CHRISTOPHER R. SHAFER, SR v. ELIZABETH RIOS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1617-08T1

CHRISTOPHER R. SHAFER, SR.,

Plaintiff-Appellant,

v.

ELIZABETH RIOS, JUAN RIOS, SIDE JOBS and PATRICK GRIMES,

Defendants-Respondents.

________________________________

 

Telephonically Argued: June 15, 2010 Decided: November 9, 2010

Before Judges C.L. Miniman and Waugh.

 

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-904-08.

 

Mark J. Molz argued the cause for appellant (Christopher R. Shafer, Sr., on the pro se brief).

 

Patrick J. Grimes argued the cause for respondents (Grimes & Grimes, L.L.C., attorneys; Mr. Grimes, on the briefs).

PER CURIAM

Plaintiff Christopher R. Shafer, Sr. (Christopher)1 appeals from the grant of summary judgment dismissing his claims against defendants Elizabeth Rios (Elizabeth), Juan Rios (Juan), Side Jobs, and Patrick Grimes (Grimes). Because plaintiff has no standing to sue and his claims are barred by res judicata, we affirm.

I.

This lawsuit grows out of an attorney-client relationship between Christopher's former wife, Dorca I. Delgado-Shafer (Dorca), and Juan and Elizabeth. Dorca had been practicing law from an office in Camden.2 Juan and Elizabeth needed legal assistance with some real estate matters and a dog-bite lawsuit in which they were the defendants. They located Dorca through a lawyer-referral service and retained her in March 2004 to assist them with their purchase of the home in which they were tenants and to represent them in the dog-bite case.

In September 2004, Dorca hired Elizabeth as her secretary. Dorca subsequently assisted Juan and Elizabeth in securing refinancing of their home mortgage. Juan and Elizabeth received a net check from the refinance transaction in the amount of $41,843.66, which they intended to use for the purchase of another home. Dorca had recommended that her clients deposit the money in her attorney trust account to demonstrate that they were serious buyers. Juan and Elizabeth followed this recommendation and tendered the money to Dorca. Thereafter, Elizabeth and Juan contracted to purchase another home in Mount Laurel and secured a financing commitment at 7.50%. Settlement was scheduled for October 7, 2005.

On October 4, 2005, during court-ordered arbitration in the dog-bite case, Elizabeth and Juan were found liable, and the arbitrator awarded $25,000 in damages to the injured plaintiff.

The day before the closing on the second home, Elizabeth asked Dorca to release the refinance monies to permit them to close. Dorca admitted to Elizabeth that she had spent a portion of the funds and only had $29,000 left. On October 7, 2005, Elizabeth further pressed Dorca for the balance of the escrowed funds, but Dorca only gave her a $10,000 check from Dorca's brother's girlfriend, which had been made payable to Dorca and endorsed over to Elizabeth. Dorca also gave Elizabeth a $2000 personal check, but it was refused for insufficient funds. A replacement check in the amount of $1500 was refused for a "stop payment."

On October 10, 2005, Elizabeth allegedly failed to go to work; the next day, she was terminated from her employment. At the end of that month, Dorca filed a suit in Burlington County, L-3140-05, to collect legal fees from Juan and Elizabeth. Dorca's statement for legal services contained three separate charges: (1) 1 Granby Lane, $7697.09; (2) 432 Hartford Road, $1659.00; and (3) Civil, $6271.38. Apparently, the first two charges dealt with the real estate matters, and the third charge pertained to the dog-bite case. The total due on the statement was $15,627.47. Juan andElizabeth didnot answerthe complaint.

On February 27, 2006, Juan and Elizabeth appeared before the Chancery judge in Burlington County regarding a lis pendens Dorca had filed against their real estate. The judge ordered that $16,000 be placed with a surety company to secure the lis pendens relating to Dorca's fee claim. Juan and Elizabeth had yet to defend the collection matter.

