July 23, 2010
C&F, INC., T/A THE CHECK STORE, PLAINTIFF-RESPONDENT,
EAST COAST TRUCK PARTS & SALES, INC., DEFENDANT-APPELLANT, AND JAZMIN ECHANDY, DEFENDANT.
On appeal from Superior Court of New Jersey, Law Division, Union County, Docket No. DC-12837-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 22, 2010
Before Judges Carchman and Parrillo.
Defendant, East Coast Truck Parts & Sales, Inc. (East Coast or defendant), appeals from summary judgment in favor of plaintiff C & F, Inc., t/a The Check Store (Check Store or plaintiff), in the amount of $9,840. We reverse and remand.
East Coast is an automotive repair facility with a business office in Newark. Its principal owners and officers, brothers Michael and Alan Kane, have sole responsibility for the company's bookkeeping and financial operations. Company checks and business records are maintained in a drawer in Michael's desk.*fn1 In August 2007, East Coast hired Jazmin Echandy to serve as the company's receptionist, replacing Sandra Araujo, who left the company several weeks earlier. According to Michael Kane, prior to hiring Echandy, he contacted several of her former employers, receiving confirmation that she was a responsible worker. East Coast was also unaware of any interactions between Echandy and Araujo, as their employment did not overlap.
Echandy's job responsibilities as a receptionist did not include bookkeeping or accounting or involve any of the company's financial affairs. Moreover, she was not allowed access to the company's checks, and was not provided a key to the desk. Approximately one week after Echandy's hiring, Michael Kane noticed that two company checks were missing. He immediately contacted the Newark Police Department, and placed a stop-order on the checks. Although East Coast's bank complied with the stop-order, Echandy, over the course of four days, had already cashed the checks at the Check Store, a licensed check-cashing establishment.
Echandy had stolen two checks, sequentially numbered 32047 and 32048, forged Kane's signatures, and made the checks payable to herself. The numerically consecutive checks, however, were not presented or dated in proper order. Check 32048, for $6,600, was presented on August 6, 2007. The reverse side of this check stated that it was verified by "Sondra," apparently referencing East Coast's former employee, whom Echandy had been hired to replace. Check 32047, for $3,200, was presented on August 10, 2007. The reverse side of this check also stated that it was verified by "Sandy." Neither of the Kane brothers was contacted by plaintiff's employees to verify the authenticity of the checks. Check Store presented the checks to defendant's bank for payment, but the checks were refused because of the stop-order. The bank required Check Store to pay $40 in fines.
Consequently, plaintiff filed a complaint against both East Coast and Echandy on June 24, 2008, in the Special Civil Part, claiming that it was entitled to payment as a holder in due course (HDC) under the Uniform Commercial Code (UCC), N.J.S.A. 12A:3-302, and because of East Coast's alleged negligent maintenance and supervision of the stolen checks. East Coast failed to answer, and default judgment was entered on September 15, 2008. Following entry of default judgment, plaintiff served an information subpoena upon East Coast, which went unanswered. It was not until plaintiff later moved to enforce litigant's rights that East Coast first learned of the lawsuit, and as a result, on April 7, 2009, East Coast filed a cross-motion to vacate the default judgment. East Coast's certifications established that service had been improper, and the court vacated the default judgment, reinstating the matter.
East Coast filed its answer on May 21, 2009, denying plaintiff's allegations, claiming, among other things, that Check Store was comparatively negligent under N.J.S.A. 12A:3-406(b) and N.J.S.A. 2A:15-5.1, and demanding discovery in the form of interrogatory questions and documents. Pertinent here, defendant's discovery request included: all of Check Store's procedures for check verification; the identity and personnel records of the employees who serviced Echandy; copies of Check Store's training documents related to fraud monitoring and verification procedures; all audio or videotapes pertaining to the subject transactions; and all phone records for August 6, 2007, through August 11, 2007.
In lieu of providing discovery, plaintiff moved for summary judgment, contending that "when [p]laintiff cashed the check, it do so for value, in good faith, and without notice that it was overdue, or had been dishonored, or that there was any defense against or claim to the instrument on the part of any person." Plaintiff also argued that defendant was negligent per se in leaving the checks in an unlocked drawer. Defendant opposed the motion, maintaining that to the extent plaintiff's summary judgment motion was based on defendant's alleged negligence under N.J.S.A. 12A:3-406, plaintiff's comparative fault was factually in dispute. On this point, defendant argued:
The defendant submits that the plaintiff didn't act properly in verifying the authenticity of the checks. They were brought two checks [totaling about] $9,000, payroll checks with no deductions. The signatures are different. The checks are out of sequence. The handwriting is different. The person that was alleged to have been called to verify them by the check cashing company was no longer in the employ of the defendant. She could have never verified it, because she physically wasn't there.
