Civil Court Rules and Jury Charges

Kenneth Vercammen & Associates, P.C.
2053 Woodbridge Avenue - Edison, NJ 08817

Friday, April 8, 2022

4:43-1. Entry of Default in a Civil Superior Court Case

 

4:43-1. Entry of Default in a Civil Superior Court Case 

If a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules or court order, or if the answer has been stricken with prejudice, the clerk shall enter a default on the docket as to such party. Except where the default is entered on special order of the court, the moving party shall make a formal written request of the clerk for the entry of the default, supported by the attorney's affidavit. The affidavit shall recite the service of the process and copy of complaint on the defendant or defendants (if more than one, naming them), the date of service as appears from the return of the process, and that the time within which the defendant or defendants may answer or otherwise move as to the complaint, counterclaim, cross-claim, or third-party complaint has expired and has not been extended. The request and affidavit for entry of default shall be filed together within 6 months of the actual default, and the default shall not be entered thereafter

except on notice of motion filed and served in accordance with R. 1:6 on the party in default. If defendant was originally served with process either personally or by certified or ordinary mail, the attorney obtaining the entry of the default shall send a copy thereof to the defaulting defendant by ordinary mail addressed to the same address at which defendant was served with process.

Tuesday, January 19, 2021

Pine Brook Care Center v. D'Alessandro



                                                        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,


and


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.


           [Emphasis added.]


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.


            [Emphasis added.]


      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.

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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



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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



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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





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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.



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      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



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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-



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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



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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



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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.

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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





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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.





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      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



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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



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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



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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



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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.





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      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





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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.



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                                       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



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                                      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.

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