When an issue becomes moot, dismissal is appropriate no matter the stage of the litigation

On January 28, 2013, In the Matter of Fred Rizzo, A-2997-11T4, the Appellate Division considered the issue of attorneys’ fees in a guardianship action.

By way of background, in 2007, Fred Rizzo appointed his son, Douglas power of attorney.  In May 2011, the Bergen County Board of Social Services filed a Complaint for guardianship.  The court appointed an attorney to represent Fred Rizzo, and that attorney thereafter incurred reasonable fees.  Ultimately, the court appointed Douglas as guardian for his father.  The court also ordered that Douglas was personally liable for his father’s attorneys’ fees.

In its decision, the court relied on R.4:86-4, which states: “The compensation of … appointed counsel … may be fixed by the court to be paid out of the estate of the alleged incapacitated person or in such other manner as the court shall direct.” R. 4:86-4(e).

Fred owned no liquid assets.  His only asset was the equity in his house in which he, Douglas, and Douglas’s family resided.  His only income was his monthly Social Security payment. The court stated it would be inequitable to force his attorney to wait until Fred’s death if the estate did not have sufficient funds to pay his fees.

Douglas appealed challenging the factual and legal basis for imposing personal liability on him for his father’s legal fees.

By the time the Appellate Division heard the matter, Fred Rizzo had passed away.  Since there was equity in the residence to pay the fees, the issue of Douglas’ liability for Fred’s attorneys’ fees became moot.

The Appellate Division will generally avoid resolving issues in the abstract and in deciding moot cases.  N.J. Tpk. Auth. v. Parsons, 3 N.J. 235, 240 (1949).  An issue is moot when the Court’s decision sought in a matter would have no practical effect on the existing controversy.  Greenfield v. N.J. Dep’t of Corrs., 382 N.J.Super. 254, 257-58 (App.Div. 2006).  When an issue becomes moot, dismissal is appropriate no matter the stage of the litigation.  Anderson v. Sills, 143 N.J.Super. 432, 437 (Ch.Div. 1976).  As such, the appeal was dismissed.