So all of those factors leads to . . . a[n] issue of material fact as to whether or not the plaintiff is comparatively at fault . . . .
[The checks] were in an unlocked drawer; we're not disputing that. But there is also some fault that can be attributed to the plaintiff for not taking the proper steps to verify the authenticity of [the checks] before cashing them.
Defendant also argued that the summary judgment motion was premature since defendant's discovery request remained outstanding: "Certainly the discovery would at least help us get to that point, or at least . . . get to . . . those issues." Defendant cross-moved for dismissal of plaintiff's complaint without prejudice due to plaintiff's discovery default.
Following argument, the motion judge, relying on Dubin v. Hudson County Prob. Dep't, 267 N.J. Super. 202 (Law Div. 1993), granted summary judgment in favor of plaintiff and denied defendant's cross-motion, reasoning:
[I]t would appear to me from that Dubin case that the plaintiff in this case is in fact . . . a holder in due course. . . .
[Quoting from Dubin:] "Plaintiff is a holder in due course in the case presented here. Plaintiff took the checks for value by paying out the full amount of each check to the named payee. What defendants chose to characterize as plaintiff's comparative negligence may be considered under the terms of the UCC as a lack of good faith, which would prevent plaintiff from qualifying as a holder in due course.
Defendant alleges that plaintiff did not apply the usual commercial standard in conducting his business because he did not call the Hudson County Probation Department to verify the checks prior to cashing [them]. Good faith means honesty in fact in the conduct [or] transaction concerned. [N.J.S.A. 12A:1-201(19)].
Plaintiff testified that his customary practice is not to call to verify each check because of the volume of checks cashed each month. Plaintiff maintains a listing of companies for whom he will cash checks and verifies checks from unknown companies usually by calling the payor bank to verify that there are sufficient funds in the account.
An additional criteria used by plaintiff in determining whether to call the maker is the size of the check. But plaintiff testified that the amount here were not large enough to prompt them to call. I find that the customary practice of plaintiff constitutes a showing of good faith." [End of Dubin quote.]
I feel that in this case the plaintiff has shown good faith . . . in the way they handled the cashing of this check, and, therefore, I will grant them their summary judgment in the amount of $9,800. . . . [Defendant's cross-motion on delinquent discovery] has become moot . . . .
. . . . . . . [Defendant's cross-motion] is denied. On appeal, defendant raises the following issues:
I. THE TRIAL COURT ERRED IN GRANTING THE PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT.
A. THE TRIAL COURT ERRONEOUSLY GRANTED SUMMARY JUDGMENT BY MISAPPLYING AN OUT-DATED STATUTORY SCHEME FOR RELIEF NOT REQUESTED BY THE PLAINTIFF.
1. THE PLAINTIFF HAS NOT MET ITS LEGAL BURDEN THAT IT SATISFIED THE GOOD FAITH REQUIREMENT TO BE CLASSIFIED AS A HOLDER IN DUE COURSE.
2. THE TRIAL COURT FAILED TO CONSIDER THE ISSUE OF COMPARATIVE FAULT ON THE PART OF THE PLAINTIFF.
B. THE TRIAL COURT VIOLATED DEFENDANT'S DUE PROCESS RIGHTS WHEN IT SUA SPONTE GRANTED SUMMARY JUDGMENT ON A COUNT OF THE COMPLAINT NOT RAISED BY THE PLAINTIFF.
C. SUMMARY JUDGMENT WAS PREMATURELY GRANTED BY THE TRIAL COURT AS DISCOVERY HAD NOT BEEN COMPLETED.
II. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING DEFENDANT'S CROSS MOTION TO DISMISS PLAINTIFF'S COMPLAINT FOR FAILURE TO ANSWER DISCOVERY DESPITE FULL KNOWLEDGE THAT THE PLAINTIFF HAD NOT ANSWERED DISCOVERY AND HAD NO INTENTION OF EVER DOING SO.
We agree that the court erred in granting summary judgment to plaintiff.
Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). Under this rule, "[a]n issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact." Ibid.; see also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). The party opposing summary judgment "'must do more than simply show that there is some metaphysical doubt as to the material facts[,]'" Triffin v. Am. Int'l Group, Inc., 372 N.J. Super. 517, 523-24 (App. Div. 2004) (quoting Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3rd Cir. 1992), cert. denied, 507 U.S. 912, 113 S.Ct. 1262, 122 L.Ed. 2d 659 (1993)), as "[c]ompetent opposition requires 'competent evidential material' beyond mere 'speculation' and 'fanciful arguments.'" Hoffman v. Asseenontv.Com, Inc., 404 N.J. Super. 415, 426 (App. Div. 2009) (quoting Merchs. Express Money Order Co. v. Sun Nat'l Bank, 374 N.J. Super. 556, 563 (App. Div.), certif. granted, 183 N.J. 592 (2005)).
This court "employ[s] the same standard that governs trial courts in reviewing summary judgment orders." Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998); Paff v. Div. of Law, 412 N.J. Super. 140, 149 (App. Div. 2010). In doing so, "we consider whether there are any material factual disputes and, if not, whether the facts viewed in the light most favorable to the non-moving party would permit a decision in that party's favor on the underlying issue." Trinity Church v. Lawson-Bell, 394 N.J. Super. 159, 166 (App. Div. 2007). Accordingly, "[o]ur review of the trial court's grant of summary judgment is de novo." N.J. Div. of Taxation v. Selective Ins. Co. of Am., 399 N.J. Super. 315, 322 (App. Div. 2008); Chance v. McCann, 405 N.J. Super. 547, 563 (App. Div. 2009).
"Generally, summary judgment is inappropriate prior to the completion of discovery." Wellington v. Estate of Wellington, 359 N.J. Super. 484, 496 (App. Div.), certif. denied, 177 N.J. 493 (2003); see also, e.g., Crippen v. Cent. Jersey Concrete Pipe Co., 176 N.J. 397, 409-10 (2003); Laidlow v. Hariton Mach. Co., 170 N.J. 602, 619-20 (2002). Indeed, "[w]hen 'critical facts are peculiarly within the moving party's knowledge,' it is especially inappropriate to grant summary judgment when discovery is incomplete." Velantzas v. Colgate-Palmolive Co., 109 N.J. 189, 193 (1988) (quoting Martin v. Educ. Testing Serv., Inc., 179 N.J. Super. 317, 326 (Ch. Div. 1981)); see Wilson v. Amerada Hess Corp., 168 N.J. 236, 253-54 (2001). But, a party opposing summary judgment based on incomplete discovery must nonetheless establish, "'with some degree of particularity[,] the likelihood that further discovery will supply the missing elements of the cause of action or defense.'" Wellington, supra, 359 N.J. Super. at 496 (quoting Auster v. Kinoian, 153 N.J. Super. 52, 56 (App. Div. 1977)). Furthermore, the party "must specify what further discovery is required, rather than simply asserting a generic contention that discovery is incomplete." Trinity Church, supra, 394 N.J. Super. at 166.
In Travelers Indem. Co. v. Good, 325 N.J. Super. 16 (App. Div. 1999), a case with similar factual circumstances, a law firm's bookkeeper forged "eight checks totaling $76,975 drawn on the firm's trust account[.]" Id. at 19. A bank paid seven of the checks, charging the attorney trust account. Ibid. The law firm eventually discovered the fraud and notified the bank. Ibid. Pursuant to the terms of an insurance policy, Travelers compensated the law firm for its loss. Ibid.
As the law firm's subrogee, Travelers filed a complaint against the bookkeeper, the parties to whom the forged checks had been made payable to, and the bank, seeking to recover its losses. Ibid. The complaint alleged that the bank, by improperly charging the law firm's account, breached its contract with the law firm and violated certain provisions of Chapters Three and Four of the UCC. Ibid. Travelers also claimed that the bank failed to exercise ordinary care and did not act in accordance with reasonable commercial standards in its handling of the checks. Ibid.
The motion judge granted summary judgment in favor of the bank. Id. at 20. On appeal, Travelers argued, among other things, that summary judgment was inappropriate because discovery was incomplete. Ibid. The bank, on the other hand, claimed that further discovery was unnecessary, as Travelers could not raise a genuine issue of material fact. Ibid. "Viewing the record in the light most favorable to Travelers, the non-moving party," we concluded that "summary judgment was entered prematurely." Id. at 25-26. Specifically, we found that although Travelers did not contest the reasonableness of the bank's check verification procedures, it was entitled to explore whether the bank's daily practice comported with that policy. Id. at 26. Travelers was also entitled to investigate whether the bank employees' training was "reasonably calculated to discover forged signatures." Ibid. Consequently, we ordered that, on remand, "the practice of the bank measured against its procedure must be considered." Ibid.
