Opinion
DOCKET NO. A-5111-14T2
11-17-2016
EMERGENCY EXCELLENCE, LLC, Plaintiff-Appellant/Cross-Respondent, v. EMERGENCY MEDICINE BUSINESS INTELLIGENCE, INC., Defendant-Respondent/Cross-Appellant.
Windels Marx Lane & Mittendorf, LLP, attorneys for appellant/cross-respondent (Scott R. Matthews, on the brief). McHugh & Brancato, LLP, attorneys for respondent/cross-appellant (Mark J. Brancato, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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. Before Judges Fisher and Vernoia. On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-1662-13. Windels Marx Lane & Mittendorf, LLP, attorneys for appellant/cross-respondent (Scott R. Matthews, on the brief). McHugh & Brancato, LLP, attorneys for respondent/cross-appellant (Mark J. Brancato, on the brief). PER CURIAM
This appeal requires our examination of a judge's interpretation and application of the parties' "non-exclusive cooperative agreement" at the conclusion of a three-day non-jury trial. One of those parties, plaintiff Emergency Excellence, LLC (Excellence), in appealing from a mostly favorable judgment, is satisfied the judge properly found the other party, defendant Emergency Medicine Business Intelligence, Inc. (Intelligence), had breached their contract, but Excellence contends the judge erred in interpreting the contract so as to limit its right to certain revenues. And both parties argue that errors in the judge's computation of damages should be corrected. We reject all these arguments and affirm.
Our standard of review requires deference to a judge's findings when they are supported by credible evidence. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974); Kas Oriental Rugs, Inc. v. Ellman, 394 N.J. Super. 278, 285-86 (App. Div. 2007).
The judge found that both parties were in the business of providing services or products of interest to hospital emergency departments. Intelligence produces what was referred to as a "dashboard," which appears on computers and provides hospital administrators with various items of information about their patients. Excellence provides services to help hospitals improve their performances.
In November 2010, after several months of negotiation, the parties entered into the contract in question, which sets forth their essential promise that, if Excellence proved successful in selling Intelligence's product to an emergency department, Excellence would receive a commission. At issue is whether Excellence was entitled to commissions due on client subscriptions entered into after Intelligence validly terminated the parties' contract on June 24, 2013.
Wading through the competing testimony and the evidence concerning the parties' intentions and the nature of their undertaking, the judge focused, as do the parties, on a handful of contractual provisions. The judge recognized that at the time the contract was formed the parties contemplated the potential of a future termination of their undertaking. In section 11.7 of the contract, the parties "acknowledge[d] and agree[d] that client relationships relating to the [p]roducts and services contemplated herein may extend, by their terms, beyond the term" of the contract and, "notwithstanding termination or expiration" of the contract, they agreed Intelligence's "executed Software and Subscription and Services Agreements will remain in effect and that neither [p]arty will unduly influence said [a]greements to terminate." In section 11.8, they agreed that "Subscription-based Revenue Distribution," as defined elsewhere, "will continue for all clients that subscribed to [Intelligence's] retrospective Emergency Medicine performance dashboards and KPI analytics Solution during the term of this agreement."
In interpreting the significance of these provisions regarding the parties' dispute about Excellence's entitlement to revenues, the judge concluded - despite Excellence's contrary contention - that there is a difference between a master software subscription and service agreement (MSSSA) and a software subscription and service agreement (SSSA), and it is only the formation of the latter that triggers the rights conferred in sections 11.7 and 11.8. The judge thoroughly explained the reasons for his reaching that interpretation. For example, the judge found that an SSSA generates revenue "[a]s opposed to the MSSSA, which does not trigger a revenue stream." In rejecting Excellence's argument that it was entitled to share in revenues derived from an SSSA executed after June 24, 2013, if an MSSSA was executed by the client prior to June 24, 2013, the judge determined that:
The termination date of the parties' contract.
The MSSSA gives rise to no cash flow, and if, for example . . . a client executes an MSSSA during the contract period, that in and of itself does not entitle [Excellence]
to any revenue. The client must then execute an SSSA within the contract period.A common sense reading of the entire contract, as illuminated by the judge's determinations about the evidence he found credible, supports this interpretation.
[Excellence] seems to understand this agreement to provide that if a client executes an MSSSA during the contract period, [Excellence] is then entitled to any revenue flowing from SSSAs signed pursuant to that MSSSA whether the SSSAs are signed during the contract period or not. That argument the [c]ourt rejects. The SSSA must be signed between [the commencement date of the parties' contract] and June 24[,] 2013.
Excellence also argues the trial judge erred in his calculation of damages, claiming the judge omitted from his $150,908.39 award, commissions in the amount of $23,146.93 due for two SSSAs that were executed prior to the termination date of the parties' contract. Intelligence has cross-appealed, arguing the judge erred "in calculating the cost per seat for web hosting services and the ultimate amount owned to" Excellence. In support of its argument, Excellence argues that we should exercise original jurisdiction and rule on this factual question in its favor; Intelligence's argument is unfettered by legal citation to support its claim that we should amend the judge's damages award.
Excellence's reliance on Triffin v. Automatic Data Processing, Inc., 411 N.J. Super. 292, 305-06 (App. Div. 2010), is misguided. What Triffin suggested, citing Rova Farms, supra, 65 N.J. at 484, was that if a judge's findings were found by the reviewing court to have no support in the credible evidence, the reviewing court could exercise original jurisdiction to resolve the dispute rather than remand. That is not what we are being asked to do; we are asked to decide factual matters that the parties believe the judge misapprehended or overlooked without the parties having first asked for the judge's reconsideration of those issues prior to the commencement of this appeal. Although we may be empowered by Rule 2:10-5 to exercise original jurisdiction "as is necessary to the complete determination of any matter on review," that Rule presupposes that we will so act only in the rare case. See, e.g., Bacon v. State Dep't of Educ., 443 N.J. Super. 24, 38-39 (App. Div. 2015), certif. denied, 224 N.J. 281 (2016). We should not decide fact disputes which were either never presented to the trial court or were overlooked or misapprehended; parties should seek relief pursuant to Rule 4:49-2 from a trial judge before seeking appellate review or the appellate court's exercise of original jurisdiction in such instances. --------
We view the matter no differently than we would an argument that a jury verdict was against the weight of the evidence and, therefore, decline to examine the aspects of damages that the judge either chose not to award or imperfectly awarded because the parties never sought the judge's consideration of those issues, pursuant to Rule 4:49-2, following the rendering of his fact findings. Viewed another way, we conclude the parties did not preserve these issues for review.
We also decline to remand for consideration and findings on these damages issues. Our court rules are based on the notion that in any case there will be one trial followed by one appeal. See Trecartin v. Mahoney-Troast Constr. Co., 21 N.J. 1, 6 (1956); Grow Co. v. Chokshi, 403 N.J. Super. 443, 457-58 (App. Div. 2008). Absent the parties having sought the judge's reconsideration of the damage award in light of what they contend were miscalculations or omitted items of damage, we will neither consider those issues for the first time on appeal nor remand for the judge's examination followed by yet another appeal. To the extent any of these contentions are properly before us for a determination whether the trial judge erred in awarding damages or are based on our limited authority to exercise original jurisdiction, we find insufficient merit in these arguments to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION