PREMIER HEALTH CENTER, PC VS. PRECISION BILLING, LLC (L-6225-16, BERGEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-0661-18T3
PREMIER HEALTH CENTER, PC,
Plaintiff-Appellant,
v.
PRECISION BILLING LLC,
d/b/a PRECISION BILLING &
CONSULTING SERVICES, LLC,
PRECISION BILLING PROPERTIES,
LLC, d/b/a PRECISION BILLING &
CONSULTING SERVICES, LLC and
KELLY B. LANGSCHULTZ,
Defendants-Respondents.
________________________________
Argued October 21, 2019 – Decided March 9, 2020
Before Judges Rothstadt and Mitterhoff.
On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Docket No. L-6225-16.
Peter Y. Lee argued the cause for appellant.
J. Alvaro Alonso argued the cause for respondent
Precision Billing LLC d/b/a Precision Billing &
Consulting Services, LLC, and Kelly Langschultz.
Michael P. Chipko argued the cause for respondents
Precision Billing LLC d/b/a Precision Billing
Properties, LLC, and Kelly Langschultz (Wilson Elser
Moskowitz Edelman & Dicker LLP, attorneys;
Maxwell Leonard Billek, of counsel; Michael P.
Chipko, of counsel and on the brief).
PER CURIAM
In this dispute between plaintiff Premier Health Center, P.C., a health care
provider, and defendant Precision Billing LLC d/b/a Precision Billing &
Consulting Services, LLC (Precision), plaintiff's former supplier of billing
services,1 plaintiff appeals from orders entered by the Law Division that
dismissed plaintiff's complaint, imposed sanctions against plaintiff and granted
defendant summary judgment on its counterclaim.2 On appeal, plaintiff argues
1
The other defendants, Precision Billing LLC d/b/a Precision Billing
Properties, LLC (Precision Properties) and Kelly Langschultz, are respectively
a related entity and a principal of Precision.
2
The orders are a November 14, 2016 order denying plaintiff injunctive relief;
a February 8, 2017 and July 6, 2017 order compelling and denying certain
discovery; an October 6, 2017 order granting Precision's reconsideration of an
earlier order; a February 2, 2018 order dismissing plaintiff's complaint with
prejudice and imposing sanctions; a March 29, 2018 order denying plaintiff's
motion for reconsideration of the February order; an August 3, 2018 order
denying plaintiff's motion to dismiss defendant's counterclaim and compelling
plaintiff to pay attorney's fees; a September 14, 2018 order granting defendant's
motion for summary judgment on its counterclaim; and an October 26, 2018
order entering judgment against plaintiff, denying plaintiff's motion for a stay,
and denying plaintiff's motion to reconsider.
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that the motion judge should have denied summary judgment because Precision
did not comply with Rule 4:46-2, failed to give adequate reasons for her
decision, and improperly denied plaintiff's motions for discovery of
electronically stored information (ESI). It also argues that the motion judge had
no basis to impose sanctions against plaintiff. We find no merit to these
contentions and affirm.
I.
The facts derived from the record are summarized as follows. Plaintiff
provides chiropractic and other health care services to the public. On April 7,
2007, plaintiff entered into a contract with Precision for it to provide plaintiff
with "billing and collection services." Under the agreement, plaintiff was to
send patient information, including protected health information (PHI), to
Precision, which "assumed the responsibility of safeguarding such confidential
and sensitive information . . . and processing claims." In exchange for its
services, Precision was entitled to a six percent commission of plaintiff's net
receivables, which it would not receive "until . . . plaintiff first receive[d]
payment from an insurer or patient in response to . . . [Precision's] work."
Further, plaintiff was obligated to pay Precision within thirty days of receipt of
Precision's invoice. Each invoice included a provision stating a two percent fee,
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calculated monthly that would apply if plaintiff failed to pay the invoice amount
within thirty days.
The agreement also stated that both parties "shall maintain the
confidentiality of each patient's medical records . . . [the parties'] enrollment
information, and the confidential and proprietary information or trade secrets
of . . . [the parties]." It also provided that plaintiff would have access to inspect
and copy information "for the creation and maintaining, or processing of the
PHI," and access to business records concerning the use and disclosure of such
information.
The agreement also addressed termination. After either plaintiff or
Precision terminated the agreement, for a period of ninety days, plaintiff would
have continued access to the information on Precision's server in order to remove
whatever it chose. During that time, Precision would continue to collect fees
for its earlier collection efforts.