Here, defendant's discovery request included Check Store's procedures for check verification, the personnel records of the employees who serviced Echandy, copies of Check Store's pertinent training documents, all audio or videotapes pertaining to the subject transactions, and all phone records for August 6, 2007, through August 11, 2007. This discovery appears relevant to the questions of whether Check Store had proper procedural protections in place for check verification, and whether Check Store's employees actually complied with those procedures. Such information is not only "'peculiarly within the moving party's knowledge[,]'" Velantzas, supra, 109 N.J. at 193 (quoting Martin, supra, 179 N.J. Super. at 326), but critically important to supplying the missing elements of defendant's defense to plaintiff's cause of action, Wellington, supra, 359 N.J. Super. at 496; Auster, supra, 153 N.J. Super. at 56, making it especially inappropriate to grant summary judgment while discovery remains incomplete.
In this regard, under Chapter Three of the UCC, in order to qualify for "holder in due course" status, it must be shown that the party took the instrument in good faith. N.J.S.A. 12A:3-302(a)(2).*fn2 Good faith is defined as "honesty in fact and the observance of reasonable commercial standards of fair dealing." N.J.S.A. 12A:3-103(a)(4). Thus, "a holder in due course must satisfy both a subjective and an objective test of good faith, requiring a consideration of the holder's honesty in fact and observance of reasonable commercial standards[.]" Triffin v. Pomerantz Staffing Servs., L.L.C., 370 N.J. Super. 301, 308 (App Div. 2004) (citations omitted). More specifically, in creating a standard by which the legitimacy of a check is judged by its appearance, and in requiring that the holder take the instrument in good faith, the Code deemed relevant an examination of the honesty, the state of mind, the experience, and the reasonableness of the conduct of the alleged holder in due course. [Id. at 308-09 (citations omitted).]
Under this rubric, a party "who fail[ed] to make an inquiry, reasonably required by the circumstances of the transaction, so as to remain ignorant of facts that might disclose a defect[,] cannot claim to be a holder in due course." Id. at 309. Most importantly, "once it appears that a defense exists against the payee, the person claiming the rights of a holder in due course has the burden of establishing that he is in all respects such a holder." General Inv. Corp. v. Angelini, 58 N.J. 396, 404 (1971) (citing to former section 3-307(3), now at section 3-308(b)); N.J.S.A. 12A:3-308(b) ("If a defense or claim in recoupment is proved, the right to payment of the plaintiff is subject to the defense or claim, except to the extent the plaintiff proves that the plaintiff has rights of a holder in due course which are not subject to the defense or claim.").*fn3
Moreover, in 1995, the UCC established a comparative negligence test, under which losses are allocated between the parties "if each has failed to comply with its respective duties." Travelers, supra, 325 N.J. Super. at 21. Thus, N.J.S.A. 12A:3-406 provides:
a. A person whose failure to exercise ordinary care substantially contributes to an alteration of an instrument or to the making of a forged signature on an instrument is precluded from asserting the alteration or the forgery against a person who, in good faith, pays the instrument or takes it for value or for collection.
b. Under subsection a. of this section, if the person asserting the preclusion fails to exercise ordinary care in paying or taking the instrument and that failure substantially contributes to loss, the loss is allocated between the person precluded and the person asserting the preclusion according to the extent to which the failure of each to exercise ordinary care contributed to the loss.
c. Under subsection a. of this section, the burden of proving failure to exercise ordinary care is on the person asserting the preclusion. Under subsection b. of this section, the burden of proving failure to exercise ordinary care is on the person precluded.
"The phrase 'substantially contributes' . . . 'indicates causal relationship and is the equivalent of the substantial factor test applied in the law of negligence generally.'" Travelers, supra, 325 N.J. Super. at 22 (quoting Gast v. Am. Cas. Co. of Reading Pa., 99 N.J. Super. 538, 544 (App. Div. 1968)). "'A lack of ordinary care on the part of the bank paying items under this provision of the UCC may be established by proof either that the bank's procedures were below standard or that the bank's employees failed to exercise care in processing the items.'" Ibid. (quoting N.J. Steel Corp. v. Warburton, 139 N.J. 536, 546 (1995) (internal quotation marks omitted)). Under this standard, a check cashing establishment "must use reasonable and proper methods to detect forgeries, but 'the tellers and bookkeepers . . . are not held to a degree of expertness which a handwriting expert possesses.'" Id. at 22-23 (quoting Clarke v. Camden Trust Co., 84 N.J. Super. 304, 310 (Law Div. 1964), aff'd o.b., 89 N.J. Super. 459 (App. Div. 1965)).
