. . . [T]he fact is that he wasn't
making any decision with tubes down his body
and in his mouth and through his nose, and
he continues to be in a state where he does
not make any decisions on his own behalf.

9 A-1955-13T2
 In an oral opinion, Judge Kravarik noted that the two-year

statute of limitations, N.J.S.A. 2A:14-2, could be tolled by

insanity and mental derangement, or lack of consciousness. See

N.J.S.A. 2A:14-21. While expressing some concern for the

possible prejudice to the defendant, the judge reasoned that it

would be unjust to deny "a person who is mentally and physically

incapacitated his day in court." Judge Kravarik explained that

Judge Ciuffani's action in appointing a trustee for plaintiff

supported plaintiff's contention that he was incapacitated.

Judge Kravarik therefore held that the statute of limitations

would be tolled to the date of the motion hearing, and appointed

plaintiff's brother as his guardian ad litem "for the purpose of

this suit since he's also the medical representative and trustee

in equity." Judge Kravarik also reinstated the original

complaint and deemed the second complaint as an amended

complaint which related back to the initial filing of the first

complaint.

However, the judge told defense counsel that if discovery

revealed "that the relief granted was not warranted you may file

an[] appropriate [m]otion for reconsideration." The judge also

directed plaintiff's counsel to immediately provide defense

counsel with full access to plaintiff's medical records. The

court's ruling was memorialized in an order dated November 4,

10 A-1955-13T2
2011. The judge later amended the order to provide that the

statute of limitations was "tolled through April 4, 2012."

Plaintiff served the amended complaint on Maser on February 6,

2012.

Following the motion before Judge Kravarik, plaintiff

retained new counsel and the parties engaged in discovery on all

issues. After the parties completed discovery, MidState filed a

motion for reconsideration on or about August 6, 2013, and Maser

filed a motion for summary judgment on the statute of

limitations issue. In support of the reconsideration motion,

which was to be heard by a second judge who was new to the case,

MidState's counsel submitted the same materials that were

presented to Judge Kravarik, plus the transcript of the hearing

before Judge Ciuffani and portions of plaintiff's deposition.

During his deposition, plaintiff was able to answer

questions, however, he could not remember the circumstances

under which the original lawsuit was filed. He explained that

"[b]ack then, after the coma, like after all that stuff happened

I woke up. I was getting sick a lot and going to the hospital,

going to a new nursing home. I was so out of it. You know, I

was in so much pain. . . . And so I may have said stuff, but .

. . a lot of stuff was blurry to me . . . at one point I tried

to call my brother by dialing my cell phone. I was pushing my

11 A-1955-13T2
hand and thinking that I would be able to call my brother. . .

." He also testified that he did not remember signing the POA

naming his brother as his fiduciary.

Plaintiff's medical records, submitted in opposition to the

reconsideration motion and Maser's summary judgment motion,

indicated that plaintiff was conscious and alert immediately

after the accident, but after surgery performed on May 19, 2008,

he was "in a coma state for several weeks, on mechanical

ventilation and parenteral nutritional support." It appeared

that he did not fully emerge from the coma state until July 9,

2008, when he was weaned from the ventilator. However, he was

noted to be heavily medicated and in intractable pain. Hospital

records reflect that plaintiff's brother and father consented to

various medical procedures on his behalf during May, June, and

July 2008.

Plaintiff also submitted a second report from Dr. Waller

dated July 15, 2013. Based on his examination of plaintiff, Dr.

Waller opined that plaintiff remained incapacitated due to his

severe neurological injuries. None of the defendants submitted

any medical expert reports to contradict Dr. Waller's July 2013

report or his earlier report.

Plaintiff also submitted a certification from his brother

Nick, dated August 5, 2013, explaining in great detail the

12 A-1955-13T2
extent of plaintiff's limitations. Nick attested that plaintiff

signed a power of attorney shortly after the May 19, 2008

accident, as he was about to undergo surgery, and attested that

plaintiff was then in a medical coma for months afterward.

Nick's certification explained plaintiff's inability to make

decisions, stated that he was lucid only sporadically, and

attested that there was no intent to mislead Judge Ciuffani at

the friendly hearing concerning plaintiff's mental condition.

The brother stated: "If Peter was normal and competent he would

not have needed a trustee and I would not have to take care of

him. . . . From the day of the accident I have taken on the

responsibilities for my brother's life and well[-]being which is

a 24/7 obligation. . . . To this day Peter is not mentally

competent or consistent. . . . [A]ny mental stress can cause

him to become irrational and childlike. . . . When he is on

dilaudid or recovering from it[,] these disabilities are even

worse."