Thereafter, Precision provided services to plaintiff using Medisoft, a
billing program, until January 19, 2014. In 2014, problems developed in the
parties' relationship and plaintiff was no longer satisfied with Precision's
performance. As a result, the parties agreed to terminate their contract on
December 17, 2015. According to plaintiff's principal, Phillip Kim, plaintiff
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terminated the agreement because it lost "thousands or even millions of dollars"
due to Precision's failure to perform its obligations under the parties' agreement.
After the termination, Precision continued to provide services to plaintiff
through August 2016. Plaintiff contended that Precision did so in order to
charge plaintiff for collected receivables, to which Precision was not entitled.
Precision stated it did so to allow plaintiff time to remove its information from
the program, but it deactivated plaintiff from its system on August 24, 2016, as
it was no longer collecting on the account. Precision informed plaintiff that it
owed $53,997.70 as plaintiff had not paid its invoices in over four months for
services it rendered and, to Precision's knowledge, were based upon amounts
plaintiff collected.
Instead of making payment, plaintiff filed its complaint. The complaint
alleged that Precision breached the agreement by failing to properly maintain
records and submit insurance claims in a timely manner. It also asserted that
Precision committed fraud by "[i]ntentionally misrepresenting the status of
thousands of insurance claims" and billing and receiving payment for payments
that plaintiff never received. Plaintiff also alleged that Precision was negligent,
violated the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -20, and
intentionally spoliated evidence to misrepresent claim statuses and to
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"perpetuat[e] [its] . . . foregoing fraudulent scheme." It sought judgment
declaring that Precision's August 24, 2016 actions were unlawful and that it
violated the Health Insurance Portability and Accountability Act (HIPAA), 42
U.S.C. § 1320d to -9, by failing to comply with plaintiff's demands for copies
of plaintiff's patient health and treatment/insurance records. Regarding
spoliation, it requested an adverse inference, an order barring Precision from
relying on or introducing at trial any information received from plaintiff, the
appointment of a custodian for plaintiff's patient information, and permanent
transfer of plaintiff's patient information to the custodian.
In response to the complaint, Precision filed an answer, denying the
complaint's allegations, and asserting separate defenses. It also filed a
counterclaim against plaintiff and a third-party complaint against Kim. In its
pleading, Precision alleged that plaintiff breached the agreement by failing to
make timely payments of amounts it was owed. It also alleged slander, libel,
conversion, and unjust enrichment against Kim. 3
3
On December 19, 2016, a judge dismissed Precision's claims against Kim,
finding that it failed to state a viable claim against him for relief and that
discovery would not provide one.
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During the course of the ensuing litigation, two judges4 entered numerous
orders, including those under appeal, in response to the parties' various motions
for injunctive relief, discovery, and ultimately the dismissal of the complaint
and the entry of summary judgment in favor of Precision on its counterclaim, as
well as imposing sanctions and counsel fees on plaintiff. This appeal followed.
II.
We begin our review by considering plaintiff's contention that we must
reverse the September 14, 2018 award of summary judgment to Precision on its
counterclaim and the October 26, 2018 order denying reconsideration, because
Precision did not adhere to Rule 4:46-2's requirements and the judge issued an
insufficient statement of reasons under Rule 1:7-4. According to plaintiff,
Precision's "separate statement of material facts" was not a separate document,
failed to make specific references to the record, and the motion judge improperly
considered subsequent submissions by Precision before granting it summary
judgment. As plaintiff argues, "[n]o matter how it is read or interpreted,
Precision's . . . 'statement of material facts' show[ed] absolutely no 'citation'
whatsoever—or any support, for that matter." We disagree.
4
The first judge retired midway through the litigation and a second judge
replaced him. As described herein, the second judge decided the dismissal
motion and granted Precision summary judgment.
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Rule 4:46-2(a) requires that a summary judgment motion be supported by
the movant's "statement of material facts," "with a citation to the portion of the
motion record establishing the fact or demonstrating that it is uncontroverted. "
When a party opposes a material statement of facts, that party "may not rest
upon the mere allegations or denials of the pleading, but must respond by
affidavits . . . setting forth specific facts showing there is a genuine issue." R.
