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Rand, Algeier, Tosti & Woodruff v. Braun


July 30, 2008


On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-2833-02.

Per curiam.


Argued June 3, 2008

Before Judges Fuentes, Grall and Waugh.

Plaintiffs the law firm of Rand, Algeier, Tosti & Woodruff (the firm) filed suit against defendant Ray Braun seeking to collect $28,754.80 for legal services performed by the firm on Braun's behalf. Braun retained David Rand, an attorney employed by the firm, to represent him in a shareholder dispute that arose between Braun, as a fifty percent shareholder, and the corporation's other shareholder. The dispute involved the partition of eleven acres of land owned by the corporation.

Braun filed an answer, counterclaim and third-party complaint for legal malpractice against attorney David Rand. In the malpractice action, Braun alleged that David Rand and the firm failed to diligently represent him in the underlying shareholder suit. As a result of such negligence, Braun alleged that he sustained monetary damages when the land in dispute was sold to the other shareholder for less than fair market value at a private auction. Braun demanded a trial by jury on the claims raised in his counterclaim and third-party complaint.

After joinder of issue, plaintiff and third-party defendant Rand moved for summary judgment seeking: (1) dismissal of Braun's counterclaim and third-party complaint; (2) an order barring Braun's malpractice expert from testifying about whether a motion to enforce a settlement would have been successful in the underlying shareholder dispute; and (3) a judicial determination that the question of whether a partition action would have been successful must be decided by the trial court, and not by a jury. Braun filed a cross-motion for partial summary judgment on the question of liability for his affirmative claims, and the dismissal of plaintiff's complaint.

The motion judge denied the firm's and David Rand's motion to dismiss the counterclaim, granted the motion to bar Braun's malpractice expert from testifying as to the successfulness of a motion to enforce the settlement, denied Braun's cross-motion for summary judgment and reserved decision on whether the trial court, and not a jury, should hear and decide the partition issue.

Thereafter, the court granted a second motion filed by the firm and David Rand, barring the testimony of Braun's expert, James Bank, because discovery had closed. The same judge finally decided the issue she had previously reserved decision on, holding that it would be too complicated to have a jury give its best estimate as to what a chancery court judge would have decided. The judge thus concluded that the first phase of Braun's legal malpractice suit, (the so-called trial within a trial) would proceed as a bench trial. If Braun prevailed, the malpractice case would then proceed to a jury trial on the issue of proximate cause and damages.

On September 14, 2004, Braun filed a motion with this court seeking leave to appeal the trial court's interlocutory rulings. We denied the motion for leave to appeal on October 19, 2004.

The bench trial on the question of whether the chancery judge would have found a partition of the land to be a proper remedy began on July 25, 2005. It lasted a total of four trial days, finishing on July 29, 2005. On November 2, 2005, the trial court placed its ruling on the record, finding that a partition of the property between Braun and the shareholder would not have been an available remedy. On November 14, 2005, the trial court entered an order dismissing Braun's claims against the Rand Firm and David Rand.

On December 11, 2006, the parties appeared before a different Law Division judge for proceedings related to the firm's complaint against Braun for legal fees. At that proceeding, counsel for the firm informed the trial court that Braun wished to appeal the order dismissing his counterclaim and third-party complaint. In addressing the trial judge, plaintiff's counsel noted, however, that, "given the fact that there was still an outstanding fee claim, any appeal would be interlocutory."

In an attempt to circumvent this jurisdictional impediment, plaintiff's counsel stated for the record that the parties had reached the following agreement:

[The firm] would take a dismissal without prejudice, thus allowing the -- with no --no agreement one way or the other with respect to the amount of monies owed or not owed by Mr. Braun, which would thereby enable [Braun] to appeal the decision [made by the earlier trial judge].

If, in fact, that appeal is affirmed, then the defendant Braun shall consent to and agree to submit to fee arbitration and shall also agree that [the firm] may file the necessary application paperwork to institute the fee application [ ] in Morris County.

If, in fact, the matter is remanded, reversed and remanded for trial back here in Essex County, then the [firm] will be able to -- will, obviously, be able to present their claim at that time in front of-- in front of a jury and have the entire matter litigated at one time, which it would have been had the matter not been dismissed.

Based on this arrangement, the trial judge concluded that, "even in judicial economy," the agreement the parties had reached was "probably the best way for the parties to try to resolve this matter." On January 5, 2007, the trial court entered an order stating as follows:

1. [The firm] shall take a voluntary dismissal without prejudice; and

2. Should the Appellate Division and/or the Supreme Court affirm the decision of the [earlier trial judge], dated November 14, 2005, then [Braun] agrees to submit to binding Fee Arbitration in Morristown, New Jersey, as regards any fees claimed to be owed in the above captioned matte[r]; and [Braun] consents to [the firm] filing such claim and initiating such process; and

3. Should the Appellate Division and/or the Supreme Court reverse and remand the decision of [the earlier trial judge], [Braun's] affirmative malpractice claim, as well as [the firm's] claim for fees, shall be tried together at a time and place to be determined by the Court.

On February 20, 2007, Braun filed a notice of appeal with this court, appealing from the August 20, 2004, November 14, 2005, February 15, 2006 and January 5, 2007 orders. The notice of appeal indicated that all issues as to all parties had been disposed of in this action. There was no assertion that the trial court's orders had been certified as final pursuant to Rule 4:42-2.

Against these facts, we are satisfied that the appeal must be dismissed as interlocutory. A party can only appeal as of right to the Appellate Division from a "final judgment." Janicky v. Point Bay Fuel, Inc., 396 N.J. Super. 545, 549 (App. Div. 2007) (citing R. 2:2-3(a)(1)). To qualify as a final judgment, an order must "dispose of all claims against all parties." Id. at 549-50 (quoting S.N. Golden Estates, Inc. v. Cont'l Cas. Co., 317 N.J. Super. 82, 87 (App. Div. 1998)).

As we have made consistently clear, "[t]he grant of interlocutory review is 'highly discretionary' and 'customarily exercised only sparingly.'" Vitanza v. James, 397 N.J. Super. 516, 517 (App. Div. 2008) (quoting State v. Reldan, 100 N.J. 187, 205 (1985)). "[T]here is strong policy against piecemeal review and interruption of the orderly processing of cases to disposition in the trial courts." Id. at 518 (citing Pressler, Current N.J. Court Rules, comment to R. 2:2-3).

Here, the parties' brazen attempt to circumvent our interlocutory jurisdiction rules cannot stand.

The appeal is dismissed as interlocutory.


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