SILVER CARE CENTER v. JOSEPH EASTMAN, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2659-05T52659-05T5

SILVER CARE CENTER,

Plaintiff-Respondent,

v.

JOSEPH B. EASTMAN and MOLLY

EASTMAN,

Defendants-Appellants.

________________________________________________________________

 

Submitted September 13, 2006 - Decided October 6, 2006

Before Judges Lefelt and Hoens.

On appeal from the Superior Court of New

Jersey, Law Division, Camden County,

Docket No. L-8514-04.

John L. Conroy, Jr., attorney for

appellants.

Lario & Saldutti, attorneys for

respondent (Robert L. Saldutti, on

the brief).

PER CURIAM

Defendants, Joseph and Molly Eastman, appeal from a motion judge's December 16, 2005 order, directing defendants' savings bank to turn over funds that plaintiff Silver Care Center, a residential skilled nursing care facility, contends represent the difference between what Medicaid will pay and defendants agreed, in writing, to pay for Joseph Eastman's nursing home services. We remand for further proceedings.

During the period defendants were applying for Medicaid, they failed to participate, beyond answering the complaint, in the collection litigation begun by plaintiff nursing home. Defendants failed to answer interrogatories, produce documents, or appear for a deposition. Likewise defendants failed to oppose plaintiff's summary judgment motion, except through requesting by letter that plaintiff withdraw the motion.

Thus, defendants not only allowed plaintiff to obtain an unopposed summary judgment for $104,455.31 (consisting of $86,879.43 in services, $230 in court costs, and $17,375.88 in contractual attorney's fees), but also left plaintiff no viable option but to begin collection proceedings against them. Defendants then proceeded to ignore an information subpoena and a motion to sell real property. It was not until plaintiff levied on $48,876.18 of defendants' savings and moved for turnover of $35,295.88 that defendants arose from their slumber and cross-moved, under R. 4:50-1, for vacation of the summary judgment.

Plaintiff argued that defendants agreed in writing "to pay all charges incurred by Joseph Eastman . . . not paid for by the third party payees, including Medicaid . . . . [and] all the costs of collection including court costs and attorney's fees, if necessary, in order to collect any and all delinquent balances." Pursuant to this agreement, plaintiff claimed that defendants owed $86,879.43 for services, and an attorney's fee of $17,375.88 for collection efforts.

In response, defendants argued that the Medicaid law precludes plaintiff from collecting these amounts and limits plaintiff's charges to those amounts Medicaid approved. Defendants claimed that a licensed nursing home is precluded from "charging, soliciting, accepting or receiving any payment other than the amount required to be paid under the state Medicaid plan." According to defendants, "[t]he Medicaid Act makes it a felony to charge, solicit, accept, or receive, in addition to the reimbursement under Medicaid, any amount of money as a condition of admission or as a condition of continued stay at the licensed nursing home, when the cost of services is paid by the state Medicaid plan." (emphasis omitted).

The motion judge recognized that "what [defendants are] arguing regarding to Medicaid may be accurate." But the judge was nevertheless troubled by being "asked to disentangle all of that three months after the summary judgment was entered and all of which should have been raised in opposition to the summary judgment or . . . no later than 20 days after the entry of the summary judgment. . . ." The judge found defendants' reasons for not opposing summary judgment "inexplicable and inexcusable." Consequently, the judge denied the relief sought by defendants and directed that the funds be turned over to plaintiff. This order was then stayed until January 30, 2006, pending appeal.

We do not intend to condone the manner in which defendants have defended themselves in this litigation. The failure to participate formally in the proceedings preceding the turnover motion has unnecessarily complicated this matter and appears inexcusable.

Nevertheless, because of the manner in which the cross-motions were decided by the trial court, we have no decision to review on the critical issue presented by this appeal: whether the judgment is void, under R. 4:50-1(d), because plaintiff is not entitled to enforce its contract with defendants and collect monies for nursing care services that would exceed those paid by Medicaid. Indeed, plaintiff in its brief has also chosen to advance the correctness of the motion judge's procedural disposition of this matter and not address the Medicaid allegation.

Obviously, a void judgment would be unenforceable. Berger v. Paterson Veterans Taxi Serv., 244 N.J. Super. 200, 205 (App. Div. 1990). Additionally, because defendants failed to oppose plaintiff's summary judgment motion, we are uncertain whether there are material factual disputes present. For example, the original judgment of $104,455.31 far exceeds the amount in the turnover order, and although plaintiff claims to have requested only the difference between the total charges and Medicaid charges, there have been no fact findings.

Furthermore, we are uncertain as to the precise services that were provided by plaintiff and paid for by Medicaid. Indeed, defendants assert in their brief that the turnover amount includes a claim for services during a period beyond that contained in the judgment. Plaintiff, however, claims the turnover amount includes $17,665.88 in attorney fees, $14,030 in charges for services unpaid by Medicaid, and a $3,600 pharmacy charge. However, according to defendants' reading of plaintiff's own records, Medicaid paid a substantial part of the pharmacy bill leaving a balance of only $585.19.

On this record, we cannot discern whether the Medicaid payments encompassed any of the charges for which plaintiff seeks recovery and precisely what is included within the State Medicaid plan. 42 U.S.C.A. 1396r(c)(B)(iii) requires the nursing facility to inform the Medicaid resident "of the items and services . . . that are included in nursing facility services under the State plan and for which the resident may not be charged . . . and of those other items and services that the facility offers and for which the resident may be charged and the amount of the charges for such items and services. . . ." Consequently, the facts upon which this issue must be decided are not clear, and an evidentiary hearing may be required.

Therefore, we are unable to exercise our original jurisdiction, pursuant to R. 2:10-5, to decide the issue at this time. See Tomaino v. Burman, 364 N.J. Super. 224, 235 (App. Div. 2003), certif. denied, 179 N.J. 310 (2004); Hansen v. Hansen, 339 N.J. Super. 128, 143 (App. Div. 2003). Instead, we are constrained to vacate the turnover order, remand the matter to the trial court, and specifically direct the parties to address the issues we have delineated. Furthermore, besides deciding whether the judgment is void, the trial court may also consider whether defendants' failures, which have caused this delay and additional litigation expense, are deserving of sanction.

 
Remanded for further proceedings. We do not retain jurisdiction.

These figures total $104,485.31 and not $104,455.31.

Though defendants were specifically advised by the motion judge that any further stay would have to be awarded by the Appellate Division, defendants have apparently failed to seek such relief from this court.

(continued)

(continued)

7

A-2659-05T5

 

October 6, 2006