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Dia of Jersey City v. Fogari

February 27, 2009

DIA OF JERSEY CITY AND RICARDO T. BALDONADO, PLAINTIFFS-APPELLANTS/ CROSS-RESPONDENTS,
v.
ROBERT A. FOGARI; JAYNE FOGARI; AMERICAN IMAGING, INC.; AMERICAN IMAGING OF JERSEY CITY, INC.; BERGEN OPEN MRI, INC.; AND HACKETTSTOWN OPEN MRI, INC., DEFENDANTS-RESPONDENTS/CROSS-APPELLANTS, AND TOMS RIVER MRI; THE KIMBALL CANCER TREATMENT CENTER; CANCER TREATMENT HOLDINGS, INC.; CTI OF NEW JERSEY, INC.; AND OCEAN RADIATION ONCOLOGY CENTER, DEFENDANTS.



On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-3855-01.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 26, 2009

Before Judges Carchman, R. B. Coleman and Sabatino.

This appeal and cross-appeal arise out of a business dispute that the trial court, with the parties' consent, referred to a private umpire pursuant to the Alternative Procedure for Dispute Resolution Act ("APDRA"), N.J.S.A. 2A:23A-1 to -19. After lengthy hearings, the umpire issued an award, which he subsequently modified, ruling in part for plaintiffs and in part for defendants. The trial court sustained the umpire's written findings in all respects and entered a corresponding final judgment. The parties remained dissatisfied, and they each sought this court's review on various issues.

We affirm the judgment in part, vacate it in part, and remand for further proceedings. We do so primarily because of certain unresolved issues that were omitted from the umpire's disposition.

Although the record is extensive, we need not recite the parties' factual contentions in great detail, given the nature of the legal issues before us. We summarize those contentions.

From 1992 through 1997, plaintiff*fn1 Ricardo Baldonado, a licensed radiologist, and defendant*fn2 Robert Fogari, M.D., participated together in a business relationship involving medical imaging at various locations. The imaging services included magnetic resonance imaging ("MRIs"), x-rays, and CT scans.

During the course of this relationship, plaintiff allegedly: (1) contributed significant financial support to help defendant acquire Jersey City Imaging Center, now known as American Imaging of Jersey City, Inc. ("American Imaging"), to establish Bergen Open MRI, Inc. ("Bergen MRI"), and Hackettstown Open MRI, Inc. ("Hackettstown MRI"); and (2) provided radiology reading services through DIA. Although defendant operated these various imaging centers to differing degrees, he had no ownership interest in the corresponding business entities. Instead, defendant's wife, Jayne Fogari, owned those entities herself, in full or in part.*fn3

When the two men first formed their business relationship in the early 1990s, they had been friends for roughly twenty years. In fact, defendant is the godfather of one of plaintiff's daughters. At some point in the mid-to-late 1990s, their relationship deteriorated. Consequently, defendant terminated his business dealings with plaintiff.

After plaintiff was terminated, he and DIA filed a complaint against defendant and other affiliated parties*fn4 in the Law Division. Plaintiff claimed that he was due several hundred thousand dollars from defendant in return for the reading services he had already rendered without compensation, for prospective services he would have performed but for his improper termination, and for the repayment of unpaid loans. Plaintiff also maintained that, given his expenditures of money and labor, he should be deemed a partner with defendant in the ongoing imaging ventures.

Defendant denied plaintiff's allegations that he was owed money. Defendant further asserted, by way of counterclaim, that plaintiff had engaged in improper self-dealing activities. These competing allegations stemmed from plaintiff's acquisition of two other imaging centers in West New York, facilities that defendant had been interested in obtaining with him. According to defendant, the acquisitions constituted tortious interference with economic advantage and breach of fiduciary duty, and therefore, plaintiff was liable to pay him damages.

When the case was initially called for trial in the Law Division, the court disqualified plaintiff's then-counsel, upon recognizing that he was likely to be a trial witness. The parties at that point agreed to have their disputes referred to a private umpire under the APDRA. A consent order to that effect was entered, dismissing the plaintiff's claims and defendant's counterclaims without prejudice, subject to the APDRA proceedings. The parties then mutually selected an umpire, a retired Assignment Judge.

The umpire conducted eighteen days of hearings between May 2006 and January 2007. He also considered detailed written submissions from counsel.

On June 4, 2007, the umpire issued his initial written decision. The umpire rejected most of plaintiff's affirmative claims but awarded him a net sum of $183,500 in unpaid loans. In essence, the umpire found the proofs insufficient to establish that plaintiff had a ownership interest in the Jersey City, Bergen, and Hackettstown centers. The umpire also found that plaintiff's services as a reader for those centers were terminable at will. The umpire did find, however, that plaintiff was entitled to be paid back the funds he had loaned to the businesses, "together with interest from the date of [the] award."

The umpire declined to grant any affirmative relief to defendant on his counterclaim. In that regard, the umpire expressly found that, although the parties had engaged in some discussions about creating a prospective partnership in the West New York facilities, no meeting of the minds ...


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