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Baureis v. Summit Trust Co.

March 14, 1995

MONIQUE BAUREIS, PLAINTIFF-RESPONDENT,
v.
THE SUMMIT TRUST COMPANY, DEFENDANT-APPELLANT AND THIRD-PARTY PLAINTIFF, V. THE ESTATE OF GEORGE BAUREIS, HERBERT G. ZARROW, WALTER BAUREIS AND WILLIAM J. BEYER, III, IN THEIR CAPACITIES AS EXECUTORS OF THE ESTATE OF GEORGE BAUREIS, BAUREIS INVESTMENT ASSOCIATES F/K/A BAUREIS INVESTMENTS, L.P., HERBERT ZARROW, IN HIS INDIVIDUAL CAPACITY, ZARROW, ZARROW & KLEIN, DONALD BAUREIS, DAVID BAUREIS, STEPHEN BAUREIS, AND JOHN DOES 1 THROUGH 10, THIRD-PARTY DEFENDANTS



On appeal from the Superior Court, Law Division, Somerset County.

Approved for Publication March 14, 1995.

Before Judges Dreier, Villanueva and Wefing. The opinion of the court was delivered by Wefing, J.A.D.

The opinion of the court was delivered by: Wefing

WEFING, J.A.D.

After carefully considering the record in this matter and the parties' arguments, we conclude the trial court erred when it denied the motion of defendant The Summit Trust Company (Summit) to dismiss plaintiff's complaint against it for failure to comply with the entire controversy doctrine. We reverse and remand the matter with directions to dismiss the complaint.

I

The issue arises in the following factual context. Plaintiff Monique Baureis (Monique) married George Baureis (George) on June 8, 1968. George had been married previously and had three children from that marriage. George was a man of significant wealth and, at the times relevant to the claims presented here, was a member of Summit's Board of Directors.

On August 2, 1988, George and Monique met with Adria Kelley, an assistant vice president and trust officer of Summit, to open a joint investment review account in both their names. According to Monique, George wished to make her a gift to express his gratitude for her devotion and care in nursing him back to health from a recent illness. He directed Summit to fund this account on August 3, 1988, Monique's birthday, by transferring five million dollars into the account from other accounts George maintained.

In February 1990, George's accountant called Summit, told it the joint account had been opened in error and to return the funds to Baureis Investments, L.P., their original source. Rondi Nelson, the assistant vice president and trust officer with whom George's accountant spoke, contacted George and received oral confirmation of the directive. She did not, however, contact Monique. Based on the oral instructions, she directed the investment review account be changed from a joint account in the name of George and Monique Baureis into one in the name of Baureis Investments, L.P. Although the record is not clear when Monique learned of the change, she knew of it at least by the spring of 1991.

The marital relationship between Monique and George, unfortunately, did not endure. In August 1991, Monique filed a complaint for divorce. She included, within that complaint, reference to the closure of the joint account. George died on May 8, 1992, before the divorce proceedings concluded. As a result, Monique was unable to continue a claim for equitable distribution or assert a claim for an elective share under N.J.S.A. 3B:8-1. She then filed an amended complaint against George's estate in which she soughtto impose a constructive trust under Carr v. Carr, 120 N.J. 336, 576 A.2d 872 (1990).

That litigation eventually was resolved. In February 1994, the parties executed a forty-page settlement agreement under which Monique received $9,000,000 to resolve her claims against George's estate, including her claim to the closed joint account.

In December 1993, while Monique's amended matrimonial complaint remained outstanding, she filed this complaint against Summit in which she sought damages for Summit's actions in closing the joint account. She asserted counts for breach of contract, conversion and negligence. The complaint, which made no mention of the divorce action, included the following certification by Monique's attorney:

I hereby certify that no other lawsuit or arbitration proceeding has been commenced relating to the subject matter of this action, nor are any other suits or proceedings contemplated. I further certify that there are no other parties who should be joined at this time.

Summit, served with this complaint on February 4, 1994, knew Monique and George had been involved in divorce litigation. Indeed, Rondi Nelson had been deposed about the joint account's closure as part of discovery in that matter. Monique also subpoenaed Hilton Jervey, a senior vice president and senior investment officer at Summit for his deposition on the issue, but the deposition was never held.

We are informed Summit's attorneys, in connection with their preparation of Summit's answer to this complaint, contacted the attorney handling the divorce litigation to inquire of its status; they were told it remained open. Summit's attorneys later went to review the court's files in the divorce ...


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