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Terry v. Guller

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 31, 2009

JEFFREY M. TERRY, PLAINTIFF-APPELLANT,
v.
MATTHEW E. GULLER, INDIVIDUALLY; AND THE INSTITUTE OF FORENSIC PSYCHOLOGY, DEFENDANTS-RESPONDENTS.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-1500-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 25, 2009

Before Judges Rodríguez, Waugh and Newman.

Jeffrey M. Terry appeals from the grant of summary judgment to Matthew E. Guller, J.D., Ph.D. (Guller), a psychologist, and the Institute of Forensic Psychology (Institute) (collectively "defendants"). We affirm.

This is the second matter before us arising out of an unfavorable psychological evaluation conducted by Guller. In the first action, Terry challenged the employment decision resulting from Guller's evaluation. In this action, he challenges Guller's qualifications.

Terry was employed as a communications officer at Morristown Police Department (Department), beginning in August 2002. In December 2004, Terry became provisionally eligible for employment as a police officer with the Department, which extended to Terry a conditional offer of employment, contingent on his passing a psychological evaluation.

The Department referred Terry to the Institute, where he was examined by Guller. At the time, Guller was not a fully-licensed psychologist, but was permitted to practice under the supervision of a fully-licensed psychologist, Dr. Leslie J. Williams, Ph.D.

Guller graduated from Rutgers School of Law-Camden in 1991. He passed both the Pennsylvania and New Jersey State Bar examinations that same year. Guller began working for the Institute in December 1994 as in-house counsel.

In 1994, Guller began a master's program in clinical psychology at William Paterson College. He ultimately received a Ph.D. in clinical psychology from Seton Hall in 2003. During this time, Guller continued working as in-house counsel for the Institute and additionally worked as a psychology intern at the Institute in connection with his education. During his three years as an unpaid intern, Guller performed psychological examinations and conducted research.

Upon receiving his Ph.D. in August 2003, Guller became a permitted psychologist at the Institute. This means that he did not hold a plenary license, but he was permitted to conduct psychological evaluations, as long as he was acting under the supervision of Leslie Williams, who was a licensed psychologist and the Institute's Director. Williams reviewed all of Guller's cases, files and reports, acted as a mentor, and signed off on all of Guller's reports. Guller became a licensed psychologist in New York in January 2006 and in New Jersey in May 2007.

At the time of Terry's examination on November 27, 2004, Guller was listed as a "permitted psychologist" on the Institute's website. Guller did not identify himself to the people he evaluated as a permitted psychologist. Because he did not consider himself to be providing psychological services to examinees, only to the Department, Guller did not require the examinees to sign any forms acknowledging his status as a permitted, rather than a licensed psychologist.

In his role as Guller's supervisor, Williams did not observe the people Guller interviewed, interview them himself, have any direct contact with them, or notify them in writing that he was supervising Guller. He did consult with and advise Guller on issues which came up in the course of Guller's work with examinees, and physically reviewed the file for every case Guller worked on. Williams additionally reviewed "in detail" any employment or public safety candidate rejections, which included reading test results, discussing cases with Guller, and reviewing reports generated on the case. He did not recall ever meeting Terry.

Prior to examining Terry, Guller was contacted by Department Chief Peter Demnitz, who provided Guller with background information on Terry. This was common practice with referrals from public safety entities. The letter from Chief Demnitz, addressed to the Institute, reads in part:

Mr. Terry was passed over for consideration in July of this year based on indications of a history using force when it may not have been necessary while employed as a "bouncer" in liquor establishments. Concerns were also raised by comments attributed to him by police officers after prisoners were placed in cell blocks. Terry reportedly asked of the police officers if they 'tuned up' the prisoner.

Mr. Terry's direct supervisors (he is currently employed as a communications officer with the [Department]) indicated vast improvement in the manner in which Terry works.

Guller determined Terry was not psychologically suited to work as a police officer and recommended that he not be hired. Guller's report was based on the data from a battery of tests he conducted on Terry, the background information supplied by the Department, and discussions with Williams. Williams was not present at and did not observe Terry's clinical interview but reviewed Guller's notes and discussed the case with him. Williams agreed with Guller's recommendation concerning Terry. The Department withdrew its conditional offer of employment.

Terry appealed this rejection to the New Jersey Department of Personnel (DOP). The DOP had Terry evaluated by an independent licensed psychologist, Dr. Robert Kanen, Psy.D. Kanen also found Terry was not a suitable candidate to become a police officer. Terry obtained a separate evaluation from Bart Rossi, Ph.D., which he submitted to the DOP. Rossi opined that Terry was psychologically fit to become a police officer. Based on Kanen's report, the DOP removed Terry from the police officer eligibility list.

Terry appealed to us. We affirmed the DOP's decision in an unpublished opinion. In Re Terry, No. A-5620-05T3 (App. Div. August 22, 2007).

Terry also filed an administrative complaint against Guller with the State Board of Psychological Examiners (Board). The Board sent Guller a letter of admonishment in lieu of formal disciplinary action. The letter advised Guller that he was prohibited from using the words "psychology" or "psychologist" in connection with his name until he became fully licensed. The letter also expressed concern that Williams was not signing the evaluations Guller performed, which suggested he was not being properly supervised, and noted a possible conflict of interest because Williams was employed by Guller's father.

The letter instructed Guller to obtain an independent supervisor, unaffiliated with the Institute. The Board additionally found Guller's failure to inform examinees he was a permitted, and not a licensed, psychologist constituted misrepresentation. No other action was taken against Guller or any other psychologist at the Institute for these infractions. The Board's letter was not based upon any sort of due process proceeding.

