June 25, 2012
CHASE BANK USA, N.A., PLAINTIFF-RESPONDENT,
RICHARD A. DUNNE, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Morris County, Docket No. L-0050-11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued telephonically June 13, 2012
Before Judges A. A. Rodriguez and Reisner.
Defendant Richard A. Dunne, an attorney, appeals from two orders by Judge Robert J. Brennan. In a May 27, 2011 order, the judge denied defendant's motion to dismiss this lawsuit with prejudice as violative of the entire controversy doctrine. In a December 2, 2011 order, the judge granted summary judgment against Dunne and in favor of Chase Bank USA, N.A. (Chase). We affirm.
The pertinent facts are as follows. Dunne opened a credit card account with Chase in 2006. He used the card for several transactions since its issuance. On February 22, 2010, Dunne wrote a check from his personal checking account, which was jointly-owned with Christine Dunne. The check was for $6,692.51 and payable to Chase Card Services (Services). Services mistakenly processed the check as if the amount were for $16,692.51. This error caused a $10,000 overcharge to the checking account and an overpayment to the credit card account. Dunne spoke to a bank officer and the error was corrected. However, after June 25, 2010, Dunne made no further payments on the credit card.
On August 12, 2010, the Dunnes sued Chase, Services and JPMorgan Chase Bank, N.A. (JPMorgan) for negligence.*fn1 That litigation ended when Judge Thomas R. Vena granted a final judgment on the merits, dismissing the complaint in its entirety. We affirmed. Dunne v. JPMorgan Chase, N.A., No. A-1550-10 (App. Div. July 22, 2011), certif. denied, 209 N.J. 101 (2012).
Chase then filed this action against Dunne for overdue charges on the credit card account. Dunne answered, counter-claimed and filed a third-party complaint against Chase, Services and JPMorgan. Chase moved for summary judgment, which was supported in part by the affidavit of Evelyn L. Ford, a Senior Process Analyst at Services. She indicated that, pursuant to her employment, her affidavit was based on her "researching, obtaining and viewing Chase's business records involved in litigation." Dunne opposed the motion and filed a cross-motion. On May 27, 2011, Judge Robert J. Brennan granted Chase's motion and denied the cross-motion. In his oral opinion, Judge Brennan gave the following analysis of the issues.
My determination is that the complaint of the plaintiff should not be dismissed under the entire controversy doctrine, primarily acknowledging principles of judicial fairness and the polestar for the application of the entire controversy doctrine, as set forth in cases such as [Thomas v. Hargest, 363 N.J. Super. 589, 599 (App. Div. 2003)].
Ultimately, the issue is one of fairness. . . . [T]here's another example of that set forth in [Crispin v. Volkswagenwerk, A.G., 96 N.J. 336 (1984)].
The court must consider the particular circumstances of the case in light of the objectives of the entire controversy doctrine. [Allstate New Jersey Ins. Co. v. Cherry Hill Pain and Rehab Inst., 389 N.J. Super. 130, 141 (App. Div. 2006)].
And ultimately, the application of the doctrine depends on the exercise of judicial discretion and the facts of each case. [Prevratil v. Mohr, 145 N.J. 180 (1996)].
. . . [T]he entire controversy doctrine should not be [applied] if to do so would be unfair in totality of the circumstances and would not promote its objectives; namely, the promotion of conclusive determinations, party fairness, judicial economy and efficiency. [Irish Pub v. Stover, 364 N.J. Super. 351, 355 (App. Div. 2003)].
And . . . that is true . . . even when the claims at issue might otherwise be within the scope of the doctrine. [Sklodowsky v. Lushis, 417 N.J. Super. 648, 655-56 (App. Div. 2011)].
The judge noted that Chase "never filed an answer in the Essex County action" because that action was dismissed for failure to state a claim. He also noted that "there is no demonstrated prejudice that Mr. Dunne sustains here" if Chase is allowed to maintain its claim against him.
On appeal, Dunne contends that the decision by the motion judge "to invoke the doctrine of judicial fairness to nullify the entire controversy doctrine from being used to dismiss" Chase's complaint, was in error. Dunne argues that in order for the fairness doctrine to apply in this case, Chase would have needed to show that it either was unaware it had a claim against Dunne, or that it did not have the opportunity to present that claim in the Essex County case, which arose from the very same facts and circumstances. Dunne argues that because Chase could not make either showing, Chase should not have prevailed.
We reject this argument and rely on the judge's decision. We simply add that the entire controversy doctrine generally "requires a litigant to assert in one action all claims arising from a single controversy." Thomas v. Hargest, 363 N.J. Super. 589, 595 (App. Div. 2003). However, "[t]he doctrine is an equitable one whose application is left to the judicial discretion based on the facts of individual cases." Id. at 596. Another doctrine, a fairness doctrine, has developed with respect to when the preclusive effect of the entire controversy doctrine should not be applied. Prevratil v. Mohr, 145 N.J. 180, 190 (1996).
Here, Judge Brennan found that the entire controversy doctrine should not be applied because Dunne suffered no prejudice by the lack of joinder of this claim to the Essex County claim, and Chase did not participate in the first action because it was dismissed for failure to state a claim.
We agree. From our careful review of the record we conclude that the judge's analysis was sound and based on governing case law. Moreover, his findings are supported by the uncontroverted material proofs in the motion record.
The check was mistakenly processed as if the amount were for $16,692.51. This $10,000 overcharge to the Dunnes' joint checking account resulted in an overpayment to Dunne's credit card account. Dunne realized the error in late March or early April and spoke about it with Edward L. Rogers of JPMorgan Chase. Rogers agreed that $10,000 mistakenly was deducted from the Dunnes's checking account and contacted the appropriate personnel to correct the error. Chase promptly corrected the mistake.
Since June 25, 2010, Dunne has not made any payments to his credit card account, although several payments have been due.
Dunne also argues that the affidavit upon which Chase relied to obtain summary judgment failed to satisfy the requirements of Rule 1:6-6 compelling, therefore, a reversal of the summary judgment granted. We reject this argument.
Ford's affidavit is a business record that is excepted from the hearsay rule. N.J.R.E. 803(c)(6). See Claypotch v. Heller, Inc., 360 N.J. Super. 472, 488-89 (App. Div. 2003); Sellers v. Schonfeld, 270 N.J. Super. 424, 427 (App. Div. 1993). Ford's attestations were based on her own review and evaluation of the records, not on information provided to her nor on information and belief.