NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-3197-18T1 A-3271-18T1 A-3526-18T1
PINE BROOK CARE CENTER,
Plaintiff-Respondent/ Cross-Appellant,
v.
MICHAEL D'ALESSANDRO,
Defendant,
and
MARYANNE D'ALESSANDRO and NANCY D'ALESSANDRO,
Defendants-Appellants/ Respondents,
ANTOINETTE SENFT,
Defendant-Appellant/ Cross-Respondent. _____________________________ Argued September 23, 2020 - Decided November 23, 2020
Before Judges Vernoia and Enright.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-4774-17.
Jon-Henry Barr argued the cause for appellant/cross- respondent Antoinette Senft (Barr & Gulyas, LLC, attorneys; Jon-Henry Barr, of counsel and on the briefs).
Howard R. Rabin argued the cause for appellants Maryanne D'Alessandro and Nancy D'Alessandro.
Kevin S. Englert argued the cause for respondent/cross- appellant Pine Brook Care Center (Law Office of Laurie M. Fierro, PA, attorneys; Laurie M. Fierro, of counsel; Kevin S. Englert, on the briefs).
PER CURIAM
This matter began as a collection case brought by plaintiff Pine Brook
Care Center for sums due for nursing home services rendered to Michael
D'Alessandro (Michael). 1 Plaintiff asserted various causes of action against
Michael's daughters, defendants Maryanne D'Alessandro (Maryanne), Nancy
D'Alessandro (Nancy), and Antoinette Senft (Antoinette) (collectively
1 Because three of the parties share the same surname, D'Alessandro, we use first names for clarity and ease of reference. We intend no disrespect in doing so. A-3197-18T1 2 defendants), claiming they are personally liable for sums due for Michael's
nursing home care.2
The court granted defendants summary judgment on plaintiff's various
causes of action, finding the Nursing Home Act (NHA), N.J.S.A. 30:13-1 to -17,
and more particularly, N.J.S.A. 30:13-3.1(a)(2), "shields . . . defendants from
liability as [the statute] prohibits third parties from incurring liability for bills
of nursing home residents," but the court denied defendants' requests for
attorney's fees. During the litigation, the court also denied plaintiff's motion for
an extension of the discovery period, its motion for reconsideration of the denial,
and its motion to strike Maryanne's answer for failing to provide discovery. The
litigation ended in the trial court when the court granted plaintiff's summary
judgment motion on Nancy's and Antoinette's counterclaims.
In A-3271-18, plaintiff appeals from orders granting defendants summary
judgment, denying its request for an extension of discovery and for
reconsideration of the denial, and denying its motion to strike Maryanne's
answer. In A-3197-18, Antoinette appeals from the court's order granting
2 Maryanne is variously referred to in the trial court record as "Maryanne," "Maryann," and "Mary Ann." We employ the first of these monikers because that is the name used to identify her in the caption of the complaint and, to our knowledge, there was no order entered changing that designation.
A-3197-18T1 3 plaintiff's motion for summary judgment on her counterclaim and denying her
request for an award of attorney’s fees under N.J.S.A. 30:13-4.2 and -8. In
A-3526-18, Maryanne and Nancy appeal from an order denying their motions
for attorney's fees.3 We consolidated A-3271-18 and A-3197-18, scheduled
them back-to-back with A-3526-18, and address the issues presented in the
appeals in this opinion.
Based on our review of the record and the arguments of the parties, we
affirm in part, reverse in part, vacate in part, and remand for further proceedings.
I.
Resolution of many of the issues in this appeal is dependent on the validity
of the court's orders granting defendants summary judgment on plaintiff's
claims. In our review of the record before the court on defendants' summary
judgment motions, we accept the facts and all reasonable inferences therefrom
in the light most favorable to plaintiff because it is the party against whom
summary judgment was entered. Brill v. Guardian Life Ins. Co. of Am., 142
N.J. 520, 540 (1995). Applying that standard, we first detail the facts pertinent
to defendants' motions for summary judgment.
3 In A-3526-18, plaintiff cross-appealed from the same orders that are the subject of its appeal in A-3271-18. A-3197-18T1 4 Plaintiff "owns and operates a long-term skilled nursing [home] facility"
that accepts Medicaid benefits in payment of its residents' fees and costs. In
October 2016, Michael was admitted to the facility, and he remained a resident
through the March 2019 entry of the trial court's final order.
More than two years prior to his admission, on April 24, 2014, the
Chancery Division entered an order finding Michael "a vulnerable adult and an
incapacitated person," and appointing Antoinette, Nancy, and Maryanne as his
guardians. On November 14, 2014, the court entered an order at the guardians'
request authorizing disbursement of the net proceeds from a $185,000 sale of
real property and requiring deposit of the proceeds into a guardianship account
for Michael's "benefit and welfare."
In October 2016, Tina Manganella was the nursing home's admission
director. Prior to the October 7, 2016 admission of Michael into plaintiff's
nursing home, Manganella informed Antoinette that Michael would be admitted
as a private-pay-rate resident because "he was not eligible for Medicare [at the]
time and . . . he was not already qualified for Medicaid." Antoinette informed
Manganella "she was working with [a third-party service] to begin the Medicaid
application process." Antoinette supplied Manganella with the telephone
A-3197-18T1 5 number of a third-party service's representative "as proof the process [of
applying for Medicaid] had begun."
On the day of Michael's admission to the nursing home, Antoinette and
Nancy appeared at the facility "and were later joined by [Maryanne]."
Manganella explained the admissions paperwork to Antoinette and Nancy, and
Manganella was told the family would not use a third-party service to apply for
Medicaid benefits for Michael, but instead "would file the application
themselves." Manganella "cautioned the family that it was their responsibility
to obtain Medicaid benefits" for Michael. She also inquired whether Michael
had received, owned, or transferred any property during the preceding five years,
and was told "no."