Terry then brought suit against Guller and the Institute, alleging negligence, tortious interference and fraud, among other claims. Judge W. Hunt Dumont granted summary judgment to defendants, finding Terry's claims both legally and factually deficient. First, the judge found that the conflicting expert reports of Guller, Kanen and Rossi did not create disputed issue of material fact.

The judge found no merit to the tortious interference with contract claim because there was no contract between Terry and the Department, only a conditional offer of employment. With respect to a claim of tortious interference with prospective advantage, the judge found no protected interest because Terry had no guarantee he would be hired unless he passed his psychological examination.

The judge also found Terry lacked standing to enforce Board regulations and that a bare allegation of statutory violation, without any evidence Guller deviated from accepted psychological practices, was insufficient to sustain either a negligence or a professional negligence claim.

Finally, the judge found Terry could not establish proximate cause because Kanen's independent examination, based on the results of independent psychological tests, also found Terry unsuited to be a police officer.

Terry appeals, contending:

I. COURT BELOW FAILED TO VIEW THE FACTS IN THE LIGHT MOST FAVORABLE TO APPELLANT. COURT BELOW MADE HARMFUL ERRORS. SUMMARY JUDGMENT WAS NOT APPROPRIATE

II. COURT BELOW ERRED. THE STATE LICENSING BOARD DISCIPLINED [MATTHEW] GULLER. A DUTY WAS BREACHED CAUSING DAMAGES

III. APPELLANT HAS STANDING UNDER STATE PUBLIC CONTRACTS LAW AND NEW JERSEY PRACTICING PSYCHOLOGY LICENSING ACT (PPA)

IV. THE COURT BELOW ERRED IN WEIGHING EVIDENCE AND MAKING CREDIBILITY DETERMINATION OF THE DUELING REPORTS

V. SUMMARY JUDGMENT FOR FAILING TO PROVIDE ANOTHER PROFESSIONAL EXPERT REPORT IS CONTRARY TO PONDER V. PONDER

VI. THE COURT BELOW COMMITTED HARMFUL ERROR. INTERFERENCE OF PROSPECT OF ECONOMIC ADVANTAGE DOES NOT REQUIRE A CONTRACT

VII. COURT NEVER ADDRESSED FRAUD AND NEGLIGENT REPRESENTATION IN THE COURSE OF BUSINESS. THIS COUNT WAS WRONGFULLY DISMISSED.

Because Terry has presented no factual or legal basis to support his claims, the judge properly granted summary judgment to the defendants.

Summary judgment is appropriate where, when all evidentiary material presented to the court is viewed in the light most favorable to the non-moving party, "there is no genuine issue as to any material fact challenged and... the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c); Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540 (1995).

We first note that Terry has articulated no basis on which he can make a claim for damages. The decision not to hire him as a police officer was ultimately made by the DOP based on Kanen's independent psychological evaluation. Even if Guller negligently or improperly conducted Terry's examination, this independent analysis severs the chain of proximate causation, precluding any recovery in negligence. Weinberg v. Dinger, 106 N.J. 469, 484 (1987).

We further note the contract between Terry and the Department was conditional. The conditional offer of employment from the Department was contingent on his receiving a satisfactory psychological evaluation by a psychologist selected by the Department. That contingency was never met.

Terry presented no basis for a professional negligence action against Guller: he has submitted no reports challenging Guller's methods of examination or conclusions, nor has he suggested Guller's report was improper for any reason other than the fact that Guller did not disclose his status as a permitted, rather than a licensed, psychologist. Guller was permitted to practice psychology under the supervision of a licensed psychologist, but was not permitted to use the words "psychology," "psychologist" or any derivatives in connection with his name until he became fully licensed. N.J.S.A. 45:14B-6(f); N.J.A.C. 13:42-3.6.

Although the Board admonished Guller to disclose his permitted status in the future and recommended he find a new supervisor, it took no formal disciplinary action against him. In short, the Board sent Guller a warning based on technical regulatory violations; there is no evidence in the record of any substantive violation affecting Guller's performance or work product. Although Terry is entitled to bring a private cause of action for Guller's violation, because Kanen's report severs the chain of proximate causation, he cannot establish either causation or damages. N.J.S.A. 45:14B-42.

Finally, we find no basis for Terry's fraud and negligent representation in the course of business claims. Fraud requires: "(1) a material misrepresentation of a presently existing or past fact; (2) knowledge or belief by the defendant of its falsity; (3) an intention that the other person rely on it; (4) reasonable reliance thereon by the other person; and (5) resulting damages." Banco Popular N. Am. v. Gandi, 184 N.J. 161, 172-73 (2005).

We find Guller's failure to disclose his permitted status to Terry does not constitute a material misrepresentation, as such nondisclosure was a technical rather than a substantive violation of the Board's licensing requirements. Moreover, Terry cannot prove damages where Kanen's report severed the causal link between Guller's report and the decision not to hire Terry.

Our careful search of New Jersey statutory and case law has revealed no basis for a "negligent representation in the course of business" cause of action, nor has Terry pointed to any authority to support this claim. Accordingly, we dismiss this remaining argument without written opinion. R. 2:11-3(e)(1)(E).

Because Kanen's independent report found Terry unqualified to work as a police officer, Terry cannot establish the proximate causation necessary to prevail on his claims. Accordingly, we find the judge appropriately granted defendant's motion for summary judgment.

Affirmed.

20090731

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