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Leonardo v. Bank of America

April 4, 2008

JENNIFER LEONARDO, PLAINTIFF-APPELLANT, AND JANET POLECHEK AND JOHN F. MORAN, JR., PLAINTIFFS,
v.
BANK OF AMERICA, F/K/A FLEET BANK, N.A., DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-28-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: March 12, 2008

Before Judges Axelrad, Payne and Messano.

Plaintiff Jennifer Leonardo is the adult daughter of plaintiff Janet Polechek. In April 2004, Leonardo deposited into her Bank of America (BOA) account two checks written by Charles Roper on his Sun Trust bank account in the amounts of $2,500 and $2,595. The checks were made payable to the "Janet Polechek Racing Stables" and endorsed by Polechek in her name only, there allegedly being no "Racing Stable" entity. The incomplete or illegal endorsement triggered a series of events not relevant to our decision, other than that the $2,500 check was eventually credited to Leonardo's account. However, despite requests by Leonardo, BOA neither credited the other check to her account nor took action to facilitate issuance of a replacement check.

On December 30, 2004, Leonardo, Polechek and John Moran*fn1 filed an eleven count complaint against BOA, asserting claims of conversion, unjust enrichment, wrongful dishonor of checks drawn on the account, breach of the implied covenant of good faith and fair dealing imposed by N.J.S.A. 12A:1-203, violation of the New Jersey Consumer Fraud Act (CFA), fraud and intentional and willful misconduct, negligent misrepresentation that the checks drawn on the account would be honored, breach of fiduciary duty, and defamation. Defendant filed its answer in March 2005.

In January 2006 the matter was noticed for trial. Defendant filed a motion for summary judgment seeking to dismiss all claims in plaintiffs' complaint. By order of March 17, 2006, the court granted summary judgment against plaintiffs Polechek and Moran on all claims, and granted partial summary judgment against Leonardo on her CFA and unjust enrichment claims, specifically leaving in place her claims based on conversion, breach of the implied covenant of good faith and fair dealing, and defamation.*fn2 Leonardo thereafter sought reconsideration of the dismissal of her CFA claim, which was denied by order of July 28, 2006.

We extended the time for Leonardo to move for leave to appeal, but denied her motion for leave to appeal by order of November 27, 2006.

A pretrial conference was held on April 16, 2007. Instead of proceeding to trial on the remaining claims, counsel and the court agreed that an order would be entered dismissing Leonardo's remaining claims without prejudice and permitting their re-institution if she were unsuccessful on appeal and certifying the resulting judgment as final. The May 15, 2007 "Final Order and Judgment" provided, in pertinent part, as follows:

THIS MATTER having been opened to the Court by [Leonardo's counsel] . . . for the entry of an Order certifying Final Judgment in the above-captioned action; and . . . the Court having granted BOA summary judgment dismissing all of the claims of . . . Polachek . . . and . . . Moran . . . and dismissing all of the claims of . . . Leonardo . . . with the exception of (1) Leonardo's wrongful dishonor claims as set forth in the Third and Eighth Counts of the Complaint, (2) Leonardo's conversion claim as set forth in the First Count of the Complaint, (3) Leonardo's breach of the implied covenant of good faith and fair dealing claim as set forth in the Fifth Count of the complaint and (4) Leonardo's defamation claims as set forth in the Tenth and Eleventh Counts of the Complaint (the claims that were not dismissed being hereinafter collectively referred to as the "Remaining Leonardo Claims"); and it further appearing that BOA filed a motion for an award of its attorneys' fees and costs against Polachek and Moran which was denied without prejudice; and it further appearing that BOA having agreed to release to Leonardo the sum of $2,595.00 . . .; and the parties having consented to the form and entry of the within Order; and for good cause shown;

(1) ORDERED that the Remaining Leonardo Claims are hereby dismissed without prejudice subject to the terms, conditions and deadlines set forth herein such that the dismissal of the claims dismissed by way of Summary Judgment in favor of BOA are now Final and subject to immediate appeal; and it is further

(2) ORDERED that to the extent Plaintiffs fail to file an[] appeal of the dismissal of the claims dismissed by way of Summary Judgment in favor of BOA within forty-five (45) days of the date of this Order, both those claims and the Remaining Leonardo Claims will be forever barred; and it is further

(3) ORDERED that to the extent the Court's March 17, 2006 Order is affirmed on appeal, any reinstatement of the Remaining Leonardo Claims shall be through the filing of a new action under a new docket number within ninety (90) days of the final disposition of the appeal of the March 17, 2006 Order and that if Remaining Leonardo Claims are not timely reinstated as set forth herein they shall be forever barred; and it is further

(4) ORDERED that to the extent the Court's March 17, 2006 Order is reversed on appeal and remanded, Plaintiff Leonardo may seek reinstatement of the Remaining Leonardo Claims by way of Amendment to the Complaint within ninety (90) days of the reversal and remand and that if Remaining Leonardo Claims are not ...


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