On appeal from Superior Court of New Jersey, Chancery Division, Ocean County.
Michels and D'Annunzio. The opinion of the court was delivered by D'Annunzio, J.A.D.
Plaintiff Mack Auto Imports, Inc., an authorized dealer of Jaguar cars, commenced this action against car-maker Jaguar Cars, Inc. by filing a complaint in the New Jersey Superior Court, Chancery Division on September 14, 1987. Plaintiff alleged, inter alia, that defendant Jaguar, by limiting plaintiff's supply of cars, had violated the New Jersey Franchise Practices Act, N.J.S.A. 56:10-1 et seq., had breached the parties' franchise agreement's implied covenant of good faith, and had wrongfully interfered with plaintiff's business. Jaguar denied these allegations by answer filed on October 9, 1987. Preliminary discovery immediately ensued with plaintiff's service of a notice to produce documents on October 27, 1987 and interrogatories on November 15, 1987.
Apparently dissatisfied with the information obtained in discovery, plaintiff moved on several occasions to compel defendant to provide certain original documents and other information. The court denied plaintiff's motion.
Discovery not having proceeded as plaintiff thought it should, plaintiff moved on September 28, 1989 to stay or adjourn the proceeding or in the alternative to dismiss the action without prejudice and without costs. On or about the same date, plaintiff filed a complaint against defendant in the United States District Court, District of New Jersey, pursuant to 15 U.S.C.A. § 1222, which creates a cause of action in favor of dealers against automobile manufacturers who "fail to act in good faith." The trial court denied plaintiff's motion to dismiss but granted plaintiff's request to amend its complaint. Plaintiff filed an amended complaint on November 1, 1989.
Thereafter, deeming its discovery inadequate to properly prepare and present its case and in an attempt to establish the required finality to appeal adverse discovery orders, plaintiff advised the court that it voluntarily accepted dismissal of the action with prejudice. The court honored plaintiff's request by order dated November 30, 1989 which included a clause preserving plaintiff's right to appeal.*fn1 Plaintiff filed a timely notice of appeal from the dismissal order.
On appeal plaintiff contends that the trial court "erroneously precluded plaintiff's discovery" and "erroneously refused to dismiss plaintiff's action without prejudice or alternatively to stay the proceedings."
We conclude that plaintiff may not appeal the adverse discovery orders. Discovery is provided to prepare for trial. In light of plaintiff's dismissal of its complaint, there will be no trial. Thus, the discovery issues are moot.
Moreover, plaintiff, in its brief, concedes that the voluntary dismissal was designed "to perfect appellate finality as to the items of discovery. . . ." We perceive this maneuver to constitute an evasion of the rule against interlocutory appeals, R. 2:2-4, and an attempt to avoid our previous denial of plaintiff's motion for leave to appeal the trial court's order denying additional discovery.
Our ruling is consistent with Winberry v. Salisbury, 5 N.J. 240, 255, 74 A.2d 406 (1950) (an order consented to by the attorneys for each party is not appealable) and Zinkerman v. Taft Stores, 30 N.J. Super. 322, 324, 104 A.2d 617 (App.Div.1954) (consent judgment of dismissal with prejudice entered upon plaintiff's application is not appealable). See also Empire Volkswagen Inc. v. World-Wide Volkswagen Corp., 814 F.2d 90, 94
(2d Cir.1987) (cause of action terminated by voluntary dismissal with prejudice cannot be reinstated by appeal, but grant of summary judgment terminating other causes ...