Opinion
DOCKET NO. A-4604-12T2
04-08-2015
ANESTHESIOLOGY ASSOCIATES OF MANHATTAN, P.C., Plaintiff-Respondent, v. RONALD GRINBLAT and BATIA GRINBLAT, Defendants/Third-Party Plaintiffs-Appellants, v. UNITED HEALTHCARE INSURANCE COMPANY OF NEW YORK, Third-Party Defendant-Respondent.
Lawrence C. Hersh, attorney for appellants. Steven H. Schefers, attorney for respondent Anesthesiology Associates of Manhattan, P.C. Stradley Ronon, attorneys for respondent United Healthcare Insurance Company of New York join in the brief of respondent Anesthesiology Associates of Manhattan, P.C.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Nugent and Accurso. On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Bergen County, Docket No. DC-02-6043-12. Lawrence C. Hersh, attorney for appellants. Steven H. Schefers, attorney for respondent Anesthesiology Associates of Manhattan, P.C. Stradley Ronon, attorneys for respondent United Healthcare Insurance Company of New York join in the brief of respondent Anesthesiology Associates of Manhattan, P.C. PER CURIAM
Defendants Ronald and Batia Grinblat appeal from the entry of summary judgment to plaintiff Anesthesiology Associates of Manhattan, P.C. on its book account complaint; the trial court's imposition of sanctions against them under Rule 1:2-4; and the award of attorney's fees to plaintiff under Rule 1:4-8. We reverse each of those orders.
This is an exceedingly simple matter made unnecessarily complicated by the querulous conduct of the parties and the trial court, which we see no need to recount. Plaintiff alleges it provided anesthesiology services to Batia Grinblat on three dates in July and September 2007. In November 2012, it sued defendants in the Special Civil Part on a book account complaint for $7490. Defendants filed a timely pro se answer checking every box on the pre-printed form as to why they did not owe money to plaintiff, and adding that "[p]laintiff is a stranger to us." They also filed a counterclaim asserting that
We are aware from a prior matter involving defendants that defendant Batia Grinblat was severely injured in an accident in January 2007, when, as a pedestrian, she was struck by a car.
Defendant Ronald Grinblat is a New Jersey admitted attorney practicing in New York.
Anesthesiology Associates of Manhattan, P.C. knew that the defendants did not order any
goods or services and that [they] were strangers, and started this frivolous suit because itself had negligently failed to file a claim with the defendants' medical insurance company and had negligently failed [to] notify the defendants of services performed and money claimed dueand a third-party complaint against their healthcare insurer, United Healthcare Insurance Company of New York. Defendants requested a jury trial, and one was scheduled accordingly. Plaintiff's counsel thereafter sent defendants a safe harbor letter under Rule 1:4-8(b)(1) advising that the counterclaim was frivolous and that plaintiff would seek sanctions if it was not withdrawn.
Approximately five weeks before the scheduled trial date, the court issued, sua sponte, a "Jury Trial Order" requiring all parties to exchange and submit any proposed voir dire questions, a list of proposed jury instructions, and a proposed jury verdict form at least seven days prior to the scheduled trial date. The order warned that failure to timely submit the required information could result in sanctions. Plaintiff submitted the required information a day late and defendants and United Healthcare did not submit anything at all.
Defendants timely requested an adjournment of the trial date, which the court denied. Thereafter, plaintiff and United Healthcare filed motions for summary judgment and each also requested an adjournment of the trial date to allow the court to hear their motions. Those requests were likewise denied, as was United Healthcare's second request for an adjournment made nearer the trial date.
On the trial date, the court sanctioned defendants for their supposedly late adjournment request and their failure to comply with the court's jury trial order by ordering them to pay $250 to each of the other parties. No other party was sanctioned, despite United Healthcare's late adjournment requests and failure to comply with the jury trial order. The court adjourned the trial to a new date that would allow the summary judgment motions to be heard.
Plaintiff based its motion on its assertion that it provided services to Batia Grinblat, that United Healthcare reimbursed defendants directly for the costs of those services, but that defendants kept the money and failed to tender payment to plaintiff. Plaintiff's motion, however, was supported only by its counsel's certification, to which was attached the bills for services rendered to Batia Grinblat, United Healthcare's explanation of benefits and its three cancelled checks to Ronald Grinblat totaling $7490. Plaintiff's name was not listed on either the checks or the explanation of benefits, and the doctors' names were not included in the bill for service.
Counsel's certification was not made on personal knowledge as required by Rule 1:6-6, and none of the documents supporting the charges and payments was authenticated. Nevertheless, the court granted plaintiff's motion, which defendants had opposed on the basis that the explanations of benefits referenced individual physicians and not plaintiff. Plaintiff's counsel represented to the court at argument that the referenced physicians were employed by plaintiff. The court accepted that representation and found Ronald Grinblat was lying when he claimed he did not recall if he received the three checks and could not be sure that the signatures on the cancelled checks were his own. The court subsequently granted plaintiff's motion for sanctions under Rule 1:4-8, awarding it $2925 in attorney's fees, including fees for services not related to defending the counterclaim.
The court also granted United Healthcare's motion. Defendants have not appealed that order.
