ROBERT J. TRIFFIN v. WAL-MART STORES, INC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4059-08T2

ROBERT J. TRIFFIN,

Plaintiff-Appellant,

v.

WAL-MART STORES, INC.,

Defendant-Respondent.

________________________________________________________________

March 28, 2012

 

Argued January 25, 2012 - Decided

 

Before Judges J. N. Harris and Koblitz.

 

On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Atlantic County, Docket No. DC-905-07.

 

Robert J. Triffin, appellant, argued the cause pro se.

 

Mariah Murphy argued the cause for respondent (Ballard Spahr L.L.P., attorneys; Ms. Murphy and Christopher Corsi, on the brief).

PER CURIAM

Plaintiff Robert J. Triffin appeals from two orders issued after our prior remand. He appeals a November 12, 2008 order granting the application of defendant Wal-Mart Stores, Inc. (Wal-Mart) to file an amended answer to Triffin's amended complaint and to respond to Triffin's request for admissions out of time. He also appeals a March 13, 2009 order granting Wal-Mart's motion for summary judgment and dismissing Triffin's complaint with prejudice. Triffin maintains that the motion judge erroneously considered a Wal-Mart employee's certification, as it was not based on first-hand knowledge. Triffin further asserts the motion judge abused his discretion by allowing defendant to belatedly amend its answer and respond to requests for admission. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Triffin is in the business of purchasing dishonored negotiable instruments and then suing pro se on either the notes or a variety of contractual or statutory theories. Triffin v. Automatic Data Processing, Inc., 394 N.J. Super. 237, 241 (App. Div. 2007). He has obtained notoriety for filing over 15,000 lawsuits as an assignee of dishonored checks. Triffin v. Am. Intern. Grp., Inc., 372 N.J. Super. 517, 521 n.2 (App. Div. 2004).

This matter stems from Triffin's purchase of nine dishonored checks purportedly issued by Wal-Mart. On November 15, 2006, he filed a ten count complaint against Wal-Mart and several individual defendants whose names appear on the checks as payees, seeking to recover payment on the checks plus prejudgment interest. Copies of the dishonored checks were not attached to the complaint, and Triffin did not furnish the checks when asked to do so by Wal-Mart. In the first nine counts, Triffin alleges that he is a holder in due course and that Wal-Mart is liable to him pursuant to two provisions of the Uniform Commercial Code, N.J.S.A. 12A:3-414 and N.J.S.A. 12A:4-403. In the tenth count, Triffin alleges Wal-Mart's liability under either one of two other provisions of the Code, N.J.S.A. 12A:3-405, which holds an employer responsible for fraudulent indorsement by an employee, or N.J.S.A. 12A:3-406, which holds an employer liable for a failure to safeguard the instrument, thereby substantially contributing to its fraudulent indorsement.

On April 12, 2007, the motion judge granted Triffin's motion for leave to amend his complaint to include JP Morgan Chase Bank, N.A., (Chase) as an additional defendant. Also on April 12, 2007, Triffin served on Wal-Mart's counsel of record a Request for Admissions.

On April 19, 2007, Triffin filed his amended complaint, which added Chase as an additional defendant and asserted an equitable claim of unjust enrichment or, alternatively, wrongful conversion. After conducting an investigation, Chase notified Triffin by letter dated May 23, 2007, that eight of the checks were counterfeit and the ninth "item's payment amount had been altered." On June 18, 2007, Triffin voluntarily dismissed his claim against Chase with prejudice.

By order dated September 4, 2007, the judge entered summary judgment in Wal-Mart's favor and denied Triffin's motion for reconsideration on September 25, 2007. In October 2007, Triffin appealed the September 2007 orders, asserting in his notice of appeal that no issues were pending against any party.

On January 16, 2008, Triffin voluntarily dismissed his claims against Wal-Mart's remaining co-defendants with prejudice. We remanded the matter for a determination on whether the checks in question were clearly counterfeit.1 Robert J. Triffin v. Wal-Mart Stores, Inc., A-0831-07T3, (App. Div. July 3, 2008).

On or about August 28, 2008, Wal-Mart filed a renewed motion for summary judgment with the motion judge. In support of its motion, Wal-Mart attached the certifications of Megan Easley, an employee of Wal-Mart, and Nicole L. Bricker, a Chase employee. The certifications of both Easley and Bricker explain the mechanics of Chase's Positive Pay system, which is used to verify the validity of checks issued by participating companies.2

On or about September 15, 2008, Triffin filed an opposition to Wal-Mart's motion, in which he requested oral argument. On September 24, 2008, Wal-Mart filed a motion for leave to file an amended answer to Triffin's amended complaint and for leave to respond to Triffin's request for admissions. By order dated November 12, 2008, after oral argument, the judge granted these requests. On November 24, 2008, the judge granted Triffin one hundred days to conduct discovery based on Triffin's representation that these rulings "completely chang[ed] the scope of the defense."

