In the Matter of M.G.F.

NOT FOR PUBLICATION WITHOUT THE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-3982-21

IN THE MATTER OF
M.G.F.,1

an alleged incapacitated person.
____________________________

Submitted December 19, 2023 – Decided December 26, 2023

Before Judges Haas and Gooden Brown.

On appeal from the Superior Court of New Jersey,
Chancery Division, Hudson County, Docket No.
322318.

De Pierro Radding, LLC, attorneys for appellant A.V.
(Giovanni De Pierro and Davide De Pierro, on the
briefs).

Borteck & Czapek, PC, attorneys for respondent
M.G.F. (Nicholas J. Dimakos, on the brief).

PER CURIAM

1
We use initials to protect the privacy of M.G.F. and her family members. R.
1:38-3(e).
 Plaintiff A.V. appeals from the Chancery Division's orders rejecting his

attempt to have his adoptive mother, M.G.F., declared to be an incapacitated

person and to have himself appointed as her guardian. On appeal, A.V. raises

the following contentions:

POINT I

THE OCTOBER 5, 2021 DECISION BY THE COURT
TO REJECT THE PHYSICIAN CERTIFICATIONS IN
THE ORIGINAL VERIFIED COMPLAINT
WITHOUT AN EX PARTE SHOWING ON GOOD
CAUSE WAS IN VIOLATION OF COURT RULES.

POINT II

THE CHANCERY DIVISION'S DECISIONS ON
JULY 29, 2022 DENYING [A.V.'S] MOTION TO
RECONSIDER AND GRANTING [M.G.F.'S]
MOTION TO RECONSIDER WERE ERRONEOUS
IN THAT 1) [A.V.] PRODUCED MEDICAL
EVIDENCE THAT [M.G.F.] SHOULD NOT
HANDLE HER OWN FINANCIAL MATTERS AND
2) DISMISSAL OF THE AMENDED VERIFIED
COMPLAINT VIOLATED RULE 4:86-4.

Having considered these arguments in light of the record and the

applicable law, we affirm the dismissal of A.V.'s action substantially for the

reasons set forth by the trial court in its determinations of these issues. We add

the following comments.

A-3982-21
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 M.G.F. is currently eighty-two years old and has lived in an assisted living

facility for several years. A.V. is M.G.F.'s biological nephew and was the son

of M.G.F.'s brother, S.V. In 2011, M.G.F. executed a power of attorney naming

A.V. as her agent. Upon the death of S.V. in 2012, A.V. became the sole

beneficiary named in M.G.F.'s last will and testament. 2 In 2013, M.G.F. adopted

A.V.

M.G.F. certified that her relationship with A.V. "began deteriorating" in

2021 after he refused to answer questions she had about her assets. As a result,

she revoked A.V.'s power of attorney. According to A.V.'s sister, J.P., M.G.F.

called her in June 2021 and complained about A.V.'s lack of transparency

concerning his handling of her finances. She asked J.P. to speak to A.V. about

this problem. J.P. certified that A.V. told her on June 10, 2021 that he was aware

that M.G.F. wanted to change her will, but that if M.G.F. attempted to do so, "he

would have her declared incompetent."

A.V. disputes that he made that statement. But he almost immediately

began preparing to bring an action to declare M.G.F. an incapacitated person

and to be named her guardian.

2
According to A.V., M.G.F. had assets totaling "approximately $4,420,000.00."
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 In this regard, a verified complaint seeking guardianship must be

accompanied by certifications of two physicians who "have made a personal

examination of the alleged incapacitated person not more than [thirty] days prior

to the filing of the complaint." R. 4:86-2(b)(2). A.V. obtained reports from two

physicians stating that M.G.F. was incapacitated. The first examination was

conducted on June 27, 2021, just fifteen days after J.P. alleged A.V. told her of

his plan to bring this action. The second examination was conducted on July 9,

2021.

However, A.V. did not file his verified complaint seeking to have M.G.F.

declared an incapacitated person until September 16, 2021. Thus, the first

physician's examination had occurred eighty-one days before the filing of the

complaint. The second physician's examination took place sixty-nine days

before the complaint was filed. Therefore, neither examination was performed

within the thirty-day window provided by Rule 4:86-2(b)(2).

