January 18, 2011
ROBERT J. PETERSON, PLAINTIFF-APPELLANT,
ARCHER & GREINER, LAW FIRM, A PROFESSIONAL CORPORATION, JERROLD S. KULBACK, ESQUIRE, ED-MAR CRYSTAL & JEWELRY CO., A/T/A ED MAR FREED, JAMES L. BONGIOVANNI, JR., INDIVIDUALLY, AND DOREEN BONGIOVANNI, INDIVIDUALLY, DEFENDANTS-RESPONDENTS.
On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-4370-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 10, 2011 - Decided Before Judges Reisner and Sabatino.
Plaintiff Robert J. Peterson appeals from a May 14, 2010 trial court order denying his application to vacate an earlier dismissal order and reinstate his complaint. Concluding that the order on appeal is interlocutory, and for the additional reasons set forth below, we dismiss the appeal.
By way of background, we summarize the pertinent allegations in the parties' pleadings and the relevant procedural history. James Bongiovanni, Jr., owned a wholesale jewelry business in Philadelphia. In 2004, Peterson agreed to invest in Bongiovanni's business and the parties entered into an agreement requiring Peterson to make certain capital contributions to two new companies in exchange for an ownership interest in each.
However, according to Bongiovanni, the budding partnership quickly soured. Bongiovanni claimed that Peterson failed to provide his share of capital contributions, forced Bongiovanni out of the business and sold the business property. Bongiovanni retained Archer & Greiner as legal counsel and sued Peterson for breach of contract, conversion, fraud and breach of fiduciary duty. In addition to damages, he sought a declaratory judgment that Peterson had no membership interest in either of the two newly formed businesses. He also sued Carol Anne Gronczewski, who had acted as a liaison between Bongiovanni and Peterson in the financing arrangements.
Peterson and Gronczewski answered the 2007 complaint and filed a counterclaim against Bongiovanni and a third-party complaint against Bongiovanni's wife. Peterson and Gronczewski contended that the business partnership failed because Bongiovanni and his wife made several unspecified misrepresentations to Peterson and converted property that belonged to the partnership. They also claimed that Bongiovanni and his wife diverted partnership opportunities to their "successor business." Peterson and Gronczewski sued Bongiovanni and his wife for breach of contract, breach of fiduciary duty, conversion, fraud, unjust enrichment and various equitable remedies. Gronczewski also sought to collect on a promissory note that Bongiovanni allegedly guaranteed.
Judge Michele Fox ordered the parties to complete discovery by April 7, 2009, but subsequently extended the discovery period through August 2009 to allow for additional depositions. She set a trial date for October 5, 2009. On August 31, 2009, Peterson, acting pro se, filed a separate complaint naming as defendants Bongiovanni, one of the two newly formed corporations and Bongiovanni's attorneys in the pending Bongiovanni v. Peterson case (collectively "defendants"). In his complaint, Peterson asserted that he had recently discovered additional "unforeseeable and unexpected" claims against Bongiovanni and the other defendants. He alleged that defendants "conspired and engaged in a scheme to hide, transfer, convey, and liquidate property that Plaintiff Robert Peterson had an interest in or a potential and foreseeable interest in as a result of his business dealings with Defendant James Bongiovanni."
Peterson applied for and obtained a default judgment against defendants on or about November 17, 2009. However, claiming that they were never served with Peterson's complaint, defendants moved to vacate the default judgment and dismiss the complaint. Finding that service was defective, Judge Frederick Schuck vacated the default judgment. He then dismissed Peterson's complaint, concluding that it was filed in violation of the entire controversy doctrine and was so vague that it failed to state a claim on which relief could be granted. Judge Schuck's decision was memorialized in an order dated March 19, 2010.
Peterson moved to reconsider and vacate the March 19, 2010 order, alleging that he never received notice of defendants' motion. Judge Schuck granted reconsideration, but declined to vacate the March 19, 2010 order. His ruling on the motion for reconsideration was based exclusively on procedural grounds rather than on the merits of the complaint.
In a nutshell, this was the judge's holding:
In keeping with the clear policy of the [c]courts to avoid fragmented litigation an attempt to bring these admittedly related claims in the first action must be attempted first before proceeding with a separate law suit. . . . The failure to attempt to proceed with the present claims in the first action is inexcusable.
Judge Schuck also declined to consolidate Peterson's newly filed complaint with Bongiovanni's pending lawsuit, because "what fairness dictates is that the [c]court in the first action consider the legal standards for adding counterclaims and third-party complaints in that action and determine whether the claims in the . . . second action should be included in the first action." His decision was consistent with Brown v. Brown, 208 N.J. Super. 372, 381-82 (App. Div. 1986), where we held "that if, during the pendency of the litigation, a claim arises which is part of the entire controversy, the claimant must seek leave pursuant to R. 4:9-4 to file a supplemental pleading." Cf. Zaromb v. Borucka, 166 N.J. Super. 22, 26-27 (App. Div. 1979)(holding that a litigant was not precluded from filing a new lawsuit, after he had moved to amend his counterclaim in the first lawsuit and the motion was denied). "[J]oinder is not a matter of party autonomy. It is for trial court[s] to determine whether or not joinder is appropriate in a given case, and thus litigants should be compelled to bring all actions at one time." Mystic Isle Dev. Corp. v. Perskie & Nehmad, P.C., 142 N.J. 310, 324 (1995).
After Peterson's attorney noted that the Bongiovanni case was stayed because one of the parties had filed for bankruptcy, Judge Schuck stated that Peterson was still required "to do what's legal and necessary," even if that required moving for relief from the bankruptcy stay.*fn1 However, instead of moving to lift the stay and amend the counterclaim in the pending Bongiovanni case, Peterson filed this appeal.
Judge Schuck's decision on reconsideration did not finally resolve any aspect of the parties' dispute, but instead clearly contemplated that Peterson would pursue his claims by filing a motion in the Bongiovanni case. The resulting May 14, 2010 dismissal order was therefore without prejudice and interlocutory. See S.N. Golden Estates, Inc. v. Cont'l Cas. Co., 317 N.J. Super. 82, 87 (App. Div. 1998)("To be final, a judgment must dispose of all claims against all parties."). Moreover, even if the May 14, 2010 decision had also encompassed the earlier determination that the complaint was too vague to state a claim, "[o]rdinarily a dismissal for failure to state a claim is without prejudice." See Pressler & Verniero, Current N.J. Court Rules, comment 4.1.1 on R. 4:6-2.
Because the May 14, 2010 order on appeal was interlocutory, and Peterson has neither filed a motion for leave to appeal nor satisfied the standard for interlocutory review set forth in Rule 2:2-4, we dismiss the appeal. See Vitanza v. James, 397 N.J. Super. 516, 517-18 (App. Div. 2008). This disposition is without prejudice to Peterson's filing a motion in Bongiovanni v. Peterson, seeking to amend his counterclaim. See Brown, supra, 208 N.J. Super. at 381-82. We intimate no view as to whether such a motion should be granted.