MARGARET ANNA CUSACK CARE CENTER, INC., ETC. VS. SHARON WILLIAMS (L-3667-18, HUDSON COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2761-19

MARGARET ANNA CUSACK
CARE CENTER, INC., a
New Jersey non-profit
corporation d/b/a PEACE
CARE ST. JOSEPH'S,

Plaintiff-Respondent,

v.

SHARON WILLIAMS, a/k/a
SHARON JONES WILLIAMS
and BLANCHE JONES,
individually and as fiduciary
for SHARON WILLIAMS,

Defendants-Appellants.
____________________________

Submitted December 13, 2021 – Decided December 22, 2021

Before Judges Fasciale and Sumners.

On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Docket No. L-3667-18.

Vincent J. D'Elia, attorney for appellants.
 Hardin, Kundla, McKeon & Poletto, PA, and John A.
Smith, III, attorneys for respondent (James L. Fant and
John A. Smith III, on the briefs).

PER CURIAM

Sharon Williams a/k/a Sharon Jones Williams (Williams), and Blanche

Jones (Jones) individually and as fiduciary for Williams (collectively

defendants), appeal from two January 28, 2020 orders: a denial of their motion

for reconsideration of an earlier order dismissing their counterclaim for failure

to serve an affidavit of merit (AOM); and a grant of summary judgment in favor

of Margaret Anna Cusack Care Center, Inc. a New Jersey non-profit corporation

d/b/a Peace Care St. Joseph's (plaintiff) against Williams and Jones jointly and

severally. We affirm.

Williams suffered a stroke that rendered her paralyzed, unable to speak,

and in need of constant nursing care. Williams, through her sister and fiduciary

Jones, was admitted to plaintiff's licensed nursing care facility for short-term

rehabilitative care on March 12, 2018. Jones was a named agent for Williams

pursuant to a durable power of attorney.

Plaintiff alleges defendants learned that insurance would no longer cover

the costs of Williams's care at plaintiff's facility, and they were required to pay

for services rendered effective April 8, 2018. Defendants filed appeals of the

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non-coverage determination, which were later denied. Plaintiff claims that it

presented defendants with an admissions agreement around April 12, 2018,

which would allow Williams to continue to receive care and maintenance as a

private pay resident, but defendants refused to sign the agreement. Thereafter,

defendants refused to have Williams vacate the facility, and she remained there

without making payments.

On September 17, 2018, plaintiff filed a collection action against

defendants, jointly and severally, for the balance of the payments, amounting to

$61,920 with charge increases at a per diem rate of $360. Plaintiff alleged Jones

breached her fiduciary duty to Williams by failing to pay for the care after being

denied insurance coverage and failing to provide an alternative living

arrangement for Williams.

In their amended answer, defendants denied plaintiff's allegations and

claimed plaintiff never advised them regarding a change in insurance coverage.

Jones maintained that she believed insurance covered Williams's care.

Defendants also filed a counterclaim, alleging plaintiff was professionally

negligent in failing to provide quality care, specifically because Williams

suffered from bed sores and had not received speech therapy. Williams

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remained at plaintiff's facility until January 23, 2019, when she was admitted to

Jersey City Medical Center to treat infected bed sores.

On June 13 and 17, 2019, the case management judge held Ferreira1

conferences with the parties. Jones appeared pro se. Counsel for defendants

was present at both conferences but did not make a formal appearance on their

behalf. Following the June 17 conference, the case management judge entered

an order requiring defendants to serve an AOM by no later than August 12, 2019.

On August 12, 2019, counsel entered a notice of appearance on behalf of

defendants and supplied a certification from Jones, in which she claimed that

she requested plaintiff furnish Williams's medical records months ago and had

not received them. The August 12, 2019 deadline passed without defendants

serving an AOM.

On August 27, 2019, plaintiff filed a motion to dismiss defendants'

counterclaim for failure to file the AOM, pursuant to N.J.S.A. 2A:53A-29. On

September 24, 2019, defendants filed a certification from Jones in opposition to

plaintiff's motion to dismiss with an attached and unfiled AOM. The attached

AOM was dated August 12, 2019, and executed by a registered nurse.