In an oral opinion, on September 12, 2013, the newly-

assigned motion judge (hereafter, the "second judge" or "the

judge") determined that plaintiff was competent at the time that

his attorney appeared before Judge Ciuffani, "based on the

representation of his attorney." In other words, regardless of

plaintiff's medical proofs concerning his incapacity, the second

13 A-1955-13T2
judge reasoned that plaintiff was bound by his former attorney's

statement at the friendly hearing.4 The judge also concluded

that, even if plaintiff was incapacitated, once plaintiff

retained an attorney to file a complaint on his behalf, the

statute of limitations was no longer tolled by virtue of his

incapacity. The judge reasoned "that in the alternative, if he

was not competent, the fact that he had an attorney, not on a

collateral matter, but on the direct matter which is in front of

me now, would have created a running of the statute of

limitations."

The judge considered that "[o]nce an incompetent person or

those on his behalf engages an attorney, to handle a litigated

matter, the statute begins to run. . . . You can't litigate in

piecemeal against one defendant one day and another defendant

another day. And a third defendant another day." The judge

reasoned that Unkert v. General Motors Corp., 301 N.J. Super.

583, 591 (App. Div.), certif. denied, 152 N.J. 10 (1997), was

not on point, because in that case the plaintiff was represented

by counsel on a different matter from the tort suit in which he

claimed tolling of the limitations period.

4
During the oral argument, the judge initially commented that
the court might need to hold an evidentiary hearing under
N.J.R.E. 104, to determine the competency issue. However, the
judge apparently decided that such a hearing was not necessary.

14 A-1955-13T2
 The judge also concluded that the failure to successfully

serve the complaint on MidState in 2010 defeated plaintiff's

right to have the complaint reinstated in 2011. The judge

reasoned that even if plaintiff's counsel made errors,

"[a]ttorneys' negligence is no longer excused."5 The judge also

stated that defendants were prejudiced by the delay, without

specifying the facts on which that conclusion was based.6 On

September 12, 2013, the trial court entered two orders

dismissing the complaint, respectively, against MidState and

Maser.

On October 3, 2013, plaintiff filed a motion for

reconsideration of the second judge's September 12, 2013 orders.

The motion included evidence supporting the merits of the

underlying lawsuit, including the report of an engineering

expert. Both sides submitted additional information concerning

the FedEx service on MidState.

5
As further discussed in Part IIA, infra, Rule 1:13-7(a) applies
a good cause standard for reinstatement motions in single-
defendant cases, but applies an exceptional circumstances
standard in multi-defendant cases where at least one of the
several defendants has been properly served. Based on the
quoted language, we infer that the judge applied the exceptional
circumstances standard.
6
None of the defendants submitted legally competent evidence
that the delay in serving the complaint caused them any actual
prejudice in their ability to defend against the lawsuit.

15 A-1955-13T2
 In a written opinion dated December 6, 2013, the second

judge denied plaintiff's reconsideration motion. The judge

concluded that the motion was procedurally barred as to

MidState, reasoning that Rule 4:49-2 prohibited the filing of a

second reconsideration motion, even if filed by a different

party than the one who filed the first reconsideration motion.

The judge also found that failure to effectively serve the

original complaint on MidState barred the court from finding

that service of the second or amended complaint on Maser related

back to the date of filing of the original complaint. The judge

concluded that delivering the complaint to the mall was

ineffective, because that was not MidState's correct business

address and there was no proof that MidState received actual

notice of the complaint as a result of that attempted service.

This appeal followed.

II

A.

MidState and Maser stand in different procedural postures,

because plaintiff filed a timely complaint against MidState, but

filed the complaint against Maser more than a year beyond the

two-year statute of limitations. We begin by considering the

second judge's decision to grant MidState's reconsideration

motion and dismiss the complaint against that defendant.

16 A-1955-13T2
 We conclude that it was a mistaken exercise of discretion

to dismiss the complaint against MidState.7 There was no

explanation for the lapse of just over a year between the

attempted service on MidState and the filing of the second

complaint. However, the original complaint was filed within the

statute of limitations and could have been reinstated on motion,

for good cause shown, even if plaintiff had not served MidState.

See Baskett v. Kwokleung Cheung, 422 N.J. Super. 377, 384-85

(App. Div. 2011). Consequently, the former attorney's mistake

in having the complaint served on Midstate at the mall's address

instead of at Midstate's corporate headquarters, in itself, does

not bar reinstatement.

