                                NOT FOR PUBLICATION WITHOUT THE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-1100-18T4

LABORATORY CORPORATION
OF AMERICA d/b/a LABCORP,

         Plaintiff-Respondent,

v.

FUSION DIAGNOSTICS
LABORATORIES, LLC t/a
FUSION DIAGNOSTIC
LABORATORIES LIMITED
LIABILITY COMPANY, also
t/a FUSION DIAGNOSTICS
LAB,

     Defendant-Appellant.
________________________________

                   Submitted January 6, 2020 – Decided January 30, 2020

                   Before Judges Sabatino and Geiger.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Morris County, Docket No. L-1952-15.

                   Robert A. Skoblar, attorney for appellant.

                   Scarinci & Hollenbeck, LLC, attorneys for respondent
                   (Joel N. Kreizman, on the brief).
PER CURIAM

      Defendant Fusion Diagnostic Laboratories (Fusion) appeals from: (1) an

order granting summary judgment dismissing counts III through X of its

counterclaims; (2) a judgment entered in favor of plaintiff Laboratory

Corporation of America (LabCorp) for $135,226.32 (including pre-judgment

interest) following a non-jury trial; and (3) an order denying its post-judgment

motion for reconsideration or a new trial. We affirm.

                                        I.

      In February 2013, Moataz Abdalla and Dr. Amir Ahmed partnered to

acquire the indebted, year-old Fusion lab from its prior owner/members. Fusion

analyzed blood samples, depended on physician referrals, and billed the patient's

insurance company. The insurer then issued an explanation of benefits to

indicate what portion of Fusion's invoice was covered.

      In 2014, Abdalla and Dr. Ahmed built an account base, updated their

technology, and trained qualified staff.       Fusion's customer-base growth,

however, soon overtook the lab equipment's capacity to analyze samples. To

serve clients even when it was unable to perform the work, Fusion began

referring tests to a third-party laboratory. Fusion then provided the report from

the outside laboratory to the referring physician.


                                                                        A-1100-18T4
                                        2
      Against this backdrop, LabCorp and Fusion entered into an oral agreement

in March 2014. According to Fusion, it would send LabCorp samples for testing

which Fusion did not have the capacity to do in-house. In exchange, LabCorp

would charge Fusion seventy percent less than its book price. In addition,

Fusion's phlebotomists at its referring physicians' offices would draw blood

from those patients who utilized insurances known as New Jersey Family Care

and Horizon New Jersey Health.       According to Fusion, it agreed to this

arrangement "because LabCorp had agreements with those private insurance

companies that the members of those HMOs would only be covered for

laboratory work if they used LabCorp's services." Fusion claimed it did not

know then but found out months later was that LabCorp had "capitation

agreements"[1] with those insurers. Fusion alleged that under this arrangement,

LabCorp would save the expense of the phlebotomist, Fusion would service the

physician account, LabCorp would pick up the samples and furnish reports to

Fusion within twenty-four to forty-eight hours, and LabCorp would utilize a




1
  Under the capitation agreements, LabCorp was paid an advance lump sum by
the health maintenance organization (HMO) irrespective of the number of tests
LabCorp performed. The insured was required to use LabCorp for the testing to
receive coverage.
                                                                       A-1100-18T4
                                      3
third-party billing account and bill the insurance carriers directly.       These

transactions are known in the industry as "full send outs."

      Fusion alleged LabCorp breached the agreement in three ways:               (1)

LabCorp billed Fusion at its full book price without applying the seventy percent

discount as promised for those referrals where Fusion did not have the capacity

to perform the testing; (2) LabCorp did not utilize the already established third -

party billing account for the "full send outs" and instead billed Fusion directly

for those patients that utilized New Jersey Family Care and Horizon New Jersey

Health; and (3) LabCorp repeatedly provided analysis for routine reports well

after the twenty-four to forty-eight hour industry accepted time standard,

injuring Fusion's reputation on its physician accounts.