Defendants argued they could not meet the AOM deadline because plaintiff

1
Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144 (2003).
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failed to provide Williams's medical records. The motion judge heard oral

argument on the motion to dismiss, entered an order granting plaintiff's motion

to dismiss the counterclaim for failure to serve a timely AOM, and rendered a

written decision.

On October 21, 2019, defendants filed a motion for reconsideration of the

order. Plaintiff subsequently filed a motion for summary judgment as to its

collection action. On January 28, 2019, the motion judge denied defendants'

motion for reconsideration and granted plaintiff's motion for summary

judgment. The summary judgment order entered judgment against defendants

for $115,545.60, jointly and severally.

On appeal, plaintiff raises the following points for this court's

consideration:

POINT I

IN THE INTERESTS OF JUSTICE, THIS COURT
SHOULD GRANT BLANCHE JONES'[S] MOTION
FOR AN ORDER BY THIS COURT, NUNC PRO
TUNC, TREATING HER DIRECT APPEAL HEREIN,
OF THE ORDER GRANTING SUMMARY
JUDGMENT, AS AN APPEAL OF AN
INTERLOCUTORY ORDER. (Raised in concurrent
motion to this [c]ourt).

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POINT II

GRANTING SUMMARY JUDGMENT AGAINST
BLANCHE JONES, JOINTLY AND SEVERALLY
WITH SHARON WILLIAMS, WAS AN ABUSE OF
DISCRETION, AND ERROR OF LAW, BY THE
[JUDGE] BELOW, AS (A) BLANCHE JONES'[S]
SOLE ROLE WAS THAT OF A FIDUCIARY; (B)
N.J.S.A. 30:13-3.1(a)(2) EXPRESSLY PROHIBITS A
NURSING HOME FROM SEEKING TO IMPOSE
SUCH LIABILITY; AND (C) A FIDUCIARY IS NOT
PERSONALLY LIABLE TO THIRD PARTIES FOR
DEBTS OF THE PRINCIPAL, UNDER NEW JERSEY
LAW. (Not raised by either party below).

POINT III

PERMITTING BLANCHE JONES, WHO WAS NOT
AN ATTORNEY, TO REPRESENT HER SISTER,
SHARON WILLIAMS, AS ATTORNEY-IN-FACT,
PRO SE, WAS PREJUDICIAL TO SHARON
WILLIAMS, WRONGLY PERMITTED WITH
DELIBERATE INDIFFERENCE, BY THE
ATTORNEYS FOR [PLAINTIFF] AND AN ABUSE
OF DISCRETION BY THE [JUDGE] TO PERMIT
I[T]S CONTINUANCE. (Not raised by either party
below).

POINT IV

THE [JUDGE] BELOW ABUSED [HER]
DISCRETION IN GRANTING SUMMARY
JUDGMENT TO PLAINTIFF, DISMISSING MS.
[WILLIAMS'S] COUNTERCLAIMS WITH
PREJUDICE, INSTEAD OF FINDING
SUBSTANTIAL COMPLIANCE BY MS. WILLIAMS
WITH N.J.S.A. 2A:53A-27, AND FAILING TO
CONSIDER THE PREJUDICE TO MS. WILLIAMS

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 FROM [PLAINTIFF'S] FAILURE TO PROVIDE
MEDICAL RECORDS TO MS. WILLIAMS, AND
FROM THE EXTENDED ENGAGEMENT OF MS.
WILLIAMS IN EXTENSIVE LITIGATION, WHEN
SHE WAS NOT REPRESENTED BY AN
ATTORNEY AT LAW.

POINT V

GRANTING SUMMARY JUDGMENT, WITHOUT
HOLDING A PROOF HEARING OR TRIAL ON THE
ISSUE OF DAMAGES, WAS AN ABUSE OF
DISCRETION BY THE [JUDGE] BELOW, WHERE
PLAINTIFF SOUGHT AN AWARD OF $115,545 IN
A QUANTUM MERUIT CLAIM, UPON A
COMPLAINT THAT ORIGINALLY SOUGHT ONLY
$61,920, AND WHERE THERE WAS EVIDENCE OF
THE FAILURE OF [PLAINTIFF] TO PROVIDE THE
SKILLED NURSING CARE THAT IT WAS
OBLIGATED TO PROVIDE TO MS. WILLIAMS,
INCLUDING THE FAILURE TO OBSERVE AND
TREAT MS. WILLIAMS'[S] SEVERELY INFECTED
BED SORES.