On March 13, 2009, without any discovery requests from Triffin and with no further submissions from either party, the motion judge granted Wal-Mart's renewed motion for summary judgment and dismissed Triffin's complaint with prejudice without further oral argument.

Triffin raises the following issues on appeal:

POINT I

 

THE TRIAL COURT COMMITTED REVERSIBLE ERROR OF LAW WHEN IT FOUND THAT WAL MART'S CERTIFICATION OF MEGAN EASLEY IS ADMISSIBLE IN SUPPORT OF WAL-MART'S MOTION FOR SUMMARY JUDGMENT, AND THAT THE MATERIAL FACTS OF WAL-MART'S PREEMPTIVE COUNTERFEIT CHECK DEFENSE ARE NOT REASONABLY IN DISPUTE.

 

POINT II

 

THE TRIAL COURT ABUSED ITS DISCRETION, AND COMMITTED REVERSIBLE ERROR OF LAW, WHEN IT DISREGARDED THE RESULTING AND MATERIAL PREJUDICE INURING TO TRIFFIN FROM THE GRANT OF WAL-MART'S MOTION TO AMEND ITS ANSWER, AND TO ANSWER TRIFFIN'S REQUEST FOR ADMISSIONS ON THE EVE OF TRIAL.

A motion for summary judgment must be granted if "the pleadings, depositions, answers to interrogatories and admissions on file, together with 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." R. 4:46-2. A motion judge's function is not "'to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial' in viewing the facts in the light most favorable to the non-moving party." Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 329 (2010) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)). "An issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact." R. 4:46-2(c).

When reviewing an order granting summary judgment, we "employ the same standard [of review] that governs the trial court." Busciglio v. DellaFave, 366 N.J. Super. 135, 139 (App. Div. 2004). "As only a legal issue is involved in the absence of a genuine factual dispute, that standard is de novo, and the trial court rulings 'are not entitled to any special deference.'" Henry, supra, 204 N.J. at 330 (quoting Manalapan Realty, L.P. v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995)). Thus, a reviewing court must "first decide whether there was a genuine issue of material fact, and if none exists, then decide whether the trial court's ruling on the law was correct." Ibid. (citing Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998)).

Triffin first contends that the motion judge erred in admitting Megan Easley's certification in support of Wal-Mart's motion because it fails to provide any foundational basis from which to conclude that she has personal knowledge of the facts to which she attests.

Rule 1:6-6 explains the personal knowledge requirement governing affidavits and certifications submitted in support of motions. It provides:

If a motion is based on facts not appearing of record or not judicially noticeable, the court may hear it on affidavits made on personal knowledge, setting forth only facts which are admissible in evidence to which the affiant is competent to testify and which may have annexed thereto certified copies of all papers or parts thereof referred to therein. The court may direct the affiant to submit to cross-examination, or hear the matter wholly or partly on oral testimony or depositions.

 

[R. 1:6-6]

 

A certification will support the grant of summary judgment "only if the material facts alleged therein are based, as required by Rule 1:6-6, on 'personal knowledge.'" Wells Fargo Bank, N.A. v. Ford, 418 N.J. Super. 592, 599 (App. Div. 2011) (citing Claypotch v. Heller, Inc., 360 N.J. Super. 472, 489 (App. Div. 2003)).

Triffin points out that Easley's certification fails to reference both her position within Wal-Mart and a description of her specific duties. Without this information, Triffin avers, Easley's personal knowledge concerning the counterfeit nature of the subject checks is unclear.

Wal-Mart contends that Easley's certification complies with Rule 1:6-6 because it is "made upon personal knowledge" and "is admissible evidence." As noted by Wal-Mart, Triffin failed to cite any support for his contention that Easley was required to provide greater detail concerning her personal knowledge of the material facts in this case.

Triffin also asserts that a handwritten passage in Easley's certification contradicts a previous, typewritten passage. In fact, however, it merely clarifies an earlier statement that the check numbers in question were issued by Wal-Mart, but were done so under different amounts and to different payees than those found on the checks purchased by Triffin. In other words, the checks purchased by Triffin were not issued by Wal-Mart. Contrary to Triffin's assertion, this handwritten amendment to Easley's certification does not give rise to a genuine issue of material fact.

