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Triffin v. Automatic Data Processing

June 28, 2007; as amended July 5, 2007

ROBERT J. TRIFFIN, PLAINTIFF-RESPONDENT/ CROSS-APPELLANT,
v.
AUTOMATIC DATA PROCESSING, INC., DEFENDANT/THIRD-PARTY PLAINTIFF-APPELLANT/ CROSS-RESPONDENT,
v.
LINDA AVALLONE, THIRD-PARTY DEFENDANT.



On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-1915-03.

The opinion of the court was delivered by: Lyons, J.S.C. (temporarily assigned).

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued May 9, 2007

Before Judges Stern, Sabatino and Lyons.

Defendant, Automatic Data Processing, Inc. ("ADP"), appeals an order for remittitur, reducing a jury verdict of $132,600 in compensatory damages and $50,000 in punitive damages entered on defendant's counterclaim, which asserted plaintiff, Robert J. Triffin ("Triffin"), committed common law fraud against defendant. Plaintiff cross-appeals claiming that defendant lacks standing to assert its common law fraud claim against plaintiff; and that the trial court erred when it allowed defendant's claim for investigatory expenses to be recovered, when it applied the Supreme Court's requirements for punitive damage awards, when it entered judgment for defendant against the weight of the evidence and when it denied plaintiff's post-trial motions and motions to dismiss at the end of defendant's case.

The following factual and procedural history is relevant to our consideration of the issues advanced on appeal. Plaintiff is in the business of purchasing dishonored checks and taking assignments from the sellers by which he seeks to recover as holder in due course from banks and others in the collection process. See generally, Triffin v. TD Banknorth, N.A., 190 N.J. 326 (2007); Triffin v. Bank of Am., 391 N.J. Super. 83 (App. Div. 2007); Triffin v. Am. Int'l Group, Inc., 372 N.J. Super. 517 (App. Div. 2004); Triffin v. Mellon PSFS, 372 N.J. Super. 221 (App. Div. 2004), overruled in part by TD Banknorth, supra; Triffin v. Mellon PSFS, 372 N.J. Super. 3 (App. Div. 2004), overruled in part by TD Banknorth, supra; Triffin v. Trav. Express Co., 370 N.J. Super. 399 (App. Div. 2004); Triffin v. Pomerantz Staffing Servs., LLC, 370 N.J. Super. 301 (App. Div. 2004); Triffin v. Ameripay, LLC, 368 N.J. Super. 587 (App. Div. 2004); Triffin v. Johnston, 359 N.J. Super. 543 (App. Div. 2003); Triffin v. Quality Urban Hous. Partners, 352 N.J. Super. 538 (App. Div. 2002); Triffin v. Somerset Valley Bank, 343 N.J. Super. 73 (App. Div. 2001); Triffin v. Bridge View Bank, 330 N.J. Super. 473 (App. Div. 2000); Triffin v. First Union Bank, N.A., 319 N.J. Super. 72 (App. Div. 1999); Triffin v. Cigna Ins. Co., 297 N.J. Super. 199 (App. Div. 1997). As of November 2004, plaintiff had filed over 4,000 such lawsuits. Am. Int'l Group, supra, 372 N.J. Super. at 521. It is the purchase of such checks that has given rise to this action.

This case began as three separate lawsuits that plaintiff filed in the Special Civil Part against defendant and others. Defendant was the common defendant on all the claims and the first named defendant on the lawsuits. In the complaints, plaintiff asserted claims based on twenty-three dishonored or counterfeit checks totaling $11,021.33. Plaintiff annexed to each complaint copies of an assignment agreement ("agreement") corresponding to each dishonored check at issue. The assignment agreement attached to each check is a two-page printed agreement containing thirty numbered paragraphs. Each agreement identifies plaintiff as the buyer and a specifically named check cashing facility as the seller. The agreement contains a certification from the seller's representative that he or she is authorized to execute the agreement and that the facts contained in it are true and correct to the best of the individual's knowledge, information and belief. It also identifies the named representative of the seller. After transferring to buyer seller's interest in the item at issue, the seller makes numerous warranties which would evidence that the seller was a holder in due course under Article 3 of the Uniform Commercial Code. See N.J.S.A. 12A:3-302. In addition to the warranties and representations, the agreement evidences the seller's assent to hold the buyer harmless and cooperate with buyer in prosecuting his claims on the items.

Plaintiff purportedly purchased the checks at issue in this case from licensed check cashing businesses. Plaintiff's complaint claimed that thirteen of the checks were purchased from McCall's Liquor Corp. ("McCall's") and five were purchased from Community Check Cashing II, LLC ("CCC"). All of the McCall's checks and four of the five CCC checks were dishonored by the depositing banks as counterfeit. The fifth check held by CCC was never cashed.

Before filing the instant lawsuit against defendant, plaintiff sought and obtained a meeting with defendant's in-house counsel and other representatives to demand payment on the items. During that meeting, plaintiff presented defendant with the original checks. According to defendant's in-house counsel, at the meeting plaintiff stated he knew the items were counterfeit. Defendant informed plaintiff at the meeting it would not pay the face value of the checks. Plaintiff sent a follow-up letter demanding payment, however, defendant refused and the lawsuits followed.

At trial, defendant's in-house counsel, Joan Ibson ("Ibson"), explained the reason for defendant's refusal to pay and decision to contest the litigation:

[Defendant's Counsel:]

Q: Okay. And as a result of receiving the lawsuit, did you reach any decisions on how to handle it? [Ibson:]

A: When we received the lawsuit, we decided that we were going to have to fight this because we felt that, even though it was a low dollar amount -- let -- let me just go back and explain that when we get either a claim or a lawsuit, we have to decide, you know, how much are they demanding, how much is it going to cost us in legal fees; you know, what's going to be more cost effective; to just pay or just try and settle the -- the case for a lower dollar amount, pay them what they're demanding or litigate it. And in this particular case, we felt that, you know, we had to fight it because basically what he was telling us is, "A.D.P., we want you to be responsible for any counterfeit check that comes through." So that means anyone can go out and get an A.D.P. check, -- you know, any -- their ...


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