ESSEX PAIN MANAGEMENT GROUP, P.C v. CLIFFORD GILDAWIE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0466-10T3

ESSEX PAIN MANAGEMENT GROUP, P.C.,

Plaintiff-Respondent,

v.

CLIFFORD GILDAWIE,

Defendant-Appellant/

Third-Party Plaintiff,

v.

CRAIG WEINSTEIN, IRA SIEGEL,

BONNIE BLACKMAN, RICHARD LIPSKY,

ROMAN KOSIBOROD, ALLAN WEISSMAN,

ESSEX SURGERY CENTER, L.L.C.,

Defendants-Respondents/

Third-Party Defendants.

___________________________________________________

May 25, 2011

Submitted March 29, 2011 - Decided

Before Judges Messano and St. John.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-8288-08.

Granata & Zaccardi, attorneys for appellant (Louis E. Granata, on the brief).

Law Offices of Craig Weinstein, attorneys for respondent Essex Pain Management Group, P.C. (Corey Scott Zymet, on the brief).

Michael K. Chong, attorney for respondents Craig Weinstein, Ira Siegel and Bonnie Blackman.

Roberts & Moscaritolo, attorneys for respondents Richard Lipsky, Roman Kosiborod, Allan Weisman and Essex Surgery Center, join in the brief of respondent Essex Pain Management Group, P.C.

PER CURIAM

Defendant/third-party plaintiff Clifford Gildawie appeals from the denial of his motion for reconsideration of a prior order dated June 2, 2010, as amended on June 8, 2010, which granted summary judgment to plaintiff Essex Pain Management Group, P.C. (EPMG), and third-party defendants Craig Weinstein, Ira Siegel, Bonnie Blackman, Richard Lipsky, Roman Kosiborod, Allan Weissman, and Essex Surgery Center, L.L.C. (the Center). We affirm.

EPMG is a professional corporation, comprised of three doctors, third-party defendants, Drs. Lipsky, Weissman, and Kosiborod. The Center is a medical facility and does not itself provide medical services. Third-party defendants Drs. Siegel and Blackman are solo practitioners, who practice anesthesiology at the Center.

EPMG treated Gildawie with interventional pain procedures at the Center. EPMG claims that it never received payments for the medical services that it provided to Gildawie.

In discovery, Gildawie was provided with Explanations of Benefits indicating that Gildawie's wife, Judith (the subscriber for his insurance policy) received at least $15,005 of insurance payments for services that EPMG provided to Gildawie. Furthermore, copies of checks indicated that Judith subsequently wrote checks to Gildawie in the amount of at least $12,000. Gildawie offered no proof that either the insurance payments or the checks he received from his wife had been endorsed over to EPMG.

At the hearing on May 14, 2010, Judge Pincus determined that EPMG established a prima facie case that it provided medical services to Gildawie on the dates listed on the invoice; that Gildawie incurred a debt of $17,876.80 due and owing to EPMG; and that the debt remained outstanding. She entered a judgment for EPMG and the third-party defendants on June 2, 2010, as amended by an order on June 8, 2010. Gildawie filed a motion for reconsideration, which was denied. This appeal followed.

Defendant raises the following points for our consideration:

POINT I

THE TRIAL COURT ERRED ENTERING SUMMARY JUDGMENT FOR THE PLAINTIFF. THERE WERE GENUINE ISSUES OF MATERIAL FACT WARRANTING A TRIAL.

POINT II

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO DISMISS THE COMPLAINT UNDER THE ENTIRE CONTROVERSY DOCTRINE.

As a threshold matter, Gildawie's notice of appeal states that he only appeals from the August 6, 2010 order denying the motion for reconsideration of the orders of June 2 and June 8, 2010. When a notice of appeal only designates an order denying reconsideration, the appellant is not entitled to review of the earlier orders. W.H. Indus. v. Fundicao Balancins, Ltda, 397 N.J. Super. 455, 458 (App. Div. 2008).

As for the denial of the motion for reconsideration, we have held that

Reconsideration should be utilized only for those cases which fall into that narrow corridor in which either 1) the Court has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the Court either did not consider, or failed to appreciate the significance of probative, competent evidence . . . .

[Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996) (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401-02 (Ch. Div. 1990)).]

Notably, and of considerable significance here, a party is not permitted to use a motion for reconsideration as a basis for presenting facts or arguments that could have been provided in opposition to the original motion. Ibid. We will not disturb a trial judge's denial of a motion for reconsideration absent an abuse of discretion.1 Id. at 389. Judge Pincus, at the conclusion of oral argument on May 14, 2010, gave Gildawie an additional opportunity to provide EPMG with proofs of payments, checks or otherwise, that would show a valid defense to the debt owed. She stated, in her ruling denying the motion for reconsideration, that the copies of the checks Gildawie provided after May 14, 2010 did not indicate any transfer to EPMG and that all other checks had previously been credited as payment by the court.