The Rules are to be construed so as to do justice, and

ordinarily an innocent plaintiff should not be penalized for his

attorney's mistakes. See Baskett, supra, 422 N.J. Super. at

385; Weber v. Mayan Palace Hotel & Resorts, 397 N.J. Super. 257,

263 (App. Div. 2007). In applying the good cause standard for

reinstating a complaint under Rule 1:13-7(a), "we are satisfied

that, absent a finding of fault by the plaintiff and prejudice

7
While it does not merit extended discussion, we also conclude
the judge erred in finding that plaintiff's reconsideration
motion was procedurally barred. Plaintiff was not guilty of
filing repetitive reconsideration motions; rather, this was his
first motion for reconsideration of an order dismissing his
complaint. He had a right to file that motion under Rule 4:49-
2.

17 A-1955-13T2
to the defendant, a motion to restore under the rule should be

viewed with great liberality." Ghandi v. Cespedes, 390 N.J.

Super. 193, 197 (App. Div. 2007). Where, as here, there was no

legally competent proof of prejudice to MidState from the delay

in service, and no evidence that plaintiff was at fault, the

interests of justice were not served by punishing this gravely

injured, innocent plaintiff for his former attorney's evident

inattention to this matter. Baskett, supra, 422 N.J. Super. at

385.

Moreover, the provision of Rule 1:13-7(a) requiring a

showing of exceptional circumstances in multi-defendant cases

does not apply here, because Maser was not added to the case

until after the filing of the second complaint. 8 The higher

standard in multi-defendant cases was intended to avoid delay

where a case has been proceeding against one or more defendants,

and the plaintiff then seeks to reinstate the complaint against

a previously-dismissed additional defendant. See Pressler &

8
The history of Rule 1:13-7(a) confirms that the exceptional
circumstances standard was intended to apply only in multi-
defendant cases. Baskett, supra, 422 N.J. Super. at 383-84 n.4.
Moreover, by its terms, Rule 1:13-7(a) only requires a showing
of exceptional circumstances in multi-defendant cases "in which
at least one defendant has been properly served." According to
MidState's evidence, that standard was not met at the time Judge
Kravarik reinstated the complaint, because neither MidState nor
Maser had been properly served.

18 A-1955-13T2
Verniero, Current N.J. Court Rules, comment 1.2 on R. 1:13-7

(2015). Here, the Maser defendants were not even served with

the amended complaint until after Judge Kravarik reinstated the

original complaint. Hence reinstating the complaint against

MidState did not cause the kind of delay the Rule was intended

to prevent. Moreover, by the time MidState filed its motion for

reconsideration, the parties had completed discovery and, but

for the second judge's decision to dismiss the case, it could

have proceeded to trial. Accordingly, we reverse the order

dismissing the complaint against MidState and we direct that the

complaint be reinstated.

B.

Next, we address the complaint against Maser. Because it

was filed out of time, and Maser had no prior notice of

plaintiff's cause of action, the Maser complaint cannot relate

back to the date of filing of the original complaint against

MidState.9 See R. 4:9-3; Walker v. Choudhary, 425 N.J. Super.

135, 143 (App. Div.), certif. denied, 211 N.J. 274 (2012).

However, we conclude that the trial court mistakenly exercised

its discretion by granting summary judgment for Maser, because

viewing the facts in the light most favorable to plaintiff, he

9
Even the May 27, 2010 amendment, which included "John Doe"
defendants, was filed outside the two-year limitations period.

19 A-1955-13T2
was mentally incapacitated as a result of the accident and the

statute of limitations was tolled. N.J.S.A. 2A:14-21. Hence,

we vacate the order granting summary judgment in favor of Maser

and we remand for an evidentiary hearing on the tolling issue.10

The two-year statute of limitations for commencing a

personal injury lawsuit, N.J.S.A. 2A:14-2, may be tolled by the

plaintiff's mental incapacity:

If a person entitled to commence an action
or proceeding specified in N.J.S.A. 2A:14-1
to 2A:14-8 . . . is . . . a person who has a
mental disability that prevents the person
from understanding his legal rights or
commencing a legal action at the time the
cause of action or right or title accrues,
the person may commence the action . . . ,
within the time as limited by those
statutes, after . . . having the mental
capacity to pursue the person's lawful
rights.

[N.J.S.A. 2A:14-21.]

The version of this statute in effect at the time of the

accident referred to the person being "insane" rather than

having "a mental disability." See L. 1951, c. 344. However,

the term "insane" had been interpreted in a way that corresponds

to the modern term "incapacity."