We disagree and affirm.

I.

We begin by addressing defendants' request to treat their direct appeal as

an appeal of an interlocutory order in the interests of justice. Under Rule 2:2-

3(a)(1), a litigant may appeal as of right from "final judgments of the Superior

Court trial divisions." "A judgment is final for purposes of appeal if it

'dispos[es] of all issues as to all parties.'" Wein v. Morris, 194 N.J. 364, 377

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(2008) (alteration in original) (quoting Hudson v. Hudson, 36 N.J. 549, 553

(1962)). This court has discretion to grant leave to appeal nunc pro tunc when

a party fails to seek leave to appeal an interlocutory order. See Medcor, Inc. v.

Finley, 179 N.J. Super. 142, 144-45 (App. Div. 1981). We conclude the two

orders are final judgments and will address the matter on the merits.

II.

Defendants argue that the judge erred in permitting Jones to appear pro

se. Defendants contend that the judge had a duty to protect Williams and failed,

and further allege plaintiff's counsel engaged in a "deliberate effort" to take

advantage of defendants by serving detail interrogatories and notices to admit to

Jones as a pro se litigant. Defendants concede that they raise this issue for the

first time on appeal. Issues not raised below "will ordinarily not be considered

on appeal unless they are jurisdictional in nature or substantially implicate the

public interest." N.J. Div. of Youth & Fam. Servs. v. M.C. III, 201 N.J. 328,

339 (2010). Nonetheless, we reject the merits of defendants' argument. There

is no support for the contention that the judge erred by allowing Jones to appear

pro se, especially because counsel was present at the Ferreira conferences and

appeared on behalf of defendants from that point forward.

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 III.

The judge followed the applicable law in denying reconsideration of the

previous order dismissing the counterclaim. We review a trial judge's denial of

a motion for reconsideration for abuse of discretion. Branch v. Cream-O-Land

Dairy, 244 N.J. 567, 582 (2021). An abuse of discretion "arises when a decision

is 'made without a rational explanation, inexplicably departed from established

policies, or rested on an impermissible basis.'" Flagg v. Essex Cnty. Prosecutor,

171 N.J. 561, 571 (2002) (quoting Achacoso-Sanchez v. I.N.S., 779 F.2d 1260,

1265 (7th Cir. 1985)).

A.

The AOM statute "requires plaintiffs alleging malpractice against a

licensed professional to include an affidavit from a medical expert in their

filing" to demonstrate "there exists a reasonable probability the standard of care

exercised in the alleged malpractice fell outside the acceptable professional or

occupational standards." Cowley v. Virtua Health Sys., 242 N.J. 1, 8 (2020).

The statute prescribes the deadlines for filing an AOM:

[i]n any action for damages for personal injuries,
wrongful death or property damage resulting from an
alleged act of malpractice or negligence by a licensed
person in his profession or occupation, the plaintiff
shall, within [sixty] days following the date of filing of
the answer to the complaint by the defendant, provide

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 each defendant with an affidavit of an appropriate
licensed person that there exists a reasonable
probability that the care, skill or knowledge exercised
or exhibited in the treatment, practice or work that is
the subject of the complaint, fell outside acceptable
professional or occupational standards or treatment
practices. The [judge] may grant no more than one
additional period, not to exceed [sixty] days, to file the
affidavit pursuant to this section, upon a finding of
good cause.

[N.J.S.A. 2A:53A-27.]

Failure to comply with the statute "shall be deemed a failure to state a cause of

action." N.J.S.A. 2A:53A-29.

