January 25, 2010
ROBERT J. TRIFFIN, PLAINTIFF-APPELLANT,
WAWA, INC., D/B/A WAWA; INDIVIDUALLY AND OPERATING THROUGH ITS AGENT SEDGWICK CLAIMS MANAGEMENT SERVICES, INC., DEFENDANT-RESPONDENT, AND KWES R. SMITH, DEFENDANT.
On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Essex County, Docket No. DC-44914-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 8, 2009
Before Judges Carchman and Ashrafi.
Plaintiff Robert Triffin appeals from an order of the Special Civil Part dated February 20, 2009, dismissing with prejudice his complaint against defendant Wawa, Inc. Our review of the procedural history of this appeal reveals that it is not from a final judgment disposing of all claims against all parties and, therefore, the appeal should be dismissed. R. 2:2-3; Janicky v. Point Bay Fuel, Inc., 396 N.J. Super. 545, 549-50 (App. Div. 2007); Parker v. City of Trenton, 382 N.J. Super. 454, 457 (App. Div. 2006). To save time and cost, however, we remand to the Special Civil Part to address procedural irregularities and, if appropriate, to reconsider its order dismissing Triffin's complaint.
On November 25, 2008, Triffin filed a four-count complaint in Essex County seeking to recover on four dishonored checks issued on behalf of Wawa, Inc. In his complaint, Triffin alleged that he purchased the four checks from three different entities pursuant to assignment agreements and that he stood in the position of a holder in due course under N.J.S.A. 12A:3-302. Copies of the checks were attached to the complaint, and they showed that one check was made payable to Kwes R. Smith for $212.51, one to Allen Cooper for $266.64, and two checks to Paul Ferguson for $281.50 each.
Triffin's pleadings contained some inconsistency in naming defendants. In the caption of a certification accompanying his complaint, Triffin listed the following parties as defendants: "Wawa, Inc. (d/b/a) Wawa (Ind. & Operating Through Its Agent) Sedgewick Claims Management Services, Inc. and Kwes R. Smith and Fictitious Defendant #1 and Fictitious Defendant #2." In the body of the complaint, however, he also named Allen Cooper as a defendant. Our appellate record does not include a list of docket entries in the Special Civil Part, but it appears that the summons and complaint were successfully served on Wawa and possibly on Kwes R. Smith.
In lieu of an answer, Wawa filed a motion to dismiss the complaint against it on January 27, 2009. Wawa asserted that Triffin was not a holder in due course because, according to the allegations of his complaint, he was aware that the checks had been dishonored at the time that he purchased them. On appeal, Triffin claims that he filed opposition to Wawa's motion. The Special Civil Part in Essex County has no record of opposition filed by Triffin in its electronic filing system known as JEFIS.*fn1
In his appendix on this appeal, Triffin has attached a copy of his opposition papers showing a date stamp of February 3, 2009, but the faint copy of the stamp does not show in what county the document was filed.
On February 20, 2009, a judge of the Special Civil Part issued an order granting Wawa's motion and dismissing with prejudice Triffin's complaint against Wawa. On March 19, 2009, Triffin filed a notice voluntarily dismissing without prejudice his claims against Kwes R. Smith and the two fictitious defendants charged in his complaint. On April 2, 2009, Triffin filed a notice of appeal to this court from the February 20, 2009 order dismissing his complaint against Wawa.
On April 21, 2009, Triffin filed a motion before us seeking a temporary remand to the Special Civil Part for the purpose of issuing findings and conclusions to explain its order of dismissal. We granted Triffin's unopposed motion on May 23, 2009. On June 11, 2009, the judge of the Special Civil Part filed a memorandum stating his findings and conclusions. The judge stated that occasionally a delay occurs in filing documents on the court's JEFIS system, but as of the date of filing his memorandum, Triffin's opposition was still not in the court's file. He viewed Wawa's motion to dismiss as being unopposed.
On appeal, Triffin argues that the Special Civil Part erred in dismissing his complaint against Wawa because, as assignee, he stands in the shoes of the holders in due course of the checks, and he has standing to assert their rights and claims. See Triffin v. Cigna Ins. Co., 297 N.J. Super. 199, 201-02 (App. Div. 1997).
We will not address the merits of Triffin's argument because we have determined that the appeal is interlocutory and not from a final judgment in accordance with the requirements of Rule 2:2-3(a).
The voluntary dismissal of Triffin's complaint against Kwes R. Smith is without prejudice, meaning that Triffin may reinstate it after the disposition of this appeal. We have said that a voluntary dismissal without prejudice may not be used as a maneuver to make an interlocutory order appear to be a final judgment and to obtain jurisdiction in this court. Ruscki v. City of Bayonne, 356 N.J. Super. 166, 168-69 (App. Div. 2002); Bass v. De Vink, 336 N.J. Super. 450, 455 (App. Div.), certif. denied, 168 N.J. 292 (2001); CPC Int'l Inc. v. Hartford Acc. & Indem. Co., 316 N.J. Super. 351, 365-66 (App. Div. 1998), certif. denied, 158 N.J. 74 (1999); Mack Auto Imports v. Jaguar Cars, Inc., 244 N.J. Super. 254 (App. Div. 1990). "The methodology of dismissing unadjudicated claims without prejudice in order to create the appearance of a final order confounds the manner in which appellate jurisdiction was meant to arise in our judicial system." Grow Co. v. Chokshi, 403 N.J. Super. 443, 461 (App. Div. 2008). Without final disposition of Triffin's claim against defendant Smith, the February 20, 2009 order from which Triffin appeals is not a final judgment disposing of all claims against all parties.
Nevertheless, rather than dismissing the appeal, we remand to the Special Civil Part to address the procedural and substantive aspects of Wawa's motion and Triffin's opposition. The Special Civil Part should conduct a hearing to determine the factual circumstances of the procedural irregularities and, in the first instance, consider Triffin's opposition to Wawa's motion to dismiss. It should determine whether Triffin did file timely opposition, which may not have been filed in the JEFIS system through inadvertence or error for which Triffin is not responsible.
If the court determines that the opposition was timely, it should reconsider the merits of Wawa's motion with full consideration of Triffin's opposition arguments. In that regard, the court should also note that a dismissal on a pleading under Rule 4:6-2(e) for failure to state a claim upon which relief can be granted is normally without prejudice. Smith v. SBC Communications Inc., 178 N.J. 265, 282 (2004); Hoffman v. Hampshire Labs, Inc., 405 N.J. Super. 105, 116 (App. Div. 2009). The court should explain its reasons if it dismisses a pleading with prejudice. See R. 1:6-2(f); Klajman v. Fair Lawn Estates, 292 N.J. Super. 54, 61 (App. Div.), certif. denied, 146 N.J. 569 (1996); cf. Johnson v. Glassman, 401 N.J. Super. 222, 246-47 (App. Div. 2008) (no abuse of discretion in dismissal with prejudice where plaintiff had opportunity to but did not propose how complaint would be amended to state a claim).
If the court determines that Triffin did not file timely opposition, it can consider whether sanctions are warranted against Triffin before addressing the substantive merits of Wawa's motion to dismiss.
Also, because Triffin maneuvered to obtain the jurisdiction of this court by dismissing his claims against Kwes R. Smith and fictitious defendants without prejudice, the trial court may consider whether Triffin should be estopped from reinstating or re-filing those claims. In other words, the Special Civil Part may determine whether dismissal of Triffin's complaint against other defendants should be with prejudice.
We remand to the Special Civil Part for further proceedings in conformity with this opinion. We do not retain jurisdiction.