During the admission process, Nancy and Antoinette signed a series of
agreements and documents presented by plaintiff. We briefly describe three of
the agreements pertinent to the claims asserted in the complaint: the
ADMISSION AGREEMENT, the AGREEMENT TO PAY, and the PAYOR
AGREEMENT.4 Included in the thirteen causes of action of the complaint are
claims based in whole or in part on alleged breaches of these agreements.
4 By identifying and describing these agreements, we do not suggest there were not many other documents presented during the admission process that are pertinent to the issues raised by the parties' pleadings. A-3197-18T1 6 The ADMISSION AGREEMENT
The ADMISSION AGREEMENT, which Antoinette and Nancy signed as
Michael's "Agent[s]" and Antoinette also signed as Michael's "Legal
Representative," explains a nursing home may not require a third-party
guarantee of payment for a nursing home's services. The agreement states:
"FEDERAL AND STATE LAWS PROHIBIT A NURSING HOME FROM
REQUIRING A THIRD[-]PARTY GUARANTEE OR PAYMENT TO THE
FACILITY AS A CONDITION OF ADMISSION, EXPEDITED ADMISSION,
OR CONTINUED STAY IN THE FACILITY."
The ADMISSION AGREEMENT also provides: "A resident is considered
Private ("Private Pay") when no State or Federal program is paying for the
resident's Room & Board."
The ADMISSION AGREEMENT further provides for the transition of a
resident from private-pay status to payment of his or her costs by Medicaid,
stating:
When private funds are depleted the Resident or responsible party acting upon the [R]esident's behalf applies for Medicaid assistance. The application processing time can be lengthy. The Facility wants to ensure that, if the Resident runs out of private monies, he or she will be able to pay for the services provided by the Facility.
A-3197-18T1 7 [Emphasis added.]
In addition, the ADMISSION AGREEMENT imposes an obligation to
apply for Medicaid benefits where the nursing home resident requires coverage
under the Medicaid Assistance Program:
If the Resident elects coverage under the Medicaid Assistance Program, the Resident or responsible party agrees to apply for the program at the appropriate Medicaid office. These actions must include, but are not limited to, taking any and all steps necessary, to the extent permitted by law, to ensure that the Resident's assets are within the required limits and that these assets remain within allowable limits for Medicaid assistance.
[Emphasis added.]
The ADMISSION AGREEMENT defines the rates a resident is obligated
to pay following the expiration or retroactive termination of his or her Medicaid
coverage: "If the Resident remains in the Facility after Medicaid coverage has
expired or been retroactively terminated or denied, the Resident shall pay
Facility charges as a Private[-]Pay resident such that the Resident shall pay
based upon private rates, charges and terms in effect at the time of service."
(Emphasis added.)
A-3197-18T1 8 The AGREEMENT TO PAY
Antoinette and Nancy also signed an AGREEMENT TO PAY as Michael's
"Designated Representative[s] and/or Sponsor[s]." Michael did not sign the
agreement as the "Resident." In part, the agreement makes provisions for
payment of a nursing home resident's charges by the "Designated
Representative" and "Sponsor." The AGREEMENT TO PAY states:
I acknowledge and agree that I, as the Resident, Designated Representative and/or Sponsor, am responsible for and will pay for all charges, at the private pay rate for the room and board and all the ancillary charges incurred from admission until discharge or until another source of coverage becomes eligible in accordance with federal and state laws and regulations, including any amount not paid by any insurance plan or any other third[-]party coverage.
The PAYOR AGREEMENT
On Michael's admission date, Antoinette and Nancy also executed a
PAYOR AGREEMENT. The agreement provides the following "Information
Regarding a Personal Guarantee of Payment":
The Facility does not require a third[-]party guarantee of payment to the facility as a condition of admission or expedited admission or continued stay in the facility.
The Facility does require an individual who has legal access to a resident's income or resources available to
A-3197-18T1 9 pay for facility care to sign a contract, without incurring personal liability, to provide facility payment from the resident's income or resources.
As indicated on the PAYOR AGREEMENT, Antoinette and Nancy
"decline[d]" to voluntarily guarantee payment "for services provided to"
Michael. However, they agreed, as plaintiff required, "to pay [Michael's] funds
to [plaintiff] for goods and services provided to [him] under the Admission
Agreement." The PAYOR AGREEMENT further states that by agreeing to
make payment from Michael's funds, neither Antoinette nor Nancy "assum[e]
personal liability for any payment except up to the amount of the income or
assets belonging to [Michael] over which [either] had, have or will have
authorized control."
The AUTHORIZATION TO APPLY/APPEAL FOR MEDICAID
ELIGIBILITY
On October 7, 2016, Antoinette and Nancy also signed the
AUTHORIZATION TO APPLY/APPEAL FOR MEDICAID ELIGIBILITY.
The document authorizes plaintiff "to file [on Michael's behalf] an application
for Long[-]Term Care Medicaid [benefits] with the Monmouth County Board of
A-3197-18T1 10 Social Services," obtain Michael's "financial records and statements needed" to
qualify for Medicaid benefits, and appeal from any denial of benefits.
Michael's Residency in Plaintiff's Nursing Home
On October 7, 2016, Michael was admitted to plaintiff's nursing home
with a private-pay status. That is, payment for Michael's care was not covered
by Medicaid or Medicare. Manganella later "reach[ed] out" to Antoinette,
Nancy, and Maryanne to determine the status of the Medicaid application.
Manganella suggested third-party services that assist in the Medicaid application
process, but she was told "the application would be handled by [an] attorney."
However, that did not occur. Manganella also offered Antoinette "assistance in
completing the application," but the offer was declined.
At the time of Michael's admission to the nursing home, Antoinette,
Nancy, and Maryanne served as his guardians pursuant to the Chancery Division
order. On May 10, 2017, however, the court "discharged" Antoinette and Nancy
as Michael's guardians "for health reasons." Maryanne thereafter served as
Michael's sole guardian.
