SYNERTX, INC v. VALLEY VIEW REHABILITATION HEALTH CARE CENTER, LLC

NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-5122-18T3

SYNERTX, INC.,

          Plaintiff-Respondent,

v.

VALLEY VIEW
REHABILITATION & HEALTH
CARE CENTER, LLC,

     Defendant-Appellant.
_____________________________

                   Submitted September 14, 2020 – Decided September 30, 2020

                   Before Judges Mayer and Susswein.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Sussex County, Docket No. L-0031-17.

                   George T. Daggett, attorney for appellant.

                   Keith A. Hyche and Robert G. Harken (Harken Law
                   Firm, LLC) of the Missouri and Kansas bars, admitted
                   pro hac vice, attorneys for respondent (Keith A. Hyche
                   and Robert G. Harken, on the brief).

PER CURIAM
      Defendant Valley View Rehabilitation & Health Care Center, LLC

appeals from a March 7, 2019 order for final judgment awarding plaintiff

Synertx, Inc. the sum of $209,901.44 in damages and $28,895.33 in attorney's

fees and costs pursuant to the parties' written agreement for professional therapy

services. We affirm.

      In February 2016, the parties entered into a written agreement, entitled

Independent Contractor Agreement for Ongoing Professional Services

(Agreement). In accordance with the Agreement, plaintiff provided trained,

certified, and licensed physical, occupational, and speech therapists to treat

defendant's Medicare Part A patients and residents. Under the Agreement,

defendant agreed to pay plaintiff's monthly invoices, including the per diem

Resources Utilization Groups (RUG) rates for Medicare Part A patients. 1

      Defendant started to incur late payment services fees as of May 14, 2016

for failing to timely pay plaintiff's monthly invoices.      Four months later,

defendant stopped making any payments to plaintiff. Defendant never raised

issues regarding the services plaintiff provided in accordance with Paragraph


1
  The RUG rates are tiered at different levels based on the services provided.
The more skilled the services and the higher the rehabilitation levels required
by a patient, the greater the reimbursement rate.



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4.2 of the Agreement. 2 According to plaintiff, as of March 31, 2018, defendant

owed $203,294.14, with interest accruing at a per diem rate of $101.65.

      Plaintiff filed a complaint against defendant alleging breach of the

Agreement. Defendant responded by filing an answer and counterclaim. In its

counterclaim, defendant asserted plaintiff failed to provide sufficient therapy

services on a weekly basis to its Medicare A patients. According to defendant,

if plaintiff had done so, defendant would have been able to bill Medicare at a

higher rate and sought to offset the sums owed to plaintiff in the amount of

$92,850, representing lost revenue from Medicare.

      Plaintiff filed a motion for summary judgment seeking to recover the

amount of its unpaid invoices, plus interest and attorney's fees, and dismiss

defendant's counterclaim. After reviewing the briefs and certifications, and

hearing the arguments of counsel, Judge David J. Weaver granted plaintiff's

summary judgment motion in its entirety. In a written statement of reasons ,

Judge Weaver found "[d]efendant does not deny that [it] stopped paying

[p]laintiff's monthly invoices starting on September 30, 2016." Nor did



2
  This paragraph required defendant raise questions or issues regarding invoices
"in writing within fourteen (14) days of receiving the invoice, or such invoice
shall be deemed accurate and complete in all regards."


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defendant deny "that starting on May 14, 2016, it started to incur late payment

service fees for failing to timely pay [p]laintiff's monthly invoices . . . ." The

judge rejected defendant's argument that plaintiff waived the late fees, finding

no evidence of an agreement to waive those fees. The judge concluded there

were no genuine issues of material fact related to defendant's breach of the

Agreement and entered summary judgment for plaintiff is the amount of

$209,901.44.

      Judge Weaver also considered and rejected defendant's offset against the

amounts it owed to plaintiff. Defendant submitted a chart indicating it would

have received "an additional $92,850 in revenue" for services provided "from

02/2016 [to] 08/2016." However, the judge determined the chart was "not

evidence" and defendant failed to provide information supporting the chart's

veracity. In addition, the judge found defendant "provided no expert report or

other competent evidence to support its counterclaim or the offset" or the "lost

1,400 days of bed usage at $500 per day." Based on defendant's lack of

competent and admissible evidence, Judge Weaver dismissed defendant's

counterclaim.