      Fusion's contractual relationship with LabCorp spanned from March 2014

until July 15, 2014. According to Fusion, the relationship soured and ended

because LabCorp refused to honor its pricing agreement, continued to bill

Fusion for the full send outs, and repeatedly failed to provide reports within

twenty-four to twenty-eight hours.          Fusion claims it immediately, and

continuously, objected to the overcharges when it was first invoiced by

LabCorp. Accordingly, Fusion refused to remit any payment for the perceived

overcharges.


                                                                          A-1100-18T4
                                        4
      In response, LabCorp closed the account and claimed Fusion owed it a

balance of $112,381.40. Fusion claims that amount was seventy percent greater

than agreed upon and included $23,146.77 for the full send outs, which were

unbillable because it could not directly bill the insurers. Fusion also alleged

LabCorp failed to provide timely reports within twenty-four to twenty-eight

hours resulting in lost business accounts.

      As a result of Fusion's refusal to pay for services rendered, LabCorp filed

a five-count complaint sounding in breach of contract, book account, quantum

meruit, unjust enrichment, and an account stated. Plaintiff sought $136,736.67

in damages. Fusion filed an answer and ten-count counterclaim that alleged

breach of contract (counts I and II), violation of the New Jersey Consumer Fraud

Act (CFA) (count III), common law fraud (count IV), unfair competition (count

V), intentional interference with contractual relations (count VI), intentional

interference with prospective economic relations (count VII), negligent

interference with prospective economic relations (count VIII), fraudulent

concealment (count IX), and restraint of trade (count X). Notably, in its answer

to the first count of the complaint Fusion stated, "The total owed by the

defendant to plaintiff, not including offsets to which the defendant is otherwise

entitled, is $33,714.42."


                                                                         A-1100-18T4
                                        5
      On October 20, 2016, LabCorp moved for partial summary judgment to

dismiss Fusion's counterclaims other than the two breach of contract counts.

The motion was granted on May 12, 2017.

      A two-day bench trial began on April 18, 2018. That day, plaintiff

reduced its claim by approximately $16,700. Over the course of trial, Tawanda

Blackwell and James Henriques testified for plaintiff, including a rebuttal;

Moataz Abdalla testified for defendant.

      Blackwell testified she was a collection supervisor at LabCorp and was

responsible for accounts receivable. She "confirmed that the account had a

[seventy] percent across-the-board discount for discountable testing and noted

on the bills where the discount was reflected." Blackwell also acknowledged

two initial, erroneous invoices showed Fusion owed LabCorp $135,736.67,

when the outstanding amount was actually $118,942.63 after the discounts were

applied. She explained Fusion had two accounts with LabCorp: a third-party

billing account billed to Horizon, an HMO, and a direct client account billed to

Fusion. The trial court determined her testimony was credible and non-evasive.

      Henriques testified he was a key hospital services representative for

LabCorp, which required him to solve reporting issues, special pricing,

equipment, and supplies relative to hospital and clinical facility accounts. He


                                                                       A-1100-18T4
                                       6
took control of the Fusion accounts in March 2014, but was not involved in the

initial meeting, which was handled by a former LabCorp employee named Chip

Murphy. Henriques' main contact with Fusion was Dr. Walter Shonkwiler. The

two reached an agreement to make Fusion a hospital key account, which allowed

for a seventy percent discount on all discountable testing, and Henriques further

agreed to make special requests for pricing on specific tests when Fusion

desired.

      According to Henriques, there were no discussions regarding delayed

reporting; the discussions with Dr. Shonkwiler were limited to pricing. He also

testified, and objective evidence showed, Fusion received special pricing on at

least two occasions. Henriques explained LabCorp was required to provide

insurance and other processing information to receive payments from third

parties. He claimed Fusion frequently failed to provide that information. He

also testified, however, that the services were always completed even without

the proper billing information. Ultimately, LabCorp wrote off the third -party

billing account receivable because Dr. Shonkwiler never provided the proper

information.