In October 2017, one year after Michael's admission to the nursing home,
Maryanne first applied for Medicaid benefits on his behalf. It was
"determined . . . Michael was clinically eligible for Medicaid benefits for skilled
A-3197-18T1 11 nursing home care," but the Monmouth County Board of Social Services
(MCBOSS) requested additional documentation to establish his financial
eligibility. MCBOSS established a deadline for submission of the requested
information and extended the deadline at Maryanne's request, but it denied the
application because the information was not supplied. MCBOSS later agreed to
re-evaluate the application if Maryanne supplied the requested information, but
the information was never supplied, and there is no evidence any further efforts
were made by Maryanne, Antoinette, or Nancy to obtain Medicaid benefits on
Michael's behalf.
Michael obtained approval for Medicaid benefits effective September 21,
2018, almost two years after he was first admitted to plaintiff's facility.5
The Complaint, Answers and Counterclaims, and Motion Practice
In August 2017, plaintiff filed a complaint, which was subsequently
amended on two occasions. We summarize the allegations in the second
amended complaint because it was the operative complaint when the court
entered the orders challenged on appeal.
5 The record does not reveal the process through which Michael finally obtained Medicaid benefits. A-3197-18T1 12 In count one, the complaint asserts a claim against Michael for the sums
due.6 The remaining counts of the complaint are variously asserted against
Antoinette, Nancy, and Maryanne.
Count two alleges plaintiff detrimentally relied on Antoinette's and
Nancy's representations they would apply for Medicaid benefits, and they failed
to apply for the benefits. Count three alleges Antoinette and Nancy violated the
PAYOR AGREEMENT by failing to use Michael's assets over which they had
control to pay for the nursing home services, and count four alleges they violated
the AGREEMENT TO PAY by failing to pay for the services provided to
Michael. Count five alleges they violated the ADMISSION AGREEMENT by
failing to apply for Medicaid benefits.
Count six alleges Maryanne voluntarily assumed the duty to apply for
Medicaid benefits and negligently breached that duty. Count seven alleges
Antoinette, Nancy, and Maryanne interfered with plaintiff's prospective
economic advantage by failing to apply for Medicaid benefits, and count eight
asserts they wrongfully executed control over Michael's assets. In count nine,
6 The disposition of plaintiff's cause of action against Michael is not an issue on appeal. A-3197-18T1 13 it is alleged defendants were unjustly enriched by failing to turn over to plaintiff
Michael's available assets for payment for the nursing home's services.
Count ten avers Antoinette and Nancy "interfered with
Michael['s] . . . contractual relationship with [plaintiff]." Count eleven alleges
Antoinette, Nancy, and Maryanne breached their fiduciary duty as guardians to
apply for Medicaid benefits for Michael's nursing home care. Count twelve
alleges defendants breached their duties as Michael's daughters to pay for his
care and count thirteen alleges they are liable for the costs of Michael's care
under N.J.S.A. 44:1-140.
Plaintiff received a $9,600 check signed by Antoinette at the time of
Michael's admission, and thereafter plaintiff received only his social security
income in payment for its services. Plaintiff's accounts receivable supervisor,
Rosemarie Barruos, certified plaintiff provided $212,992.03 in services to
Michael, plaintiff received only $31,699 on his behalf, and plaintiff was owed
$181,293.03 for the outstanding balance.
Antoinette initially filed a pro se answer to the complaint generally
denying the allegations. Nancy filed an answer and a crossclaim against
Maryanne, alleging she breached her duties as guardian by failing to obtain
Medicaid benefits for Michael. Nancy also filed a counterclaim alleging
A-3197-18T1 14 plaintiff's attempt to impose liability upon her "constitute[d] an unfair, deceptive
and/or fraudulent trade and/or commercial practice" (count one); plaintiff
violated "the Nursing Home Reform Act of 1987, . . . 42 U.S.C.
§§ 1395i(3)(c)(5)(A)(ii) [and] 1396r(c)(5)(A)(ii)" (count two); plaintiff violated
the New Jersey Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -20, (count
three); and plaintiff engaged in misrepresentation (count four). The
counterclaim further alleges plaintiff's actions were willful and wanton (count
five), and the contracts upon which plaintiff's claims were based are
unenforceable (count six).
After she obtained counsel, Antoinette filed an amended answer to the
complaint, and a counterclaim and crossclaim identical to those asserted on
Nancy's behalf. Maryanne also filed an answer, but it did not include a
counterclaim or crossclaim.
In April 2018, Nancy filed an amended answer, counterclaim, and
crossclaim. The counterclaim added causes of action alleging plaintiff failed to
mitigate its damages by failing to apply for Medicaid benefits on Michael's
behalf (count seven), and plaintiff was contributorily negligent (count eight).
The amended crossclaim added a claim that Antoinette breached her duty as the
"point person" for Michael's financial affairs.
A-3197-18T1 15 On April 27, 2018, the court suppressed Antoinette's and Maryanne's
answers without prejudice for failing to provide discovery. Antoinette's answer
was reinstated on June 22, 2018.
Maryanne later filed a motion to reinstate her answer. Plaintiff opposed
the motion and cross-moved to dismiss the answer with prejudice. Maryanne
supplied some of the delinquent discovery. Plaintiff withdrew its motion to
suppress Maryanne's answer, but it opposed her motion to reinstate the answer
unless she supplied fully responsive discovery responses. On August 3, 2018,
the court entered an "ORDER GRANTING MOTION TO VACATE
DISMISSAL" of Maryanne's answer, which allowed reinstatement of
Maryanne's answer if she supplied outstanding discovery within thirty days.
On August 7, 2018, plaintiff filed its second amended complaint, and, on
the same day, Antoinette filed an answer and counterclaim and moved for
summary judgment on plaintiff's claims. The following day, plaintiff requested
that Antoinette file more specific answers to interrogatories. A week later,
Nancy filed an answer, counterclaim, and crossclaim, as well as a summary
judgment motion nearly identical to Antoinette's.
On August 29, 2018, plaintiff filed a motion to extend discovery. Plaintiff
asserted the extension was required because plaintiff was awaiting complete
A-3197-18T1 16 discovery responses from Antoinette and it had a pending motion to compel
discovery from Nancy. Plaintiff also noted the second amended complaint had
only been filed on August 7, 2018. Plaintiff further indicated Antoinette's and
Nancy's summary judgment motions were pending, with Antoinette's summary
judgment motion scheduled for oral argument on September 14, 2018, and oral
argument on Nancy's summary judgment motion not yet scheduled.
In September, Maryanne filed a summary judgment motion that was
essentially identical to her sisters' pending motions. On September 14, 2018,
the court denied plaintiff's motion to extend discovery and, a few days later,
scheduled the matter for trial on December 3, 2018.
Plaintiff subsequently moved for reconsideration of the court's order
denying the requested discovery extension, and later filed a motion to strike
Maryanne's answer for failure to comply with the August 3, 2018 order
conditioning reinstatement of her answer on her supplying outstanding
discovery. The trial date was subsequently adjourned to January 22, 2019.
On December 5, 2018, the court heard oral argument on the following
motions: Antoinette's, Nancy's, and Maryanne's motions for summary judgment
and for attorney's fees; plaintiff's motion to strike Maryanne's answer; plaintiff's
A-3197-18T1 17 motion for reconsideration of the court's order denying the motion for a
discovery extension; and plaintiff's motion to file a third amended complaint.
After hearing oral argument, the court granted defendants' summary
judgment motions. The court determined plaintiff's causes of action were barred
by N.J.S.A. 30:13-3.1(a)(2) because the statute precluded the imposition of
personal liability against Antoinette, Nancy, and Maryanne for nursing home
services provided to Michael. The court found the statute "prohibits plaintiff
from seeking payment for outstanding bills directly from . . . defendant[s']
assets."
The court further found Antoinette's and Nancy's exercise of the option in
the PAYOR AGREEMENT to not guarantee payment for plaintiff's services was
not "preempted" by any provision in the ADMISSION AGREEMENT
suggesting they had personal liability for sums due for plaintiff's services to
Michael. The court denied defendants' requests for attorney's fees, finding the
award was discretionary under Rule 1:10-3 and the requested award was not
"appropriate."
The court denied plaintiff's motion to strike Maryanne's answer. The court
concluded the motion was moot because it granted Maryanne's summary
judgment motion.
A-3197-18T1 18 The court further denied plaintiff's motion for reconsideration of its order
denying the requested discovery extension. The court found plaintiff failed to
demonstrate the denial of the initial motion was palpably incorrect or founded
on an irrational basis, or that the court failed to consider probative evidence.
The court also denied plaintiff's motion to file a third amended complaint. As a
result of the court's disposition of the motions, the only claims remaining were
Antoinette's and Nancy's counterclaims against plaintiff. 7
Plaintiff moved for summary judgment on the outstanding counterclaims.
On March 13, 2019, the court granted plaintiff's motion and entered an order
awarding plaintiff summary judgment on the counterclaims.
The Appeals
As noted, plaintiff appeals from the December 5, 2018 orders granting
defendants summary judgment, denying its request for an extension of discovery
and for reconsideration of the denial, and denying its motion to suppress
Maryanne's answer. Antoinette appeals from the March 13, 2019 order granting
plaintiff's motion for summary judgment on her counterclaim and the December
7 The record does not include an answer with a crossclaim filed on Maryanne's behalf in response to the second amended complaint. Maryanne filed a motion for summary judgment in response to the complaint and, therefore, did not have a pending counterclaim after her summary judgment motion was granted.
A-3197-18T1 19 5, 2018 order denying her request for an award of attorney's fees under N.J.S.A.
30:13-4.2 and -8. Maryanne and Nancy appeal from the December 5, 2018 order
denying their motion for attorney's fees.8
II.
We first consider plaintiff's appeal from the court's orders granting
defendants summary judgment. We review an order granting summary
judgment de novo, applying the same standard as the trial court. Globe Motor
Co. v. Igdalev, 225 N.J. 469, 479 (2016). We are required to determine whether,
viewing the facts in the light most favorable to the non-moving party, the movant
has demonstrated there are no genuine disputes as to any material facts and the
movant is entitled to judgment as a matter of law. R. 4:46-2(c); Brill, 142 N.J.
at 540. "A trial court's interpretation of the law and the legal consequences that
flow from established facts are not entitled to any special deference."
Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
Plaintiff argues the order granting defendants summary judgment must be
reversed because the court erred by finding "the plain language of N.J.S.A.
30:13-3.1(a)(2) shields . . . defendants from [personal] liability [and] prohibits
8 In A-3526-18, plaintiff cross-appealed from the same orders that are the subject of its appeal in A-3271-18. A-3197-18T1 20 third parties from incurring liability for bills of nursing home residen ts."
Plaintiff claims the statute prohibits a nursing home only from "requiring a
third[-]party guarantee of payment." Plaintiff further argues its claims against
defendants are not barred by N.J.S.A. 30:13-3.1(a)(2) because they are founded
on tortious conduct and breaches of contractual obligations that are either not
guarantees of payment or were not required.
When interpreting a statute, we are required to determine "the intent of
the Legislature." Hardy ex rel. Dowdell v. Abdul-Matin, 198 N.J. 95, 101
(2009). A court must first consider the statute's plain language because that is
the "best indicator of [legislative] intent," DiProspero v. Penn, 183 N.J. 477, 492
(2005), and we must "ascribe to the statutory words their ordinary meaning and
significance, and read them in context with related provisions so as to give sense
to the legislation as a whole," Hardy, 198 N.J. at 101 (citing DiProspero, 183
N.J. at 492); see also Wilson ex rel. Manzano v. City of Jersey City, 209 N.J.
