{"id":34,"date":"2015-10-21T17:45:42","date_gmt":"2015-10-21T17:45:42","guid":{"rendered":"https:\/\/kentmaynard.com\/WP\/?p=34"},"modified":"2015-10-21T17:45:42","modified_gmt":"2015-10-21T17:45:42","slug":"first-district-upholds-judge-mitchell-in-tujetsch-v-pusateri-et-al-app-ct-no-11-01965","status":"publish","type":"post","link":"https:\/\/kentmaynard.com\/WP\/2015\/10\/21\/first-district-upholds-judge-mitchell-in-tujetsch-v-pusateri-et-al-app-ct-no-11-01965\/","title":{"rendered":"First District Upholds Judge Mitchell in Tujetsch v. Pusateri, et al.; App Ct. No 11-01965"},"content":{"rendered":"

\u00a0(Originally Posted in July 2012)<\/h2>\n
\n

\"\"<\/a><\/p>\n

In 2006, Mary Tujetsch, the purchaser of a dental practice, brought a civil action against our client, Dr. Todd Pusateri. \u00a0In a three-count\u00a0\u00a0amended complaint<\/a>, Tujetsch alleged that she had not received all the \u201cactive patients\u201d she bargained \u00a0for in the purchase.<\/p>\n

The parties\u2019 asset purchase agreement recited that the practice had approximately 1,200 \u201cactive patients,\u201d as reported\u00a0by First Pacific Corporation<\/a> dental practice management software. \u00a0Tujetsch alleged that she had not received that number of \u201cactive patients\u201d 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. \u00a0Tujetsch asserted that such patients were not \u201cactive patients\u201d \u2014 based on her alleged subjective understanding of the term \u201cactive patients\u201d \u2014 even if they had been treated in the 24 months before the sale, as reported by First Pacific dental practice management software.<\/p>\n

In a motion for summary judgment<\/a>, we argued, on behalf of Dr. Pusateri, that \u201cactive patients\u201d 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. \u00a0We argued both in the trial court and on appeal<\/a>\u00a0that that this definition is consistent with the ADA definition of \u201cactive patient,\u201d and the definition of \u201cactive patient\u201d employed by First Pacific Software, which is widely distributed throughout the United States \u2014 and defines \u201cactive patient\u201d as any patient treated in the previous 24 months, without regard to other events. \u00a0As such, the number of \u201cactive patients\u201d is an objective tally, and says nothing about changes in the status of a patient after receiving treatment.<\/p>\n

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. \u00a0Judge Mitchell found there had been no misstatement of \u201cactive patients,\u201d properly understood, because there was no evidence that Dr. Pusateri misstated the number of patients treated in the practice,\u00a0 in the 24 months before the sale, as reported by First Pacific software.<\/p>\n

Tujetsch took an appeal of Judge Mitchell\u2019s order to the First District Appellate Court.<\/p>\n

On July 20, 2012, the First District issued an Order\u00a0<\/a>upholding Judge Mitchell\u2019s June 2011 Order in its entirety. \u00a0Among other things, the Order <\/a>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.<\/p>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

\u00a0(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. \u00a0In a three-count\u00a0\u00a0amended complaint, Tujetsch alleged that she had not received all the \u201cactive patients\u201d … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":[],"categories":[1],"tags":[],"_links":{"self":[{"href":"https:\/\/kentmaynard.com\/WP\/wp-json\/wp\/v2\/posts\/34"}],"collection":[{"href":"https:\/\/kentmaynard.com\/WP\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/kentmaynard.com\/WP\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/kentmaynard.com\/WP\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/kentmaynard.com\/WP\/wp-json\/wp\/v2\/comments?post=34"}],"version-history":[{"count":0,"href":"https:\/\/kentmaynard.com\/WP\/wp-json\/wp\/v2\/posts\/34\/revisions"}],"wp:attachment":[{"href":"https:\/\/kentmaynard.com\/WP\/wp-json\/wp\/v2\/media?parent=34"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/kentmaynard.com\/WP\/wp-json\/wp\/v2\/categories?post=34"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/kentmaynard.com\/WP\/wp-json\/wp\/v2\/tags?post=34"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}