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Hirl v. Bank of America

July 21, 2008

STEPHANIE M. HIRL, A MINOR, BY HER GUARDIAN AD LITEM, SUZANNE HIRL, PLAINTIFF-RESPONDENT,
v.
BANK OF AMERICA, N.A., DEFENDANT-APPELLANT.
SUZANNE F. HIRL, PLAINTIFF-RESPONDENT,
v.
BANK OF AMERICA, N.A., DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division-Special Civil Part, Atlantic County, Docket No. DC-8474-06.

The opinion of the court was delivered by: Cuff, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued: April 30, 2008

Before Judges Cuff, Lisa and Lihotz.

Following a bench trial, the trial judge entered judgment in favor of plaintiff Stephanie Hirl in the amount of $2,500, in favor of plaintiff Suzanne Hirl in the amount of $2,450, plus attorneys' fees in the amount of $3,420. Defendant Bank of America (BOA) argues that the judgment is predicated on erroneous evidential rulings, and that there was an absence of evidence to support a finding of embarrassment or reckless behavior by it. We reverse and remand for further proceedings consistent with this opinion.

Hirl*fn1 filed a complaint seeking compensatory and punitive damages following the production of her bank records by BOA in response to a facially valid subpoena. She filed a similar complaint on behalf of her minor daughter, Stephanie. The facts leading to the production of plaintiffs' bank records are undisputed. The effect of the production and publication of the information contained in those records and any remedy that may be afforded to plaintiffs is at the heart of this appeal.

It is undisputed that Hirl and her former husband had an ongoing dispute regarding support payable by the former husband. On June 29, 2006, a facially valid subpoena in a matrimonial action was served on BOA. It requested production on July 10, 2006, of the following documents:

Copies of bank statements with check views if applicable, deposit tickets and sources of deposits for August 2005 through June 2006, for Shore Points Taxi, Inc., Suzanne Hirl Malouf or any trade name, social security number . . . C & C Cab, or Shore Points Limo, and any checking or savings accounts statement for the same time period on deposit in the name of such parties.

The subpoena informed BOA that "the subpoenaed evidence shall not be produced or released until July 10, 2006." The subpoena also notified the recipient that it must not produce the subpoenaed information, if notified that a motion to quash the subpoena had been filed. The subpoena also informed the recipient that an appearance was not required if the documents were delivered prior to July 10.

By letter dated June 29, 2006, an attorney representing Hirl informed BOA that she had received a copy of the subpoena, and stated "I am filing a motion to quash that Subpoena." On July 6, 2006, BOA delivered documents in response to the subpoena that included a checking account for Hirl, a savings account in the name of her daughter Stephanie, and savings accounts for her three other children. The children, other than Stephanie, are also the children of the party requesting the bank records.

On July 10, 2006, Hirl's attorney filed a motion to quash the subpoena. A copy of that motion was not served on BOA. On July 21, 2006, a judge granted the motion to quash the subpoena and an order to quash was entered July 26, 2006. By correspondence dated July 24, 2006, BOA was notified that a motion to quash had been filed and granted. BOA received a copy of the order quashing the subpoena by correspondence dated July 28, 2006.*fn2

At trial, Hirl testified over the objection of BOA that she learned from comments by friends and acquaintances that the bank records had been turned over by BOA to the attorney for her former husband. She also acknowledged that her attorney informed her of the turnover of the bank records, and her local BOA branch confirmed the turnover. Again over the objection of BOA, Hirl testified that her former husband "interrogated" her about checks she had written on her checking account. Hirl testified that she felt "violated." She stated, "I had to look over my shoulder to find if he was, what he was planning to do to me next, take me back to court, lower child support, [or] try to take my daughter . . . ." Hirl noted that she and her former husband were involved in a post-judgment matrimonial dispute about the amount of his child support obligation. She also testified that her former husband hired a private investigator to gather information about the financial condition of Stephanie, her daughter from a former marriage.

In reaction to the turnover of her bank records, Hirl testified that she closed her accounts at BOA, opened an account at a smaller local bank, and avoids depositing most of her earnings in a bank. She bought a safe ...


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