4:46-5(a). This "means a non-moving party cannot defeat a motion for summary
judgment merely by pointing to any fact in dispute." Brill v. Guardian Life Ins.
Co. of Am., 142 N.J. 520, 529 (1995). The opposing party must point to
substantial facts, meaning that they are "not imaginary, unreal, or apparent only;
[they must be] true, solid, real, . . . firmly based, a substantial argument." Ibid.
(first quoting The Compact Oxford English Dictionary 1947 (2d ed. 1993); and
then quoting The New Lexicon Webster's Dictionary of the English Language
987 (1987)). Compliance with the Rules for summary judgment procedures is
"not optional." Lyons v. Township of Wayne, 185 N.J. 426, 435 (2005)
(addressing a case in which a party failed to file any statement of undisputed
material facts).
Here, Precision moved for summary judgment on August 14, 2018.
Precision incorporated into its supporting brief a "statement of undisputed
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material facts" that cited to the parties' agreement and invoices that were
attached as exhibits to a certification filed with the statement by Precision's
managing member and director, Langshultz. In its statement, Precision
maintained that it provided plaintiff with all invoices for services rendered as
per the parties' agreement. According to Langshultz, Precision was owed
$117,353.11 under the agreement, including an assessment for late payments
and for amounts owed from arbitration proceedings that Precision learned about
through discovery, in which plaintiff recovered amounts pursued by Precision
without ever paying Precision its share.5
On September 4, 2018, plaintiff filed its own statement of material facts
in dispute and a certification from Kim challenging Precision's assertions.
Plaintiff also maintained that Precision's statement of undisputed material facts
did not comport with Rule 4:46-2 because it was not a separate document and it
failed to include citations to the record. In response to plaintiff's argument,
Precision submitted another statement of undisputed facts, identical to the initial
one in its brief, as a separate document, and asserted that notwithstanding its
5
The initial $53,997.70 that Precision claimed it was owed represented only
missed payments by plaintiff during a four-month period. The $117,353.11
includes late fees and owed arbitration amounts, unknown to Precision when it
initially contacted plaintiff about how much Precision was owed.
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procedural error, plaintiff failed to meet its burden in opposition to summary
judgment.
After considering the parties' oral arguments on September 14, 2018, the
motion judge granted defendant's motion and entered judgment against plaintiff
in the amount of $117,353.11. Regarding Precision's submission of an amended
statement of undisputed facts, the judge found no procedural deficiency. She
explained that the issues had been long known to the parties and found Kim's
September certification "dismissive" of the court's orders and comprised solely
of "allegations." She noted the motion was "essentially unopposed
substantively" and observed that plaintiff did not obtain an expert to dispute any
calculations. The judge observed that "[t]he clear and unambiguous language
of the contract permits [Precision] to continue to collect on fees owed . . . after
termination" and found no opposition that raised a substantial issue of material
fact. On October 26, 2018, the judge entered an order denying plaintiff's
motions for reconsideration and vacating the September 14, 2018 order.
Based on this record, we conclude that plaintiff's contentions about
Precision's compliance with Rule 4:46-2 and the judge's compliance with Rule
1:7-4 are without merit. Here, defendant's statement of undisputed material
facts contained citations to the agreement as well as citations to invoices for
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services it performed that remained unpaid. Plaintiff, however, through its
opposition, did not establish any material issue of fact as to Precision's
entitlement under the agreement to those amounts. As the motion judge found,
plaintiff "offer[ed] no analysis or evidence which supports [plaintiff's] claims,"
or that any calculations were wrong. Moreover, the judge's statement of reasons
fully complied with Rule 1:7-4. See R. 1:7-4(a) (requiring a judge "by an
opinion or memorandum decision, either written or oral, find the facts and state
its conclusions of law thereon").
III.
We turn our attention to plaintiff's argument that the motion judge's failure
or refusal to permit ESI discovery in this case unduly prejudiced plaintiff and
constituted reversible error. We disagree.
The record here reflects that the parties made numerous discovery
motions. In response to one of plaintiff's cross-motions to compel discovery, on
February 8, 2017, the first judge entered an order requiring Precision to provide
a current and final "[p]roblem [l]ist [c]harge/[p]ayment ([p]ending)" report from
one of its billing programs, and to provide plaintiff with all unpaid invoices. On
July 6, 2017, the same judge entered an order requiring Precision, within thirty
days, to respond to plaintiff's discovery demands regarding unpaid invoices and
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to produce a "current, final, or last" aging report from Medisoft. The judge noted
that if Precision was not in possession of such report, it would not be under an
obligation to create one. The same order required plaintiff to serve its responses
to Precision's interrogatories and provide Precision with a list of all unpaid
claims for which it was seeking damages. The list had to include claim numbers,
patients' identities, dates of services, and the unpaid amount for each claim.