558, 572 (2012).
A court "will not presume that the Legislature intended a result different
from what is indicated by the plain language or add a qualification to a statute
that the Legislature chose to omit." Tumpson v. Farina, 218 N.J. 450, 467-68
(2014). If the words of a statute are clear, a court should not infer a meaning
A-3197-18T1 21 other than what is plainly written, see Hardy, 198 N.J. at 101, and "the inquiry
is over," In re T.B., 236 N.J. 262, 274 (2019) (quoting State v. Harper, 229 N.J.
228, 237 (2017)). It is only where "the plain language is ambiguous [that] we
consider extrinsic interpretative aids, including legislative history." State v.
S.B., 230 N.J. 62, 68 (2017).
"[T]he NHA serves to complement the federal Nursing Home Reform Act,
42 U.S.C.A. § 1396r, Congress's statutory scheme intended to protect nursing
home residents and their families." Manahawkin Convalescent v. O'Neill, 217
N.J. 99, 116 (2014). Under federal law, "a nursing facility must . . . not require
a third party guarantee of payment to the facility as a condition of admission (or
expedited admission) to, or continued stay in, the facility . . . ." 42 U.S.C.
§ 1396r(c)(5)(A)(ii). That federal statute, however, does not "prevent[] a
facility from requiring an individual, who has legal access to a resident's income
or resources available to pay for care in the facility, to sign a contract (without
incurring personal financial liability) to provide payment from the resident's
income or resources for such care." Id. § 1396r(c)(5)(B)(ii). As explained by
the Court in Manahawkin Convalescent, "federal law has long barred nursing
homes accepting either Medicaid or Medicare from compelling third party
guarantees of resident payment, but permits such facilities to require individuals
A-3197-18T1 22 with legal access to the resident's assets to pay for the resident's care with such
assets." 217 N.J. at 116.
In 1997, our State "Legislature amended the NHA to add language similar
to" the federal statutory provisions. Id. at 117; see also L. 1997, c. 241, § 3.
The amendment, which is codified in N.J.S.A. 30:13-3.1(a)(2), provides in
pertinent part as follows:
A nursing home shall not, with respect to an applicant for admission or a resident of the facility: ....
(2) 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.
[N.J.S.A. 30:13-3.1(a)(2).]
"This provision applies only 'to those distinct parts of a nursing home certified
to participate in the Medicare or Medicaid program.'" Manahawkin
Convalescent, 217 N.J. at 117 (quoting N.J.S.A. 30:13-3.1(c)). Plaintiff is a
A-3197-18T1 23 nursing home certified to participate in the Medicaid program, and it is subject
to the statute's requirements.
In granting summary judgment to defendants, the court did not separately
analyze plaintiff's numerous causes of action. Instead, the court determined
N.J.S.A. 30:13-3.1(a)(2) broadly prohibits third-party personal liability for
monies owed to a nursing home for a resident's care. The court concluded
"Manahawkin [Convalescent] prohibits plaintiff from seeking payment for
outstanding bills directly from [a third party's] assets."
We disagree with the motion court's reliance on Manahawkin
Convalescent because in that case the Court considered a limited and different
issue than the one presented by defendants' summary judgment motions. In
Manahawkin Convalescent, a nursing home brought a breach of contract action
against the daughter of a nursing home resident seeking sums due for her
mother's care. Id. at 105. At the time of her mother's admission, the defendant
signed an agreement providing that she, as the "Responsible Party," and her
mother "shall pay" the plaintiff's bills for caring for the resident. Id. at 108. The
plaintiff had also provided the defendant with a form stating the plaintiff "could
not require [the defendant] to guarantee payment from her own assets as a
condition of her mother's admission to the facility." Id. at 106.
A-3197-18T1 24 The defendant filed a counterclaim alleging the nursing home violated the
NHA, the CFA, and the Truth-in-Consumer Contract, Warranty, and Notice Act,
N.J.S.A. 56:12-14 to -18, by seeking to collect monies from her personal assets
based on a contract that violated the NHA. Id. at 105-06. The Court determined
the plaintiff did not violate the NHA because: the contract did not require the
defendant to "commit[] . . . her personal assets to pay for the resident's care";
the form provided to the defendant limited her obligation to pay for the services
only from her mother's assets; and the plaintiff, which had withdrawn its claim
for the sums due, indicated its collection efforts were limited only to the
resident's assets over which the defendant exercised control. Id. at 119. The
Court concluded the plaintiff sought relief based on a contract that was expressly
permitted by N.J.S.A. 30:13-3.1(a)(2) because the statute authorizes a nursing
home to "require" a third party to agree to provide payment from the resident's
"personal funds" without incurring personal liability. Id. at 120.
In Manahawkin Convalescent, the Court was required to determine only
whether a contract obligating a third party to make payments for a resident's care
from the resident's assets violated N.J.S.A. 30:13-3.1(a)(2). The Court was not
presented with, and did not decide, the broader issue presented here: whether
N.J.S.A. 30:13-3.1(a)(2) prohibits the imposition of personal liability on a thir d
A-3197-18T1 25 party based on contractual obligations that are not guarantees of payment and
based on other tort-based theories of liability. To resolve that issue, we turn, as
we must, to the statute's plain language. DiProspero, 183 N.J. at 492.
