RONALD L. KAMM, M.D. v. WILLIAM PFISTER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

RONALD L. KAMM, M.D.,

Plaintiff-Appellant/

Cross-Respondent,

v.

WILLIAM PFISTER,

Defendant-Respondent/
Cross-Appellant.

________________________________________

October 29, 2013

Argued October 7, 2013 - Decided

Before Judges Parrillo, Harris, and Guadagno.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-3976-11.

Kathleen R. Wall argued the cause for appellant Ronald L. Kamm.

John M. Hockin, Jr., argued the cause for cross-respondent Ronald L. Kamm (Ronan, Tuzzio & Giannone, attorneys; Mr. Hockin, on the brief).

Russell Macnow argued the cause for respondent/cross-appellant.

PER CURIAM

Plaintiff Ronald L. Kamm appeals from a Law Division judgment entered on October 24, 2012, dismissing his complaint after a hearing. Defendant William Pfister cross-appeals from an order entered by the same court on March 30, 2012, dismissing his counter-claim. For the reasons that follow, we affirm both orders.

On July 20, 2009, Dr. Kamm, a psychiatrist, was appointed by Family Part Judge Teresa A. Kondrup-Coyle, to "conduct a full family evaluation" to determine defendant's fitness to have visitation and parent his son. The court order also stated that defendant was responsible for all of the costs associated with Dr. Kamm's evaluation and his parenting time with his son was suspended until the therapist recommended that it continue.

On July 29, 2009, defendant paid Dr. Kamm a $2,000 retainer followed by five payments in 2010, totaling $9,500. By January 21, 2011, Dr. Kamm had not completed his report and defendant, by email, questioned when it would be finished. On February 18, 2011, Dr. Kamm replied that he wanted an additional $5,000 by March 3, 2011, and an additional $1,000 when he completed his report. Defendant paid Dr. Kamm an additional $1,000 on February 17, 2011.

On February 23, 2011, Judge Kondrup-Coyle called Dr. Kamm and requested that he provide her with his completed report within a week. Dr. Kamm then emailed defendant and requested an additional $9,000 by February 28, 2011, stating that the payment would be "inclusive of the final report" and that he would re-arrange his schedule to complete the report by that date.

Defendant paid Dr. Kamm as requested, but the report was not completed as promised. Instead, Dr. Kamm sent an email to defendant on February 28, 2011, seeking an additional $5,500. He indicated that he now expected to complete the report by the following Wednesday and had informed Judge Kondrup-Coyle of the anticipated completion date.

On April 1, 2011, Dr. Kamm emailed defendant as follows:

The final, completed report, including sections on testing, is now ready for your review, or to be mailed to you. It is necessary, however, that you first clear up the outstanding amount still due ($9,510.80) for the completion of the evaluation and report.

When defendant failed to make the payment, Dr. Kamm filed a complaint in Special Civil Part, seeking judgment in the amount of $9,510 plus interest and costs. Defendant filed an answer and counterclaim alleging negligent and/or intentional infliction of emotional distress, violation of the Consumer Fraud Act (CFA), and breach of contract. Defendant's motion to transfer the matter to the Law Division was granted on August 9, 2011.

On December 12, 2011, Dr. Kamm filed a motion in the Family Part seeking a judgment against defendant for $12,681.15, representing $9,510.86, in claimed past due fees and $3,170.29 in counsel fees. On January 23, 2012, Judge Dennis O'Brien denied the motion and ordered that all matters regarding Dr. Kamm's fees be heard in the Law Division.

On March 30, 2012, Law Division Judge Honora O'Brien Kilgallen found that all three counts of defendant's counterclaim asserted claims of professional negligence and required an affidavit of merit. The judge concluded that pursuant to N.J.S.A. 2A:53A-29, "the failure to provide an affidavit of merit is tantamount to a failure to state a cause of action, subjecting the complaint to dismissal with prejudice[.]" In addition, Judge Kilgallen analyzed the breach of contract claim and found that Dr. Kamm was appointed by the court and thus there was no agreement entered into by the parties. Judge Kilgallen dismissed defendant's counterclaim with prejudice.