At the hearing on Wal-Mart's motion for leave to amend on November 7, 2008, the motion judge granted Triffin's request for one hundred days of discovery. The written order was issued November 28, 2008 and summary judgment was granted over one hundred days later, on March 13, 2009.3 Triffin had ample opportunity to either apply to the judge for an order allowing him to depose Easley, Rule 6:4-4, or to issue interrogatories, Rule 6:4-3(a), if he sought to challenge the material facts in her certification as objectionable hearsay. Instead, Triffin did not conduct any discovery for that purpose during the time provided by the judge.

Triffin argues that the motion judge erred in finding no genuine issue of material fact with respect to Wal-Mart's counterfeit check defense. He points to purported contradictions and omissions in the certifications submitted by Wal-Mart and argues that Wal-Mart failed to present sufficient evidence to show that the subject checks were counterfeit.

N.J.S.A. 12A:3-401(a) provides that "[a] person is not liable on an instrument unless the person signed the instrument[.]"4 Forgeries are included within the definition of "unauthorized" signatures. N.J.S.A. 12A:1-201(43) ("'Unauthorized' signature or indorsement means one made without actual, implied, or apparent authority and includes a forgery."). A counterfeit check is considered "the equivalent of a forged check." Triffin v. Pomerantz Staffing Servs., LLC, 370 N.J. Super. 301, 307 n.2 (App. Div. 2004). "[O]nly the malefactor can be held liable on a forged or counterfeit instrument[.]" Id. at 306 (citing Perini Corp. v. First Nat'l Bank, 553 F.2d 398, 404 (5th Cir. 1977)). Furthermore, "the burden of 'establishing validity is on the person claiming validity.'" Id. at 308 (quoting N.J.S.A. 12A:3-308(a)). Thus, Wal-Mart cannot be held liable to pay on the subject checks if they are determined to be counterfeit, and Triffin bears the burden of presenting evidence that would raise a genuine issue as to their validity.

Bricker's certification states that she examined Chase's records and, pursuant to the Positive Pay system, provisional payments were made on the subject checks. The subject checks were then cross-referenced to the list of checks issued by Wal-Mart. After her investigation, she determined the subject checks did not match Wal-Mart's issuance information and identified them as "duplicate check payments." At no point in her certification, however, does she use the word "counterfeit."

Triffin argues that the standard applicable to summary judgment motions requires the judge to interpret this omission in his favor, thereby presenting a genuine dispute of material fact sufficient to preclude a grant of summary judgment on the issue.

Triffin's argument is misguided. In noting the discrepancies between Triffin's checks and Wal-Mart's issuance information, and identifying the provisional payments made on Triffin's checks as duplicates, Bricker's certification demonstrates that the subject checks were not issued by Wal-Mart. While the judge is required to interpret the facts in a light most favorable to Triffin, Henry, supra, 204 N.J. at 330, the absence of the word "counterfeit" does not require the judge to overlook the substance underlying the factual assertions in Bricker's certification, especially in light of Chase's letter to Triffin in May 2007 notifying him that the checks were counterfeit.

Triffin further asserts that the motion judge erred by granting Wal-Mart's motion for leave to amend its answer and to answer Triffin's request for admissions out of time. In his written decision attached to the November 24, 2008 order, the judge noted that he granted Wal-Mart permission to amend its answer "so that the interests of justice may prevail."

Rule 4:9-1 "'requires that motions for leave to amend pleadings be granted liberally'" and "without consideration of the ultimate merits of the amendment." Notte v. Merchs. Mut. Ins. Co., 185 N.J. 490, 501 (2006) (citations omitted); see also Winslow v. Corporate Exp., Inc., 364 N.J. Super. 128, 140 (App. Div. 2003). The "broad power of amendment" may be "exercised at any stage of the proceedings, including on remand after appeal, unless undue prejudice would result[,]" Kernan v. One Wash. Park Urban Renewal Assocs., 154 N.J. 437, 457 (1998) (quoting Pressler, Current N.J. Court Rules, comment on R. 4:9-1 (1998)), or unless the amendment "would be futile." Notte, supra, 185 N.J. at 501.

The decision of whether to grant a motion for leave to amend pleadings is left to the discretion of the trial court "in light of the factual situation existing at the time each motion is made." Ibid. (citing Interchange State Bank v. Rinaldi, 303 N.J. Super. 239, 256 (App. Div. 1997)). Such a decision will not be disturbed unless it constitutes "a clear abuse of discretion." Franklin Med. Assocs. v. Newark Pub. Schs., 362 N.J. Super. 494, 506 (App. Div. 2003) (quoting Salitan v. Magnus, 28 N.J. 20, 26 (1958)).

In granting Wal-Mart's motion to amend, the judge noted that Wal-Mart sought to amend its pleading to conform to newly acquired facts, as it learned of the checks' counterfeit nature only after filing its initial answer and after Chase was joined as a co-defendant.