N.J.S.A. 30:13-3.1(a)(2) is comprised of two parts. In the first, the
Legislature defined the type of agreement a nursing home is prohibited from
requiring as a condition of a resident's admission or continued residence in a
nursing home. The statute bars a nursing home from "requir[ing] a third party
guarantee of payment to the facility as a condition of [a resident's] admission or
expedited admission to, or continued residence in, that facility." N.J.S.A. 30:13-
3.1(a)(2). "A guarantee is a collateral engagement to answer for the debt, default
or miscarriage of another person." Black's Law Dictionary 849 (11th ed. 2019)
(quoting Henry Anselm de Colyar, A Treatise on the Law of Guarantees and of
Principal & Surety 1 (3d ed. 1897)); see, e.g., Regions Bank v. Legal Outsource
PA, 936 F.3d 1184, 1191 (11th Cir. 2019) (A "guaranty" is "a promise by a
guarantor to answer for the payment of some debt if the person liable in the first
instance is unable to pay.").
The plain language of the statute is in accord with the ordinary definition
of guarantee; it prohibits requiring a "guarantee of payment." N.J.S.A. 30:13-
3.1(a)(2). Thus, the plain language of the first section of N.J.S.A. 30:13-
A-3197-18T1 26 3.1(a)(2) bars a nursing home from requiring that a third party guarantee the
resident's payment for a nursing home's services as a condition of the resident's
admission or continued residence.
Application of the statute is not, however, limited to formal "guarantees
of payment" or agreements designated as such. In Manahawkin Convalescent,
the Court considered a third party's contractual obligation to pay the costs of a
nursing home resident's care as an agreement within the coverage of N.J.S.A.
30:13-3.1(a)(2), and explained the agreement was unenforceable unless the third
party's liability was limited to "payment of [the resident's] bills using [the
resident's] assets." 217 N.J. at 118-19. It would have been unnecessary for the
Court to conduct the analysis of the agreement's enforceability under the second
part of the statute unless it determined the third party's agreement to pay
constituted a "guarantee of payment" under the statute's first part. See, e.g.,
Manor of Lake City, Inc. v. Hinners, 548 N.W.2d 573, 575-76 (Iowa 1996)
(finding an "agreement-to-pay provision" in a nursing home admission
agreement violates the Nursing Home Reform Act if it requires a third party to
assume personal financial liability as a condition of a resident's admission);
Podolsky v. First Healthcare Corp., 58 Cal. Rptr. 2d 89, 97 (Cal. App. Div.
Super. Ct. 1996) (noting the purpose of the Nursing Home Reform Act was to
A-3197-18T1 27 prohibit nursing homes from requiring a third party to "assume personal
responsibility for any cost of the resident's care" regardless of whether the
person was a "responsible party" or a "third party guarantor"). Thus, the first
part of N.J.S.A. 30:13-3.1(a)(2) prohibits a nursing home from requiring a third-
party guarantee of payment—including direct agreements to pay—as a condition
of a resident's admission or continued residence in a facility. The statute
prohibits nothing else.
The statute's first part does not prohibit a nursing home from requiring
any other third-party obligations as a condition of a resident's admission or
continued residence. We may assume because the Legislature chose to
specifically identify the proscribed condition—required guarantees of
payment—it did not intend to prohibit a nursing home from requiring that a third
party agree to other obligations as conditions of a resident's admission to, or
continued residence in, a facility. See DiProspero, 183 N.J. at 493 (explaining
a court is "enjoined from presuming that the Legislature intended a result
different from the wording of the statute"). We may not "add[] a qualification"
to a statute that the Legislature has "omitted." Ibid.
The second part of the statute does not expand the nature or scope of the
limitations imposed in the first. The second part merely provides a limited and
A-3197-18T1 28 defined exception to the prohibition against requiring guarantees of payment.
Specifically, it allows a nursing home to require individuals, such as Antoinette
and Nancy here, who have "legal access to a resident's income or resources
available to pay for facility care pursuant to . . . [an] order of guardianship . . . to
sign a contract to provide payment to the facility from the resident's income or
resources without incurring personal financial liability."9 N.J.S.A. 30:13-
3.1(a)(2). That is, the statute's second part allows a nursing home to require a
third-party agreement to pay for a resident's care that, absent an exception,
would constitute a prohibited "guarantee of payment." It permits an agreement
to pay only from the resident's income and assets without the third party
incurring any personal financial liability. See Manahawkin Convalescent, 217
N.J. at 119-20 (finding a third party's agreement to pay for the resident's care
did not violate N.J.S.A. 30:13-3.1(a)(2) because the agreement required the third
party to pay only from the resident's income and resources).
Defendants read the exception in the second part of N.J.S.A. 30:13-
3.1(a)(2), and especially the phrase "without incurring personal financial
liability," as requiring the conclusion that a third party can never have personal
liability for the resident's costs, even if the third party violates a duty unrelated
9 Maryanne did not sign any of the agreements at issue. A-3197-18T1 29 to an agreement to pay for the resident's care. That interpretation ignores the
statute's plain language and the context of the phrase in the statute.
Moreover, we are confident that if the Legislature intended to grant the
broad immunity from personal liability the court found, and which defendants
urge, it would have done so more clearly and directly. Instead, the plain and
unambiguous language of the exception in N.J.S.A. 30:13-3.1(a)(2) simply
means an individual may be required to agree "to provide payment to the facility
from the resident's income or resources," but, by doing so, the individual does
not become personally liable—or guarantee payment of—the sums due for the
resident's care.
In sum, the statute provides only that a nursing home may not require a
third-party guarantee of payment as a condition of a nursing home resident's
admission or continued residence. A nursing home, however, may require that
an individual who has control over a resident's income and assets agree to pay
for the resident's care from that income and those assets without incurring any
personal financial liability. The statute does not prohibit a nursing home from
requiring that an individual enter into an agreement other than a guarantee of
payment, and the statute does not immunize individuals from personal liability
A-3197-18T1 30 based on contractual obligations undertaken that are not proscribed by N.J.S.A.
30:13-3.1(a)(2), or that are founded on alleged tortious conduct.
Defendants assert there are good policy reasons to provide broad
protection from personal liability for third parties who have responsibility for
individuals in need of nursing home care. However, the Legislature has
determined, at least in N.J.S.A. 30:13-3.1(a)(2), that the protection of third
parties is limited to the prohibition against requiring guarantees of payment,
with a single exception allowing a requirement that the third party pay the sums
due for care from the resident's income and assets without incurring personal
liability. We cannot extend the protections of the statute beyond that which the
Legislature deemed appropriate to provide, see DiProspero, 183 N.J. at 492, and
we must apply the statute's plain language, see Hardy, 198 N.J. at 101.
The court granted defendants' motions for summary judgment based on its
determination that N.J.S.A. 30:13-3.1(a)(2) bars imposition of any personal
financial liability against third parties for costs of a nursing home resident's care.
For the reasons we have explained, that is not the case. We therefore reverse
the court's orders granting summary judgment on plaintiff's claims against
defendants.
A-3197-18T1 31 By reversing the summary judgment awards, we do not preclude
defendants from arguing or asserting as a defense that one or more of plaintiff's
claims should fail as a matter of law because they are founded on an agreement
or agreements that are unenforceable under N.J.S.A. 30:13-3.1(a)(2).
Defendants are free to make such arguments and assert all available defenses to
plaintiff's asserted claims as this matter continues in the trial court.
Plaintiff's claims are founded on a myriad of documents that comprise
what appears to be a complex and, in some respects, seemingly inconsistent set
of terms and conditions. For example, and not by way of limitation, the
AGREEMENT TO PAY includes a provision in which Antoinette and Nancy
agree to pay for Michael's care, but, in the PAYOR AGREEMENT, they
exercise an option, presented by plaintiff, not to accept any personal financial
liability for costs of Michael's care. We do not offer an opinion on this apparent
conflict or on any other issues concerning the terms of any alleged agreement
between the parties. We note it only as an example of the many terms and
conditions presented at the time of Michael's admission and upon which
plaintiff's various claims are based.
The court resolved the conflict between the two agreements in conclusory
fashion, finding the PAYOR AGREEMENT was not "preempted" by the
A-3197-18T1 32 AGREEMENT TO PAY. The court's conclusion is untethered to any findings
of fact, and the court otherwise did not make any findings defining the terms of
the parties' agreement and the circumstances under which it was made.
It is not possible to determine the enforceability of an agreement under
N.J.S.A. 30:13-3.1(a)(2) unless the agreement's terms and conditions and the
circumstances under which the agreement was made are determined. Where, as
here, there are numerous documents with conflicting provisions that allegedly
comprise the agreement upon which a plaintiff's causes of action are based,
findings of fact as to the terms of the agreement must first be made. We will
not make such findings for the first time on appeal, see Est. of Doerfler v. Fed.
Ins. Co., 454 N.J. Super. 298, 302 (App. Div. 2018), and we do not offer an
opinion as to whether the summary judgment record presents undisputed
material facts permitting a determination of the precise terms of any purported
agreement upon which plaintiff relies in support of its claims.
We observe, however, that an agreement to make an application for
Medicaid benefits on Michael's behalf is not a guarantee of payment or an
agreement to pay proscribed by N.J.S.A. 30:13-3.1(a)(2). By making any
purported agreement to apply for Medicaid payments, neither Antoinette,
Nancy, nor Maryanne guaranteed payment for the costs of Michael's nursing
A-3197-18T1 33 home care or agreed to pay those costs. Thus, any such agreement, if proven,
does not run afoul of N.J.S.A. 30:13-3.1(a)(2) and is not unenforceable under its
terms. An agreement to apply for Medicaid benefits is just that—a commitment
to assist the resident in obtaining Medicaid benefits so those benefits pay for his
or her care. A failure to honor that commitment does not convert an agreement
to apply for Medicaid benefits into a guarantee of payment or an agreement to
pay the resident's costs of care under N.J.S.A. 30:13-3.1(a)(2). See, e.g.,
Meadowbrook Ctr., Inc. v. Buchman, 90 A.3d 219, 234, 241 (Conn. App. Ct.
2014) (finding an agreement requiring a third party to apply for Medicaid
benefits for a nursing home resident does not fall within 42 U.S.C.
§ 1396r(c)(5)(A)'s proscription against requiring "a third[-]party guarantee of
payment . . . as a condition of admission . . . to, or continued stay in, the
facility"). To otherwise interpret N.J.S.A. 30:13-3.1(a)(2) would impermissibly
expand the statute's coverage well beyond the limited proscriptions established
by its plain and unambiguous language.
We offer no opinion on the merits of any of plaintiff's claims or the
defenses to them. We reverse the court's summary judgment award to
defendants without prejudice and remand for further proceedings. Any and all
claims and defenses shall be addressed by the trial court on remand in
A-3197-18T1 34 accordance with its management of the case and based upon the record
presented.
III.
Plaintiff next contends the court erred by denying its motions to suppress
Maryanne's answer. Plaintiff also argues Maryanne's answer was suppressed at
the time she filed her summary judgment motion, and, for that reason, she should
have been barred from prosecuting that motion.
A trial court's discovery rulings will not be disturbed "absent an abuse of
discretion or a mistaken understanding of the applicable law." Bayer v. Twp. of
Union, 414 N.J. Super. 238, 272-73 (App. Div. 2010) (citing Payton v. N.J. Tpk.
Auth., 148 N.J. 524, 559 (1997)). Although "[i]t is well-established that the
main objective of the two-tier sanction process in Rule 4:23-5 is to compel
discovery responses rather than to dismiss the case," A & M Farm & Garden
Ctr. v. Am. Sprinkler Mech., LLC, 423 N.J. Super. 528, 534 (App. Div. 2012),
a decision "to grant or deny a motion to reinstate a [pleading] lies within the
sound discretion of the trial court," St. James AME Dev. Corp. v. City of Jersey
City, 403 N.J. Super. 480, 484 (App. Div. 2008).