Thereafter, Precision moved for reconsideration of the July 6, 2017 order,
which plaintiff opposed. Plaintiff also filed a cross-motion seeking an order
dismissing Precision's counterclaim with prejudice, compelling Precision to
respond to discovery requests, and barring Precision's collection of billing
charges as it failed to comply with part of the July 6, 2017 order. On October
6, 2017, the motion judge granted Precision's motion for reconsideration of the
July 6, 2017 order, and denied plaintiff's cross-motion.
On January 17, 2018, plaintiff filed a motion to compel discovery,
specifically the production of Precision's electronically-stored Medisoft data.
Plaintiff's counsel's certification included a claim that Precision continued to
prevent plaintiff from accessing relevant ESI regarding its patients' data,
depriving plaintiff of its right to all relevant discovery. On February 2, 2018,
the motion judge found that plaintiff had continuously failed to comply with the
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July 6, 2017 order. Plaintiff had submitted a claims list, purporting to comply
with the July 6, 2017 order, that contained over 16,000 claims. The motion
judge then barred plaintiff "from issuing any further discovery proceedings in
this matter."
On appeal, plaintiff argues that "the record is replete with Law Division
orders that severely handicapped [its] case-in-chief." It contends that it was
forced to comply with "unreasonable expectations" by having to prove its case
early in discovery, which "placed insurmountable burdens" on plaintiff that
contradicted the discovery rules. Plaintiff maintains that the ESI it provided was
fully responsive to Precision's continued demands for claim-specific
information, but it was blocked from engaging in any ESI discovery. Further,
plaintiff argues that the judge prohibited it from pursuing third-party discovery
through subpoenas. Plaintiff asserts that the dismissal of its complaint with
prejudice was "very erroneous, given the circumstances." We find no merit to
any of these arguments.
Our review of a trial judge's discovery rulings is limited. Bender v.
Adelson, 187 N.J. 411, 428 (2006). We will "not . . . intervene but instead will
defer to a trial judge's discovery rulings absent an abuse of discretion or a judge's
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misunderstanding or misapplication of the law." Capital Health Sys., Inc. v.
Horizon Healthcare Servs., Inc., 230 N.J. 73, 79-80 (2017).
In our review, we are mindful of the fact that:
The discovery rules were designed to eliminate, as far
as possible, concealment and surprise in the trial of
lawsuits to the end that judgments rest upon real merits
of the causes and not upon the skill and maneuvering of
counsel. If the discovery rules are to be effective,
courts must be prepared to impose appropriate
sanctions for violations of the rules.
[Abtrax Pharm., Inc. v. Elkins-Sinn, Inc., 139 N.J. 499,
512 (1995) (citation omitted).]
We conclude that, contrary to plaintiff's contention, the judges did not
abuse their discretion when they denied plaintiff's applications for discovery and
enforced discovery orders entered against plaintiff. Plaintiff was not
"handicapped" by the orders and was repeatedly asked to specify its claims
against Precision. The record reflects that plaintiff repeatedly failed to comply
with numerous orders.
Plaintiff never established it had any legitimate ESI discovery issues as
plaintiff acknowledged that it had, in its possession, the ESI from Precision's
programs. If there was any outstanding information, Precision provided the
pertinent information as required by the judges' orders.
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Given that plaintiff was provided numerous opportunities to comply with
the orders for discovery, it was appropriate to dismiss plaintiff's complaint under
Rule 4:23-2(b). The Rule provides that, if a party "fails to obey an order to
provide or permit discovery," the court may make an order "refusing to allow
the disobedient party to support or oppose designated claims or defenses, or
prohibiting the introduction of designated matters in evidence," R. 4:23-2(b)(2),
or "striking out pleadings or parts thereof . . . or dismissing the action or
proceeding or any part thereof with or without prejudice, or rendering a
judgment by default against the disobedient party," R. 4:23-2(b)(3). We have
no cause to disturb the judges' proper exercise of their discretion.