      The court found Henriques' testimony was credible and supported by the

objective evidence presented during trial, which the court reviewed extensively.


                                                                        A-1100-18T4
                                       7
The court noted Fusion failed to submit any of its own records to disprove the

information contained in the LabCorp reports.

      The court concluded the "vast majority of the delay issues were problems

caused by Fusion's method drawing samples or adding verbal tests that required

written authorizations from Fusion to complete."        Furthermore, the court

accepted Henriques' testimony that he never guaranteed a turnaround time for

testing. The evidence also showed that, "[o]ver the four-month period that

Fusion sent samples to LabCorp for testing, LabCorp accepted over a thousand

orders" for which Fusion did not remit payment. Plaintiff rested after Henriques'

testimony.

      Abdalla testified Fusion could not charge for testing billed to Horizon due

to an exclusivity agreement between Horizon and LabCorp for testing.

Therefore, Fusion entered into an agreement with LabCorp so Fusion could

market its services to doctors who accepted Horizon.           Abdalla testified

LabCorp's March 2014 reports indicated LabCorp did not receive samples or

that tests were missing or ordered improperly. He described the relationship as

Fusion existing at LabCorp's mercy.

      The court noted most of Abdalla's testimony was unsupported by objective

evidence and the testimony that did relate to objective evidence was plagued by


                                                                         A-1100-18T4
                                       8
errors. For example, Abdalla testified Fusion's profit margin was usually thirty

percent, but that claim was belied by the tax returns Fusion provided the court.

The court further noted Abdalla's claims of lost business and profits were

unsupported by any evidence, objective or testimonial; to the contrary, the

evidence indicated Fusion continually increased its gross and net income each

year from 2014 to the date of trial. In addition, Abdalla admitted he did not

know the exact amount sent for testing over the term of the business relationship.

      The court concluded LabCorp established, by a preponderance of the

evidence, that Fusion entered into an agreement with LabCorp for blood testing

and failed to remit payment for services rendered. Accordingly, the court found

LabCorp proved its breach of contract claim against Fusion and awarded

$118,942.63, plus interest, in damages. The court found Fusion met its burden

of proof with regard to showing it entered an agreement with LabCorp but failed

to prove causation as to the perceived delays in receiving test results or as to

lost clients. Therefore, the court dismissed Fusion's counterclaim for breach of

contract (counts I and II) with prejudice.

      Fusion moved for reconsideration or a new trial. The judge issued an

August 31, 2018 order and six-page written statement of reasons denying the

motion. The judge first noted that Fusion was essentially rearguing its case.


                                                                         A-1100-18T4
                                        9
The judge then engaged in a detailed analysis of the trial testimony and exhibits.

The court noted:

            Henriques denied that any of the third-party billing was
            included in the invoices from LabCorp. Based on the
            testimony, as well as the invoicing, spreadsheets and
            reports entered into evidence at trial, the [c]ourt
            concluded that Mr. Henriques' testimony denying that
            any of the third-party billing was included in the
            invoices from LabCorp was credible.

      As to exhibit LC265, the court stated:

            Henriques testified that this form and the information
            contained therein was provided by Fusion. He further
            explained that he reviewed [all] of these forms to
            confirm that none of the third-party billing tests were
            billed to Fusion.

      As to Abdalla's testimony, the court noted Abdalla "admitted to errors in

his testimony during trial."    Although Abdalla claimed that a "$22,969.47

invoice should have been $9,165.15, the records did not correspond with that

assertion." As an example, the court explained mistake in Fusion's position as

to the billing for Vitamin B12 testing. Based on the discrepancies between

Fusion's allegations and the credible evidence, the court found that Abdalla, who

was Fusion's only witness, was not credible. The court concluded that " Fusion's

disagreement with [the] [c]ourt's findings and credibility determinations does no

warrant either reconsideration or a new trial."