On February 28, 2006, Dorca recovered a default judgment in Burlington County against Elizabeth and Juan for legal fees due and owing in the amount of $15,627.47. On March 3, the parties appeared in court on an order to show cause with respect to Juan and Elizabeth's motion to vacate the default judgment. The judge explained that Dorca was entitled to sufficient time to respond to their motion. He carried the motion for another cycle and stayed any effort to collect the amount due.

On March 23, 2006, Elizabeth executed a certification prepared by Grimes in which she attested that she and Juan had already paid Dorca $11,631.37 in fees for the real estate transactions and did not believe that they owed any additional sums. Elizabeth also averred that she had hired different counsel to represent her and Juan in Dorca's collection action and did not know why the attorney took no action to defend them, allowing the action to proceed to default judgment. They sought to have the default judgment set aside. A hearing on their motion and Dorca's cross-motion was scheduled for March 31, 2006, in Burlington County.

On April 12, 2006, the judge vacated the default and transferred the matter to fee arbitration. There was a hearing on November 16, 2006, at which Juan and Elizabeth testified. Elizabeth averred that when the fees on the real estate transactions began to mount, Dorca offered to provide legal services on the dog-bite case in exchange for Juan making some repairs to the homes owned by Dorca and her brother. Christopher and Dorca had owned a marital home at 22 Sunflower Circle, Lumberton, which they sold to Dorca's brother in May 2004,3 and Dorca owned one or two other properties in Hainesport, which she sold in September 2005. According to Elizabeth, Dorca said that when she and her brother sold the homes, Juan was to give them a bill for the work and Dorca would offset it against the legal fees.

The District Fee Arbitration Committee made an award on November 29, 2006. The award reflected that the bill charged by Dorca was $26,965.80 for legal services and $2826.01 for costs and disbursements. Of the total $29,791.81 in fees and costs, the Committee found that the reasonable charge was $12,131.37. Of that amount, Juan and Elizabeth had paid $11,631.37, leaving a balance due Dorca of $500.

On February 26, 2007, the Office of Attorney Ethics filed a complaint against Dorca. On May 9, 2007, that Office sent Juan and Elizabeth a copy of the formal complaint against Dorca and a copy of the answer she filed. Dorca was charged with knowing misappropriation of funds; making a false statement of material fact; dishonesty, fraud, deceit or misrepresentation; commingling and improper use of trust funds; prohibited business transactions with a client; and conflict of interest.

On June 22, 2007, Elizabeth and Juan, represented by Grimes,4 filed an action in Camden County under Docket No. L-3232-07 against Dorca and Christopher in which they alleged that Christopher was an employee in Dorca's law practice. They alleged the facts to which Elizabeth certified on March 23, 2006, and set forth claims for breach of contract and malpractice. As to Christopher, they alleged that he endorsed a check from Dorca's trust account made payable to cash in the amount of $35,611.36 and that his signature and driver's license number appeared on the back of the check. Christopher then used the check proceeds to obtain a bank check payable to America's Servicing Company, the mortgage servicer on 22 Sunflower Circle. Juan and Elizabeth alleged that another $6000 check was drawn on Dorca's trust account and deposited into her business account, leaving $243.15 in the trust account. They acknowledged repayment of $39,000 and sought recovery of the balance of the trust monies plus other damages from both Dorca and Christopher, asserting a number of legal theories.

Christopher and Dorca separately answered the Camden County complaint on November 16, 2007. They also asserted counterclaims, alleging that Elizabeth and Juan had misappropriated Christopher's private information, including his driver's license number and signature. They contended that Grimes was a witness to the misappropriation and that all three were guilty of conversion. Further, they asserted claims of false-light defamation, infliction of emotional distress, and conspiracy. These claims were stayed based on Christopher's filing for bankruptcy. Juan and Elizabeth moved to reinstate their Camden County complaint against Dorca only, and that motion was granted by order entered in February 2008. Their action against Christopher remained stayed.

