MAPLE HEALTH & WELLNESS CENTER, LLC VS. MARRAFFA & ASSOCIATES, INC. (L-4276-17, CAMDEN COUNTY AND STATEWIDE)

M
                                NOT FOR PUBLICATION WITHOUT THE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-2504-19

MAPLE HEALTH & WELLNESS
CENTER, LLC, DR. KEITH
RADBILL PAIN MANAGEMENT,
LLC and PRAXIS HCS, INC.,

          Plaintiffs-Appellants,

v.

MARRAFFA & ASSOCIATES, INC.,

          Defendant-Respondent,

and

ROBERT D. MARRAFFA,

     Defendant.
______________________________

                   Submitted March 15, 2021 – Decided May 6, 2021

                   Before Judges Gooden Brown and DeAlmeida.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Camden County, Docket No. L-4276-17.

                   Lento Law Group, PC, and Rook Elizabeth Ringer
                   (Lento Law Group, PC) of the Florida bar, admitted pro
            hac vice, attorneys for appellant (Joseph D. Lento and
            Rook Elizabeth Ringer, on the briefs).

            Siciliano & Associates, LLC, attorneys for respondent
            (John J. Van Dyken, on the brief).

PER CURIAM

      Plaintiff Praxis HCS, Inc. (Praxis) appeals from the December 6, 2019

order of the Law Division granting summary judgment to defendant Marraffa &

Associates, Inc. (Marraffa) and dismissing Praxis's claims for lack of standing,

as well as the court's January 10, 2020 order denying Praxis's motion for

reconsideration. We affirm the January 10, 2020 order and dismiss the appeal

of the December 6, 2019 order.

                                        I.

      The following facts are derived from the record. On February 1, 2012,

plaintiff Maple Health & Wellness Center, LLC (Maple Health), a healthcare

provider, entered into a contract with Marraffa for client billing and collections

(the Contract).1




1
   On November 11, 2013, Marraffa entered into a similar agreement with
physician Keith Radbill. Dr. Radbill was a principal in plaintiff Dr. Keith
Radbill Pain Management, LLC (Radbill, LLC), which, apparently, became a
successor party to the agreement with Marraffa. Ultimately, Radbill, LLC
voluntarily dismissed its claims against Marraffa without prejudice.
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                                        2
      On November 9, 2015, Praxis purchased Maple Health. On April 14,

2017, Praxis transferred all of its assets to Praxis Rehab of NJ, Inc. (Praxis

Rehab).

      On November 3, 2017, a complaint was filed in the Law Division against

Marraffa alleging breach of the Contract, consumer fraud, breach of the duty of

good faith and fair dealing, and breach of fiduciary duty. The complaint names

as plaintiffs Maple Health and Praxis HCS, LLC. It later became clear that there

is no entity named Praxis HCS, LLC.2

      On October 1, 2019, after the close of discovery and on the eve of trial,

the trial court held a conference with counsel. The parties provide divergent

accounts of what transpired at the conference. Marraffa claims that at least a

portion of the conference was held in court and "should have been recorded,"

but Praxis failed to file a copy of a transcript of the proceeding.

      In the absence of a transcript, we are limited to a recitation of the parties'

accounts of the proceeding. According to Praxis, the trial court sua sponte raised

the question of whether Praxis HCS, LLC, the party named in the complaint,




2
  The complaint also names as defendant Robert D. Marraffa, a principal of
Marraffa. In its brief, Praxis states that Mr. Marraffa died after the filing of the
complaint and its claims against him have been abandoned.
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                                         3
had standing to raise claims under the Contract and reopened discovery to permit

Marraffa to explore that issue.

      Marraffa, on the other hand, represents that at the conference Praxis

waived its right to a jury trial. According to Marraffa, the judge, in an effort to

ensure that all of the plaintiffs agreed to the waiver, asked a corporate

representative of Praxis if he consented to the wavier. When the judge asked

whether any corporate representatives were present for the other plaintiffs, he

was informed that the other plaintiffs had been purchased by Praxis. The

ensuing discussion, according to Marraffa, revealed that Praxis HCS, LLC is not

an entity and that Praxis had been purchased by Praxis Rehab prior to the filing

of the complaint. Marraffa's version of events is supported by summary remarks

by the trial court in a January 10, 2020 transcript relating to a subsequent motion.

      The conference resulted in the entry of an October 1, 2019 consent order

requiring Praxis to produce a copy of the purchase agreement between Praxis

and Maple Health, all written agreements between Praxis and Praxis Rehab, and

the corporate formation documents of each of the plaintiffs.

      On October 29, 2019, the trial court granted Praxis's motion to reconsider

the October 1, 2019 order. The court vacated the October 1, 2019 order and

amended the complaint to name Praxis in place of Praxis HCS, LLC as a


                                                                              A-2504-19
                                         4
plaintiff. Although the October 1, 2019 order states that the court put its findings

of fact and conclusions of law on the record, Praxis did not file a copy of a

transcript of the court's decision. We, therefore, do not know the basis of the

court's decision.