10
Tolling would also be applicable to MidState as an alternate
ground for reinstating the complaint against that defendant.
Consequently, to protect its further appeal rights, MidState
shall be permitted to fully participate in the hearing on
remand.

20 A-1955-13T2
 For example, in Sobin v. M. Frisch & Sons, 108 N.J. Super.

99 (App. Div. 1969), certif. denied, 55 N.J. 448 (1970), we held

that a tree trimmer who suffered a concussion in a fall,

resulting in an extended period of unconsciousness, was thereby

rendered "insane" for purposes of the statute. "Manifestly, the

aim of N.J.S.A. 2A:14-21 is to relieve from the strict time

restrictions any person who actually lacks the ability and

capacity, due to mental affliction, to pursue his lawful

rights." Id. at 104. We found that because the plaintiff "was

in a mental condition which prevented him from knowing, and, a

fortiori, understanding his legal rights" he was "insane" within

the meaning of the statute. Ibid.; See also Kyle v. Green Acres

at Verona, Inc., 44 N.J. 100, 113 (1965) (defining insanity as

"such a condition of mental derangement as actually prevents the

sufferer from understanding his legal rights or instituting

legal action"). Both lay and expert testimony is admissible to

establish that a plaintiff is incapacitated for purposes of

N.J.S.A. 2A:14-21. Estate of Nicolas v. Ocean Plaza Condo.

Ass'n, Inc., 388 N.J. Super. 571, 582 (App. Div. 2006).

Therefore, the testimony of plaintiff's brother, as well as

expert testimony, is admissible on that issue.

To obtain the benefit of N.J.S.A. 2A:14-21, ordinarily a

plaintiff must be incapacitated at the time the cause of action

21 A-1955-13T2
arises. However, there is an equitable exception where the

accident itself causes the plaintiff to become incapacitated at

a later time. "Thus, a defendant whose negligent act brings

about plaintiff's insanity should not be permitted to cloak

himself with the protective garb of the statute of limitations."

Kyle, supra, 44 N.J. at 111. The trial court, sitting without a

jury, should determine whether a plaintiff was incapacitated on

or after the date of the accident and whether the incapacity

resulted from defendant's acts.11 Id. at 112. To ensure

fairness to the defendant, the court must also determine

"whether plaintiff's suit was started within a reasonable time

after restoration of sanity or after the appointment of a

guardian or committee who knew or should have known of the cause

of action." Ibid.

In applying equitable principles concerning the statute of

limitations, courts have emphasized

that the effect of a statute of limitations
is to deny access to our courts.
Unswerving, mechanistic application of
statutes of limitations would at times
"inflict obvious and unnecessary harm upon

11
We infer that this standard requires the judge to determine
whether the plaintiff's later incapacity resulted from the
accident, as opposed to from some other cause. We do not
construe the standard as requiring the judge to decide whether
the defendant was liable for the accident. To hold otherwise
would require, in essence, a trial of the underlying tort suit
before the case could go forward.

22 A-1955-13T2
 individual plaintiffs" without materially
advancing the objectives they are designed
to serve.

[Jones v. Jones, 242 N.J. Super. 195, 203
(App. Div.), certif. denied, 122 N.J. 418
(1990) (quoting Galligan v. Westfield Centre
Servs. Inc., 82 N.J. 188, 192 (1980)).]

Where there are material factual issues concerning a tolling

claim, particularly issues concerning a plaintiff's mental

state, the court should hold an evidentiary hearing. Id. at

202, 206; Estate of Nicolas, supra, 388 N.J. Super. at 582-83.

As previously noted, in deciding a summary judgment motion,

the court must give the non-moving party the benefit of all

favorable inferences that can be drawn from the evidence. See

Agurto v. Guhr, 381 N.J. Super. 519, 522 (App. Div. 2005). We

conclude the second judge erred in ignoring the legally

competent lay and medical testimony as to plaintiff's

incapacity, and instead basing the decision on the unsworn

representation of plaintiff's counsel in the friendly hearing.

At most, that representation, plus the brother's brief testimony

at the same hearing, created a material dispute of fact as to

plaintiff's mental capacity. Viewed in the light most favorable

to plaintiff, the motion evidence was sufficient to establish

that plaintiff was incapacitated for purposes of N.J.S.A. 2A:14-

21.

23 A-1955-13T2
 Further, the doctrine of judicial estoppel was not properly

applied to the attorney's unsworn representation in the friendly

hearing, which was a non-adversarial proceeding intended to

protect the interests of plaintiff and his minor daughter. See

Impink ex rel. Baldi v. Reynes, 396 N.J. Super. 553, 562 (App.

