CITIBANK SOUTH DAKOTA N.A v. AL SIMON


NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION


SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0011-09T2


CITIBANK SOUTH DAKOTA,

N.A.,


Plaintiff-Respondent,


v.


AL SIMON,


Defendant-Appellant.

______________________________________________________

January 7, 2011


Submitted September 21, 2010 - Decided


Before Judges Carchman and Messano.


On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-000090-08.


Al Simon, appellant pro se.


Faloni & Associates, LLC, attorneys for respondent (David A. Faloni, Sr., on the brief).


PER CURIAM


Following a non-jury trial in the Law Division, judgment was entered in favor of plaintiff, Citibank South Dakota, N.A., against defendant Al Simon in the amount of $28,366.01. Defendant appeals and raises the following issues for our consideration:

I. PLAINTIFF, CITIBANK SOUTH DAKOTA, N.A., ("CITIBANK") FILED AN INCOMPLETE COMPLAINT AND NEVER AMENDED THE COMPLAINT TO CORRECT ITS ERROR.


II. CITIBANK WAS PROHIBITED FROM TRYING TO COLLECT FROM DEFENDANT-APPELLANT BY SECTION 226.12, TITLE 12, C.F.R., AND SECTION 226.13, TITLE 12, C.F.R. AND THE LAW FIRM THAT FILED THE INSTANT ACTION WAS PROHIBITED FROM CONTACTING HIM BY SECTION 1692 ET SEQ., TITLE 15 U.S. CODE.


III. PLAINTIFF, CITIBANK, PREJUDICED DEFENDANT WHEN IT FAILED TO PRODUCED [SIC] REQUESTED DISCOVERY IN A TIMELY FASHION, AND INTRODUCED WITNESSES AND DOCUMENTS THAT WERE NOT PROVIDED TO APPELLANT-DEFENDANT DURING DISCOVERY.


IV. THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT-DEFENDANT'S MOTION TO QUASH PLAINTIFF, CITIBANK'S SUBPOENA DEUCES [SIC] TECUM TO VALLEY NATIONAL BANK.


V. THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT-DEFENDANT THE RIGHT TO A JURY TRIAL.


VI. THE TRIAL COURT ERRED WHEN IT ASSISTED THE PLAINTIFF BY EXAMINING THE PLAINTIFFF'S [SIC] IN ORDER FOR THE PLAINTIFF TO MAKE ITS CASE, BUT OFFERED NO SIMILAR ASSIST[AN]CE TO APPELLANT-DEFENDANT.


VII. PLAINTIFF'S COUNSEL MADE NUMEROUS MISLEADING CERTIFICATIONS AND REPRESENTATIONS.


We have considered these arguments in light of the record and applicable legal standards. We affirm.

Plaintiff commenced this action in the Special Civil Part in July 2007 by filing a complaint that alleged defendant owed monies on a credit card account owned by plaintiff. Defendant's pleading, filed on August 29, denied the allegations and asserted a counterclaim alleging violations of several federal statutes. Defendant demanded a jury trial. In October, plaintiff filed an amended complaint in which it repeated the allegations in its initial complaint and alleged, in a second count, that another credit card account was now in default. Since the amount of monies allegedly owed on both accounts exceeded the jurisdictional limit of the Special Civil Part, plaintiff sought transfer of the amended complaint to the Law Division. See R. 6:4-1(b).1 It does not appear that defendant ever filed another pleading in response to the amended complaint. Discovery ensued.

Defendant served plaintiff with interrogatories, a document request, and a request for admissions. Plaintiff answered the interrogatories and produced various documents including itemized statements for both credit card accounts that were ultimately produced at trial. Plaintiff, however, objected to some requests as "burdensome" and/or "irrelevant."

Defendant moved to extend discovery and compel responses to his discovery demands. On June 6, 2008, the judge granted an extension of discovery until August 25, but denied defendant's motion to compel, finding he "ha[d] not shown the relevance under [E]vidence [R]ule 401 of the requested information." Thereafter, defendant again moved to compel discovery and extend the discovery period. It appears that on August 26, before the motion was heard, plaintiff supplemented its answers to interrogatories and included a list of its potential witnesses at trial. Defendant's motion was denied on September 26, and a subsequent motion seeking the same relief was denied on October 24.

The matter was listed for trial on July 27, 2009. Defendant appeared pro se. After denying plaintiff's motion for summary judgment, the judge considered its motion to strike defendant's jury demand because he "ha[d] not provided jury charges to the Court."2 Plaintiff's counsel noted, "under the rules . . . [defendant] waive[d] [a] jury trial." When asked by the judge, defendant stated that he intended to pursue the statutory claims asserted in his counterclaim.