      Marraffa subsequently moved for summary judgment, arguing that Praxis

lacked standing to pursue the claims asserted in the complaint. Marraffa argued

that Praxis sold its interest in the Contract prior to the filing of the complaint

and had no stake in the outcome of the suit against Marraffa.

      On December 6, 2019, the trial court granted Marraffa's motion and

dismissed the complaint as to the claims raised by Praxis.           Although the

December 6, 2019 order granting the motion states that the court placed its

findings of fact and conclusions of law on the record, Praxis did not file a copy

of a transcript of the court's decision. As a result, we cannot discern the reasons

for the court's decision. Also on December 6, 2019, Maple Health consented to

the dismissal of its claims against Marraffa without prejudice. 3

      In its brief, Praxis states that on December 6, 2019, the trial court "orally

stated that the Appellants should fix the corporate registration issue and then file


3
   The trial court's December 6, 2019 order refers to Praxis HCS, LLC, not
Praxis. Because the court previously substituted Praxis for Praxis HCS, LLC as
a plaintiff, we consider this to be a scrivener's error.
                                                                              A-2504-19
                                         5
a motion for reconsideration." In support of this representation, Praxis cites

only to the court's December 6, 2019 order. That order, however, contains no

such statement. We disregard Praxis's representation because it has no support

in the record. See R. 2:6-2(a)(5) (requiring appellant's brief to contain "[a]

concise statement of the facts material to the issues on appeal supported by

references to the appendix and transcript.").

      Praxis subsequently moved for reconsideration of the December 6, 2019

order.4 It appears that the basis of Praxis's motion was that the complaint had

been dismissed because Praxis, a Wyoming corporation, had not obtained a

certificate of authority in compliance with N.J.S.A. 14A:13-11, and, as a result,

could not maintain its suit against Marraffa. Praxis argued that it cured that

defect. In addition, in response to a contention raised in Marraffa's opposition

brief on the motion, Praxis argued that it filed business activity reports and paid

all taxes, interest, and civil penalties for the years it was conducting business in

this State as a foreign corporation without a certificate of authority in

compliance with N.J.S.A. 14A:13-20(c).



4
  Praxis's notice of motion states that the motion was filed on behalf of Praxis
HCS, LLC, which had previously been removed as a plaintiff, and Maple Health,
which had previously voluntarily dismissed its claims. We presume the motion
for reconsideration was intended to be filed on behalf of Praxis.
                                                                              A-2504-19
                                         6
      However, in its January 10, 2020 oral decision denying the motion for

reconsideration, the trial court summarized its December 6, 2019 decision

granting summary judgment as follows:

            there [were] a lot of legal issues that were argued but in
            essence the case was dismissed for one substantial
            reason . . . [a]nd that was the lack of standing . . . .
            [T]here was no proof that – Praxis in any form had a
            signed agreement or contract that they had taken over
            the rights and liabilities and that they were entitled to
            proceed to collect . . . these debts.

            Now there [were] some side issues that were discussed
            but the bottom line is . . . that was the real ruling that
            dismissed this case.

On that point, the court found that Praxis was precluded from producing any

documents not previously produced in discovery or in opposition to the

summary judgment motion relevant to the issue of whether it had retained rights

under the Contract after its assets were sold to Praxis Rehab.

      With respect to Praxis's compliance with N.J.S.A. 14A:13-11 and N.J.S.A.

14A:13-20(c), the court concluded that Praxis had not fulfilled the requirements

of the statutes to permit its suit to be reinstated, even if it had standing to file

suit under the Contract.

      This appeal followed. Praxis argues the trial court erred when it: (1) sua

sponte raised the question of whether Praxis had standing to pursue its claims


                                                                              A-2504-19
                                         7
against Marraffa; (2) reopened discovery on the standing question in the absence

of exceptional circumstances; (3) dismissed Praxis's claims; and (4) denied

reconsideration of its December 6, 2019 order. 5 Marraffa argues that the appeal

should be dismissed because Praxis failed to file the transcripts of the October

1, 2019 conference and the court's December 6, 2019 oral decision.

                                         II.

      Rule 2:5-3(a)(1) provides that

             if a verbatim record was made of the proceedings before
             the court . . . from which the appeal is taken, the
             appellant shall, no later than the time of the filing and
             service of the notice of appeal, serve a request for the
             preparation of an original and copy of the transcript
             . . . upon the reporter who recorded the proceedings and
             upon the reporter supervisor for the county if the appeal
             is from a judgment of the Superior Court . . . .

"Except if abbreviated pursuant to R. 2:5-3(c), the transcript shall include the

entire proceedings in the court . . . from which the appeal is taken . . . ." R. 2:5-

3(b) (emphasis added).       Rule 2:5-3(c) allows for the abbreviation of the

transcript by consent or order of the trial court. That did not happen here. An

appellant's failure to provide the complete transcript of the trial court's


5
  Despite the voluntary dismissal of the claims in the trial court, Maple Health
and Radbill, LLC are listed as appealing parties in the amended notice of appeal
and on the briefs. It is not clear if those parties are seeking reinstatement of
their claims.
                                                                              A-2504-19
                                         8
proceedings may result in dismissal of the appeal. Cipala v. Lincoln Tech. Inst.,

179 N.J. 45

, 55 (2004).