Defendants filed their counterclaim against plaintiff alleging professional

negligence on October 15, 2018, and plaintiff filed its answer on November 19,

2018. N.J.S.A. 2A:53A-27 requires the AOM be filed within sixty days

following the date of the answer; thus the deadline for the AOM was January

18, 2019. The case management judge held two Ferreira conferences in June

2019, amended the deadline, and issued an order requiring defendants to serve

the AOM by no later than August 12, 2019. Plaintiff's counsel certified on

August 27, 2019, in support of the motion to dismiss with prejudice, that

plaintiff did not receive the AOM by August 12.

On September 24, 2019, defendants filed opposition to plaintiff's motion

to dismiss the counterclaim with an attached, unfiled AOM executed by a

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registered nurse. The AOM was dated August 12, 2019. Defendants did not

comply with the AOM statute, warranting dismissal of their counterclaim;

however, they argue that the motion judge should have used her discretion in

finding substantial compliance with the statute.

Our Court has recognized that the doctrine of substantial compliance

applies to the AOM statute. Fink v. Thompson, 167 N.J. 551, 561 (2001). The

defaulting party may invoke the doctrine of substantial compliance if the party

demonstrates the following:

(1) lack of prejudice to the defending party; (2) a series
of steps taken to comply with the statute involved; (3)
a general compliance with the purpose of the statute;
(4) a reasonable notice of petitioner's claim, and (5) a
reasonable explanation why there was not a strict
compliance with the statute.

[Ibid. (quoting Alan J. Cornblatt, P.A. v. Barow, 153
N.J. 218, 239 (1998)).]

"Establishing those elements is a heavy burden." Galik v. Clara Maass Med.

Ctr., 167 N.J. 341, 357 (2001).

Defendants justify their non-compliance by arguing plaintiff did not

timely deliver Williams's medical records, and Jones was representing

defendants pro se. Jones certified that defendants' other sister made a form

request for records at plaintiff's facility "many months" before August 12, 2019.

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Plaintiff provided a March 12, 2019 letter and FedEx receipt showing that they

sent medical progress records to an agent of Stark & Stark, a law firm which

plaintiff claims represented defendants at that time. Defendants counter that

they never retained Stark & Stark at any point during the litigation, and they

never received the records. Jones sent a written request to plaintiff for records

on August 6, 2019. Six days later, on August 12, Jones received a response

dated August 9 from plaintiff's facility that the records were available for pick -

up at a cost of $200 for the copies.

Defendants failed to demonstrate the series of steps taken to comply with

the statute, general compliance with the statute, or a reasonable explanation of

why there was not strict compliance. See Fink, 167 N.J. at 561. A verbal request

made "many months" ago is insufficient to demonstrate a series of steps taken

towards compliance with the statute. Furthermore, defendants' counsel was

present at the Ferreira conferences and fully aware of the revised deadline, even

if he was not making a formal appearance. The motion judge properly

concluded, both on the motion to dismiss and on the motion for reconsideration,

that defendants did not offer "a reasonable explanation of why the [AOM] is 120

days overdue, in violation of a court order" despite defendants having "had

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ample time to secure the necessary records and documents, and to submit the

Affidavit."

B.

Defendants also contend the motion judge erred by dismissing the

counterclaim with prejudice. Dismissal for failure to comply with the

procedural requirements of the AOM statute should result in dismissal with

prejudice unless extraordinary circumstances exist. Allan J. Cornblatt, P.A., 153

N.J. at 242. "[C]arelessness, lack of circumspection, or lack of diligence" are

not extraordinary circumstances. Palanque v. Lambert-Woolley, 168 N.J. 398,

404-05 (2001) (quoting Burns v. Belafsky, 326 N.J. Super. 462, 470 (App. Div.

1999)). Here, defendants' belated written request to plaintiff for medical records

on August 6, only six days before the revised deadline to file the AOM, reflects

a lack of diligence and does not qualify as an extraordinary circumstance.

C.

Finally, defendants argue that the "mere appearance in a nursing home

patient of infected bed sores" falls under the common knowledge doctrine; thus

the counterclaim did not require an AOM. Defendants did not raise their

common knowledge argument below, but we address its merits by providing

these brief remarks.

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 There exists an exception to the AOM statute where "the alleged conduct

or failure to act, if accepted as true, would be readily recognizable, by a person

of average intelligence, as a failure to exercise the appropriate standard of care."

Cowley, 242 N.J. at 8. In a common knowledge case, "an expert is not needed

to demonstrate that a defendant breached a duty of care." Hubbard v. Reed, 168

N.J. 387, 394 (2001). The common knowledge doctrine "applies where 'jurors'

common knowledge as lay persons is sufficient to enable them, using ordinary

understanding and experience, to determine a defendant's negligence without the

benefit of the specialized knowledge of experts.'" Ibid. (quoting Est. of Chin v.

Saint Barnabas Med. Ctr., 160 N.J. 454, 469 (1999)). The exception is construed

"narrowly in order to avoid non-compliance with the [AOM] statute." Id. at 397.

The professional negligence issues, in this case, are not within the average

lay person's ordinary understanding and experience. Defendants' counterclaim

involves inadequate care in nursing, a lack of speech therapy, and wound care.

These allegations require the benefit of expert testimony from medical

professionals and are not within the common knowledge exception. Therefore,

defendants' counterclaim was properly dismissed for failure to comply with the

AOM statute.

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 IV.

Defendants argue the judge erred in granting summary judgment in favor

of plaintiff. An appellate court reviews a trial judge's decision on a summary

judgment motion de novo. Giannakopoulos v. Mid State Mall, 438 N.J. Super.

595, 599 (App. Div. 2014). We utilize the same standard as the motion judge

and consider "whether the competent evidential materials presented, when

viewed in the light most favorable to the non-moving party, are sufficient to

permit a rational factfinder to resolve the alleged disputed issue in favor of the

non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540

(1995).

A.

Defendants argue the judge erred in granting summary judgment

personally against Jones, jointly and severally with Williams, because she was

acting solely as a fiduciary for Williams. Defendants argue that plaintiff, as a

nursing care facility subject to N.J.S.A. 30:13-3.1(a)(2), is prohibited from

requiring an agreement with a resident's fiduciary, under a durable power of

attorney, to impose personal liability on the fiduciary. Defendants contend that

there is not valid authority imposing direct personal liability on a fiduciary to a

third party for failure to pay an obligation of the principal. Defendants concede

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that they did not raise this issue below. Nonetheless, we reject defendants'

contention on the merits and conclude the judge did not err in imposing joint

and several liability against Jones and Williams.

Under N.J.S.A. 30:13-3.1(a) a nursing home may not

require a third party guarantee of payment to the facility
as a condition of admission or expedited admission to,
or continued residence in, that facility; except that
when an individual has legal access to a resident's
income or resources available to pay for facility care
pursuant to a durable power of attorney, order of
guardianship or other valid document, the facility may
require the individual to sign a contract to provide
payment to the facility from the resident's income or
resources without incurring personal financial liability.

Plaintiff argues that its pursuit of Jones for joint and several liability is not as a

guarantor as prohibited under N.J.S.A. 30:13-1.1(a)(2), but rather Jones's

personal liability as a fiduciary. In its original compliant, plaintiff alleged that

Jones was liable because she breached her fiduciary duty owed to Williams and

plaintiff as a third party.

Under N.J.S.A. 3B:14-35, "[i]f the exercise of power concerning the estate

is improper, the fiduciary is liable to interested persons for damage or loss

resulting from breach of [her] fiduciary duty to the same extent as a trustee of

an express trust." In statutorily-sanctioned and tort causes of action, our Court

recognizes that an executor or other fiduciary may be liable to a third party when

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she breaches her duty to secure or protect estate assets. In re Est. of Stockdale,

196 N.J. 275, 305 (2008).

The durable POA gave Jones "the powers . . . with the understanding that

they will be exercised for [Williams's] benefit, on [her] behalf, and solely in a

fiduciary capacity." Further in the POA, in the paragraph titled "Reliance by

Third Parties," Williams agreed to "hold harmless any third party who acts in

reliance on this power for damages or liability incurred as a result of that

reliance." The motion judge noted that Jones admitted to being Williams's POA

and having access to Williams's bank account. The judge also found that

plaintiff was obligated by law to continue housing Williams instead of

discharging her even after months of non-payment because Jones "gave up"

Williams's apartment, leaving her without a viable housing alternative.

