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Lineliv, L.P. and Ivelin, L.P v. Steliga Homes of Evesham


March 14, 2011


On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-1311-05.

Per curiam.


Argued February 16, 2011

Before Judges Fisher, Sapp-Peterson and Fasciale.

In this appeal, plaintiffs contend the trial judge erred in granting summary judgment dismissing their RICO*fn1 claims in this action. We reject their arguments and affirm.

Before considering the merits of this appeal, we note that this controversy has previously been before us. In 2003 and 2004, Steliga Homes of Evesham (Steliga-Evesham) and Steliga Homes of Medford (Steliga-Medford) commenced suits against Lineliv, L.P. and Ivelin, L.P., and others, seeking, among other things, cancellation of mortgages on certain lots they were developing. In 2005, Lineliv and Ivelin commenced this suit against Steliga-Evesham and Steliga-Medford, as well as the Congress Title defendants,*fn2 who also appear to have been parties to the earlier suits; and in 2007, Lineliv and Ivelin commenced suit against Kenneth and Gail Steliga, who were alleged to be owners or representatives of the Steliga entities, and Igor Sturm, Esq., the attorney for the Steliga entities. These two latter actions contain the RICO claims at issue in this appeal; the RICO claims are based on, among other things, the contention that defendants concealed the existence of plaintiffs' mortgages from potential purchasers. Because all the suits related to the same transaction or series of transactions, they were consolidated in the trial court.

By way of summary judgment, the judge granted Lineliv and Ivelin (plaintiffs) partial relief by concluding that the Steliga entities had defaulted on the notes held by plaintiffs. At the conclusion of a bench trial, the judge determined that plaintiffs were entitled to damages and legal fees, and memorialized his determinations in a judgment entered on April 10, 2008. Plaintiffs appealed the judgment insofar as it denied their claim for late fees or delay damages; the Steliga entities filed a cross-appeal, arguing that the judge erred in granting partial summary judgment and in granting other relief.

We disposed of that appeal by way of an unpublished opinion in which we affirmed the April 10, 2008 judgment and the earlier partial summary judgment in all respects. Lineliv, LP v. Steliga Homes of Evesham, LLC, No. A-6312-07 (App. Div. June 26, 2009). It was our understanding at the time that we were then reviewing a final judgment. We noted, for example, that all the suits filed by these parties had been consolidated. Id. at 3 n.2. The opinion's caption, which delineated all the related docket numbers, included a reference to the docket number of the consolidated cases now in question. Id. at 1.

Needless to say, the appearance on our calendar of the current appeal was a surprise in light of our understanding that we previously reviewed a final order that appeared to have resolved all issues as to all parties, as -- indeed --plaintiffs represented in their earlier notice of appeal.*fn3

Shockingly, the parties' briefs in this appeal contain procedural histories that make no mention of the prior appeal. Even more disturbing are the case information statements filed in this appeal. Both parties answered "no" to the following question: "Was there any prior appeal involving this case or controversy?"

We need not parse the words or define the scope of the words "case" or "controversy" in condemning counsel's failure to properly advise the court of the existence of the prior appeal. Even if we were to agree that "case" refers only to a single action with a single docket number, only the triumph of sophistry over reason would permit a conclusion that the prior appeal does not relate to the same "controversy" as the matter at hand. The parties were duty-bound to inform us of the prior appeal, and their failure constitutes a great disservice.

Equally disturbing is counsels' apparent failure to advise the court in the prior appeal that issues remained unresolved in their bundle of consolidated cases. When questioned about this at oral argument, counsel advised us that a trial court order had severed the suits at hand from those adjudicated at the April 2008 trial. We requested at oral argument a copy of this order as well as citations to this order in the record in the earlier appeal. Counsel provided only a reference to the first few pages of the trial transcript in which the judge and counsel described the suits and claims that would be encompassed by the trial; counsel and the judge agreed the action encompassed by the docket number assigned to the matter before us (Docket No. L-1311-05) was "going to live" after the judge resolved the issues presented during the April 2008 trial and heard by another judge. Had we noticed this comment during the pendency of the first appeal, we would likely have dismissed the prior appeal as interlocutory. But the record then before us continued to confound any true understanding of the finality of the order under review; that order referred to all the consolidated docket numbers, including L-1311-05, and gave every appearance of having disposed of all issues as to all parties.

In speaking for the Court, Justice Brennan declared that our Court Rules envision a judicial process consisting of "a single and complete trial with a single and complete review." Trecartin v. Mahony-Troast Constr. Co., 21 N.J. 1, 6 (1956); see also Investors Savings Bank v. Waldo Jersey City, LLC, __ N.J. Super. __, __ (App. Div. 2011) (slip op. at 10). Notwithstanding that goal, this court has been plagued by parties who have filed appeals that either ignore the absence of finality in the trial court or conspire to foist upon us for review interlocutory orders in the guise of final orders. We have described these problems elsewhere. See, e.g., Grow Co., Inc. v. Chokshi, 403 N.J. Super. 443, 458-60 (App. Div. 2008); Janicky v. Point Bay Fuel, Inc., 396 N.J. Super. 545, 551-52 (App. Div. 2007). As Judge Stern explained in Parker v. City of Trenton, 382 N.J. Super. 454, 458 (App. Div. 2006), "[a]t 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." We need add nothing to these and the many other decisions stressing the importance that interlocutory appeals be permitted only when this court has had the opportunity to consider whether they are worthy of our intervention prior to entry of a final judgment in the trial court. Because the machinations of some have not been deterred by the considerable body of law condemning the artificial creation of finality or the disguising of interlocutory orders as final, we previously concluded that the time may have come for the inclusion in our rules of an obligation on counsel to include a jurisdictional statement in their appeal briefs and commended -- as we again commend --consideration of this troublesome issue by the Committee on Civil Practice. Grow, supra, 403 N.J. Super. at 462-63 n.7.

Had we known that the parties had other issues pending in the trial court when we heard the first appeal, we would likely have dismissed the appeal pending disposition of those remaining issues and thereby preserved our judicial resources until there could be full review of all aspects of the trial court's disposition of the parties' many disputes at one time.*fn4 In any event, the damage here has been done, and we are relegated to reiterating our condemnation of the continued attempts to make finality the pea in a shell game.

It was not our intent to turn the parties' arguments on the merits of this second appeal into a sideshow. Our concerns about the manner in which the parties were able to pursue and secure our decision in the first appeal when, in truth, the order then under review has now been revealed as interlocutory, have had no bearing on our review of the summary judgment that dismissed plaintiffs' RICO claims. After closely examining the record in light of the parties' arguments in this appeal, we affirm substantially for the reasons set forth in Judge Karen L. Suter's thorough and thoughtful written decision.


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