On appeal from the Superior Court of New Jesey, Law Division, Camden County, Docket No. DC-18018-11.
The opinion of the court was delivered by: Carroll, J.S.C.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 18, 2013 -April 26, 2013
Before Judges Sabatino, Fasciale*fn1 and Carroll.
The opinion of the court was delivered by CARROLL, J.S.C. [temporarily assigned]
Defendant appeals from that portion of an April 2, 2012 order for summary judgment dismissing his third-party complaint alleging violations of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C.A. § 1692 to -1692o, the New Jersey Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -20, and common law fraud. We affirm.
The following facts derive from evidence the parties submitted in their summary judgment motions, viewed in the light most favorable to defendant. See R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
Plaintiff, DepoLink Court Reporting & Litigation Support Services, provides court reporting and litigation support services. Defendant, David S. Rochman, Esq., is a New Jersey attorney. On July 15, 2010, defendant utilized plaintiff's court reporting services to take the depositions of two witnesses in a pending Law Division action. Four other attorneys involved in that litigation attended the depositions. While there, defendant and all four attorneys signed plaintiff's transcript order form (form). The form provided that:
PLEASE READ: I hereby agree to pay all normal and customary preparation and delivery charges in full to DepoLink Court Reporting. I also agree to place the invoice in line for prompt payment. I understand that payment terms are net [thirty] days and a 1.5% per month late fee may apply. DepoLink reserves the right to request pre-payment by credit card or C.O.D. prior to transcript delivery for any out[-]of[-]state law firm with whom we do not have payment history.
[(Bold in original)]; [(Emphasis added).]
According to plaintiff, it prepared the transcripts, and on July 22, 2010, invoiced defendant for them. Defendant received the transcripts on July 27, 2010. Defendant retained the transcripts; however, he refused to pay plaintiff's invoice. Plaintiff subsequently retained a collection agency, third-party defendant Johnson, Morgan & White (collection agency), to assist in recovering the cost for the transcripts. The collection agency's efforts were similarly unsuccessful.
Defendant certified to the motion judge that he was presented with the form at the conclusion of the deposition, but that there was no negotiation nor any agreement on his part to its payment terms. Within a week he received a call from plaintiff "advising that they were unilaterally changing the terms of their agreement," and requesting payment on a C.O.D. basis.*fn2 Defendant rejected those terms and advised plaintiff that "they could keep their transcripts." According to defendant, he continued to negotiate with plaintiff, but no agreement could be reached.
Subsequently, defendant was contacted by the collection agency, which he claims misrepresented that it was a law office, and threatened him with an ethics complaint and criminal prosecution. Defendant refused to pay the bill for the transcripts or a reduced amount for the court reporter's time in taking the depositions. Defendant maintained that "the rate [and] charges sought [by plaintiff] are usurious, they are beyond customary and reasonable and they were never agreed to at any point in time."
In October 2011, plaintiff filed this lawsuit in the Law Division, Special Civil Part, for the transcript costs. Defendant filed a counterclaim, as well as a third-party complaint against the collection agency and one of its principals, J. Robert Morgan, alleging common law fraud, and violations of the CFA and FDCPA. In February 2012, plaintiff and the collection agency subsequently moved for summary judgment. Defendant cross-moved to dismiss their pleadings for failure to answer interrogatories. On April 2, 2012, the motion judge, without oral argument, entered judgment against defendant for $4,570.30, representing the full cost of the transcripts plus the 1.5% ...