First District Upholds Judge Mitchell in Tujetsch v. Pusateri, et al.; App Ct. No 11-01965

 (Originally Posted in July 2012)

In 2006, Mary Tujetsch, the purchaser of a dental practice, brought a civil action against our client, Dr. Todd Pusateri.  In a three-count  amended complaint, Tujetsch alleged that she had not received all the “active patients” she bargained  for in the purchase.

The parties’ asset purchase agreement recited that the practice had approximately 1,200 “active patients,” as reported by First Pacific Corporation dental practice management software.  Tujetsch alleged that she had not received that number of “active patients” because a review of patient charts conducted months after the sale suggested that some patients had moved, declined treatment, or declined to schedule appointments, among other things.  Tujetsch asserted that such patients were not “active patients” — based on her alleged subjective understanding of the term “active patients” — even if they had been treated in the 24 months before the sale, as reported by First Pacific dental practice management software.

In a motion for summary judgment, we argued, on behalf of Dr. Pusateri, that “active patients” is a dental term of art that refers to the number of patients treated in a dental practice during a defined lookback period, usually 12, or 24 months.  We argued both in the trial court and on appeal that that this definition is consistent with the ADA definition of “active patient,” and the definition of “active patient” employed by First Pacific Software, which is widely distributed throughout the United States — and defines “active patient” as any patient treated in the previous 24 months, without regard to other events.  As such, the number of “active patients” is an objective tally, and says nothing about changes in the status of a patient after receiving treatment.

In June 2011, Judge Raymond Mitchell Mitchell entered an Order granting summary judgment to Dr. Pusateri on all counts of the complaint filed by Tujetsch.  Judge Mitchell found there had been no misstatement of “active patients,” properly understood, because there was no evidence that Dr. Pusateri misstated the number of patients treated in the practice,  in the 24 months before the sale, as reported by First Pacific software.

Tujetsch took an appeal of Judge Mitchell’s order to the First District Appellate Court.

On July 20, 2012, the First District issued an Order upholding Judge Mitchell’s June 2011 Order in its entirety.  Among other things, the Order states that evidence from disinterested third-parties about the meaning of contract terms is preferred over subjective (and self-serving) definitions offered by the parties to a dispute.

This entry was posted in Uncategorized. Bookmark the permalink.

Leave a Reply

Your email address will not be published. Required fields are marked *