On March 20, 2008, after having filed for bankruptcy and having had Juan and Elizabeth's claims against him in Camden County dismissed due to his bankruptcy filing, Christopher began this action in Burlington County against Elizabeth, Juan, Side Jobs, and Grimes. In his complaint, he alleged that he once owned the former marital home at 22 Sunflower Circle, in which his former wife and their children resided. He further alleged that Elizabeth and Juan were the president and vice president, respectively, of Side Jobs, which they owned. He asserted that Juan and Elizabeth made misrepresentations while they were under oath in several court proceedings that they had provided construction work on Christopher's and Dorca's marital home in the amount of $12,000 to $15,000. Christopher alleged that he indeed had some construction done in 2004 and 2005, which was performed by his relative, whom he paid; Juan and Elizabeth were not at all involved in that construction work. He contended that Juan and Elizabeth lied under oath. Christopher sought to recover the "bartered work" credit they had received for the amount of work they allegedly performed.

The complaint contained three counts relating to Juan, Elizabeth, and Side Jobs allegedly lying about work done on Christopher's former residence, including committing consumer fraud and unconscionable commercial practices (Count I); violating the Consumer Fraud Act,5 under N.J.A.C. 13:45A-16.2 (Count II); and receiving unjust enrichment (Count III). Further counts within the complaint alleged that defendants' counsel, Patrick Grimes, was jointly and severally liable for "reckless disregard and negligence for the misrepresentations and fraudulent manor [sic] in obtaining approximately $15,000 in benefits (Count IV); conversion and "exercising wrongful dominion and control over [Christopher's] private documents and private information," including publishing that information (Count V); presenting Christopher in a false light and defamation of his character (Count VI); and infliction of emotional distress and economic losses (Count VII).

All four defendants answered Christopher's complaint on April 22, 2008, admitting in part and denying in part the allegations of the complaint and setting forth affirmative defenses, including the defense that Christopher lacked standing to sue.

On July 14, 2008, Christopher filed a motion to strike defendants' pleadings and for summary judgment. He asserted that he had not received discovery from defendants and that they owed him $16,000 because they claimed they provided construction work for barter at his former marital home at 22 Sunflower Circle. Christopher alleged that the Ethics Committee believed Juan and Elizabeth and reduced the legal fees by "approximate[ly] $16,000 . . . compensation for the alleged construction work for barter." Christopher denied that any construction work was done on the marital home at 22 Sunflower Circle while he resided there with his family. Because he and his family did not receive the benefit of the construction, he filed this consumer fraud complaint against defendants.

Christopher, represented by Dorca, also averred that Juan and Elizabeth in their answer to the complaint now denied that they ever entered his home at 22 Sunflower Circle. He asserted that they now had an opportunity to come forward with any evidence they had of construction work done on his former home. He contended that they walked away with $16,000 of legal work for an alleged barter deal that never happened. He also stated that Juan and Elizabeth had done no barter work for Dorca's brothers.

As part of their cross-motion in Christopher's action, Juan and Elizabeth certified that they never retained Grimes as their attorney regarding the bartered construction work, retaining him in or about March 2006 only with respect to the default judgment Dorca secured against them. They next retained Grimes to represent them in connection with the misappropriation of their trust funds and thereafter retained him with respect to Christopher's Burlington action.

Oral argument was to be held on the motion on August 14, 2008, at which time the judge instead devised a briefing schedule relating to Juan and Elizabeth's cross-motion and re-scheduled oral argument for September 12, 2008. Christopher was granted an extension, but failed to submit a brief on the cross-motion. The judge then rescheduled oral argument for September 26, 2008, with Christopher's brief due on September 12.

On September 18, 2008, Grimes wrote to the Burlington County judge with respect to Dorca's requests for several extensions of the due date for the brief and urged the judge to decide the pending motion without waiting further for the overdue brief. He also pointed out that Christopher was a defendant in Juan and Elizabeth's Camden County action; he had filed a counterclaim in the Camden action; and the allegations were largely similar in both actions. Grimes further advised that Juan and Elizabeth had moved to dismiss the counterclaims in Camden; that on or about September 12, 2008, the judge granted the motion "for the reasons outlined in the brief"; and that a proposed order had been submitted to him.