The judge continued, "plaintiff's counsel has advised me that . . . as a sanction . . . [this case] should not go forward as a jury trial because there ha[s] been no pretrial submissions to the Court pursuant to Rule 4:25-7." After defendant acknowledged that he had not supplied any pre-trial submissions, the judge concluded:

Here[,] we have numerous defense causes of action that concern [f]ederal law and that are not part of our model jury charges. For this Court to impanel a jury where we have no idea what to tell them in terms of what the case is about . . . nor to instruct them about what the law is would be folly. The sanction is here to prevent such confusions to a jury where plaintiff takes a litany of cause of action, strings them together and asks a Court, who's versed in the law, to try to interpret them is one thing. To now have a jury . . . in violation of these rules try to decipher this would be patently ridiculous.


I don't believe that the defendant even has a real understanding of these acts. But for us to inform and to educate a jury requires these pretrial submissions so that we can tailor the charges accordingly and even the preliminary instructions.


None of the requested information as simple as even just a statement of cases provided but where we have a litany of detailed counterclaims involving Federal statutes that are not part of the model charge would be again . . . folly to impanel a jury.


So as such, since the defendant . . . has failed to comply with the rule and to submit the necessary pretrial instructions . . . the Court will sit as the trier of fact on this case since it's going to involve mostly issues of legal interpretation and not any kind of fact issues . . . .


The matter continued as a bench trial.

Plaintiff produced Jay Guenther, a collection analyst and custodian of records with Citicorp Credit Services, Inc. Guenther identified the billing statements for both accounts, as well as copies of three checks made payable to plaintiff drawn on defendant's checking account. The checks coincided with payments received on the accounts. On cross-examination, Guenther admitted that one of the account numbers in the complaint differed from the account numbers contained in the documentary evidence. Plaintiff rested after Guenther's testimony.

Defendant produced no witnesses, chose not to testify and specifically withdrew the statutory claims contained in his counterclaim. In summation, defendant argued that the account numbers listed in the amended complaint were incorrect, that Guenther lacked any personal knowledge of the account activity, and that he never received the account statements or made the purchases and payments reflected.

The judge determined that plaintiff had proven by a preponderance of the evidence that defendant received credit through the use of the credit cards issued, and that defendant was delinquent in payments, as demonstrated by the records and billing statements of the accounts and Guenther's uncontested testimony. The judge's decision was memorialized in the August 6, 2009 order for judgment now under review.

In Point V, defendant argues that the judge erred by denying him a jury trial as a sanction for his failure to comply with Rule 4:25-7. That Rule provides in pertinent part:

At trial and prior to opening statements, the parties shall submit to the court the following in writing: (1) copies of any Pretrial Information Exchange materials that have been exchanged pursuant to this rule, and any objections made thereto; and (2) stipulations reached on contested procedural, evidentiary, and substantive issues. In addition, in jury trials, the parties shall also exchange and submit (1) any proposed voir dire questions, (2) a list of proposed jury instructions pursuant to R. 1:8-7, with specific reference either to the Model Civil Jury Charges, if applicable, or to applicable legal authority, and (3) a proposed jury verdict form that includes all possible verdicts the jury may return. Failure to exchange and submit all the information required by this rule may result in sanctions as determined by the trial judge.


[R. 4:25-7(b).]


Defendant admits he did not comply with the Rule.3 He seeks to excuse the failure by noting that motions, including plaintiff's motion for summary judgment, were pending on the trial date and that he believed a postponement of the trial was likely.

While the Rule contemplates sanctions for its violation, we have noted, in other contexts, that the appropriate exercise of judicial discretion requires that any sanction imposed be commensurate with the procedural violation. See e.g., Conrad v. Michelle & John, Inc., 394 N.J. Super. 1, 10-11 (App. Div. 2007) (concluding that dismissal with prejudice of plaintiff's complaint because of expert's failure to appear at a N.J.R.E. 104 hearing was a mistaken exercise of the judge's discretion since other lesser sanctions were available). Our Constitution provides that "[t]he right of trial by jury shall remain inviolate." N.J. Const. art. I, 9. The judge, of course, had other sanctions available to him short of compelling defendant to try the case without a jury. For example, he could have ordered defendant to produce a pre-trial submission within a reasonable time, and upon failure to do so, the judge could have dismissed the counterclaims. Under the circumstances presented, the judge mistakenly exercised his discretion by imposing this sanction for defendant's violation of Rule 4:25-7. However, in light of what actually transpired at trial, we conclude the error was harmless. R. 2:10-2.

Rule 4:35-1 provides in pertinent part:

(a) Demand; Time; Manner. Except as otherwise provided by R. 4:67-4 (summary actions), any party may demand a trial by jury of any issue triable of right by a jury by serving upon the other parties a demand therefor in writing not later than 10 days after the service of the last pleading directed to such issue. Such demand may be appended to the party's pleading.


(b) . . . .


(c) Waiver. The failure of a party to serve a demand as required by paragraphs (a) and (b) of this rule constitutes a waiver of trial by jury.


