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Freemotion Fitness Financing Services v. Total Health & Fitness

August 25, 2008


On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-2128-06.

Per curiam.


Submitted July 28, 2008

Before Judges Graves and Yannotti.

Defendant Total Health & Fitness, L.L.C. a/k/a Hopewell Valley's Health & Fitness Center a/k/a Back to Wellness, L.L.C. (Total Health) appeals from an order dated July 24, 2007, which denied its motion for reconsideration of a summary judgment order entered in favor of plaintiff Freemotion Fitness Financing Services (Freemotion) on June 8, 2007. We affirm.

On August 16, 2006, plaintiff filed a complaint alleging defendant owed "the sum of $70,055.00 on a certain book account." Plaintiff further alleged it "sold and delivered goods" (namely, fitness equipment) to defendant based upon its promise "to pay the agreed amount." In its answer filed November 27, 2006, defendant denied it owed any money to plaintiff, and it asserted a counterclaim for damages "[a]s a result of the breach or purported breach of contract by the plaintiff." In its answer to defendant's counterclaim, plaintiff denied it breached the contract and it alleged defendant's counterclaim was frivolous.

In a motion for summary judgment filed on February 12, 2007, plaintiff alleged (1) "[d]efendant executed a Financing Application to obtain . . . equipment from [p]laintiff"; (2) "[d]efendant accepted and signed for the delivered goods and merchandise," as evidenced by bills of lading documenting delivery of the equipment and acceptance by defendant on December 17, 2003; and (3) "[d]efendant [was] not entitled to any additional credits or set-offs and there now remains due and owing the sum of $70,055.00."

On March 16, 2007, summary judgment was entered in favor of plaintiff in the amount of $70,055. However, in a letter to the court dated March 19, 2007, defendant's attorney explained that plaintiff's motion was unopposed because of "some personal and staff problems" that he was experiencing, and he submitted a consent order that vacated the summary judgment order. After the consent order was signed by the court, plaintiff resubmitted its motion for summary judgment, and defendant responded by filing a brief as well as a certification by Carol Gronczewski, "a principal for the defendant." Gronczewski certified that "[a]t this juncture there has been no meaningful discovery." Moreover, according to Gronczewski, defendant's employee David Giordano "had absolutely no authority to bind the defendant company and enter into a contract for the goods and/or merchandise of the plaintiff."

On June 8, 2007, the trial court issued an oral decision granting plaintiff's motion for summary judgment. Its decision included the following:

This matter arises from the plaintiff's claim that the plaintiff is owed $70,055 from the defendant for goods sold and delivered and of services rendered by the plaintiff to the defendant. . . . Discovery end date in this matter has already passed. It [ended] April of 2007.

Plaintiff now requests that the [c]court grant the motion for summary judgment and dismiss the counterclaim. In opposition, defendant's counsel states that no interrogatories have been propounded on either party. There's been no demand for the production of documents and no oral depositions have occurred.

With regard to the defendant's argument that discovery has not taken place, that is really on the defendant. The [c]court has already stated that the discovery period has already ended in this matter. The parties did not avail themselves of discovery during the discovery period. That is the fault of the parties. It is not justification for denial of the motion for summary judgment.

Here, it's quite clear . . . there is a contract for the goods that were delivered by the plaintiff to the defendant, and that the defendant did not pay for the goods. The only allegation of the certification is that Giordano was not authorized to enter into the contract, but there [are] no other facts in support of that position.

With regard to the defective nature of the equipment, there is no specification about how the equipment was defective. Certainly bare conclusions without factual support cannot defeat summary judgment. Instead, evidence submitted must be admissible, competent, non-hearsay ...

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