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Bob Meyer Communities, Inc. v. Stone Harbor Lakes

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 22, 2008

BOB MEYER COMMUNITIES, INC. AND THOMPSON HOMES, INC., PLAINTIFFS-APPELLANTS,
v.
STONE HARBOR LAKES, LLC, TRIAD III, LLC, WILLIAM P. BOWMAN, APACHE DEVELOPMENT, LLC AND GORDON SHAFFNER, DEFENDANTS-RESPONDENTS.

On appeal from Superior Court of New Jersey, Law Division, Cape May County, Docket No. L-000001-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 18, 2007

Before Judges Fuentes, Grall and Chambers.

Plaintiffs Bob Meyer Communities, Inc. (Meyer) and Thompson Homes, Inc. (Thompson) are in the business of building residential developments. In separate, similar contracts, defendant Stone Harbor Lakes, LLC (Stone Harbor) agreed to sell Meyer 130 residential lots and sell Thompson seventy residential lots. Stone Harbor was established by two separate real estate limited liability corporations, defendant Apache Development, LLC (Apache) and defendant Triad III, LLC (Triad). Defendant Gordon Shaffner is a member of Apache, and defendant William P. Bowman is a member of Triad. A portion of the lots addressed by this agreement were to be contributed to Stone Harbor by Apache after the land was purchased from Crown Golf Realty, LLC (Crown). A dispute between Triad and Apache, which plaintiffs allege is relevant to Stone Harbor's performance of the agreement, led to separate litigation between those parties.

On December 30, 2005, plaintiffs filed the complaint in this action. They sought specific performance of agreements to sell or, in the alternative, enforcement of a subsequent agreement concerning plaintiffs' purchase of Stone Harbor, damages for breaches of contract, and alleging consumer fraud, breaches of an implied covenant of good faith and fiduciary duties, fraud, fraudulent transfers and conspiracy.

In June 2006, defendants moved to dismiss plaintiffs' complaint and compel arbitration. Plaintiffs filed a cross-motion seeking consolidation of this case and separate litigation involving Apache, Triad and Bowman. They also sought leave to amend their complaint to add a claim against Crown. The trial court dismissed plaintiffs' complaint, "without prejudice subject only to enforcement of [the] arbitration award." The trial court denied plaintiffs' cross-motion. This appeal followed.

This appeal is from orders that do not resolve all issues as to all parties. In Wein v. Morris, 388 N.J. Super. 640, 652-53 (App. Div. 2006), certif. granted, 190 N.J. 254 (2007), we held that an order compelling arbitration is not final because it does not resolve all issues as to all parties. The order in this case expressly anticipates future proceedings in the action. Id. at 652-53; see also N.J.S.A. 2A:23B-7g (providing that "[i]f the court orders arbitration, the court on just terms shall stay any judicial proceeding that involves a claim subject to the arbitration," and authorizing a court to limit the stay to a claim subject to arbitration if the claims are severable).

We recognize that on September 21, 2006, this court denied Apache's motion to dismiss this appeal as interlocutory. The denial of that motion to dismiss, however, merely preserved the issue for later review in the context of this plenary appeal. Parker v. City of Trenton, 382 N.J. Super. 454, 457 (App. Div. 2006).

Thus, in accordance with Wein and Parker, we dismiss the appeal from interlocutory orders, which was taken without a grant of leave from this court. See R. 2:2-4.

Appeal dismissed. The stay entered by this court on plaintiffs' unopposed motion is dismissed.

20080122

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