In a situation where, as here, the examinations are stale, Rule 4:86-2(b)(2)

states that the thirty-day time requirement "may be relaxed by the court on an

ex parte showing of good cause." (emphasis added). A.V. attempted to make

such an ex parte showing on the same date he filed the complaint. His attorney

submitted an ex parte certification to the court acknowledging that the

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physician's "certifications are out of time under [Rule 4:86-2(b)(2)]." However,

the attorney stated that "the untimeliness of the certifications was a result of

administrative delays" and asked "that the resulting delay in preparing these

pleadings for submission not necessitate the plaintiff incurring the additional

time, difficulty and expense of new examinations of the alleged incapacitated

person."

On October 5, 2021, the trial court rejected A.V.'s excuse for the late

submission of the required reports and advised him that he was required to "file

. . . updated physician certifications" if he wished to pursue the matter. The

court also stated that "[t]his matter will remain pending the new physician

certifications."

In Point I of his brief, A.V. argues that the trial court erred by rejecting

the stale physician certifications he submitted with his complaint. We disagree.

We give great deference to a trial court's findings and conclusions. Rova

Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). We

do not "engage in an independent assessment of the evidence as if [we] were the

court of first instance." State v. Locurto, 157 N.J. 463, 471 (1999). We will not

disturb the trial court's findings "unless they are so clearly insupportable as to

result in their denial of justice." Estate of Ostlund v. Ostlund, 391 N.J. Super.

A-3982-21
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390, 400 (App. Div. 2007). However, we review de novo the trial court's

interpretation of the law. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan,

140 N.J. 366, 378 (1995).

"Whenever the words 'good cause' appear in statutes or rules relating to

the opening of defaults they mean (in the absence of other modifying or

controlling words) a substantial reason that affords legal excuse for the default."

Nemeth v. Otis Elevator Co., 55 N.J. Super. 493, 497 (App. Div. 1959). Here,

the only explanation A.V. provided to excuse his failure to comply with Rule

4:86-2(b)(2) was unspecified "administrative delays." A.V.'s claim was plainly

not a "substantial reason" justifying the submission of the patently stale reports.

Ibid. Thus, we conclude that the trial court correctly determined that A.V. did

not demonstrate the good cause necessary to permit the relaxation of the thirty-

day time requirement of Rule 4:86-2(b)(2).

A.V. now alleges that the trial court did not provide him with an

opportunity to expand upon his claim that "administrative delays" caused his

recalcitrance. But plaintiff not only had the opportunity to make an ex parte

showing under Rule 4:86-2(b)(2), he took full advantage of it by submitting an

ex parte certification from his attorney at the time he filed his complaint. A.V.

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simply failed to show that there was any good cause to excuse his failure to

comply with the thirty-day filing requirement.

A.V. also asserts for the first time on appeal that the "administrative

delay" that led to his late filing was the fact that his first attorney "withdrew her

representation abruptly, leaving [him] with very little time to find new counsel

to file the complaint." Because A.V. did not raise this argument before the trial

court, we need not consider it here. Nieder v. Royal Indem. Ins. Co., 62 N.J.

229, 234 (1973). In any event, this allegation is not supported by any competent

evidence in the appellate record and does not justify his attempt to use stale

certifications to take control of M.G.F.'s financial and personal affairs.

Therefore, we reject the contentions A.V. raises in Point I of his brief.

Turning to Point II, A.V. alleges that the trial court erred by dismissing

his complaint on the parties' cross-motions for reconsideration. The factual

background for these decisions can be briefly stated.

After the court ordered A.V. to obtain new physician certifications, he

filed an amended complaint seeking the same relief against M.G.F. on October

18, 2021. However, he did not submit two timely certifications as required by

Rule 4:86-2(b)(2). Instead, as permitted by Rule 4:86-2(c)(2), A.V. filed

certifications from the two physicians he had previously used stating that they

A-3982-21
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attempted to examine M.G.F. within thirty days of the filing of the amended

complaint, but that she had refused to cooperate with their requests. A.V. also

sought an order appointing a temporary guardian for M.G.F. and requiring her

to undergo the examinations he needed to support his action to have her declared

an incapacitated person and to take control of her assets and personal affairs.