On September 26, 2008, the judge in Burlington County heard oral argument on the summary judgment motions in Christopher's case. During the hearing, the judge noted that Christopher had submitted a certification in which he stated that he does not believe that there was ever a "work for barter" deal.6 The judge then stated that there could not be a "consumer fraud contract claim or any third party beneficiary claim because [Christopher's] certification alleges that he doesn't believe there was ever a $16,000 deal."

Counsel to Juan and Elizabeth stated that they alleged there was no contract for work done at Christopher's residence. Instead, Dorca worked for Juan and Elizabeth, and she had told them that her legal fees would be reduced in return for the work that Juan did at Dorca's rental properties. The judge stated that, having reviewed the transcripts from the fee arbitration, he "believe[d] there was a deal between the parties for [Dorca's] services," and "the transcript suggest[ed it was] the rental properties."

II.

The judge dismissed Christopher's complaint at the end of the hearing and expanded upon his determination in an opinion dated September 26, 2008. Specifically, he dismissed Counts IV, V, VI, and VII on the basis of res judicata, and Counts I, II, and III for failure to state a claim upon which relief can be granted:

Several of the counts in the Complaint in this matter are nearly identical to the counts contained in [Christopher's] . . . Counterclaim in Camden County. The counts allege the same causes of actions and rely on the same underlying facts. Specifically, Counts IV, V, VI, and VII in the Complaint are similar respectively to Counts V, I, II, and III in the Camden Counterclaim. These counts were all involuntarily dismissed by Judge Meloni. It would violate the doctrine of res judicata and present a manifest injustice to [Elizabeth and Juan] to allow those claims to be re-litigated in this [c]ourt. Judge Meloni's involuntary dis-missal is equivalent to a final judgment on the matter. Accordingly, Counts IV-VII of [Christopher's] Complaint are dismissed with prejudice.

 

Regarding Counts I, II, and III of [Christopher's] Complaint, [Christopher's] filings with this [c]ourt indicate that [Christopher] is without a valid cause of action. This [c]ourt has specifically examined the copy of the fee arbitration transcript provided by [Christopher]. The transcript clearly indicates that Defendants Elizabeth and Juan Rios allege to have performed work on [Christopher's] former wife's rental properties. At oral argument [Christopher's] former wife, and current counsel, indicated that she did in fact own two piece[s] of property that were not shared with her husband. [Christopher's] cause of action in this matter is premised on the fact that he shared ownership of his home with his former wife and was entitled to the value of services that were never performed as a direct beneficiary of the alleged contract. However, if the work was to be performed on property owned solely by [Dorca], [Christopher] is without standing. The transcript is clear and unambiguous that [Elizabeth and Juan] believed that they were to work on [Dorca's] rental properties, not her residence. Accordingly, [Christopher] is without a valid cause of action for breach of contract.

 

The judge concluded that the remaining counts were all predicated on Christopher's status as an intended beneficiary, requiring their dismissal for lack of standing. The judge signed an October 8, 2008, order which stated that Juan and Elizabeth's "cross-motion for summary judgment dismissing [Christopher's] complaint is granted." Christopher appeals the dismissal of his complaint.

On December 3, 2008, the Supreme Court suspended Dorca from the practice of law for two years effective January 2, 2009, based on her conduct as alleged by Juan and Elizabeth.

On November 10, 2009, Juan and Elizabeth secured a final judgment by default in their Camden County action against Dorca only. The judge found that they had proven that Dorca committed a fraud upon them. The judge awarded compensatory damages in the amount of $2,843.66, punitive damages of $5000, and attorney's fees and costs in the sum of $10,679.15 for a total judgment of $18,522.81.

