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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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. ...