Cross-Appellant, v. Cross-Respondent. (2011)

Defendant Patrick Allen appeals from a June 11, 2009 order granting summary judgment in favor of plaintiff Trump Taj Mahal (Trump) in the amount of $120,000.   Defendant asserts that summary judgment should not have been granted because issues of material fact existed as to (1) whether Trump violated the regulations of the Casino Control Act, N.J.A.C. 19:45-1.25 to -1.29, by extending credit to defendant while his credit was suspended at other New Jersey casinos and (2) whether defendant possessed the capacity to enter into a legal contract due to his intoxication.   Plaintiff cross-appeals the Law Division's denial of pre-judgment interest in the amount of $18,816.90.   We affirm the judgment of the Law Division, substantially for the reasons expressed in the comprehensive and insightful bench opinion rendered orally by Judge William E. Nugent on June 11, 2009.

I.

On April 19, 2006, defendant applied for and was granted a $25,000 line of credit at Trump.   On April 29, 2006, Trump approved a request from defendant to increase his credit limit from $25,000 to $30,000.   On July 22, Trump approved two additional increases of defendant's credit line, first from $30,000 to $50,000, and then from $50,000 to $60,000.   On August 3, 2006, another request was granted by Trump, to increase defendant's credit from $60,000 to $100,000.

Thus, over a five-month period of time, defendant's line of credit had been increased incrementally from $25,000 to $100,000.   On September 19, 2006, Trump attempted to deposit a countercheck marker, but the check was returned for insufficient funds.   As a result, defendant's credit account at Trump was suspended.   Subsequently, in four separate payments, defendant paid off the delinquent countercheck in full between October 2006 and December 2006.¹  On December 9, 2006, defendant's account at Trump was reinstated with an initial credit limit of $50,000 and then, $100,000 after another request to increase was made by defendant.   On that date, defendant issued four separate counterchecks totaling $100,000, which were consolidated into one countercheck, dated December 9, 2006.   Defendant lost the $100,000 while gambling on table games and slot machines.

On January 1, 2007, defendant requested an additional $30,000 increase to his credit line, bringing the total to $130,000.   Defendant executed a separate countercheck on that date for the $30,000 and lost the entire amount.

On January 23, 2007, Trump deposited the December 9, 2007 countercheck for $100,000, but the check was returned for insufficient funds.   Similarly, on February 15, 2007, Trump deposited the January 1, 2007 countercheck for $30,000, and it was also returned for insufficient funds.   On March 31, 2007, defendant made a payment of $10,000 toward the outstanding debt, decreasing to $120,000 the amount owed to Trump.

On July 31, 2007, Trump filed a complaint against defendant in the Atlantic County Superior Court, Law Division, to recover the gambling debt of $120,000.   Defendant filed his answer on December 20, 2007, and on April 1, 2009, after the completion of discovery, Trump moved for summary judgment, which defendant opposed.

Judge Nugent heard oral arguments on May 28, 2009, and ruled from the bench on June 11, 2009, granting summary judgment in favor of plaintiff, but denying plaintiff's cross-motion for prejudgment interest.   The judge memorialized his decision in an order of the same date, and defendant filed his notice of appeal on July 24, 2009.   Trump filed its notice of cross-appeal on July 30, 2009.

II.

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.   Our review of a ruling on summary judgment is de novo, applying the same legal standard as the trial court.  Chance v. McCann, 405 N.J.Super. 547, 563 (App.Div.2009).   In making a determination, the motion court and this court must consider the facts in the light most favorable to the non-moving party and decide “ ‘whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.’ ”  Liberty Surplus Ins. Corp. Inc. v. Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995)).

On this appeal, we must consider whether the motion judge erred (1) by concluding that plaintiff had not violated casino credit regulations by extending credit to defendant when he was still allegedly in debt to Trump and other casinos and (2) by concluding that defendant had not proven the defense of intoxication.

We first address defendant's contention that Trump should not have reinstated and increased defendant's line of credit on December 9, 2006 and that it should not have granted him an additional increase on January 1, 2007 because he did not pay off the August 2, 2006 marker and had an outstanding balance at Tropicana.   Specifically, in the face of contrary business records, defendant asserts that Trump manipulated the books to show zero balances on his credit accounts on the days that Trump extended credit to defendant so it would appear that Trump was in compliance with casino regulations.   Defendant argues there are issues of material fact in dispute which precluded the grant of summary judgment.

Judge Nugent denied the existence of an issue of material fact with respect to this contention and relied, in pertinent part, on the sham affidavit doctrine.   He reasoned:

[T]he defendant makes a generic allegation that he had outstanding balances at other casinos, and he makes that in the face of clear documentary evidence that he did not.   He doesn't name any of the other casinos.   He makes no attempt, and he could have done it fairly easily during discovery, to obtain documentation to demonstrate at the time he owed money to another casino.   He just simply throws in that allegation in a certification that he makes.   In my view, first of all, that evidence is probably incompetent.   It might not be.   It's just hard for me to tell.   If, in fact, ․ the defendant was keeping track of his debt, which he kind of insinuates that he wasn't as he keeps saying that he was drinking all the time and really wasn't aware of what was going on, but he hasn't offered any documentary evidence.   It would be pretty easy, I would think, to show that he had an outstanding debt at another casino at a time when he was extended credit at Trump, and I don't know why he hasn't done that unless the evidence that is indeed overwhelming and one-sided in Trump's submission is that in fact he had no such debt.