                                                                         A-1100-18T4
                                       10
      Fusion's also argued that LabCorp establish a prima facie case for breach

of contract or accounts stated because it did not establish that tests were to be

discounted or the price Fusion agreed to pay for the testing and because

LabCorp's invoices were wrong. The court rejected these claims, concluding

the invoices and Blackwell's testimony "establish[ed] the prices, discounts and

ultimately, the damages in the case." The court then emphasized that "it is

undisputed that Fusion never paid money for services provided to it by

LabCorp."

      This appeal followed. Fusion raises the following points:

            POINT ONE
            LABCORP DID NOT MAKE OUT A PRIMA FACIE
            CASE FOR BREACH OF CONTRACT BECAUSE IT
            DID NOT ESTABLISH WHAT TESTS WERE
            AGREED TO BE DISCOUNTED OR WHAT PRICE
            FUSION AGREED TO PAY FOR THE TESTING.

            POINT TWO
            DESPITE THE TESTIMONY OF LABCORP'S
            WITNESSES AT THE TRIAL TO THE CONTRARY,
            FUSION WAS BILLED DIRECTLY FOR THE FULL
            SEND OUTS IN THE SUM OF $22,001.79.

            POINT THREE
            LABCORP DID NOT MAKE OUT A CLAIM FOR AN
            ACCOUNT STATED BECAUSE ITS INVOICES
            WERE ADMITTEDLY WRONG AND NEVER
            CORRECTED TO DATE AND FUSION HAS
            CONTINUOUSLY OBJECTED TO THE FEES THAT
            WERE CHARGED.

                                                                        A-1100-18T4
                                      11
            POINT FOUR
            THE LOWER COURT SHOULD NOT HAVE
            DISMISSED      MANY      OF     FUSION'S
            COUNTERCLAIMS BY SUMMARY JUDGMENT
            BECAUSE MATERIAL QUESTIONS OF FACT
            EXISTED AS TO WHETHER LABCORP WAS
            INVOLVED IN BAIT AND SWITCH REGARDING
            ITS PRICING; AND WHETHER OR NOT LABCORP
            WAS PERPETRATING A FRAUD BY BILLING
            FUSION WHERE IT HAD EXCLUSIVITY OR
            CAPITATION AGREEMENTS WITH INSURERS.

                                       II.

      We first address the grant of partial summary judgment dismissing counts

III through X of Fusion's counterclaim. Fusion claims there were material facts

at issue precluding summary judgment. We are unpersuaded by this argument.

      Summary judgment should be granted if the court determines "that there

is no genuine issue as to any material fact challenged and that the moving party

is entitled to a judgment or order as a matter of law." R. 4:46-2(c). The court

must "consider whether the competent evidential materials presented, when

viewed in the light most favorable to the non-moving party, are sufficient to

permit a rational factfinder to resolve the alleged disputed issue in favor of the

non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540

(1995). On appeal, the Appellate Division "review[s] the trial court 's grant of

summary judgment de novo under the same standard as the trial court." Templo


                                                                         A-1100-18T4
                                       12
Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co., 224 N.J. 189, 199 (2016)

(citing Mem'l Props., LLC v. Zurich Am. Ins. Co., 210 N.J. 512, 524 (2012)).

      The trial court determined that Count III, the consumer fraud claim, could

not proceed because Fusion did not qualify as a consumer under the CFA.

Fusion, a commercial firm, agreed to pay for services that were not available

directly to the general public. Accordingly, Fusion is not a "consumer" within

the meaning of the CFA. See Papergraphics Int'l, Inc. v. Correa, 389 N.J. Super.

8, 12-13 (App. Div. 2006) (interpreting "consumer" as defined in the CFA).

      Count IV, the common law fraud claim, required dismissal because Fusion

did not allege any facts to support that claim beyond those alleged to support

their breach of contract claim.     See Bracco Diagnostics, Inc. v. Bergen

Brunswick Drug Co., 226 F. Supp. 2d 557, 563 (D.N.J. 2002) (noting fraud and

breach of contract claims may only coexist when the fraud relates to pre-

contractual inducement). The economic loss doctrine prohibits a party from

recovering in tort economic losses arising out of the breach of a contract. Dean

v. Barrett Homes, Inc., 204 N.J. 286, 296 (2010).