The court interpreted its August 3, 2018 order as having "granted
[Maryanne's] motion to reinstate her answer" subject to her provision of
A-3197-18T1 35 responses to interrogatories within thirty days. Plaintiff also understood the
August 3, 2018 order resulted in the reinstatement of Maryanne's answer;
plaintiff moved to suppress the answer due to Maryanne's failure to provide the
outstanding discovery. Such a motion would have been unnecessary if, as
plaintiff now contends, the August 3, 2018 order had already suppressed the
answer.
In any event, it appears that both the court and counsel understood the
answer was reinstated by the August 3, 2018 order. Based on that shared
understanding, the court determined there was no need to decide the merits of
plaintiff's motion to suppress the answer because Maryanne was otherwise
entitled to judgment as a matter of law on plaintiff's claims. We find no error
or abuse of discretion in the court's findings and determinations, and we affirm
the order denying plaintiff's motion. On remand, however, plaintiff may move
for appropriate relief based on any deficiencies in Maryanne's responses to
outstanding discovery demands or any alleged lack of compliance with the
court's prior orders.
Plaintiff also contends the court erred by denying its motion for an
extension of the discovery period. We agree.
A-3197-18T1 36 Plaintiff sought an extension of the discovery period at least in part based
on the restoration of Maryanne's and Nancy's pleadings, which had been
suppressed. Rule 4:24-1(c) provides that "[o]n restoration of a pleading
dismissed pursuant to . . . [Rule] 4:23-5(a)(1) or if good cause is otherwise
shown, the court shall enter an order extending discovery." Thus, a court is
required to enter an order extending discovery following the restoration of a
pleading. Pressler & Verniero, Current N.J. Court Rules, cmt. 3 on R. 4:24-1
(2020) ("[Rule 4:24-1(c)] makes clear the discovery consequences when a
pleading dismissed without prejudice under . . . [Rule] 4:23-5[(a)(1)] has been
restored, namely, the court is obliged to fix a discovery period by order
specifying the date on which described discovery is to be completed and such
other terms as may be appropriate." (emphasis added)).
The court erred by failing to comply with the Rule's mandate following
the restoration of Nancy's and Maryanne's respective pleadings. We therefore
reverse the court's order denying plaintiff's request for an extension of
discovery. On remand, the court shall address the status of discovery and, in its
A-3197-18T1 37 discretion, order an appropriate extension of the discovery period based on the
record presented. 10
IV.
Defendants appeal from the court's orders denying their requests for
attorney's fees. It is unnecessary to address the merits of defendants' argument.
The requests were founded on the premise that plaintiff's claims were barred as
a matter of law by N.J.S.A. 30:13-3.1(a)(2), and, therefore, defendants were
entitled to summary judgment. We have reversed the court's order granting
defendants summary judgment, and, as result, the factual underpinning for
defendants' requests for attorney's fees is no longer extant. We therefore vacate
the orders denying defendants' attorney's fees requests. Defendants may renew
their requests based on the outcome of the remand proceedings, and the court
shall consider such requests based on the arguments and record presented at that
time.
Antoinette also argues the court erred by granting plaintiff's motion for
summary judgment on the claims asserted in her counterclaim. In its decision
10 Our reversal of the court's order denying plaintiff's motion for an extension of discovery renders it unnecessary to address plaintiff's motion for reconsideration of the order.
A-3197-18T1 38 from the bench on plaintiff's motion, the court provided a long and detailed
recitation of the parties' arguments but did not make any findings of fact or
conclusions of law as required by Rule 1:7-4. Instead, the court simply stated,
plaintiff's "motion [for summary judgment] is granted."
As we explained in Great Atlantic & Pacific Tea Co. v. Checchio, "[a]
trial judge is obliged to set forth factual findings and correlate them to legal
conclusions. Those findings and conclusions must then be measured against the
standards set forth in Brill[, 142 N.J. at 540]." 335 N.J. Super. 495, 498 (App.
Div. 2000). "Although our standard of review from the grant of a motion for
summary judgment is de novo, our function as an appellate court is to review
the decision of the trial court, not to decide the motion tabula rasa." Est. of
Doerfler, 454 N.J. Super. at 301-02 (citation omitted). The court did not make
any findings of fact or conclusions of law in accordance with Rule 1:7-4
supporting its grant of plaintiff's motion for summary judgment on Antoinette's
counterclaim. We therefore vacate the court's order granting plaintiff summary
judgment on the counterclaim and remand for further proceedings on the motion.
In summary, in A-3271-18, we reverse the court's orders granting
defendants' motions for summary judgment and denying plaintiff's request for
an extension of the discovery period. We affirm the order denying plaintiff's
A-3197-18T1 39 motion to strike Maryanne's answer. In A-3197-18, we vacate the orders
granting plaintiff summary judgment on Antoinette's counterclaim and denying
Antoinette's request for attorney's fees award under N.J.S.A. 30:13-4.2 and -8,
and we remand for further proceedings. In A-3526-18, we vacate the court's
order denying Maryanne's and Nancy's requests for attorney's fees.11 We remand
the matters for further proceedings consistent with this opinion. We do not
retain jurisdiction.
11 Nancy does not appeal from the court's order granting plaintiff's motion for summary judgment on her counterclaim, see Campagna ex rel. Greco v. Am. Cyanamid Co., 337 N.J. Super. 530, 550 (App. Div. 2001) (refusing to review on appeal an order not listed in the notice of appeal), and she does not argue the court erred by granting the motion, see Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011) (holding "[a]n issue not briefed on appeal is deemed waived"). We therefore do not address the order granting plaintiff summary judgment on Nancy's counterclaim, and on remand Nancy is precluded fro m prosecuting the counterclaim. A-3197-18T1 40