III.

In this appeal, Christopher alleges that the judge erred in granting summary judgment to Juan and Elizabeth based on res judicata because the claims here were not the claims asserted in his counterclaim in the Camden action. He also contends that he was entitled to have Juan and Elizabeth's answer stricken for failing to provide discovery and that his complaint should not have been dismissed before discovery was complete. Additionally, Christopher asserts that he is entitled to summary judgment on his consumer fraud, breach of home repair contract, and fraud and misrepresentation claims based on Elizabeth's testimony at the fee-arbitration proceedings. Next, Christopher contends that he is entitled to treble damages and other relief. Finally, he urges that Grimes is jointly and severally liable for the fraud perpetrated by his clients and asserts that Grimes suborned perjury.

In reviewing a ruling on a summary-judgment motion, we apply the same standard as that governing the trial court. Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998); Antheunisse v. Tiffany & Co., 229 N.J. Super. 399, 402 (App. Div. 1988), certif. denied, 115 N.J. 59 (1989).

Summary judgment is designed to provide a "prompt, businesslike and inexpensive method of [resolving cases]." Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 74 (1954). Summary judgment is appropriate if there is "no genuine issue as to any material fact" in the record. R. 4:46-2(c).

The judgment or order sought shall be rendered forthwith if 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.

 

[Ibid.]

 

Brill v. Guardian Life Insurance Co. of America, 142 N.J. 520, 540 (1995), outlined the standard for deciding a summary-judgment motion:

[A] determination whether there exists a "genuine issue" of material fact that precludes summary judgment requires the motion judge to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.

 

Therefore, the motion must be considered on the basis that the non-moving parties' assertions of fact are true, and "the court must grant all the favorable inferences to the non-movant." Id. at 536. The determination is whether the evidence "'is so one-sided that one party must prevail as a matter of law.'" Ibid. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214 (1986)).

"If there exists a single, unavoidable resolution of the alleged disputed issue of fact, that issue should be considered insufficient to constitute a 'genuine' issue of material fact for purposes of Rule 4:46-2." Id. at 540 (citation omitted). "However, an opposing party who offers no substantial or material facts in opposition to the motion cannot complain if the court takes as true the uncontradicted facts in the movant's papers." Baran v. Clouse Trucking, Inc., 225 N.J. Super. 230, 234 (App. Div.) (citation omitted), certif. denied, 113 N.J. 353 (1988). Assertions that are conclusory and self-serving are insufficient to defeat a summary-judgment motion. Puder v. Buechel, 183 N.J. 428, 440-41 (2005).

IV.

In Count I of Christopher's complaint, he alleged that Juan and Elizabeth were guilty of consumer fraud because they lied under oath about performing construction work on Christopher's marital home whereas no such work was done. In Count II, he alleged that Juan and Elizabeth failed to comply with consumer fraud regulation N.J.A.C. 13:45A-16.2 with respect to the work they allegedly performed on Christopher's marital home. In Count III, Christopher alleged that defendants were unjustly enriched by successfully asserting that they provided construction work for "barter" for Christopher's benefit without any proof that they had performed such work.

As the motion judge correctly observed, the first three counts in Christopher's complaint are premised on the fact that Christopher shared ownership of the marital home with Dorca until May 2004 and was entitled to the value of services to the home that were never performed but which served to reduce fees to Dorca. Christopher was not a party to the contract for legal services between Dorca and Elizabeth and Juan pursuant to which the parties agreed to a barter arrangement for legal services in exchange for construction services.

The essence of contract liability to a third party is that the contract be made for the benefit of said third party within the intent and contemplation of the contracting parties. Unless such a conclusion can be derived from the contract or surrounding facts, a third party has no right of action under that contract despite the fact that he may derive an incidental benefit from its performance. Under such circumstances, he is neither a creditor beneficiary nor a donee beneficiary but is merely an incidental beneficiary who acquires no enforceable rights under the contract.