The judge's decision to grant Wal-Mart permission to amend its answer was not an abuse of discretion, as it was rooted in the factual situation existing at the time the motion was made. See Notte, supra, 185 N.J. at 501; Fisher v. Yates, 270 N.J. Super. 458, 467 (App. Div. 1994). "Although the court must be concerned that no undue delay or prejudice will result from the amendment, it must weigh such factors against the overriding need to seek justice." Adron, Inc. v. Home Ins. Co., 292 N.J. Super. 463, 475-76 (App. Div. 1996) (internal quotations and citations omitted).

Triffin also argues that the motion judge abused his discretion in allowing Wal-Mart to amend its response to Triffin's request for admissions.

Rule 4:22-1 states that "[a] party may serve upon any other party a written request for the admission[] . . . of the truth of any matters of fact within the scope of [Rule] 4:10-2 set forth in the request[.]" The Rule further states that when a party fails to answer a request for admissions within thirty days of service, each matter is deemed admitted. R. 4:22-1.

Rule 4:22-2, however, allows a court to "permit withdrawal or amendment [to an admission] when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will be prejudicial to maintaining the action or defense on the merits." On appeal, a decision made pursuant to this rule will stand absent an abuse of discretion. Gilborges v. Wallace, 153 N.J. Super. 121, 131 (App. Div. 1977).

Triffin argues that pursuant to the thirty-day time limit of Rule 4:22-1, Wal-Mart's failure to respond to his request is tantamount to a conclusive admission that none of the dishonored checks are counterfeit. He asserts that Wal-Mart's failure to respond influenced his tactical decision to dismiss his claim against Chase with prejudice.

In reliance on Rule 4:22-2, the motion judge found that permitting Wal-Mart to answer Triffin's request for admissions would facilitate disposition on the merits without causing prejudice to Triffin. The motion judge's written decision notes that Wal-Mart thought Triffin was withdrawing his requests for admissions based on the letter dated May 10, 2007, sent after Triffin filed his amended complaint, in which he stated, "In light of the superseding nature of [the] court's grant of plaintiff's motion to file a first amended complaint in this action, I am operating under the belief that Wal-Mart's original interrogatories are moot."

Triffin's request for admissions included an admission that the checks were not counterfeit. Wal-Mart's subsequent defense was premised on knowledge obtained from Chase that the checks in question were counterfeit. The judge rightly decided that allowing Wal-Mart to respond to Triffin's request for admissions would "certainly subserve the merits of this action."

T

riffin alleges he suffered prejudice as a result of the judge's decisions. Although he did not file a motion requesting this relief, he argues that the judge should have allowed him to reinstate the defendants he voluntarily dismissed with prejudice. We find this argument to be without sufficient merit to warrant a discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

1 We indicated that, "[i]f such checks were clearly fraudulent, then the check cashing companies would not be holders in due course and all rights assigned to Triffin would be subject to any defense available to Wal-Mart either under the Code or at common law." Robert J. Triffin v. Wal-Mart Stores, Inc., A-0831-07T3, (App. Div. July 3, 2008) (slip op. at 7).

2 According to Easley's certification, when Wal-Mart issues checks under the Positive Pay system, Wal-Mart generates a list of check numbers with corresponding amounts payable. She continued:

Once a check is presented for payment, a check is provisionally paid. The check is then cross[-]referenced to the list of issued checks. If the check does not match, either by check number or amount, Chase notifies Wal-Mart of the discrepancy. Upon notification, Wal-Mart has twenty[-]four hours to respond to Chase as to whether the check(s) should be returned or paid. If Wal-Mart does not respond, a check will automatically be returned.

3 Although not raised as an issue in his brief, Triffin argued before us that we should reverse the motion judge because he did not afford oral argument prior to granting summary judgment, which Triffin requested, and did not explain the reasons for denying oral argument. See R. 1:6-2(d); Raspantini v. Arocho, 364 N.J. Super. 528, 531-32 (App. Div 2003). In this unusual situation, where the judge adjourned the summary judgment disposition to afford plaintiff an opportunity to conduct essential discovery and plaintiff failed to take advantage of that opportunity, we find such oversight to be harmless error. R. 2:10-2.

4 "'Signed' includes any symbol executed or adopted by a party with present intention to authenticate a writing." N.J.S.A. 12A:1-201(39). The comment to this provision states that "a complete signature is not necessary. Authentication may be printed, stamped or written; it may be by initials or by thumbprint. . . . The question always is whether the symbol was executed or adopted by the party with present intention to authenticate the writing." Official Comments to N.J.S.A. 12A:1-201(39).