On August 10, 2012, Dr. Kamm filed a motion for summary judgment. On September 18, 2012, Judge Kilgallen heard oral argument on the motion and ruled that our decision in Johnson v. Johnson, 390 N.J. Super. 269 (App. Div. 2007), precludes a grant of summary judgment without a plenary hearing. There was no objection from either party to this course of action.

The hearing was held on October 17, 2012, and Dr. Kamm was the only witness. In her decision, Judge Kilgallen focused on Dr. Kamm's billing practice and noted that there was no retainer agreement and no fee schedule. She observed, "Indeed, the first time Mr. Pfister became aware of Dr. Kamm's fees was when Dr. Kamm sent a bill in March 2011, which was 20 months after Dr. Kamm had been appointed." Judge Kilgallen also identified what she called "many questionable entries" in Dr. Kamm's invoice. She noted that Dr. Kamm had seven separate entries for "chart reviews," with no other explanatory description. Dr. Kamm testified that a further explanation on the invoice, in his opinion, was irrelevant. Judge Kilgallen was not convinced and questioned these entries:

[On November 5, 2009,] [i]t just says chart review, $165. There's no explanation of what you are reviewing and why. Because your next action isn't until November 17, 2009, when you are reviewing Dr. Frankenstein's report. And then I know you review his report again on 4/15/2010.

So, . . . that's the problem with me. In order to determine whether your bill is fair and reasonable and should be paid, there has to be some back up for this stuff, and there's . . . just saying chart review, again, without any action - - for example, on August 18, 2009. You hadn't done anything until - - or since August 8, 2009 and then your next action wasn't going to be until August 21, 2009 when you had a phone call. So, a chart review for $95; well,

. . . what is that? What are we doing?

Dr. Kamm testified his "chart review" entry for two hours on October 12, 2010, was in preparation for his next day interviews with Mr. and Mrs. Pfister. However, on October 13 and October 15, Dr. Kamm also charged for "prep time" for both interviews again, and thus Judge Kilgallen questioned exactly what Dr. Kamm was reviewing on October 12.

Additionally, Dr. Kamm's invoice had thirteen entries, all accompanied by separate charges, reflecting different times and dates that he performed revisions to his report. However, none of the entries describe what specific revisions were actually made. The court concluded that Dr. Kamm's billing procedure throughout his twenty-month evaluation was "incredible" and his communication with defendant was designed solely to request payment of unexplained work.

Although Dr. Kamm testified that all the charges on defendant's bill were reasonable and accurately reflected the time he spent on the case, Judge Kilgallen disagreed:

[B]ecause of the many questionable charges on the invoice; the fact that Dr. Kamm did not inform Mr. Pfister of what the hourly rate was; the fact that Dr. Kamm did not send out periodic invoices; the fact that Dr. Kamm led . . . Mr. Pfister to believe that if he made the $9,000 payment, no further payments would be due; and the fact that Dr. Kamm did not act in a timely fashion in rendering his opinion to the court, I will enter a judgment of no cause of action in regard to Dr. Kamm's complaint.

Judge Kilgallen also denied payment of the additional $1,474.51 that Dr. Kamm demanded during the plenary hearing, finding Dr. Kamm was appropriately paid for his services. She then dismissed Dr. Kamm's complaint with prejudice.

On appeal, Dr. Kamm argues the trial court erred in ordering a plenary hearing on a motion for summary judgment, the trial court improperly applied the standards for court-appointed psychologists, and defendant was required to establish his defenses by expert testimony.

In his cross-appeal, defendant argues that an affidavit of merit was not necessary to maintain his cause of action for negligent infliction of emotional distress and the Consumer Fraud Act should be made applicable to court-appointed custody evaluators. Defendant also urges that we create a civil remedy for violation of the standards imposed by the Board of Psychological Examiners for custody evaluations. We have considered the arguments of both parties in light of the facts and applicable law, and are not persuaded by any of them.