      Counts V through VIII were dismissed because there was "insufficient

evidence on the record for the [c]ourt to determine whether LabCorp" orally

agreed "to provide timely lab reports or diagnostic testing referred by Fusion."


                                                                        A-1100-18T4
                                      13
The trial court also concluded that any "consequential damages resulting from

LabCorp's failure to abide by the terms of an oral agreement to provide timely

reports and accept samples in good faith [were] more properly addressed under

a theory for breach of contract," rather than through tortious interference, citing

Dean, 204 N.J. at 296.

      Count IX, the fraudulent concealment claim, focused on Fusion's lack of

awareness that LabCorp had capitation agreements with certain HMOs. It was

dismissed because there was "no evidence on the record that indicates LabCorp

was engaged in fraudulent behavior by agreeing to set up a third[-]party account

and insuring Fusion it would be reimbursed by patients' HMO[s]." Accordingly,

it was immaterial to Fusion and LabCorp's agreement that LabCorp was in

capitation agreements with certain HMOs. Therefore, LabCorp was never under

a duty to disclose the existence of the capitation agreements.

      Count X, which alleged restraint of trade, asserted LabCorp, in concert

with Quest Diagnostics, violated antitrust laws by cornering the market. It was

dismissed because there was no evidence that LabCorp and non-party Quest

Diagnostics, conspired, or contracted to control the market.          During oral

argument before the trial court, Fusion "conceded that there was no expert

testimony or any other support for the restraint of trade claim." Additionally,


                                                                          A-1100-18T4
                                       14
Fusion did not define the market being controlled by LabCorp or Quest

Diagnostics. The trial court further noted Fusion's continuing relationship with

another laboratory "belies Fusion's claim that the market is injured thro ugh

LabCorp and Quest's alleged exclusive control."

      The court's determinations were supported by the motion record and

reflected appropriate application of the relevant legal principles. We discern no

basis to disturb the grant of partial summary judgment dismissing counts III

through X of Fusion's counterclaim.

                                       III.

      We next address the trial decision. Our scope of review of a judgment

following a bench trial is limited. Final determinations of a trial court "premised

on the testimony of witnesses and written evidence at a bench trial" are

deferentially reviewed. D'Agostino v. Maldonado, 216 N.J. 168, 182 (2013).

"Findings by the trial judge are considered binding on appeal when supported

by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v.

Inv'rs Ins. Co. of Am., 65 N.J. 474, 484 (1974) (citing N.J. Tpk. Auth. v.

Sisselman, 106 N.J. Super. 358 (App. Div. 1969)). "[W]e do not disturb the

factual findings and legal conclusions of the trial judge unless we are convinced

that they are so manifestly unsupported by or inconsistent with the competent,


                                                                          A-1100-18T4
                                       15
relevant and reasonably credible evidence as to offend the interests of justice[.]"

Seidman v. Clifton Sav. Bank, S.L.A., 205 N.J. 150, 169 (2011) (second

alteration in original) (quoting In re Tr. Created By Agreement Dated Dec. 20,

1961 ex rel. Johnson, 194 N.J. 276, 284 (2008)). We also defer to a trial judge's

credibility determinations. In re Return of Weapons to J.W.D., 149 N.J. 108,

117 (1997).

      "To establish a breach of contract claim, plaintiffs must prove: the parties

entered into a contract, containing certain terms; plaintiffs performed what was

required under the contract; defendant did not fulfill its obligation under the

contract; and defendant's breach caused a loss to plaintiffs." Pollack v. Quick

Quality Rests., Inc., 452 N.J. Super. 174, 188 (App. Div. 2017) (citing Globe

Motor Co. v. Igdalev, 225 N.J. 469, 482 (2016)).

      If a party commits a "breach of a material term of an agreement, the non-

breaching party is relieved of its obligations under the agreement." Roach v.