      The judge also awarded plaintiff's requested attorney's fees and costs in

accordance with Paragraph 12.2 of the Agreement. Pursuant to the Agreement,


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"[t]he prevailing party in any legal action between the [p]arties shall be entitled

to recover reasonable attorney[']s fees and costs from the other party." As the

prevailing party, Judge Weaver concluded plaintiff was entitled to reasonable

attorney's fees and costs in the amount of $28,895.33. The judge entered an

order for final judgment on March 7, 2019.

      On appeal, defendant argues the judge erred in granting summary

judgment in favor of plaintiff and dismissing its counterclaim because there

were materially disputed facts requiring a trial. We disagree.

      Our review of rulings on motions for summary judgment is de novo,

applying the same legal standard as the trial court. Lee v. Brown,  232 N.J. 114,

126 (2018). Summary judgment shall be granted when there is no genuine issue

of material fact and the movant is entitled to judgment as a matter of law. R.

4:46-2(c); Brill v. Guardian Life Ins. Co. of Am.,  142 N.J. 520, 528-29 (1995).

If the evidence presented "show[s] that there is no real material issue, then

summary judgment should be granted." Walker v. Atl. Chrysler Plymouth, Inc.,

 216 N.J. Super. 255, 258 (App. Div. 1987) (citing Judson v. Peoples Bank &

Tr. Co. of Westfield,  17 N.J. 67, 75 (1954)).

      A party opposing summary judgment does not create a genuine issue of

fact simply by offering a sworn statement. See Carroll v. N.J. Transit, 366 N.J.


                                                                           A-5122-18T3
                                         5 Super. 380, 388 (App. Div. 2004). "'[C]onclusory and self-serving assertions'

in certifications without explanatory or supporting facts will not defeat a

meritorious motion for summary judgment." Hoffman v. Asseenontv.com, Inc.,

 404 N.J. Super. 415, 425-26 (App. Div. 2009) (quoting Puder v. Buechel,  183 N.J. 428, 440 (2005)). In opposing summary judgment, a party must provide

competent evidence that demonstrates a genuine issue for trial.

      The elements of a breach of contract claim require proof of "a valid

contract between the parties, the opposing party's failure to perform a defined

obligation under the contract, and a breach causing the claimant to sustain[]

damages." EnviroFinance Grp., LLC v. Envtl. Barrier Co., LLC,  440 N.J. Super.
 325, 345 (App. Div. 2015) (citing Murphy v. Implicito,  392 N.J. Super. 245, 265

(App. Div. 2007)).

      Applying these standards, we discern no reason to disturb the well-

reasoned summary judgment rulings rendered by Judge Weaver. Defendant did

not dispute entering into the Agreement with plaintiff for therapist services. Nor

did defendant deny it failed to pay the invoiced amounts and the late payment

service fees. The Agreement provided a mechanism for defendant to question

plaintiff's invoices, and defendant never submitted the required writing

challenging any invoices within fourteen days of receipt of the invoice.


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Defendant's argument that the parties waived the Agreement's provision

requiring any questions or issues related to the invoices be submitted in writing

was unsupported in the record.

      Nor do we find any error in the judge's dismissal of defendant's

counterclaim. Defendant failed to present admissible and competent evidence

in support of its claim to offset plaintiff's damages resulting from its breach of

contract. There was no expert report supporting the information contained in

the chart produced to the motion judge related to defendant's calculation of the

offset amount. Further, there was no supporting documentation identifying any

patients who should have received additional weekly therapy minutes from

plaintiff that would have allowed defendant to bill at the higher Medicare

reimbursement rate.

      In addition, Judge Weaver correctly concluded the certification and chart

submitted by defendant's administrator was deficient. The administrator was

not a doctor or licensed therapist and lacked any personal knowledge or

expertise to evaluate the level of therapy plaintiff provided to Medicare Part A

patients.   Similarly, the judge properly rejected the emails submitted by

defendant as lacking relevant information in support of defendant's counterclaim

and concisely stated the reason he rejected each of the emails.


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     Having reviewed the record, we are satisfied Judge Weaver properly

granted summary judgment in favor of plaintiff based on defendant's breach of

the Agreement and appropriately dismissed defendant's counterclaim as lacking

competent admissible evidence.

     Affirmed.




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