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Transcontinental Insurance Co. v. Lenny

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 25, 2010

TRANSCONTINENTAL INSURANCE COMPANY, PLAINTIFF,
v.
LENNY, VERMAAT AND LEONARD, INC., SARAH WEDGWOOD, ERA OMNI REALTY KIRSTEN SHERWIN, MICHAEL DINELLA AND JAMES LAPHAN, DEFENDANTS, AND LENNY, VERMAAT AND LEONARD, INC., THIRD-PARTY PLAINTIFF-APPELLANT,
v.
PRESERVER INSURANCE CO., THIRD-PARTY DEFENDANT-RESPONDENT, AND SANDRA W. CRELLIN, THIRD-PARTY DEFENDANT.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket Nos. L-356-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 19, 2010

Before Judges C.L. Miniman and Fasciale.

Lenny, Vermaat and Leonard, Inc. (LVL) appeals from a June 6, 2008 order granting summary judgment to Preserver Insurance Company (Preserver), and from a December 1, 2008 order denying LVL's application for counsel fees from Preserver. The appeal presents two issues: (1) whether LVL's appeal is timely, and if so, (2) whether Preserver is obligated to pay LVL's counsel fees. We dismiss the appeal as untimely.

On January 17, 2003, Sarah Wedgwood was injured when she slipped and fell at property owned by Sandra Crellin. Wedgwood filed a personal injury lawsuit against ERA Omni Realty (Omni), Kirsten Sherwin, and LVL (the listing agency). LVL leased its premises from 90 Tanner, LLC (Tanner). LVL's insurance agent, Dunhour Agency, notified Preserver about the Wedgwood claim. Preserver insured Tanner not LVL. LVL was insured by Transcontinental Insurance Company (Transcontinental). Despite not insuring LVL, Preserver undertook to investigate the Wedgwood claim. Wedgwood filed her complaint on January 18, 2005, and Preserver disclaimed coverage for the loss. Transcontinental filed a declaratory judgment complaint against LVL, Wedgwood, Omni, Sherwin, DiNella, and James Laphan. LVL filed a third-party complaint against Preserver, but not Dunhour Agency. The Wedgwood and Transcontinental complaints were thereafter consolidated.

On June 6, 2008, the motion judge found that Transcontinental, not Preserver, owed coverage and a defense to LVL for the Wedgwood loss. On August 7, 2008, the motion judge denied Transcontinental's motion for reconsideration and granted LVL's cross-motion against Transcontinental for counsel fees subject to a future application. On November 21, 2008, an order dismissing all claims in the Wedgwood lawsuit was filed because that action settled.*fn1 Also on November 21, 2008, LVL settled its claim against Transcontinental for counsel fees, and on December 1, 2008, the court entered an order denying LVL's application for counsel fees against Preserver. On December 5, 2008, the motion judge denied DiNella's motion to amend his answer to assert a counterclaim and cross-claim, and on January 28, 2009, the judge signed an amended order denying DiNella's request for counsel fees. All claims in the Transcontinental declaratory judgment case were resolved on January 28, 2009, the date on which DiNella's cross-motion was denied.

LVL argues on appeal:

A. Standard of Review

B. The Motion Judge Committed Harmful Error By His Failure To Analyze That Preserver Was Equitably Estopped From Disclaiming Coverage By Acknowledging And Controlling The LVL Claim For 17 Months

C. The Motion Judge Also Committed Harmful Error By Erroneously Analyzing Or Overlooking LVL's Argument That Preserver Waived Its Right To Disclaim Coverage As A Result Of Assuming Control Without Issuing A Reservation Of Rights Letter

D. The Motion Judge Also Committed Harmful Error By Failing

To Analyze That As A Result Of Coverage Created By Either Waiver Or Estoppel, LVL Is Entitled To Counsel Fees Pursuant To R. 4:42-9(a)(6) As A Prevailing Party

To be appealable, a judgment must be final as to all parties and all issues. Yuhas v. Mudge, 129 N.J. Super. 207, 209 (App. Div. 1974). The rule of finality applies to consolidated actions and requires all issues as to all parties in all actions that have been consolidated to be resolved before an appeal as of right may be taken by any party. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 165 n.2

(App. Div.), certif. denied, 154 N.J. 608 (1998). The finality rule applies to post-disposition counsel fee applications, and a judgment will be deemed interlocutory even if counsel fee issues are all that remain to be adjudicated. Gen. Motors Corp. v. City of Linden, 279 N.J. Super. 449, 454-56 (App. Div. 1995), rev'd on other grounds, 143 N.J. 336 (1996).