BM Motoring, LLC, 228 N.J. 163, 174 (2017) (quoting Nolan v. Lee Ho, 120

N.J. 465, 472 (1990)). "[A] breach is material if it 'goes to the essence of the

contract.'" Ibid. (quoting Ross Sys. v. Linden Dari-Delite, Inc., 35 N.J. 329, 341

(1961)). After a material breach occurs, "the non-breaching party may treat the

contract as terminated and refuse to render continued performance." Goldman


                                                                          A-1100-18T4
                                       16
S. Brunswick Partners v. Stern, 265 N.J. Super. 489, 494 (App. Div. 1993)

(quoting Ross, 35 N.J. at 341).

      The trial court determined Fusion breached the oral agreement and

LabCorp did not. Fusion acknowledged it did not pay for services rendered by

LabCorp, and the evidence adduced at trial supported that fact. Failing to pay

for services rendered operated as a material breach of the agreement. Fusion's

assertion that mispricing or delays, even if substantiated, would permit them to

completely forego their obligation to pay for services rendered lacks merit.

      More fundamentally, as the trial court emphasized in its decision, Fusion

failed to present any objective evidence in support of its claims. Rather, Fusion

relied on inferences and testimonial evidence from one witness who was found

not credible. As the court noted, Abdalla contradicted himself and appeared

confused at multiple points in his testimony.

      The record amply supports the trial court's findings of fact and conclusion

that LabCorp sustained its burden of proof while Fusion did not. The evidence

further supports the damages awarded to LabCorp. We decline to disturb those

findings and conclusions.

                                      IV.




                                                                         A-1100-18T4
                                      17
      Lastly, we consider the denial of Fusion's motion for reconsideration.

Motions for reconsideration are governed by Rule 4:49-2. "The decision to deny

a motion for reconsideration falls 'within the sound discretion of the [trial court],

to be exercised in the interest of justice.'" In re Belleville Educ. Ass'n, 455 N.J.

Super. 387, 405 (App. Div. 2018) (alteration in original) (quoting Cummings v.

Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996)). Reconsideration should be

employed only "for those cases which fall into that narrow corridor in which

either the [c]ourt has expressed its decision based upon a palpably incorrect or

irrational basis, or it is obvious that the [c]ourt either did not consider, or failed

to appreciate the significance of probative, competent evidence." Cummings,

295 N.J. Super. at 384 (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch.

Div. 1990)). "Reconsideration cannot be used to expand the record and reargue

a motion.    Reconsideration is only to point out 'the matters or controlling

decisions which [a party] believes the court has overlooked or as to which it has

erred.'" Capital Fin. Co. of Del. Valley, Inc. v. Asterbadi, 398 N.J. Super. 299,

310 (App. Div. 2008) (quoting R. 4:49-2).

      We review a trial court's decision to grant or deny a motion for

reconsideration for abuse of discretion. Cummings, 295 N.J. Super. at 389. An

abuse of discretion occurs "when a decision is 'made without a rational


                                                                             A-1100-18T4
                                         18
explanation, inexplicably departed from established policies, or rested on an

impermissible basis.'" U.S. Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 467-

68 (2012) (quoting Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 123 (2007)).

      Measured against these standards, we are convinced Fusion's arguments

are without sufficient merit to warrant discussion in a written opinion, Rule

2:11-3(e)(1)(E), and affirm substantially for the reasons set forth in the trial

court’s statement of reasons. We add the following comment.

      As correctly determined by the motion court, Fusion failed to demonstrate

that the court's decision rested on a palpably incorrect or irrational basis, or that

the court failed to consider or appreciate the significance of competent evidence.

Cummings, 295 N.J. Super. at 384. Thus, reconsideration was properly denied.

      To the extent we have not addressed Fusion's remaining arguments it is

because we conclude they are without sufficient merit to warrant discussion in

a written opinion. R. 2:11-3(e)(1)(E).

      Affirmed.




                                                                            A-1100-18T4
                                        19