 

[Rieder Cmtys., Inc. v. Twp. of N. Brunswick, 227 N.J. Super. 214, 222 (App. Div.) (quoting Gold Mills, Inc. v. Orbit Processing Corp., 121 N.J. Super. 370, 373 (Law Div. 1972)) (citations omitted), certif. denied, 113 N.J. 638 (1988).]

 

In this matter, the record does not show that the "work for barter" arrangement was made with a clear intent that Christopher was an intended beneficiary. In the fee arbitration transcripts, the construction work was to be done on Dorca's and her brother's property in return for legal services. It is not clear whether that agreement was even made before Christopher and Dorca sold the marital home two months after Dorca was retained by Juan and Elizabeth. Juan and Elizabeth certified that work was done to the Hainesport property, and there is no certification from Dorca, the other party to the alleged contract, contradicting that certification or setting forth that there was a deal for construction work to be done at the marital home.7 There simply is no evidence that anyone other than Dorca, or possibly her brother, was to benefit from the "work for barter" deal.

We also note that there is nothing in the record of the fee arbitration that explains how the Committee determined what constituted a reasonable fee. The record does not establish that any sums for construction services were deducted from the amount of the fee billed to Juan and Elizabeth. All that the record establishes is that a reasonable charge for the services provided was $12,131.37 against which Juan and Elizabeth were entitled to credit of 11,631.37 for payments already made, but nothing was credited for the barter work.

Because Christopher has not proven that he was anything other than an incidental beneficiary, at most, he has no standing to sue on Counts I through III. Stubaus v. Whitman, 339 N.J. Super. 38, 50-52 (App. Div. 2001) (finding that a plaintiff must demonstrate harm from a direct injury), certif. denied, 171 N.J. 442 (2002). In order to have standing, a party must (1) have a sufficient stake in the subject matter of the litigation; (2) have a real adverseness to the subject matter of the litigation; and (3) face a likelihood of harm in the event of an unfavorable decision. In re N.J. Bd. of Pub. Utils., 200 N.J. Super. 544, 556 (App. Div. 1985); see also N.J. State Firemen's Mut. Benevolent Ass'n v. N. Judson Reg'l Fire &Rescue, 340 N.J. Super. 577, 587 (App. Div.), certif. denied, 170 N.J. 88 (2001).

The issue of whether Elizabeth and Juan were entitled to a credit for construction work performed was decided in the fee arbitration proceeding insofar as Dorca was concerned, and she no longer had a right to claim that Elizabeth and Juan failed to provide the construction work they claimed to perform. That issue having been decided, Christopher had no standing to prosecute any claim relating to it.

The trial judge properly dismissed these claims. There is nothing to support Christopher's assertion that there was an agreement to perform work on his home, and Christopher fails to show that the deal was made with the intent that he was an intended beneficiary. Furthermore, there is nothing in the record showing that Elizabeth and Juan received a credit for work on Christopher's home because the arbitration determination does not reflect any credit that can be attributed to a "work for barter" deal. Even if one views the portions of arbitration fee transcript in a light most favoring Christopher, the evidence in this matter is so one-sided that Juan and Elizabeth must prevail as a matter of law.

Concomitantly, the first three counts of the complaint were properly dismissed because there are no genuine issues of fact relating to a consumer fraud or breach of contract claim. It must follow that Count IV of the complaint should also be dismissed, as that count alleges Grimes' participation in the acts alleged within the first three counts.

V.

Christopher contends that the remaining counts in his complaint are different from the counterclaims asserted in Juan and Elizabeth's Camden County suit because this action is a consumer-fraud case. Juan and Elizabeth contend that "[m]ost of" Christopher's claims are "similar if not identical" to the dismissed counterclaims made by Christopher in the Camden County action.