--------
It is patently obvious to us that none of these orders can stand. The award of summary judgment is clearly inappropriate because it was entered wholly on the basis of incompetent evidence. As has been stated on times too numerous to count, motions for summary judgment "must be supported by relevant and admissible evidence." El-Sioufi v. St. Peter's Univ. Hosp., 382 N.J. Super. 145, 164 (App. Div. 2005). "A certification will support the grant of summary judgment only if the material facts alleged therein are based, as required by Rule 1:6-6, on 'personal knowledge.'" Wells Fargo Bank, N.A. v. Ford, 418 N.J. Super. 592, 599 (App. Div. 2011). "Affidavits by attorneys of facts not based on their personal knowledge but related to them by and within the primary knowledge of their clients constitute objectionable hearsay." Pressler and Verniero, Current N.J. Court Rules, comment on R. 1:6-6 (2015); see also Cafferata v. Peyser, 251 N.J. Super. 256, 263 (App. Div. 1991) (finding attorney's statement in his certification of facts of which he did not have personal knowledge to constitute "gross hearsay and a clear violation of R. 1:6-6").
Documents submitted in support of a motion must likewise be authenticated by affidavit or certification based on personal knowledge. Ford, supra, 418 N.J. Super. at 600; see also Sellers v. Schonfeld, 270 N.J. Super. 424, 428 (App. Div. 1993) (finding inadmissible exhibits, including letters and memoranda, customer complaints, employee investigatory reports, and arbitration reports attached to the certification of an attorney without firsthand knowledge of the facts, and not certified as true copies or authenticated in any way). Here, not only was plaintiff's motion not supported by competent evidence, the evidence submitted failed to explain the relationship between the physicians who purportedly performed services and plaintiff. Accordingly, we reverse the entry of summary judgment.
We also reverse as improvidently granted the court's order for sanctions pursuant to Rule 1:2-4. Such orders requiring payments to other parties are only appropriate in situations where a party's conduct has negatively affected the other parties to the case. See, e.g. Cohen v. Cmty. Med. Ctr., 386 N.J. Super. 387, 403 (App. Div. 2006); Davis v. DND/Fidoreo, Inc., 317 N.J. Super. 92, 102 (App. Div. 1998), certif. denied, 158 N.J. 686 (1999); Oliviero v. Porter Hayden Co., 241 N.J. Super. 381, 388 (App. Div. 1990).
Here, the court imposed attorney's fees of $250 paid to plaintiff and United Healthcare because defendants' "late" adjournment request and failure to comply with the court's jury trial order caused the court to adjourn the case instead of proceeding on the trial date. That rationale, however, ignored that plaintiff and United Healthcare had both sought adjournment of the trial date after defendants because both wanted their pending summary judgment motions heard. Because that fact suggests the parties incurred the costs associated with appearing for trial as a result of the court's decision to deny all parties' requests for an adjournment as much, if not more than, defendant's failure to comply with the court's jury trial order, we reverse the sanction. See Shore Orthopaedic Grp., LLC v. Equitable Life Assur. Soc. of U.S., 397 N.J. Super. 614, 623 (App. Div. 2008), aff'd, 199 N.J. 310 (2009).
Our reversal of the decision on summary judgment would likely also require reversal of the fees awarded under Rule 1:4-8. But there are other grounds that require reversal of this sanction order as well. Rule 1:4-8(d) requires that "[i]n the order imposing sanctions, the court shall describe the conduct determined to be a violation of this rule and explain the basis for the sanction imposed." The trial court must explain the basis of the sanction imposed with reference to the Rule 1:4-8(a) factors and make findings of fact and conclusions of law pursuant to Rule 1:7-4(a). Alpert, Goldberg, Butler, Norton & Weiss, P.C. v. Quinn, 410 N.J. Super. 510, 543-44 (App. Div. 2009), certif. denied, 203 N.J. 93 (2010).
Here, the only basis for sanctions under the rule was defendants' counterclaim. Although plaintiff in its application for sanctions claimed defendants' answer was also frivolous, it did not reference that pleading in its safe harbor letter, thus precluding an award of sanctions on that basis. See Ferolito v. Park Hill Ass'n, 408 N.J. Super. 401, 409-10 (App. Div.), certif. denied, 200 N.J. 502 (2009). The court did not, however, refer to the counterclaim in its decision to award sanctions, instead focusing on Ronald Grinblat's behavior at the summary judgment hearing, specifically his statements that he did not know if he had received the checks from United Healthcare or whether it was his signature on the back of those checks. The judge stated that Ronald Grinblat did "everything possible to delay and avoid paying the bills that were justly for services given to [him] and/or [his] wife." At one point in his decision, the judge made a specific reference appearing to relate the sanctions only to the answer but not the counterclaim.
The court did not elaborate on its decision in its order but merely noted its finding that the counsel fees were reasonable. The fees awarded, however, went well beyond the time entries relating to defense of the counterclaim. Because we cannot be sure that the judge limited the award of sanctions to the pleading contained in plaintiff's safe harbor letter, we reverse the order for sanctions under Rule 1:4-8.
In issuing this opinion, we should not be understood as condoning the conduct of which the trial judge complained. We expressly do not condone the flouting of trial court orders and any lack of candor toward the court. Nevertheless, because our standard of review does not permit us to affirm the orders under review, we reverse.
Reversed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION