Opinion
DOCKET NO. A-2282-13T1
03-20-2015
MARIA PEREIRA, Plaintiff-Appellant, v. JOHN AZEVEDO, WACHOVIA BANK (NOW WELLS FARGO BANK), and GRACE TAVARES, Defendants-Respondents.
Nabil N. Kassem argued the cause for appellant (Kassem & Camejo, L.L.C., attorneys; Mr. Kassem on the briefs). Bruce W. Radowitz argued the cause for respondent John Azevedo. Aaron M. Bender argued the cause for respondent Wells Fargo Bank (Reed Smith, L.L.P., attorneys; Henry F. Reichner, of counsel and on the brief). JoAnn K. Dobransky argued the cause for respondent Grace Tavares (Arleo & Donohue, L.L.C., attorneys; Frank P. Arleo, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes, Ashrafi, and O'Connor. On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-9962-11. Nabil N. Kassem argued the cause for appellant (Kassem & Camejo, L.L.C., attorneys; Mr. Kassem on the briefs). Bruce W. Radowitz argued the cause for respondent John Azevedo. Aaron M. Bender argued the cause for respondent Wells Fargo Bank (Reed Smith, L.L.P., attorneys; Henry F. Reichner, of counsel and on the brief). JoAnn K. Dobransky argued the cause for respondent Grace Tavares (Arleo & Donohue, L.L.C., attorneys; Frank P. Arleo, on the brief). PER CURIAM
Plaintiff Maria Pereira appeals from summary judgment dismissing her claims as barred by the statute of limitations. We affirm.
We conduct plenary review of an order granting summary judgment, applying the same standard under Rule 4:46-2(c) that governs the trial court. Oyola v. Xing Lan Liu, 431 N.J. Super. 493, 497 (App. Div.), certif. denied, 216 N.J. 86 (2013). We must "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." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Here, we view any contested facts most favorably to plaintiff.
In 2002, plaintiff and her then-husband, Antonio, were approached by plaintiff's longtime friend, Lurdes Azevedo, about co-signing a loan for Lurdes' son John. The Pereiras did not ask Lurdes for details about the loan but knew that its purpose was for John to start a lunch truck business. They agreed to co-sign on the condition that, if John failed to make monthly payments, Lurdes would be responsible for the loan.
We mean no disrespect in using first names in this opinion but adopt the designations and spellings used by plaintiff.
On November 16, 2002, the Pereiras signed a "Prime Equity Line of Credit Agreement & Disclosure Statement" and an "Open-End Mortgage." The documents established a $100,000 line of credit and placed a mortgage lien on the Pereiras' home. The parties dispute whether defendant Grace Tavares, a Wachovia Bank loan officer, was present later that day at Wachovia's Clifton Commons Branch and explained the loan documents to the Pereiras in their native language, Portuguese. It appears that another Wachovia employee took identification from the Pereiras and notarized the Open-End Mortgage on that date.
From November 19, 2002, to February 26, 2003, Wachovia transferred approximately $93,000 to John from the credit line. Plaintiff claims she knew nothing about the transfers, and the parties dispute whether Antonio authorized the transfers. Initially, Antonio stated in a certification that he and plaintiff signed the loan documents voluntarily, "were well aware that the bank was putting a lien on [their] house," and authorized the transfers. In the midst of this litigation, however, Antonio retracted his prior statements and claimed the certification was made to "get back at" plaintiff for their divorce in 2005.
Plaintiff alleges she did not become aware of the lien on her home until November 2009 when she was denied a loan from another bank. She immediately sought reimbursement from Wachovia for the "fraudulent" transfers of funds. She also filed a complaint with the Essex County Prosecutor's Office against John, but no criminal charges were pursued by that office. Both Lurdes and John filed petitions for bankruptcy. After learning of the mortgage on her home, plaintiff did not file a lawsuit for another two years.
Plaintiff commenced this action in the Superior Court on December 14, 2011, alleging a variety of state and federal causes of action. The case was removed to federal court and eventually dismissed without prejudice. Upon remand of the matter to State court, plaintiff filed an amended complaint in which she dropped the federal claims and added Tavares as a defendant. Her amended complaint alleged fraud, conversion, misrepresentation, unjust enrichment, negligence, conspiracy, breach of contract, breach of the covenant of good faith and fair dealing, and respondeat superior liability of the bank. Defendants moved for summary judgment on the ground that plaintiff's claims were barred by the statute of limitations. After hearing counsel's arguments, the trial court granted defendants' motions and entered orders for summary judgment on December 18, 2013. This appeal followed.
Plaintiff's opening brief on appeal argues only that summary judgment was erroneously granted to defendants because material issues of fact exist as to the merits of her claims. The trial court, however, did not grant summary judgment on the ground that plaintiff's claims are factually without merit. That issue was never decided. Summary judgment was granted solely because the statute of limitations had run. Neither plaintiff's case information statement in this court nor her initial merits brief mentions the statute of limitations. The first time plaintiff discussed the statute of limitations was in her reply brief. She argued that the question of whether she was time-barred from filing her claims was "inextricably interwoven" with her other arguments. We are not persuaded by that argument.
We quote here the argument point headings listed in plaintiff's opening brief on appeal:
I. THE ORDER SHOULD BE REVERSED BECAUSE TRIABLE ISSUES OF MATERIAL FACTS EXIST AS TO THE CAUSES OF ACTION ALLEGED IN THE COMPLAINT.
A. SUMMARY JUDGMENT IS INAPPROPRIATE BECAUSE THERE ARE TRIABLE ISSUES OF MATERIAL FACTS AS TO WHETHER THE DEFENDANTS MADE MATERIAL MISREPRE-SENTATIONS AND CONSPIRED AGAINST MARIA TO PERPETRATE A FRAUD AGAINST HER.
SUMMARY JUDGMENT IS INAPPROPRIATE BECAUSE THERE ARE TRIABLE ISSUES OF MATERIAL FACTS AS TO WHETHER THE DEFENDANTS ARE LIABLE FOR MIS-APPROPRIATING MONIES BELONGING TO MARIA AND DEPRIVING MARIA OF HER ASSETS.
An issue that is not addressed in a party's initial merits brief is deemed to be waived. See Drinker Biddle & Reath LLP v. N.J. Dept. of Law & Pub. Safety, 421 N.J. Super. 489, 496 n.5 (App. Div. 2011); Liebling v. Garden State Indem., 337 N.J. Super. 447, 465-66 (App. Div.), certif. denied, 169 N.J. 606 (2001). It is improper for a party to use a reply brief to raise an issue for the first time or enlarge the main argument. State v. Smith, 55 N.J. 476, 488, cert. denied, 400 U.S. 949, 91 S. Ct. 232, 27 L. Ed. 2d 256 (1970); L.J. Zucca, Inc. v. Allen Bros. Wholesale Distribs. Inc., 4 34 N.J. Super. 60, 87 (App. Div.), certif. denied, 218 N.J. 273 (2014); N.J. Citizens Underwriting Reciprocal Exch. v. Kieran Collins, D.C., LLC, 399 N.J. Super. 40, 50 (App. Div.), certif. denied, 196 N.J. 344 (2008); Borough of Berlin v. Remington & Vernick Eng'rs, 337 N.J. Super. 590, 595-96 (App. Div.), certif. denied, 168 N.J. 294 (2001). By failing to address the statute of limitations in her initial brief, or even cite to it as a basis for her appeal, plaintiff waived an argument that her claims should not have been dismissed as time-barred.
Although we affirm the summary judgment order because of this deficiency in plaintiff's appeal, we have also considered the merits of whether the statute of limitations was properly applied. We affirm the trial court's summary judgment orders on that ground as well.
N.J.S.A. 2A:14-1 provides a six-year statute of limitations for:
[e]very action at law for trespass to real property, for any tortious injury to real or personal property, for taking, detaining, or converting personal property, for replevin of goods or chattels, for any tortious injury to the rights of another . . . or for recovery upon a contractual claim or liability, express or implied . . . .
Statutes of limitations create repose and are "'practical and pragmatic devices to spare the courts from litigation of stale claims, and the citizen from being put to his defense after memories have faded, witnesses have died or disappeared, and evidence has been lost.'" Union City Hous. Auth. v. Commonwealth Trust Co., 25 N.J. 330, 335 (1957) (quoting Chase Sec. Corp. v. Donaldson, 325 U.S. 304, 314, 65 S. Ct. 1137, 1142, 89 L. Ed. 1628, 1635 (1945)). "Where, however, the plaintiff does not know or have reason to know that he has a cause of action against an identifiable defendant until after the normal period of limitations has expired, the considerations of individual justice and the considerations of repose are in conflict and other factors may fairly be brought into play." Farrell v. Votator Div. of Chemetron Corp., 62 N.J. 111, 115 (1973).
To reach a just accommodation of these considerations, our Supreme Court adopted the "discovery principle" in Fernandi v. Strully, 35 N.J. 434, 450 (1961). The discovery principle postpones accrual of a cause of action until "the injured party discovers, or by an exercise of reasonable diligence and intelligence should have discovered that he may have a basis for an actionable claim." Lopez v. Swyer, 62 N.J. 267, 272 (1973). The standard for determining whether a plaintiff "knew or should have known" of an actionable claim is an objective one. Martinez v. Cooper Hosp.-Univ. Med. Ctr., 163 N.J. 45, 52 (2000) (quoting Baird v. Am. Med. Optics, 155 N.J. 54, 72 (1998)).
In applying this discovery rule, judges must evaluate and weigh all relevant facts and circumstances. Lopez, supra, 62 N.J. at 275-76. The burden of proof rests upon the party claiming indulgence of the discovery rule. Id. at 276. A plaintiff's subjective characteristics, standing alone, do not absolve him or her of the obligation to file a claim within the statutory period. Martinez, supra, 163 N.J. at 55. "Thus, a litigant generally will not succeed under discovery rule analysis by claiming illiteracy or lack of education as the basis for having failed to appreciate either the existence of an injury or the fault of another." Ibid.
Here, the trial court was correct in dismissing plaintiff's claims as barred by the six-year statute of limitations. Plaintiff's alleged damages occurred when a mortgage lien was placed on her home in November 2002. The transfers of funds were completed by February 26, 2003. Plaintiff took no legal action until December 14, 2011, about nine years later. Her claims were barred by the six-year statute of limitations.
The court was also correct in declining to apply the discovery rule. Although plaintiff asserts that a language barrier and lack of education prevented her from understanding the documents she signed in 2002, she was aware that she might bear some financial responsibility for the transaction. Plaintiff agreed to co-sign the loan on the condition that Lurdes make payments if John was unable to do so. That condition was a private agreement among plaintiff, Lurdes, and John and not binding on Wachovia. Moreover, it indicates that plaintiff knew she would be responsible to the bank if Lurdes and John did not pay. Plaintiff was not totally unsophisticated in financial matters, having previously purchased a home and lent money to another individual.
If plaintiff did not fully understand the loan and mortgage documents, a reasonable person would have obtained a translation or adequate explanation of the documents before signing them. By signing, plaintiff is presumed to have read, understood, and assented to the terms of the documents. Peter W. Kero, Inc. v. Terminal Const. Corp., 6 N.J. 361, 368 (1951).
The trial court did not err in dismissing plaintiff's complaint because the statute of limitations had run and she was not entitled to an extension of the six-year limitations period under the discovery rule.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
In addition, plaintiff's initial brief states the "Question Presented" on the appeal is "Whether the Law Division erred in granting summary judgment where triable issues of material facts exist as to the claims alleged in the amended complaint?"