IV.
Finally, we address plaintiff's argument that the sanctions imposed by the
motion judge must be vacated because the judge abused her discretion. Here,
too, we disagree.
The motion judge entered a protective order on January 26, 2017, based
upon the fact that documents being sought in discovery contained patients'
personal information that was protected by "federal and state laws governing the
disclosure of such information." The order imposed an obligation on a party
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who inadvertently received any documents deemed confidential or privileged to
return the documents or destroy them.
Thereafter, Precision learned through information disclosed in discovery,
that plaintiff had been contacting individuals and entities unrelated to plaintiff
who had used Precision's services. Plaintiff advised these non-parties that
Precision disclosed their PHI in violation of state and federal law. 6 According
to plaintiff's counsel, he sent the letters because he was trying to obtain
discovery he thought his client was entitled to but the motion judge would not
allow. When the matter was brought to the judge's attention through plaintiff's
filing a motion in aid of litigant's rights under Rule 1:10-3, she rejected counsel's
excuses for the obvious violation of the protective order. On February 2, 2018,
6
Plaintiff wrote to other health care providers who used Precision's services
and stated the following:
Attorneys for [Precision] have produced records
identifying your patients and providing each
individual’s date of birth, social security number, and
sensitive medical information. . . . In the event you are
involved in any dispute with Precision . . . please
contact our office as soon as possible. Otherwise, we
recommend you or your attorneys investigate, as soon
as possible, any unauthorized disclosure of patient
protected health information and take appropriate
measures to protect such confidential information.
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the judge found plaintiff in violation of litigant's rights and on August 3, 2018,
entered an order awarding attorney's fees and costs in the amount of $10,415.49.
When plaintiff refused to make payment by October 2018, Precision moved for
additional relief and on October 26, 2018, the motion judge reduced the award
to a judgment against plaintiff in the amount of $10,415.49.
On appeal, plaintiff argues that the judge abused her discretion by entering
the August 3, 2018 and the October 26, 2018 orders because there was no proof
that plaintiff violated a protective order. Plaintiff maintains that the judge failed
to take into consideration its several attempts to discuss Precision's discovery
issues. Plaintiff further argues that the judge disregarded Precision's
unreasonable failure or refusal to communicate with plaintiff about plaintiff's
intentions to contact the non-parties about their health information. Plaintiff
argues it reasonably interpreted Precision's silence and failure to object to
plaintiff's contacting those third parties as Precision giving plaintiff permission
to contact them.
We review a trial judge's imposition of sanctions against a litigant
pursuant to Rule 1:10-3 for an abuse of discretion. Barr v. Barr, 418 N.J. Super.
18, 46 (App. Div. 2011); see also Abtrax Pharm., Inc., 139 N.J. at 513. "An
abuse of discretion 'arises when a decision is "made without a rational
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explanation, inexplicably departed from established policies, or rested on an
impermissible basis."'" Barr, 418 N.J. Super. at 46 (quoting Flagg v. Essex Cty.
Prosecutor, 171 N.J. 561, 571 (2002)). The decision to award attorney's fees
and costs associated with an enforcement motion also "rests within the sound
discretion of the trial court." Wear v. Selective Ins. Co., 455 N.J. Super. 440,
459 (App. Div. 2018) (quoting Maudsley v. State, 357 N.J. Super. 560, 590
(App. Div. 2003)). "[F]ee determinations by trial courts will be disturbed only
on the rarest occasions, and then only because of a clear abuse of discretion."
Rendine v. Pantzer, 141 N.J. 292, 317 (1995).
Rule 1:10-3 provides relief to a litigant for another party's failure to abide
by a court order. Before relief can be granted, a judge must determine if the
delinquent party willfully violated the alleged order. See In re Adoption of
N.J.A.C. 5:96 & 5:97, 221 N.J. 1, 18 (2015); Schochet v. Schochet, 435 N.J.
Super. 542, 548-49 (App. Div. 2014); Pressler & Verniero, Current N.J. Court
Rules, cmt. 4.3 on R. 1:10-3 (2020) ("Before punitive or coercive relief can be
afforded, the court must be satisfied that the party had the capacity to comply
with the order and was willfully contumacious.").
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Here, we conclude that the motion judge properly granted Precision relief
under the Rule. Plaintiff's arguments to the contrary are without sufficient merit
to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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