So I am rejecting his, his assertion.   I am rejecting as creating a genuine issue of material fact his unsupported generic allegations.

․

I'm satisfied that to the extent that the certification of the defendant contradicts his deposition testimony on what are his two specific defenses, namely that he was-one, that he was intoxicated at the time that he took out credit on any occasion, and (b) that Trump somehow cooked its documentation and its books to falsely show that he had paid off his outstanding balances when in fact he had not, I'm satisfied the certification is a sham affidavit and, for the reasons I've already explained, I reject it.

The sham affidavit doctrine “refers to the trial court practice of disregarding an offsetting affidavit that is submitted in opposition to a motion for summary judgment when the affidavit contradicts the affiant's prior deposition testimony.”  Shelcusky v. Garjulio, 172 N.J. 185, 194 (2002).   “The doctrine calls for rejection of the affidavit where the contradiction is unexplained and unqualified by the affiant.   In such circumstances, the alleged factual issue in dispute can be perceived as a sham, and as such it is not an impediment to a grant of summary judgment.”  Ibid. The Court specifically noted that the sham doctrine calls for the trial court to perform an evaluative function that is consistent with the Court's holding in Brill, that is, “to evaluate whether a true issue of material fact remains in the case notwithstanding an affiant's earlier deposition testimony.”  Id. at 201.

We agree with the trial judge and are confident that defendant's certifications do not raise a genuine issue of fact as to whether Trump manipulated business records to show that defendant paid off the August 6, 2006 marker in the amount of $100,000.   Indeed, we conclude that the trial judge thoroughly analyzed the facts of the case and affirm the judgment of the Law Division substantially for the reasons expressed in that court's opinion.

We next address whether the trial judge erred in finding no issue of material fact with regard to defendant's asserted defense of intoxication.   The trial judge, quoting from Seminara v. Grisman, 137 N.J. Eq. 307, 312 (Ch. Div.1945), stated:

“A contract should not be enforced where the mind of the party was so disqualified by excessive and complete intoxication that he was, at the time, mentally incapable of understanding the subject of the agreement, its nature, and probable consequences.”

The judge then elaborated:

That is what has to be established to establish a defense of intoxication, and we have on the one hand the defendant's deposition testimony where he is unable as a matter of law in my view-and I am stating this as my conclusion of law-that based on his deposition testimony he is unable to establish that defense, and the reason that I reach that conclusion is in each instance where he was extended credit, in response to very specific questions put to him at his deposition he had no recollection of whether he had been drinking, if so what, how much, and so forth, and without any recollection of the specific events and without even, even being able to say under oath at deposition, “Although I don't remember the exact date and I don't remember the exact time, I remember either (a) that every time I gambled there I was intoxicated to the point where I couldn't really agree to anything intelligently,” or absent deposition testimony that he was drinking on a specific occasion he cannot, as a matter of law, demonstrate that he was so disqualified by excessive and complete intoxication that he was at the time mentally incapable of understanding the subject of the agreement, its nature and its probable consequences.

So the question then becomes if, at his deposition, he gave testimony that was entirely inadequate to establish the defense of intoxication, is the certification that he signed in order to defeat this summary judgment motion a sham affidavit.

․

Applying that criteria to the certification in this case, I conclude that the affidavit with respect to the intoxication is indeed a sham affidavit.

We find that these comments disclose an adequate and proper basis for granting summary judgment in favor of plaintiff as to this issue.

III.

We also affirm Judge Nugent's denial of prejudgment interest to plaintiff.   In denying prejudgment interest, the judge held that:

The circumstances evidenced by the facts on this motion record do not support an equitable award of pre-judgment interest.   Although compulsive gambling is not a defense to a collection on a “bounced” casino counter check, compulsive gambling and the allegation of a casino catering to a compulsive gambler is a factor that militates against the “equitable” award of pre-judgment interest.   On the motion record that has been presented to me, there are no countervailing “equitable” considerations that warrant the award of pre-judgment interest.

“The allowance of prejudgment interest is a matter of discretion for the trial court.   Unless the award ‘represents a manifest denial of justice,’ an appellate court should not interfere.”  County of Essex v. First Union Nat. Bank, 186 N.J. 46, 62 (2006) (internal citations omitted).   A trial court's rulings on discretionary decisions are entitled to deference and will not be reversed on appeal absent a showing of an abuse of discretion involving a clear error in judgment.  State v. Marrero, 148 N.J. 469, 484 (1997).

Nothing in the record below suggests that the trial court abused its discretion in denying plaintiff prejudgment interest.   In light of our deference, the trial court was within its sound discretion as to this ruling.

To the extent that we have not specifically addressed issues or arguments advanced by defendant, we deem them to be without sufficient merit to warrant discussion.   R. 2:11-3(e)(1)(E).

Affirmed.

FOOTNOTES

FN1. A $25,000 payment was made on October 27, 2006;  $25,000 was paid on November 17, 2006;  $20,000 on December 2, 2006;  and $30,000 on December 9, 2006..  FN1. A $25,000 payment was made on October 27, 2006;  $25,000 was paid on November 17, 2006;  $20,000 on December 2, 2006;  and $30,000 on December 9, 2006.

PER CURIAM