We are not persuaded by defendants' argument that Jones cannot be held

liable as a fiduciary under N.J.S.A. 30:13-3.1(a)(2) because plaintiff's pursuit of

joint and several liability was not based on guarantor liability, but instead

Jones's breach of fiduciary duty for failure to secure assets to pay for Williams's

care. From plaintiff's statement of material facts, which defendants never

provided a counterstatement to, there is sufficient evidence that Jones failed to

secure assets properly on behalf of Williams. Jones was informed that the

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insurance would no longer cover Williams's stay at plaintiff's facility but did

nothing when her status changed to a private pay resident. Jones terminated

Williams's permanent housing, thus preventing her discharge from plaintiff's

facility and resulting in more debt. Jones did not apply to Medicaid on

Williams's behalf to cover the expenses of plaintiff's care. The judge did not err

in concluding Jones was jointly and severally liable with Williams for the

amount owed to plaintiff.

B.

Defendants argue that the judge erred in awarding $115,545.60 to plaintiff

on summary judgment without conducting a proof hearing as to damages

because the original complaint demanded only $61,920, and this amount was

disputed based on the alleged inadequate care.

On a motion for summary judgment, "if a case involves no material factual

disputes, the [judge] disposes of it as a matter of law by rendering judgment in

favor of the moving or non-moving party on the issue of liability or damages or

both." Brill, 142 N.J. at 537. Since this is a collection action, plaintiff's cause

of action relies on the equitable doctrine of quantum meruit. "[Q]uantum meruit

allows 'the performing party to recoup the reasonable value of services

rendered.'" EnviroFinance Group, LLC v. Env't Barrier Co., LLC, 440 N.J.

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Super. 325, 349 (App. Div. 2015) (quoting Weichert Co. Realtors v. Ryan, 128

N.J. 427, 438 (1992)). The elements of quantum meruit are "(1) the performance

of services in good faith, (2) the acceptance of the services by the person to

whom they are rendered, (3) an expectation of compensation therefor, and (4)

the reasonable value of the services." Ibid. (quoting Starkey, Kelly, Blaney &

White v. Est. of Nicolaysen, 172 N.J. 60, 68 (2002)).

As defendants did not submit a counterstatement of material facts as

procedurally required, the judge appropriately accepted plaintiff's statement of

material facts, which established that: Jones, as POA, understood and consented

to Williams's housing and care at plaintiff's facility; Williams received those

services; and Jones knew that insurance was not covering Williams's care.

Plaintiff provided a bill from September 7, 2018, listing defendants' balance as

$61,920 for Williams's room and board from April 2018 to September 2018. In

her response to plaintiff's request for admissions, Jones could "neither" admit or

deny the total amount owed to plaintiff was $61,920 and that Williams's care

continued to be charged at a per diem rate of $360. Plaintiff provided an October

18, 2019 bill to defendants totaling $115,545.60 with a list of charges for room

and board and late fees, as well as some payments received from insurance from

April 2018 to September 2019. Although the judge noted that plaintiff's "bills

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are not particularly detailed or in-depth in their description of services

rendered," ultimately, summary judgment was appropriate because the rates are

reasonable and customary, and defendants did not provide any evidence to

contradict their validity.

We reject defendants' argument that a proof hearing is required because

the original complaint only requested $61,920. Plaintiff provided an updated

bill in support of its motion for summary judgment listing the charges, which

totaled $115,545.60. Plaintiff's complaint clearly stated the charges would

increase at a daily rate, and the bill reflected room and board and late fees from

the complaint's filing to Williams's discharge in January 2019.

Defendants allege that the charges are in dispute because of alleged

negligence, but their counterclaim on that issue was dismissed with prejudice,

and they have not submitted any evidence to prove the bills are inaccurate.

Defendants did not raise a genuine issue of material fact as to the validity of the

amount owed; therefore, the judge correctly rendered judgment as to liability

and damages.

Affirmed.

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