On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. DC-016555-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: January 30, 2009
Before Judges Cuff and C.L. Miniman.
Defendant Myrna B. Tagayun appealed improvidently on January 31, 2008, from an interlocutory order for judgment entered on December 21, 2007, in favor of plaintiff Group Health Incorporated in the sum of $7,594.21 plus costs to be taxed. The interlocutory order became final on February 8, 2008, when defendant's counterclaim was dismissed with prejudice. Despite our reluctance to do so, Grow Co. v. Chokshi, 403 N.J. Super. 443, 459-60 (App. Div. 2008), we elect to treat the appeal as properly filed because the judgment was rendered final so soon after the appeal was filed. We affirm.
In doing so, we do not consider any issues raised by defendant with respect to the dismissal of her counterclaim because she did not file an amended notice of appeal listing the February 8, 2008, order as an order from which appeal was taken. As a consequence, we simply have no jurisdiction to consider these issues. See R. 2:5-1(f)(3)(A); N.J. Div. of Youth & Family Servs. v. K.M., 136 N.J. 546, 562 (1994); State v. Gould, 352 N.J. Super. 313, 318-19 (App. Div. 2002); Kerney v. Kerney, 81 N.J. Super. 278, 281 (App. Div. 1963) ("The general rule has been stated to be that on appeal from only part of a judgment the scope of appellate review is ordinarily limited to that part and does not extend to the part not appealed from.");*fn1 cf. Cent. R.R. Co. of N.J. v. Neeld, 26 N.J. 172, 185-86 (Heher, J., concurring), cert. denied, 357 U.S. 928, 78 S.Ct. 1373, 2 L.Ed. 2d 1371 (1958).
On December 11, 2003, plaintiff and defendant executed a settlement agreement in which "GHI and Dr. Tagayun agree that Dr. Tagayun will pay to GHI in full satisfaction of the Audit, the total sum of Twenty Three Thousand Five Hundred Dollars ($23,500.00)." The audit in question was a review conducted by plaintiff's Special Investigations Unit, which determined that between 1995 and 2001 plaintiff overpaid defendant for the claims her office submitted. The agreement called for defendant to repay the $23,500 amount in twenty-four equal monthly installments of $979.16. The agreement also provided that if payment was not made by the twenty-first of each month, defendant would be in default and the full amount would become immediately payable to plaintiff.
Section III, paragraph 4, "Governing Law," provided that the agreement would be interpreted according to the laws of the State of New York without regard to conflict-of-laws principles. It also required any suit to be brought in New York. Section III, paragraph 10, "Mutual Release," provided: "Each party hereby releases the other from any claim or dispute arising out of the payment[,] submission or non-payment of any claims for services rendered by Dr. Tagayun during the term covered by the Audit."
Plaintiff is a New York corporation that was located in Manhattan at the time the agreement was executed. At that time and thereafter, defendant resided in Clifton and practiced medicine in Maywood. Thus, she was subject to the general jurisdiction of the courts of New Jersey by virtue of her residence and employment and, by virtue of the agreement, stipulated to the exercise of long-arm jurisdiction by the courts of New York.
Both parties agree that defendant made payment each month for sixteen months. Then, in an August 19, 2005, letter to plaintiff, defendant's "Practice Manager," Robert S. Mandell, wrote:
As indicated in our[ letter] to you of August 8, 2005, it is our firm intention to see that your firm is paid the full amount committed to in the Settlement Agreement executed December 11, 2003. By my count, there remains a balance due of Six thousand eight hundred and fifty four dollars and twelve cents ($6,854.12) covering the seven (7) installments for June through December of this year. . . .
So in sum, this reduces to: you've got about seven grand coming. It's going to [be] paid by the end of the year. We're going to start getting you funds in a couple of weeks. We're not going to be able to get you twenty-nine hundred plus by August 29, 2005.
Defendant made a partial payment on September 6, 2005, of $400, which plaintiff applied to the payment due on May 24, 2005. Thereafter, defendant made no further payments.
On October 27, 2006, plaintiff filed a complaint against defendant in the Superior Court, Special Civil Part, Passaic County. The complaint alleged that defendant had failed to make payments under a settlement agreement, leaving a balance due of $7439.44. On December 5, 2006, defendant filed an answer and counterclaim seeking compensatory damages of $351,913.58 and other relief. The counterclaim alleged breach of contract; fraud in the instrument; fraud in the inducement; misrepresentation; breach of duty; breach of fair dealing; unjust enrichment; conspiracy to defraud; and conversion. At the same time, defendant moved to ...