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Serbio v. Metairie Corp.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 10, 2009

ROSEANN K. SERBIO, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFF-APPELLANT,
v.
METAIRIE CORPORATION, A NEW JERSEY CORPORATION, LEGENDS MANAGEMENT COMPANY, L.L.C., A NEW JERSEY LIMITED LIABILITY COMPANY, PAFLA CONSULTING, INC., A FLORIDA CORPORATION, HILLEL MEYERS, SEYMOUR SVIRSKY, H. ALBERT WARRINGTON, BEATRICE VAN ETTEN, LEGENDS RESORT AND COUNTRY CLUB CONDOMINIUM ASSOCIATION, A NEW JERSEY CORPORATION, LEGENDS RESORT AND COUNTRY CLUB INTERVAL ASSOCIATION, A NEW JERSEY CORPORATION, LEGENDS RESORT REALTY, INC., A NEW JERSEY CORPORATION, AND STAR ISLAND MANAGEMENT CORP., A FLORIDA CORPORATION, DEFENDANTS-RESPONDENTS.
HILLEL MEYERS, METAIRIE CORPORATION, LEGENDS MANAGEMENT CO., AL WARRINGTON, AND BEATRICE VAN ETTEN, THIRD-PARTY PLAINTIFFS,
v.
KEVIN NEWMAN AND SHINNIHON CO. U.S.A. LTD., THIRD-PARTY DEFENDANTS.

On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Docket No. L-336-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 16, 2009

Before Judges Fisher and Grall.

By motion, defendants seek dismissal of plaintiff's appeal. The appeal seeks our review of an interlocutory order that denied class certification. In earlier proceedings, we denied leave to appeal that order, as did the Supreme Court. The parties thereafter stipulated to the action's dismissal with prejudice and plaintiff again sought review of the order denying class certification, this time by filing a notice of appeal. Arguing that the stipulation moots review of the interlocutory order, defendants have moved for dismissal of this appeal. For the reasons that follow, we grant that motion.

The record on appeal does not reveal the nature of the complaint or the date of its filing. Nevertheless, it is clear that shortly before the original trial date, the judge directed plaintiff to either move for class certification or be barred. Plaintiff's subsequent motion for class certification was thereafter filed and denied. We denied plaintiff's motion for leave to appeal on July 30, 2008; the Supreme Court denied plaintiff's motion for leave to appeal on September 18, 2008.

The matter was again scheduled for trial. On the eve of trial, plaintiff reported to the judge that the matter had been settled. Pursuant to this settlement, a stipulation of dismissal was drafted. The stipulation's first paragraph states that the first amended complaint filed by plaintiff "on behalf of herself and all other similarly situated persons" against defendants "is hereby dismissed with prejudice." Of note, the second paragraph states that

All of the terms and conditions of the Settlement & Mutual Release Agreement executed by the parties are incorporated herein by reference, as part of this Stipulation of Dismissal.

The third and last paragraph expresses only that it "is so stipulated and agreed" and the "parties hereby consent to the form and entry of the within Order." All parties signified their consent and the stipulation was filed on December 22, 2008.

Plaintiff thereafter filed a notice of appeal seeking our review of the denial of class certification; she has since filed her brief on the merits. Defendants have now moved for a dismissal of the appeal.

We have time and again condemned the various ways parties have attempted to foist jurisdiction of interlocutory orders upon this court. See Grow Co., Inc. v. Chokshi, 403 N.J. Super. 443, 457-63 (App. Div. 2008), and the numerous cases cited therein. Our goal, as described by Justice Brennan, is to promote an orderly judicial process that consists of "a single and complete trial" followed by "a single and complete review." Trecartin v. Mahony-Troast Constr. Co., 21 N.J. 1, 6 (1956). We have steadfastly guarded against attempts to circumvent that approach and, as a result, we will, when necessary, look beyond the terms of what appears to be a final order to ascertain whether all claims as to all parties have actually been finally adjudicated.

On its face, the stipulation of dismissal suggests there is nothing left to adjudicate in the trial court. However, as observed, the second paragraph of the stipulation incorporates the terms of an undisclosed settlement agreement. Plaintiff, in her opposing brief, provides some insight into the agreement's terms and impact on finality:

The parties entered into a confidential settlement to reserve for appeal the issue [of] the trial judge's denial of class certification. If Plaintiff was successful on the class certification issues on appeal, the parties would continue to litigate the case as a class action. If Plaintiff did not prevail, the case would be concluded and Plaintiff would receive another timeshare unit.

These statements -- if true*fn1 -- suggest that if we were to entertain the appeal and reverse the interlocutory order, plaintiff's claims would be revived despite what is suggested by the stipulation's first paragraph. In other words, the parties' agreement purports to allow plaintiff the right to appeal the interlocutory order -- which this court and the Supreme Court previously refused to review -- and, if plaintiff's appeal succeeds, the status quo as it existed prior to the denial of class certification would be restored. So viewed, the agreement constitutes an improper attempt to manufacture appellate jurisdiction. The parties' arrangement would, if enforced, supplant our exercise of discretion, as well as the Supreme Court's exercise of its discretion, in previously denying interlocutory review of the denial of class certification.

The agreement, as described by plaintiff, also seems to suggest that if we were to affirm the denial of class certification, plaintiff would obtain relief not otherwise spelled out in the stipulation. In short, the first paragraph of the stipulation, which purports to dismiss all pending claims, appears to have no effect at all on the parties' rights. As a result, the parties' true agreement -- cloaked by the first paragraph of the stipulation of dismissal -- would have us provide an academic opinion on class certification. In other words, if we were to agree with the trial judge that class certification was not permitted, that decision would have no impact because the case would remain dismissed with prejudice and plaintiff would still be entitled to whatever is permitted by the undisclosed settlement agreement.

Plaintiff was obligated to show not only that the trial court disposed of all issues as to all parties but also that the disposition of all issues in the trial court was final. See Grow, supra, 403 N.J. Super. at 460. Here, plaintiff has demonstrated that the dismissal to which they have stipulated is merely tentative and that the parties have only rearranged their claims in order to compel a ruling on the merits of the interlocutory order. Because plaintiff has not demonstrated her claims were finally disposed of in the trial court, we grant the motion to dismiss and remand for whatever further proceedings may be warranted in light of our disposition of the appeal.

Appeal dismissed.


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