Here, the doctrine of res judicata applies. It "provides that a cause of action between parties that has been finally determined on the merits by a tribunal having jurisdiction cannot be relitigated by those parties or their privies in a new proceeding." Velasquez v. Franz, 123 N.J. 498, 505 (1991) (citation omitted). In other words, it prevents "re-litigation of the same controversy between the same parties." In re Estate of Gabrellian, 372 N.J. Super. 432, 446 (App. Div. 2004) (citation omitted), certif. denied, 182 N.J. 430 (2005). "'In order for res judicata to apply, there must be (1) a final judgment by a court of competent jurisdiction, (2) identity of issues, (3) identity of parties, and (4) identity of the cause of action.'" Ibid. (quoting Brookshire Equities, LLC v. Montaquiza, 346 N.J. Super. 310, 318 (App. Div.), certif. denied, 172 N.J. 179 (2002)).

Christopher included the following counterclaims in the answer filed in response to Juan and Elizabeth's Camden suit: Juan, Elizabeth, and Grimes stole and misappropriated Christopher's information and documentation (Count I); Juan, Elizabeth, and Grimes used the information to present Christopher in a false light and defame him (Count II); Juan, Elizabeth, and Grimes committed wrongful acts which inflicted emotional distress (Count III); and Juan, Elizabeth, Grimes, and their insurance companies conspired against Christopher to commit the acts described in prior counts (Count IV, mislabeled as Count V). These counterclaims were dismissed when the Camden County judge granted Juan and Elizabeth's motion for summary judgment on or about September 12, 2008. Counts V and VI of Christopher's complaint in Burlington County are identical to counterclaim Counts I and II. Count VII of the complaint is identical to counterclaim Count III.

During oral argument, the Burlington County judge went through the counterclaims made by Christopher in Camden County and compared them to the counts of the Burlington County complaint. Dorca only objected to the comparison of the counts alleging emotional distress, stating that the emotional distress count in the Burlington County complaint was related to the counts associated with the consumer fraud charges, Counts I through IV. The judge responded that he was not "aware of damages that are allowed for emotional distress of consequential damage in a contract case."

The judge properly dismissed Counts V, VI, and VII because they contain the same allegations that were set forth in the dismissed counterclaims. Additionally, these counts are similar to dismissed criminal allegations filed by Christopher in another proceeding brought against Grimes. See State v. Czartorsky, No. A-4383-07T4 (App. Div. May 7, 2009).

Count IV of the complaint is similar to counterclaim Count IV, as both allege that Grimes conspired with Elizabeth and Juan. However, the Camden County counterclaim refers to the stealing and misuse of private information, while the Burlington County complaint refers to the misrepresentation relating to the "work for barter" deal. As these issues are not similar, Count IV should not have been dismissed under the doctrine of res judicata. However, Count IV should be dismissed along with Counts I, II, and III because there are no genuine issues of material fact that support the claims against Grimes.

Affirmed.

1 Because the parties to this appeal were both plaintiffs and defendants in several actions at the trial level, and because we need to distinguish between spouses, we refer to them by first name to eliminate confusion, although we refer to defendant Patrick Grimes by his last name as his spouse is not a party to this action.

2 Dorca represented Christopher before the trial judge. However, she was suspended from the practice of law for a two-year period, from January 2, 2009, to January 2, 2011, and is not representing him on appeal.

3 This sale was only two months after Elizabeth and Juan retained Dorca, making it highly unlikely that Juan would have performed any construction services on Christopher and Dorca's marital home.

4 Elizabeth and Juan first retained Grimes on March 26, 2006, in connection with setting aside the default judgment.

5 Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -181.

6 This certification is not in the record on appeal.

7 Dorca did argue that Juan and Elizabeth worked on the home in Lumberton during oral argument. However, she did not testify to this at the fee arbitration, nor did she sign a certification in Christopher's action attesting to the content of her oral argument. At oral argument, Dorca acknowledged that she owned properties in addition to the Lumberton marital home. The trial judge read the transcripts and stated that it was "unambiguous that [Juan and Elizabeth] believed that they were to work on [Dorca's] rental properties, not her residence."