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Vieser v. Leventhal


June 9, 2010


On appeal from Superior Court of New Jersey, Law Division, Morris County, Docket No. L-2565-06.

Per curiam.


Argued March 9, 2010

Before Judges Carchman and Ashrafi.

This appeal concerns cancellation of a contract for the purchase and sale of real estate and rights to the deposit money paid on that contract. After the trial court granted partial summary judgment requiring that the deposit money be refunded to the buyer, the parties dismissed remaining claims and counterclaims without prejudice. We now dismiss the appeal because it is from an interlocutory order, not a final judgment.

Summarizing the facts briefly, in the spring of 2005, the parties entered into a contract for the sale of defendants' home to plaintiff for $4,475,000. Plaintiff deposited $404,000 toward the purchase price. Before the date set for closing, the parties disputed their relative rights under the radon contingency clause of the contract. Plaintiff cancelled the contract and sought refund of his deposit money. Defendants refused the refund.

Plaintiff filed suit in September 2006, seeking a declaratory judgment that he validly cancelled the contract and was entitled to his deposit money. His complaint also included counts alleging defendants' breach of contract and breach of the implied covenant of good faith and fair dealing, and it sought additional money damages beyond the deposit money and attorney's fees.

Defendants filed an answer and counterclaim seeking reformation of the contract, a declaratory judgment that plaintiff breached the contract, and money damages and attorney's fees for that breach and plaintiff's alleged breach of the implied covenant of good faith and fair dealing.

In December 2007, plaintiff moved for summary judgment on his declaratory judgment count. After hearing argument, the trial court granted the motion by order and written opinion filed on March 17, 2008. The court subsequently denied defendants' motion for reconsideration by order dated April 28, 2008.

A year later, on April 21, 2009, the parties filed a stipulation of dismissal without prejudice dismissing all remaining claims of the complaint and counterclaim. Defendants filed their notice of appeal on May 20, 2009, from the trial court's orders of March 17 and April 28, 2008.

A party may file an appeal as of right from a final judgment. R. 2:2-3(a). If an order is not a final judgment, appeal is available only by a motion to the Appellate Division for leave to appeal under Rules 2:2-4 and 2:5-6(a). Janicky v. Point Bay Fuel, Inc., 396 N.J. Super. 545, 550 (App. Div. 2007). "To be a final judgment, an order generally must dispose of all claims against all parties." Vitanza v. James, 397 N.J. Super. 516, 518 (App. Div. 2008) (quoting Janicky, supra, 396 N.J. Super. at 549-50) (internal quotation marks omitted).

In recent years, we have repeatedly admonished trial courts and attorneys not to circumvent our jurisdictional rules to file an appeal without our leave from orders that are not final judgments. See, e.g., Grow Co. v. Chokshi, 403 N.J. Super. 443, 461 (App. Div. 2008); Vitanza, supra, 397 N.J. Super. 516; Janicky, supra, 396 N.J. Super. at 551-52; Parker v. City of Trenton, 382 N.J. Super. 454, 458 (App. Div. 2006), certif. denied, 197 N.J. 16 (2008); Caggiano v. Fontoura, 354 N.J. Super. 111, 125 (App. Div. 2002).

As the procedural record stands in this case, either party may seek to reinstate or refile its remaining claims after this appeal is decided. The orders of March 17 and April 28, 2008, are not final orders disposing of all claims between the parties despite the later stipulation dismissing the remaining claims, but without prejudice. "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., supra, 403 N.J. Super. at 461; see also Ruscki v. City of Bayonne, 356 N.J. Super. 166, 168-69 (App. Div. 2002) (consent order of dismissal of other claims with right of reinstatement "creates only the illusion of finality").

If the parties believe that the declaratory judgment claims regarding the deposit money are the heart of this litigation, and if they have no intention of trying the claims for other money damages in the absence of claims for the deposit money, they should either dismiss the other claims with prejudice or clearly set forth in a stipulation of dismissal the conditions under which other claims could be reinstated. A contingent settlement, permitting reinstatement of the other claims only if we reverse the interlocutory order for partial summary on the deposit money, would allow this appeal to be pursued as a final judgment. See N.J. Sch. Const. Corp. v. Lopez, ___ N.J. Super. ___, ___ (App. Div. 2010) (slip op. at 14-15).

In the past, we have granted leave to appeal nunc pro tunc and addressed the merits of improperly filed interlocutory appeals. See Ruscki, supra, 356 N.J. Super. at 169; Bass ex rel. Will of 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). But more recently, we have refused to bypass our jurisdictional rules in that manner. In Vitanza, supra, 397 N.J. Super. at 519, Judge Stern wrote: "The Rules are written to require uniformity as a means of providing equal justice. The time has come to enforce the Rules and not to decide an appeal merely because the respondent did not move to dismiss it and it was fully briefed." Accord Parker, supra, 382 N.J. Super. at 458; Grow Co., supra, 403 N.J. Super. at 461. Judge Stern also wrote in Parker, supra, 382 N.J. Super. at 458:

[I]f we treat every interlocutory appeal on the merits just because it is fully briefed, there will be no adherence to the Rules, and parties will not feel there is a need to seek leave to appeal from interlocutory orders. At a time when this court struggles to decide over 7,000 appeals a year in a timely manner, it should not be presented with piecemeal litigation and should be reviewing interlocutory determinations only when they genuinely warrant pretrial review.

In this case, because the parties' remaining claims were dismissed without prejudice, and without terms limiting the ability to reinstate those claims, the appeal is improperly taken without leave from interlocutory orders.

Therefore, we dismiss the appeal, but without prejudice to the parties correcting the jurisdictional defect. If the parties have no intention of reinstating the claims for other money damages in the absence of disputed claims for the deposit money, they should dismiss the other claims with prejudice. If they are so inclined, they may allow reinstatement of other claims only if the March 17 and April 28, 2008 orders are reversed. See N.J. Sch. Const. Corp., supra, ___ N.J. Super. at ___ (slip op. at 14-15). If the parties follow this procedure, or demonstrate in another manner that other claims have finally been resolved, appellants may file a motion before us within twenty days of the date of this opinion for reinstatement of the appeal and for a decision on the merits without further briefing.



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