On January 28, 2009, all issues as to all parties in the Transcontinental consolidated lawsuit were final in order to pursue an appeal. The motion judge previously ruled that Transcontinental owed coverage and that LVL was entitled to fees from Transcontinental. The amount of counsel fees Transcontinental was to pay LVL was the subject of a previous settlement between Transcontinental and LVL. Preserver did not owe coverage and the motion judge denied LVL's claim for counsel fees against Preserver. DiNella's claims were dismissed with prejudice. All other claims were dismissed.

We hold the operative date for determining the finality of these consolidated cases is January 28, 2009. Appeals from final judgments of courts shall be taken within forty-five days of their entry. R. 2:4-1(a). Since the July 16, 2009 appeal was filed more than forty-five days after January 28, 2009, LVL's appeal is untimely.

LVL makes three arguments why the time for appeal should be tolled: (1) it made three letter requests for an "Amended Final Order and Judgment," (2) it made and withdrew a motion to enforce its settlement with Transcontinental, and (3) the motion judge failed to formally certify the finality of the judgments pursuant to Rule 4:42-2. All three arguments fail.

Rule 2:4-3 governs the tolling of time for appeal. It provides:

The running of the time for taking an appeal and for the service and filing of a notice of petition for certification shall be tolled: . . . .

(e) In civil actions on an appeal to the Appellate Division by the timely filing and service of a motion to the trial court for rehearing or to amend or make additional findings of fact pursuant to R. 1:7-4; or for judgment pursuant to R. 4:40-2; or for a new trial pursuant to R. 4:49-1; or for rehearing or reconsideration seeking to alter or amend the judgment or order pursuant to R. 4:49-2. The remaining time shall again begin to run from the date of the entry of an order disposing of such a motion.

[R. 2:4-3.]

On March 13, March 16, and April 16, 2009, LVL requested, by letter, that the motion judge enter an "Amended Final Order and Judgment." Preserver opposed LVL's request. On May 15, 2009, the motion judge advised that an order would not be forthcoming because "there appeared to be no matter pending before the [c]court that required an order." Despite the May 15, 2009 letter, oral argument regarding the issue of finality was heard on June 12, 2009 as the motion judge concluded that the May 15, 2009 letter "wasn't going to be productive because [the parties] could keep this up probably for quite awhile." By letter dated June 23, 2009, the motion judge declined to enter any other order, reasoning that the proposed form of order submitted by LVL "did not seek to set forth any new decision that the court had made in this matter, nor did it seek to resolve or memorialize some outstanding litigated issue as to any party."

LVL argues that its letters of March 13, March 16, and April 16, 2009 tolled the time for appeal pursuant to Rule 2:4-3(e). However, LVL failed to file a motion pursuant to the rule. Even if LVL's three letters somehow constitute a motion for "rehearing or to amend or make additional findings," LVL failed to comply with the time requirements of Rule 4:49-2. The March 13, 2009 letter was submitted to the motion judge more than twenty days after the January 28, 2009 order. Further, LVL did not seek an amended judgment or address outstanding factual findings.

LVL filed a motion to enforce its settlement with Transcontinental and on March 5, 2009, the motion was withdrawn. Rule 2:4-3(e) does not toll the time for appeal when a party moves to enforce a settlement.

Rule 4:42-2 permits the certification of an interlocutory judgment as final. "If an order would be subject to process to enforce a judgment . . . if it were final . . . the trial court may direct the entry of a final judgment upon fewer than all the claims . . . ." R. 4:42-2. This rule does not apply to LVL's claims against Preserver because by January 28, 2009, there were no other surviving claims in the declaratory judgment lawsuit.

We do not reach the merits of LVL's appeal because it was filed untimely. Appeal dismissed.


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