UNIVERSITY OF MEDICINE AND DENTISTRY OF NEW JERSEY v. PATRICK H. MCCARTHY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4066-05T54066-05T5

UNIVERSITY OF MEDICINE AND

DENTISTRY OF NEW JERSEY,

Plaintiff-Appellant,

v.

PATRICK H. MCCARTHY,

Defendant-Respondent.

_______________________________

 

Submitted: December 5, 2006 - Decided December 21, 2006

Before Judges Kestin and Payne.

On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Essex County, L-7089-05.

McElroy, Deutsch, Mulvaney & Carpenter, attorneys for appellant (Thomas P. Scrivo, on the brief).

Hill Wallack, attorneys for respondent (Patrick D. Kennedy and James O'Donohue, of counsel; Jae H. Cho, on the brief).

PER CURIAM

Plaintiff, the University of Medicine and Dentistry of New Jersey (the University), sued defendant, Patrick H. McCarthy, in five counts alleging breach of contract, breach of the implied covenant of good faith and fair dealing, unjust enrichment, fraud in the inducement, and a contractually undertaken duty to indemnify. The complaint was filed on August 31, 2005.

Defendant moved, pro se, on October 6, 2005, to dismiss the complaint. Counsel, on defendant's behalf, filed an answer to the complaint dated December 21, 2005, as well as a motion for summary judgment dated December 22, 2005, returnable on January 20, 2006.

On the return date, the motion judge continued the matter, affording plaintiff the opportunity to submit additional documentation and defendant the opportunity to respond. The matter returned to court on February 17, 2006, with additional argument on the motion. The court ruled in favor of defendant for reasons expressed on the record. A confirming order was entered on February 28, 2006.

Plaintiff appeals from the dismissal of the complaint on summary judgment. We reverse and remand for further proceedings in the trial court.

In the contract at the heart of the dispute, plaintiff retained defendant as an independent contractor to provide "special assistance in the specific area of Federal Medicare and Medicaid reimbursement issues." The total annual fees for those services were "not to exceed $84,000." Over the course of two years, defendant was paid $168,000.

Plaintiff alleges that defendant "performed no services under the [a]greement[,]" asserting that no records exist in University files of any services performed by defendant. On his part, defendant contends that "[a]t no time did . . . anyone at the University ever dispute or complain about defendant's services[,]" and he submitted, in his certification on the motion, a letter from the University's former Senior Vice President for Administration and Finance describing the services defendant performed.

In reviewing a trial court's disposition of a matter on summary judgment, we apply the same standard as governed the trial court for determining whether summary judgment was appropriate. See Antheunisse v. Tiffany & Co., 229 N.J. Super. 399, 402 (App. Div. 1988), certif. denied, 115 N.J. 59 (1989). In ruling on a motion for summary judgment, a trial court "must not decide the issues of fact, it may only decide whether any such issues exist." Sloan v. Luyando, 305 N.J. Super. 140, 146 (App. Div. 1997). See Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540 (1995).

Manifestly, an issue of fact exists in this matter; and, the opportunities for discovery have thus far been rather limited. The matter is complicated by three interrelated features of plaintiff's claim. First, much of the proof it needs to make its case is within defendant's control. Summary judgment should not be granted in such a circumstance, where the plaintiff's claim has an ostensible basis and the facts to support it are within the defendant's control, and may be dislodged only through full discovery. See Wilson v. Amerada Hess Corp., 168 N.J. 236, 252-54 (2001); Ruvolo v. American Casualty Co., 39 N.J. 490, 500 (1963); Bilotti v. Accurate Forming Corp., 39 N.J. 184, 206 (1963); cf. Jewish Center of Sussex County v. Whale, 86 N.J. 619, 627 (1987). Second, in order to succeed, plaintiff must prove a negative. That feature, also, suggests that a court should withhold its hand until such time as a plaintiff with an arguably valid claim has had a fair opportunity to develop its proofs. Cf. Wilson, supra, 168 N.J. at 253-54; Carter-Wallace, Inc. v. Admiral Ins. Co., 154 N.J. 312, 330-1 (1998); Barbato v. Alsan Masonry & Concrete, Inc., 64 N.J. 514, 531-32, n. 2 (1974). Third, proof of the matter may very well require the opinions of expert witnesses, another type of instance that justifies the withholding of summary judgment, at least at this early stage of the suit. See Ruvolo, supra, 39 N.J. at 500-01.

 
For these reasons, the order granting defendant's motion for summary judgment and dismissing the complaint is reversed, and the matter is remanded for further proceedings.

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A-4066-05T5

December 21, 2006