Our review here is limited because "a trial judge's findings are substantially influenced by his or her opportunity to hear and see the witnesses and to get a 'feel' for the case that the reviewing court [cannot] enjoy." Twp. of W. Windsor v. Nierenberg, 150 N.J. 111, 132 (1997) (citing State v. Whitaker, 79 N.J. 503, 515-16 (1979)). "An appellate court's reading of a cold record is a pale substitute for a trial judge's assessment of the credibility of a witness [s]he has observed firsthand." State v. Nash, 212 N.J. 518, 540 (2013). We must defer to the factual determinations of the trial judge provided they are supported by adequate, substantial, competent, and credible evidence in the record. Seidman v. Clifton Sav. Bank, S.L.A., 205 N.J. 150, 169 (2011) (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)).

Dr. Kamm argues that the Law Division erred in conducting a plenary hearing on his motion for summary judgment "since there were questions of fact that precluded summary judgment." We disagree.

There was no objection from Dr. Kamm when Judge Kilgallen proposed resolving his motion in that fashion. To preserve an issue for appeal, a party must properly object on the record at the time an order or ruling is made by the trial court. R. 1:7-2. It is well understood that "[t]he failure to object suggests that counsel 'perceived no error or prejudice, and, in any event, prevented the trial judge from remedying any possible confusion in a timely fashion.'" Dimaria Const., Inc. v. Interarch, 351 N.J. Super. 558, 570-71 (App. Div. 2001) (quoting Bradford v. Kupper Assocs., 283 N.J. Super. 556, 573-74 (App. Div. 1995), certif. denied, 144 N.J. 586 (1996)), aff d o.b., 172 N.J. 182 (2002). As plaintiff's argument was not raised below, we review under the plain error standard. Pursuant to Rule 2:10-2, error is only cognizable by the appellate court if it rises to such magnitude as to have been clearly capable of producing an unjust result.

During the plenary hearing, Dr. Kamm testified extensively concerning the services he provided and attempted to justify the additional fees he sought. Judge Kilgallen carefully focused her attention on the reasonableness of Dr. Kamm's invoice and was satisfied that Dr. Kamm was adequately compensated for his services.

In Johnson, supra, we concluded that a dispute over the reasonableness of a court-appointed expert's fee, including the time and occurrence of certain events, required a plenary hearing to allow the defendant to

challenge and . . . test the various items contained in the certifications . . . filed in support of the . . . application[] for [professional] fees, and to enable him to test and to challenge the bill of . . . the expert[] by requiring [him] to detail the precise nature of all of the services rendered by him, the time spent and the rate or rates of compensation charged including the right to introduce evidence in challenge to the reasonableness of the rates charged by [the court-appointed expert], the necessity for any part of the services performed, the time expended, etc.

[Johnson, supra, 390 N.J. Super. at 275 (quoting Mayer v. Mayer, 180 N.J. Super. 164, 169 (App. Div.), certif. denied, 88 N.J. 494 (1981)).]

The panel in Johnson also noted that in addition to

the nature, scope, necessity and reasonableness of [the court-appointed expert's] fees. . . [t]he hearing must also include when defendant received the bill for services and his conduct on receipt of the bill, as well as whether the accountant informed defendant at the commencement of the services the scope and likely cost of his services.

[Ibid.]

We find no error in the resolution of plaintiff's claim, let alone error clearly capable of producing an unjust result. See R. 2:10-2.

Dr. Kamm's arguments that defendant is equitably estopped from contesting the necessity of the services and the reasonableness of the charges; that the court improperly imposed the requirements of N.J.A.C. 13:42-12.6(a), (b), on him during the plenary hearing; and that defendant required expert testimony to attack the reasonableness of Dr. Kamm's bill, are all so devoid of merit that no further discussion is warranted. R. 2:11-3(e)(1)(A), (E).

As to defendant's cross-appeal, we agree with Judge Kilgallen's finding that defendant's counterclaims alleging infliction of emotional distress and violation of the CFA, "assert a claim of professional negligence of the nature contemplated by the affidavit of merit statute." We affirm the order dismissing defendant's counterclaim substantially for the reasons articulated by Judge Kilgallen in her oral opinion placed on the record on October 17, 2012.

Finally, we decline defendant's invitation to create a civil remedy for violation of the standards imposed by the Board of Psychological Examiners for custody evaluations, as a task substantially beyond the scope of our appellate review. See R. 2:2-3.

Affirmed.