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House of Cell Phones, Inc. v. Sprint Solutions

April 23, 2008

HOUSE OF CELL PHONES, INC., PLAINTIFF-RESPONDENT,
v.
SPRINT SOLUTIONS, INC., DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, L-690-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 14, 2008

Before Judges Wefing and R. B. Coleman.

Defendant Sprint Solutions, Inc. (Sprint) appeals from a July 9, 2007 order granting a temporary restraining order and preliminary injunction in favor of plaintiff House of Cell Phones, Inc. (HOCP). That order precluded the termination of the parties' Authorized Representative Agreement (AR Agreement) and required Sprint to continue performance thereunder until the matter is resolved in accordance with the dispute resolution exhibit attached to the AR Agreement or pending a final decision as to all issues. The order was subsequently modified by an order of this court dated July 27, 2007, that stayed the payment of residual commissions by Sprint pending the posting of a bond by HOCP. Having reviewed the record in light of the arguments advanced on appeal, we affirm the July 9, 2007 order as modified by our order of July 27, 2007.

On April 28, 2007, HOCP filed a verified complaint and an order to show cause in the Chancery Division, Gloucester County, seeking to enjoin Sprint from terminating the parties' AR Agreement. Sprint opposed HOCP's application and on June 18, 2007, oral arguments on the order to show cause were heard in the Law Division, resulting in the issuance of a July 9, 2007*fn1 order granting a preliminary injunction. More particularly, the order provided:

1. Sprint may not terminate Plaintiff for cause under the Authorized Representative Agreement executed on May 1, 2006 (the "Contract") for the reasons set forth in the April 9, 2007 termination letter (attached to the Verified Complaint as Exhibit G) unless and until Plaintiff's dispute regarding the propriety of that termination is resolved pursuant to the Dispute Resolution exhibit to the Contract;

2. The Parties are compelled to comply with the provisions of the Dispute Resolution exhibit to the Contract to address the propriety of the April 9, 2007 termination and the issues raised in the Verified Complaint;

3. During the course of the Dispute Resolution process, Sprint must continue doing business with House of Cell Phones pursuant to the provisions of the Contract (as that term is defined in the Verified Complaint) until a final decision is made as to all issues pursuant to this process.

4. Sprint's request for security pursuant to R. 4:52-4 is denied without prejudice. Sprint may seek security from the Arbitrators during the course of the Dispute Resolution process[.]

The order also denied Sprint's request for a hearing in opposition to the facts relied upon in plaintiff's application for the temporary restraining order.

Thereafter, by order dated July 20, 2007, the court denied Sprint's motion for a stay, after which Sprint moved before this court for an order granting emergent relief. Sprint requested a stay of the order that compelled it to continue doing business with HOCP while the parties complied with the provisions of the contractual dispute resolution exhibit to the contract. Alternatively, Sprint asked that HOCP be required to post a bond. We denied Sprint's motion in part and granted it in part.

By order dated July 27, 2007, we ordered that Sprint's payment of residual commissions to HOCP be stayed pending HOCP's posting of a bond "in an amount sufficient to cover the average monthly residual commissions for a six-month period[.]" The amount of the bond was to be determined by the trial court.

In the meantime, on July 17, 2007, Sprint filed its Notice of Appeal. Although the matter was and is clearly interlocutory, no motion was made by either party to dismiss and the court did not dismiss the appeal sua sponte. At this juncture, we decline to dismiss the appeal as premature because the matter has proceeded for so long as if properly filed. Instead, in the interest of prompt disposition, we hereby grant leave to appeal nunc pro tunc. Tradesoft Technologies, Inc. v. Franklin Mutual Ins. ...


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