When a negligent party proves that a check cashing establishment "failed to exercise ordinary care in paying the item and that failure substantially contributed to the loss, a comparative negligence test applies in which the loss is allocated between" the two parties. Id. at 23. Although pre-1995 case-law suggested that "[t]he employer that hires a thief must suffer the consequences of his or her misjudgment[,]" Globe Motor Car Co. v. First Fid. Bank, 273 N.J. Super. 388, 400 (Law Div. 1993), aff'd o.b., 291 N.J. Super. 428 (App. Div.), certif. denied, 147 N.J. 263 (1996), this doctrine must be viewed in light of the current comparative fault system, where the negligence of both parties is weighed. For example, N.J.S.A. 12A:3-405(b), the section discussing an employer's responsibility for the fraudulent endorsements of an employee, provides:
If the person paying the instrument or taking it for value or for collection fails to exercise ordinary care in paying or taking the instrument and that failure substantially contributes to loss resulting from the fraud, the person bearing the loss may recover from the person failing to exercise ordinary care to the extent the failure to exercise ordinary care contributed to the loss.*fn4
Here, as noted, plaintiff's internal record-keeping, security and verification procedures, and the identity of employees involved in the transaction, were ascertainable solely from the plaintiff itself, therefore making discovery necessary. Moreover, defendant's discovery requests for plaintiff's verification procedures, training documents, phone records, and any audio/videotapes of the disputed transactions, were directly related to whether Check Store's verification process was commercially reasonable, a critical component of the good faith analysis under Chapter Three of the UCC, N.J.S.A. 12A:3-103(a)(4), and to whether plaintiff's employees' daily practice comported with company policy, Travelers, supra, 325 N.J. Super. at 26, a material consideration in assessing whether Check Store was comparatively negligent. N.J.S.A. 12A:3-406(b). Indeed, in the absence of any compliance with defendant's discovery requests, the record is barren of any proof that plaintiff observed "reasonable commercial standards of fair dealing," N.J.S.A. 12A:3-103(a)(4), save for the lone self-serving certification of Check Store's principal, who stated, in conclusory terms, that plaintiff cashed the drafts "in good faith." Even if this certification was considered sufficient proof, it is axiomatic that summary judgment is generally improper when a party's state of mind is in issue, Shebar v. Sanyo Bus. Sys. Corp., 111 N.J. 276, 291-92 (1988); Garden State Bldgs., L.P. v. First Fid. Bank, 305 N.J. Super. 510, 527 (App. Div. 1997), certif. denied, 153 N.J. 50 (1998), and here, there is a genuine question of whether a party has acted in good faith. See, e.g., Duerlein v. N.J. Auto. Full Ins. Underwriting Ass'n, 261 N.J. Super. 634, 642 (App. Div. 1993); see also Mayo, Lynch & Assocs., Inc. v. Pollack, 351 N.J. Super. 486, 500 (App. Div. 2002). But see Valley Nat'l Bank v. P.A.Y. Check Cashing, 378 N.J. Super. 406, 421 (Law Div. 2004) (finding that the defendant, as a matter of law, failed to satisfy the objective portion of the good faith test under N.J.S.A. 12A:3-103(a)(4)), aff'd o.b., 378 N.J. Super. 234 (App. Div. 2005).
In sum, we conclude that the grant of summary judgment to plaintiff was premature given defendant's outstanding discovery requests for information considered relevant to defendant's defense. Moreover, the questions of whether plaintiff acted in "good faith" so as to qualify as a holder in due course, and whether plaintiff acted "reasonably" for purposes of assessing its comparative liability, are issues which, under the circumstances, are not appropriate for summary judgment disposition. We therefore reverse the grant of summary judgment in favor of plaintiff and remand for further proceedings, which are to include resolution of defendant's cross-motion to dismiss plaintiff's complaint without prejudice due to plaintiff's alleged failure to comply with defendant's discovery requests.
Reversed and remanded for further proceedings consistent with this opinion.