SOUTHPAW MANAGEMENT LLC v. CARE FIRST PHYSICAL THERAPY CENTER, P.C.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

SOUTHPAW MANAGEMENT, LLC,

Plaintiff-Respondent,

v.

CARE FIRST PHYSICAL THERAPY

CENTER, P.C. and FRANKLIN

KUMAR,

Defendants/Third-Party

Plaintiffs-Appellants,

v.

ANKUR RISHI,

Third-Party Defendant.

Telephonically argued December 10, 2013 Decided February 12, 2014

 

Before Judges Alvarez and Carroll.

 

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-81-12.

Shay S. Deshpande argued the cause for appellants (Law Offices of Zwerling and Deshpande, attorneys; Mr. Deshpande, of counsel and on the brief).

 

Erika S. Cabri argued the cause for respondent (The Epstein Law Firm, P.A., attorneys; Michael J. Epstein, of counsel and on the brief; Ms. Cabri, on the brief).

 

PER CURIAM

Defendants Care First Physical Therapy Center, P.C., and Franklin Kumar, its principal, appeal the September 21, 2012 grant of summary judgment to plaintiff Southpaw Management, Inc., enforcing the purported settlement between the parties and requiring Southpaw to pay a $28,000 balance due. Because we find that material disputed issues of fact existed, we now reverse.

The procedural history in this case is less than clear from the record that we have been provided.1 It appears that motions and cross motions for summary judgment and other relief were filed over the course of many months, including an application for reconsideration. Partial summary judgment was earlier granted to plaintiff. At one point in time, an order was entered requiring defendants to deposit funds in escrow, which order was subsequently vacated.

We briefly describe the facts leading to the filing of the complaint. In April 2007, the parties entered into an agreement whereby Southpaw acted as a billing and collection agent for Care First, which provides physical therapy services. On March 23, 2011, Southpaw's representative, Ankar Rishi, and Kumar, without the benefit of counsel, entered into a settlement agreement purportedly terminating the contract and resolving all outstanding claims based on a payment by defendants to the plaintiff of $50,000. Defendant made no further payments after May 29, having paid $22,000.

In an undated certification, apparently submitted both on an earlier application for reconsideration and in opposition to the motion for summary judgment that resulted in the order being appealed, Kumar alleged facts that he claimed established fraud in the inducement. Kumar certified that he signed the purported settlement agreement solely because he believed Rishi's representations; namely, that, upon his signature, she would deliver a hard drive containing time-sensitive materials that would enable him to collect $1.2 million in billings owed to Care First. Ultimately, when the hard drive was produced during the litigation, it was found to contain allegedly incomplete information, and Southpaw was discovered to have held reimbursement checks that were no longer valid because so much time had passed since issuance.

In deciding the motion for summary judgment, the judge referred to the fact that defendants were, by that point, represented by a third attorney. He noted that all counsel representing defendants had challenged the validity of the underlying contract and the settlement agreement, alleging that there was fraud in the inducement at least as to the settlement. He then said:

And I gave [defendants] every opportunity to attack the settlement, and if that's what [their] position was. And the bottom line is we ended up with [] the settlement. . . . You know we've come down the road a ways, and that alone may not be a basis for not considering their position, but at some point in time we have to know where you stand. And as I said, I [] never incorporated into the settlement agreement that the quality or [] the usefulness of the material that [] plaintiff had to turn over in order for defendant to pay the amount due.

 

The judge observed that defendants' attorney wanted the material in the hard drive. He also noted that, shortly before the motion for summary judgment was scheduled to be heard, he received a letter from defendants' attorney to the effect that plaintiff was not registered with New Jersey's Department of Banking and Insurance to act as a billing agent. However, the judge stated that it was too "late in the day, this is after the settlement, nobody raised this issue before. . . . [A]nd I'm not saying that it's a defense that couldn't be added somewhere along the line. But we're beyond that, we're dealing with the settlement, and I'm going to enforce the settlement."

In reviewing the grant or denial of summary judgment, we apply the same standard which governs the trial court under Rule 4:46-2(c). Perrelli v. Pastorelle, 206 N.J. 193, 199 (2011); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 539-40 (1995); Chance v. McCann, 405 N.J. Super. 547, 563 (App. Div. 2009) (citing Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007)). Summary judgment is granted where the record demonstrates "no genuine issue as to any material fact challenged and [] the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c); Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 329-30 (2010); Brill, supra, 142 N.J. at 540.

It therefore follows that motions for summary judgment should not be granted where material facts are in dispute. Here, such material facts were in dispute, and, according to defendants, gave rise to the defense of fraud in the inducement. See generally Gennari v. Weichert Co. Realtors, 148 N.J. 582, 610 (1997) (reciting the elements of common-law fraud: "(1) a material misrepresentation of a presently existing or past fact; (2) knowledge or belief by the defendant of its falsity; (3) an intention that the other person rely on it; (4) reasonable reliance thereon by the other person; and (5) resulting damages."). In order for the trial judge to have discounted defendant's opposition to the motion for summary judgment, he must have found Kumar's certification to be unreliable, essentially finding him incredible. After all, Kumar was claiming that he agreed to pay Southpaw $50,000 only because Southpaw represented that the hard drive was organized so as to enable him to collect over a million dollars in unpaid billings, and that, if he delayed in obtaining the hard drive, he would lose the ability to collect at least some portion of the money owed. The hard drive, created by Southpaw, did not contain that information. But in making summary judgment determinations, judges are not to make credibility determinations. See Parks v. Rogers, 176 N.J. 491, 502 (2003).

In truth, it is not clear from the judge's findings whether he took the certification, twice supplied to him, into account at all. Furthermore, the judge's comments regarding Southpaw's failure to register as a billing agent make little sense. If, as the judge stated, such a defense was potentially valid, it is unclear why it should have been discounted at the summary judgment stage, a dispositive point in the litigation.

It is fundamental, black-letter law that, where there are disputes of material fact, summary judgment is inappropriate. See Rowe v. Mazel Thirty, LLC, 209 N.J. 35, 50 (2012). In light of our conclusion that defendants raised a material factual dispute that made summary judgment inappropriate, we reverse and remand.

1 Compliance with the rules regarding appellant's brief and appendix would have been helpful in the disposition of this matter. See R. 2:6-2(a)(3) and R. 2:6-1(b).