Div. 2007). "[J]udicial estoppel is an 'extraordinary remedy,'

which should be invoked only 'when a party's inconsistent

behavior will otherwise result in a miscarriage of justice.'"

Kimball Int'l, Inc. v. Northfield Metal Prods., 334 N.J. Super.

596, 608 (App. Div. 2000), certif. denied, 167 N.J. 88 (2001)

(citation omitted). Depriving this severely injured plaintiff

of his day in court, due to his former attorney's unsworn

representations made in a friendly hearing, would not serve the

interests of justice or the purpose of the doctrine.

We also cannot agree that either the signing of the POA or

the friendly hearing vitiated the tolling of the statute of

limitations, if plaintiff was in fact rendered mentally disabled

by the accident. We acknowledge language in Kyle stating that

in applying the equitable exception for a plaintiff whose later

incapacity was caused by defendants' actions, a court must

consider "whether plaintiff's suit was started within a

reasonable time after restoration of sanity or after the

appointment of a guardian or committee who knew or should have

24 A-1955-13T2
known of the cause of action." Kyle, supra, 44 N.J. at 112

(emphasis added). Judge Ciuffani did not appoint a guardian of

plaintiff's person or property, or a guardian ad litem, during

the friendly hearing. Moreover, it appeared that the primary

purpose of the friendly settlement was to determine the fairness

of the settlement with respect to plaintiff's minor daughter,

who was giving up any right she may have had to file a lawsuit

against the driver in return for a portion of the settlement.

Nor did the friendly hearing result from litigation against

the driver. Rather, it resulted from the insurance company's

voluntary offer of its entire policy. Hence, the second judge's

reasoning, that the limitations period was not tolled because

plaintiff had an attorney "working for him," is not persuasive

to us. The friendly hearing was not the equivalent of the later

personal injury suit. The record does not indicate how, when,

or by whom the original attorney was retained to file the

lawsuit against MidState. However, a guardian ad litem was not

appointed for plaintiff until Judge Kravarik entered the order

on November 4, 2011.

In Unkert, we held that the appointment of a guardian did

not vitiate an incapacitated plaintiff's right to the tolling

provided by N.J.S.A. 2A:14-21, where the plaintiff was

incapacitated contemporaneously with the accident. Supra, 301

25 A-1955-13T2
N.J. Super. at 590-93. Likewise, we held in Nicholas: "It

follows . . . that if the tolling provision is not terminated on

the appointment of a guardian for an incompetent person, the

tolling provision is not terminated for a person who acts as a

caretaker for an insane person, without formal appointment as a

guardian." Supra, 388 N.J. Super. at 584. Unkert concerned a

plaintiff who was rendered incapacitated at the moment of the

accident, rather than at a later time as happened in Kyle. In

Nicholas, the plaintiff already suffered from dementia when her

cause of action arose.

In this case, it is premature even to decide whether Kyle

or Unkert applies, because the record is incomplete. Further,

depending on the facts found after a N.J.R.E. 104 hearing, it

may not matter whether plaintiff became instantly incapacitated

when the accident occurred, or whether he became incapacitated

later that day or two days later. Even if plaintiff signed a

durable POA in favor of his brother, it is not clear for what

purpose plaintiff signed the POA, if in fact he signed it at

all. It is not clear whether he had sufficient mental capacity

when he signed the POA to understand that he was authorizing his

brother to file lawsuits on his behalf, or whether the two of

them believed plaintiff was only signing consent for the brother

26 A-1955-13T2
to make medical decisions for him.12 See Kisselbach v. County of

Camden, 271 N.J. Super. 558, 564-66 (App. Div. 1994).

Given the other mistakes made by plaintiff's former

attorney, we have no confidence that plaintiff or his brother

were properly counseled as to the purpose of the POA or that

plaintiff, who had suffered massive injuries including paralysis

and brain damage, was in any condition to understand the rights

he was giving his brother under the broad wording of the POA.

Finally, as Maser's counsel candidly conceded at the oral

argument of this appeal, there is no legally competent evidence

of any prejudice from the delay in filing or serving the

complaint against Maser.

Reversed and remanded. We do not retain jurisdiction.

12
As we have recognized in another context, there can be
gradations of incapacity, and a person who is incapable of
making some life decisions may be capable of making other
decisions. See In re M.R., 135 N.J. 155, 169 (1994). Hence, a
person who is gravely injured, in intractable pain, and about to
be placed into a medical coma, may be capable of understanding
that he needs a relative to make medical decisions for him but
may have no ability to focus on or make informed decisions about
who should manage his property interests.

27 A-1955-13T2