On February 22, 2022, the trial court granted A.V.'s motion and appointed

a temporary guardian of M.G.F.'s person and estate for the purpose of arranging

the medical examinations A.V. requested. Three months later, the guardian

reported to the court that based on her meetings with M.G.F., the guardian did

"not believe [M.G.F.] to be unfit and unable to govern herself and to manage her

affairs[.]" The guardian also stated that M.G.F. continued to refuse to be

examined by A.V.'s doctors. The guardian asked the court for guidance on how

to proceed with the matter and for permission to close out one of M.G.F.'s

brokerage accounts.

Following a case management conference on June 8, 2022, the trial court

issued an order permitting the guardian to close the brokerage account. A.V.

and M.G.F. filed cross-motions for reconsideration of that order. A.V. objected

to the closure of the brokerage account and asked the court to force M.G.F. to

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submit to the two medical examinations. M.G.F. asked for an order dismissing

A.V.'s complaint.

After conducting oral argument on July 29, 2022, the trial court granted

M.G.F.'s motion and dismissed A.V.'s complaint. The court denied A.V.'s

motion for reconsideration as moot.

In its thorough July 29, 2022 oral decision, the trial court explained that

it had reconsidered its earlier decision to force M.G.F. to undergo the medical

examinations. The court stated that once it denied A.V.'s request to rely upon

stale information on October 5, 2021, it should have dismissed the complaint at

that time rather than letting it proceed. The court also pointed out that even if it

had been able to consider the out-of-time physician reports, they were

insufficient to support a declaration that M.G.F. was an incapacitated person in

need of a guardian.

Specifically, the trial court found that one of the physicians had examined

M.G.F. using a Facetime app rather than by performing an in-person

examination. That physician also relied upon A.V. for a substantial amount of

the information set forth in the report. In addition, the court found that the

second physician determined that M.G.F. scored a 27/30 on the Mini-Mental

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Status Examination and the Montreal Cognitive Assessment, which was not

indicative of a person who lacks the capacity to make her own decisions.

In sum, the trial court found that M.G.F. "has effectively challenged

[A.V.'s] application from its inception. She's never wavered. Her position's

been consistent through her attorney and the temporary guardian ad litem and

she's presenting herself as an individual who's aware of the nature of these

proceedings and the decisions she's making both medically and financially."

Therefore, the court dismissed A.V.'s unsupported complaint.

In Point II, A.V. argues that the trial court should not have reconsidered

its prior decision to keep the matter open and to force M.G.F. to undergo

examinations. Again, we disagree. 3

Rule 4:42-2(b) states that interlocutory orders are "subject to revision at

any time before the entry of final judgment in the sound discretion of the court

3
A.V.'s argument in Point II is largely based on his citation to two unpublished
Appellate Division decisions unrelated to this case. However, the facts of those
cases are dissimilar to the circumstances presented here. More importantly,
A.V.'s reliance on the unpublished cases in this appeal is misplaced because
pursuant to Rule 1:36-3, the cases have no precedential value and are not binding
on any court. As we stated in Badiali v. New Jersey Mfrs. Ins. Grp., 429 N.J.
Super. 121, 126 n. 4 (App. Div. 2012), aff’d, 220 N.J. 544 (2015), "as a general
matter, unpublished opinions are not to be cited by any court absent certain
specified circumstances." None of those circumstances apply to the unrelated,
unpublished cases on which A.V. relies.
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in the interest of justice." See also Lombardi v. Masso, 207 N.J. 517, 536 (2011)

(reconsideration of, and grant of relief from, an interlocutory order before final

judgment is a matter committed to the sound discretion of the trial court );

Lawson v. Dewar, 468 N.J. Super. 128, 134 (App. Div. 2021).

Applying that standard, we are satisfied that the trial court properly

exercised its discretion by reconsidering its prior decision and determining that

A.V.'s complaint should be dismissed. A.V. failed to present timely medical

examinations in support of either of his complaints. Even when the trial court

considered the untimely physician reports, it found them to be unreliable. On

the other hand, M.G.F. presented herself as a capable individual who was

oriented to person, place, and time in her discussions with the temporary

guardian. Under these circumstances, the court was fully justified in

reconsidering its prior decisions and dismissing this action.

Affirmed.

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