(d) . . . .4


"'[I]n civil matters the constitutional right to a jury trial is not absolute.'" Triffin v. Automatic Data Processing, Inc., 411 N.J. Super. 292, 310 (App. Div. 2010) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 537 (1995)). A jury trial "may . . . be waived by subsequent conduct even if timely demanded." Pressler and Verniero, Current N.J. Court Rules, comment 1.2 on R. 4:35-1 (2011). "[A] stipulation between the parties as to all disputed facts will be deemed a waiver of the right to a jury trial." Ibid. (citing Bussell v. DeWalt Products Corp., 259 N.J. Super. 499, 512 (App. Div. 1992) ("the requirement of a jury trial" is eliminated when "no contested factual issues remain[]"), certif. denied, 133 N.J. 431 (1993)).

Initially, since defendant specifically withdrew the statutory claims set forth in his counterclaim, it did not matter that the judge, and not a jury, was sitting as the fact finder.5 That leaves only consideration of whether it was reversible error to deny defendant a jury trial on the complaint itself.

In denying plaintiff's summary judgment motion immediately before trial, the judge concluded that defendant's opposition "read under . . . generous and indulgent standards" presented "sufficient dispute." First, the judge noted defendant's claim that the number on one of the accounts differed by a single digit from that alleged in the complaint. The judge likened this to a "scrivener's error," but also decided he would not "assume anything." Second, the judge observed that in his papers defendant "den[ied] responsibility . . . for the charges."6

However, at trial, defendant chose not to testify and he offered no witnesses or documentary evidence that rebutted plaintiff's claims. His cross-examination of Guenther did not impugn what was essentially undisputed and overwhelming proof of liability. Under the unique circumstances presented, we cannot conclude that denying defendant a jury trial on plaintiff's claim amounted to reversible error.

The remainder of defendant's arguments lack sufficient merit to warrant extensive discussion. R. 2:11-3(e)(1)(E). We only add the following brief comments.

In Point I, defendant argues that the complaints incorrectly identified the accounts and plaintiff produced "nothing to connect [defendant] to the subject accounts." While it is true that one digit was missing from the Gold Card account number listed in the amended complaint, the judge correctly determined the error was "nothing that went to the heart of the matter." The complaint fairly apprised defendant of the claims, and plaintiff's proofs were more than adequate. The "misleading certifications and representations" of plaintiff's counsel referenced in defendant's Point VII relate to these minor errors in the account number. Clearly, that argument lacks merit.

In Point II, defendant argues that consistent with federal law, plaintiff was "required to hold an independent investigation regarding" his claim that he had no knowledge of the accounts listed in the complaint. Since defendant specifically withdrew his counterclaim alleging this statutory violation, the issue was never presented to the trial judge and we refuse to consider it. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (noting the "well-settled principle that . . . appellate courts will decline to consider questions or issues not properly presented to the trial court").

In Points III and IV, defendant takes issue with discovery rulings. We "generally defer to a trial court's decisions regarding discovery, with review under the [abuse of] discretion standard." Pressler and Verniero, supra, comment 4.5 on R. 2:10-2 (2011); accord Bender v. Adelson, 187 N.J. 411, 428 (2006) (applying abuse of discretion standard to the trial court's decision to bar amendments to interrogatory answers and deny discovery extension).

Defendant claims that he suffered prejudice because plaintiff's discovery responses were served after discovery ended and he was, in turn, barred from any further discovery extensions. As noted, plaintiff provided significant discovery regarding its affirmative claim. Although the judge denied defendant's motion to compel certain answers, defendant has failed to specifically demonstrate prejudice because he has failed to show how the requested information was relevant.

Defendant further claims that plaintiff obtained copies of the three checks drawn on his account at Valley National Bank through the improper use of a subpoena duces tecum returnable on the day of the trial, and that the judge erred in denying his motion to quash that subpoena. However, the issue is moot because the transcript reveals that Valley National Bank did not respond to the subpoena. Moreover, plaintiff obtained copies of the checks apparently from its own files.

In Point VI, defendant claims that the judge erred by asking him leading questions regarding his ownership of the accounts. However, defendant does not furnish a specific citation to the record in this regard, and our review of the entire transcript reveals the judge committed no error.

A

ffirmed.

1 It is unclear whether plaintiff complied with Rule 4:9-1, which requires that after a responsive pleading is filed, a complaint may only be amended by consent or upon motion. Rule 6:3-1 expressly makes Rule 4:9-1 applicable to actions initiated in the Special Civil Part.

2 The motion papers are not in the record.

3 We also note that the record fails to reveal whether plaintiff complied with the Rule.


4 As noted, defendant never filed an answer to the amended complaint. At one point during the oral argument on pre-trial motions, defendant claimed he had never seen the amended complaint. In light of our holding below, we need not consider whether defendant properly demanded a jury trial under subsection (a).

5 Summary judgment had already been granted dismissing one of defendant's statutory causes of action contained in the counterclaim.


6 The record does not include the summary judgment submissions of the parties.