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Shimm v. Toys From the Attic

February 24, 2005

JOSEPH SHIMM,
v.
TOYS FROM THE ATTIC, INC., DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-2658-00.

Before Judges Stern, Coburn and Wecker.

The opinion of the court was delivered by: Coburn, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 19, 2005

The primary question is whether dismissal of this appeal is Plaintiff-Respondent, required to advance the policy against piecemeal litigation.*fn1 Our answer is yes.

Joseph Shimm sued Toys From the Attic, Inc. ("Toys") in connection with his purchase of a preamplifier. He alleged conversion, common law fraud, equitable fraud, negligent misrepresentation, and violation of the Consumer Fraud Act, N.J.S.A. 56:8-1 to -48. Pursuant to Rule 4:58-1, Toys made a timely offer of judgment in the amount of $64. Shimm rejected the offer. In ensuing Rule 4:21A arbitration, Shimm received an award of $2,751. Toys rejected the award pursuant to Rule 4:21A-6(b)(1), and the case proceeded to trial. The jury found no cause for action.

Shimm filed a timely motion for a new trial, which was denied by an order dated January 10, 2003. On January 24, 2003, Toys filed a motion in the Law Division for legal fees and costs pursuant to Rule 4:58-3 and N.J.S.A. 2A:15-59. On January 30, 2003, before Toys' motion was heard, Shimm filed his notice of appeal, which was limited to his Consumer Fraud Act claim. The judge recognized that the filing of the notice of appeal deprived him of jurisdiction, R. 2:9-1(a), and he denied the motion without prejudice. Toys neither cross-appealed from that ruling nor moved before us for a temporary remand pursuant to Rule 2:9-1(a). In an unreported opinion, we affirmed the judgment in Toys' favor. Shimm v. Toys From the Attic, Inc., No. A-2770-02T3 (App. Div. January 14, 2004).

After we filed our judgment, Toys again filed its motion in the Law Division for legal fees and costs pursuant to Rule 4:58-3 and N.J.S.A. 2A:15-59. The motion was denied on the merits, and Toys appealed.

Rule 4:42-9(d) provides that"[a]n allowance of [attorney's] fees made on the determination of a matter shall be included in the judgment or order stating the determination." When that has not been done, as occurred here, and no appeal has been filed, a post-judgment application may be made within the twenty-day time limit provided by Rule 4:49-2, or possibly at a later point pursuant to Rule 4:50. Ricci v. Corporate Exp. of the East, Inc., 344 N.J. Super. 39, 48 (App. Div. 2001), certif. denied, 171 N.J. 42 (2002). When an appeal has been filed, other principles apply to avoid piecemeal appellate litigation.

In Hudson v. Hudson, 36 N.J. 549, 552-53 (1962), the Court observed that it does"not approve of piecemeal adjudication of controversies." It added:

Our rules (with a narrow exception, not applicable here...) prohibit direct appeal unless final judgment has been entered disposing of all issues as to all parties. Consent of counsel cannot supply a basis for violation of the rule.

[Id. at 553 (internal citations omitted).]

In Gloucester City Bd. of Educ. v. Am. Arbitration Ass'n, 333 N.J. Super. 511 (App. Div. 2000), after noting that"only a final judgment is appealable as of right, R. 2:2-3(a), and that a judgment must dispose of all claims by all parties to be final," id. at 519 (citation omitted), we said that"[w]hen an appeal [from an interlocutory order] has been improvidently filed, a respondent has a responsibility to the court to file a timely motion to dismiss the appeal." Id. at 519-20 (citation omitted).

In In re Unanue, 311 N.J. Super. 589 (App. Div.), certif. denied, 157 N.J. 541 (1998), cert. denied, 526 U.S. 1051, rehearing denied, ...


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