In ruling on the summary judgment motion, the motion judge was required to determine "'whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue[s] in favor of the non-moving party.'" Spinks v. Twp. of Clinton, 402 N.J. Super. 465, 473 (App. Div. 2008) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)), certif. denied, 197 N.J. 476 (2009). A review of the record shows that, even when viewed most favorably to Gildawie, the evidence was insufficient to permit a rational factfinder to conclude that Gildawie had paid any of the debt which was the subject matter of EPMG's claim.

We also discern no abuse of discretion in the judge's denial of Gildawie's motion for reconsideration. She did not base her decision upon a palpably incorrect or irrational basis, and she considered and appreciated the significance of probative, competent evidence in the record.

The second issue presented on this appeal is the denial of Gildawie's motion for reconsideration that EPMG's claims against Gildawie are barred by the entire controversy doctrine.

Rule 4:30A provides as follows:

Non-joinder of claims required to be joined by the entire controversy doctrine shall result in the preclusion of the omitted claims to the extent required by the entire controversy doctrine, except as otherwise provided by R. 4:64-5 (foreclosure actions) and R. 4:67-4(a) (leave required for counterclaims or cross-claims in summary actions).

As to this appeal, we note initially that the rule has been amended and applies only to the joinder of claims against existing parties to a lawsuit. It generally does not require the joinder of additional parties.

In K-Land Corp. No. 28 v. Landis Sewerage Authority, 173 N.J. 59, 69-70 (2002) (emphasis in original), the Supreme Court explained the change in the rule as follows:

In September 1998, in response to recommendations of the Civil Practice Committee, this Court authorized rule amendments to eliminate mandatory party joinder under the entire controversy doctrine, and to abrogate preclusion of a successive action against a person not joined in the initial action except in cases involving inexcusable conduct and clear prejudice. Pressler, Current N.J. Court Rules, comment 1 on R. 4:30A (2002). That restored the doctrine's original status as a claim-joinder requirement, the contours of which are described by Judge Pressler in her commentary to the Rule:

The entire controversy doctrine, an equitable preclusionary doctrine whose purposes are to encourage comprehensive and conclusive litigation determinations, to avoid fragmentation of litigation, and to promote party fairness and judicial economy and efficiency, was originally conceived of as a claim-joinder mandate, requiring all parties in an action to raise in that action all transactionally related claims each had against any other whether assertible by complaint, counterclaim, or cross-claim. . . . Although the court rules had not initially contained any provision expressly referring to the entire controversy doctrine, R. 4:27-1(b) was added to the rule governing joinder of claims effective September 1979 to provide for mandatory joinder of claims under the doctrine, which, however, was undefined, it having been then and remains still the Supreme Court's view that development of the substantive content of the doctrine is best left to case law.

. . . .

The rule as to claim joinder continues to require, as a general matter, that all aspects of the controversy between those who are parties to the litigation be included in a single action.

. . . .

[T]he equitable nature of the doctrine[] bar[s] its application where to do so would be unfair in the totality of the circumstances and would not promote any of its objectives, namely, the promotion of conclusive determinations, party fairness, and judicial economy and efficiency.

. . . .

Nor does the doctrine apply to bar component claims either unknown, unarisen or unaccrued at the time of the original action.

[Pressler, Current N.J. Rules, comments 1 & 2 on R. 4:30A (2002).]

As an equitable preclusionary doctrine, the principal aims of the entire controversy doctrine are to encourage conclusive legal determinations, avoid fragmented litigation, promote judicial economy and efficiency, and, above all, provide fairness to the parties. K-Land Corp. No. 28, supra, 173 N.J. at 70. An important consideration in applying the equitable doctrine with an eye toward fairness is whether the party whose claim is being barred had a fair and reasonable opportunity to fully litigate the claim in the prior proceeding. Oliver v. Ambrose, 152 N.J. 383, 396 (1998). Application of the doctrine is left to the discretion of the trial court based on the factual circumstances of each case. Id. at 395.

Under separate docket numbers, Drs. Siegel and Blackman, each sued Gildawie for services performed. Each of those lawsuits resulted in a settlement or a judgment before Gildawie was served with the instant lawsuit on July 7, 2008. EPMG did not have a fair and reasonable opportunity to fully litigate its claim in the prior proceedings. The motion judge found that EPMG was a separate entity from the Center and from Drs. Seigel and Blackman, that all four provided separate, distinct services to Gildawie, and each appropriately billed him. The motion judge found that those separate claims, by separate parties, for distinct services, would not be subject to the mandatory joinder of claims under Rule 4:30A.

We discern no abuse of discretion in the judge's denial of Gildawie's motion for reconsideration that the case be dismissed under the entire controversy doctrine.

A

1 Even though we need only address the issues raised on the motion for reconsideration, in the interests of justice we will consider the motion judge's order with regard to the summary judgment.