      Praxis's amended case information statement indicates that it is appealing

the December 6, 2019 and January 10, 2020 orders. Both orders were entered

after the court issued an oral decision setting forth its findings of fact and

conclusions of law. Praxis, however, filed only the transcript of the January 10,

2020 decision. We cannot review the December 6, 2019 order in the absence of

the trial court's decision. Dismissal of Praxis's appeal of the December 6, 2019

order is, therefore, warranted.

      While Praxis filed the transcript of the court's January 10, 2020 oral

opinion, our review of the January 10, 2020 order is hampered by the absence

of the December 6, 2019 transcript. Rule 4:49-2 provides:

            Except as otherwise provided by R. 1:13-1 (clerical
            errors) a motion for rehearing or reconsideration
            seeking to alter or amend a judgment or order shall . . .
            state with specificity the basis on which it is made,
            including a statement of the matters or controlling
            decisions which counsel believes the court has
            overlooked or as to which it has erred, and shall have
            annexed thereto a copy of the judgment or order sought
            to be reconsidered and a copy of the court’s
            corresponding written opinion, if any.

      "A motion for reconsideration . . . is a matter left to the trial court's sound

discretion." Lee v. Brown, 

232 N.J. 114

, 126 (2018) (quoting Guido v. Duane

                                                                               A-2504-19
                                         9
Morris, LLP, 

202 N.J. 79

, 87 (2010)); see also Cummings v. Bahr, 295 N.J.

Super. 374, 389 (App. Div. 1996). A party may move for reconsideration of a

court's decision pursuant to Rule 4:49-2, on the grounds that (1) the court based

its decision on "a palpably incorrect or irrational basis," (2) the court either

failed to consider or "appreciate the significance of probative, competent

evidence[,]" or (3) the moving party is presenting "new or additional information

. . . which it could not have provided on the first application . . . ." 

Cummings,

295 N.J. Super. at 384

(quoting D'Atria v. D'Atria, 

242 N.J. Super. 392

, 401-02

(Ch. Div. 1990)).

      The moving party must "initially demonstrate that the [c]ourt acted in an

arbitrary, capricious, or unreasonable manner, before the [c]ourt should engage

in the actual reconsideration process." 

D’Atria, 242 N.J. Super. at 401

. A

motion for reconsideration is not an opportunity to "expand the record and

reargue a motion." Capital Fin. Co. of Del. Valley v. Asterbadi, 

398 N.J. Super.

299

, 310 (App. Div. 2008). "[It] is designed to seek review of an order based

on the evidence before the court on the initial motion, . . . not to serve as a

vehicle to introduce new evidence in order to cure an inadequacy in the motion

record."

Ibid. (citation omitted).

A-2504-19

                                       10
      As far as we can discern from the January 10, 2020 transcript, the trial

court concluded that Praxis did not demonstrate that the court previously

overlooked evidence that Praxis retained the right to pursue its claims against

Marraffa after it sold its assets to Praxis Rehab. The court's decision appears to

have been based on an attempt by Praxis to submit evidence that it did not

produce in discovery or file in opposition to the summary judgment motion.

      In addition, the trial court concluded that even if Praxis had retained its

right to pursue its claims against Marraffa, it did not establish that it had timely

complied with the certificate of authority requirement of N.J.S.A. 14A:13-11 or

that it should be permitted to pursue its claims against Marraffa because it had

satisfied the requirements of N.J.S.A. 14A:13-20(c)(1) and (2) (authorizing a

court to excuse a foreign corporation's failure to file a business activities report

and allow it to maintain a legal action where "the failure to file a timely report

was done in ignorance of the requirement to file[,]" "was reasonable in all

circumstances[,]" and "all taxes, interest and civil penalties due the State for all

periods have been paid, or provided for by adequate security or bond approved"




                                                                              A-2504-19
                                        11
by the Director, Division of Taxation). Our careful review of the record reveals

no basis on which to reverse the court's January 10, 2020 order. 6

      The appeal of the December 6, 2019 order is dismissed. The January 6,

2020 order is affirmed.




6
   We note that Praxis's brief contains numerous citations to unpublished
opinions of this court and other courts. None of those citations comports with
Rule 1:36-3, which provides that "[n]o unpublished opinion shall be cited to any
court by counsel unless the court and all parties are served with a copy of the
opinion and all contrary unpublished opinions known to counsel." Given
Praxis's failure to follow the court rules, and because they are not precedential,
we do not consider any of the unpublished opinions cited by Praxis. In addition,
Praxis's brief contains several citations to "N.J. R.A.R." followed by numbers.
From context, we consider these citations to be to the Rules Governing the
Courts of New Jersey.
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                                       12

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