JENNIFER LEONARDO v. BANK OF AMERICA

(NOTE: The status of this decision is published.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5448-06T25448-06T2

JENNIFER LEONARDO,

Plaintiff-Appellant,

and

JANET POLECHEK and

JOHN F. MORAN, JR.,

Plaintiffs,

v.

BANK OF AMERICA, f/k/a

FLEET BANK, N.A.,

Defendant-Respondent.

__________________________________

 

Argued: March 12, 2008 - Decided:

Before Judges Axelrad, Payne and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-28-05.

Neil I. Sternstein argued the cause for appellant.

Gregg S. Sodini argued the cause for respondent (Sodini & Spina, LLC, attorneys; Mr. Sodini and Daniel Barros, on the brief).

PER CURIAM

Plaintiff Jennifer Leonardo is the adult daughter of plaintiff Janet Polechek. In April 2004, Leonardo deposited into her Bank of America (BOA) account two checks written by Charles Roper on his Sun Trust bank account in the amounts of $2,500 and $2,595. The checks were made payable to the "Janet Polechek Racing Stables" and endorsed by Polechek in her name only, there allegedly being no "Racing Stable" entity. The incomplete or illegal endorsement triggered a series of events not relevant to our decision, other than that the $2,500 check was eventually credited to Leonardo's account. However, despite requests by Leonardo, BOA neither credited the other check to her account nor took action to facilitate issuance of a replacement check.

On December 30, 2004, Leonardo, Polechek and John Moran filed an eleven count complaint against BOA, asserting claims of conversion, unjust enrichment, wrongful dishonor of checks drawn on the account, breach of the implied covenant of good faith and fair dealing imposed by N.J.S.A. 12A:1-203, violation of the New Jersey Consumer Fraud Act (CFA), fraud and intentional and willful misconduct, negligent misrepresentation that the checks drawn on the account would be honored, breach of fiduciary duty, and defamation. Defendant filed its answer in March 2005.

In January 2006 the matter was noticed for trial. Defendant filed a motion for summary judgment seeking to dismiss all claims in plaintiffs' complaint. By order of March 17, 2006, the court granted summary judgment against plaintiffs Polechek and Moran on all claims, and granted partial summary judgment against Leonardo on her CFA and unjust enrichment claims, specifically leaving in place her claims based on conversion, breach of the implied covenant of good faith and fair dealing, and defamation. Leonardo thereafter sought reconsideration of the dismissal of her CFA claim, which was denied by order of July 28, 2006.

We extended the time for Leonardo to move for leave to appeal, but denied her motion for leave to appeal by order of November 27, 2006.

A pretrial conference was held on April 16, 2007. Instead of proceeding to trial on the remaining claims, counsel and the court agreed that an order would be entered dismissing Leonardo's remaining claims without prejudice and permitting their re-institution if she were unsuccessful on appeal and certifying the resulting judgment as final. The May 15, 2007 "Final Order and Judgment" provided, in pertinent part, as follows:

THIS MATTER having been opened to the Court by [Leonardo's counsel] . . . for the entry of an Order certifying Final Judgment in the above-captioned action; and . . . the Court having granted BOA summary judgment dismissing all of the claims of . . . Polachek . . . and . . . Moran . . . and dismissing all of the claims of . . . Leonardo . . . with the exception of (1) Leonardo's wrongful dishonor claims as set forth in the Third and Eighth Counts of the Complaint, (2) Leonardo's conversion claim as set forth in the First Count of the Complaint, (3) Leonardo's breach of the implied covenant of good faith and fair dealing claim as set forth in the Fifth Count of the complaint and (4) Leonardo's defamation claims as set forth in the Tenth and Eleventh Counts of the Complaint (the claims that were not dismissed being hereinafter collectively referred to as the "Remaining Leonardo Claims"); and it further appearing that BOA filed a motion for an award of its attorneys' fees and costs against Polachek and Moran which was denied without prejudice; and it further appearing that BOA having agreed to release to Leonardo the sum of $2,595.00 . . .; and the parties having consented to the form and entry of the within Order; and for good cause shown;

. . . .

(1) ORDERED that the Remaining Leonardo Claims are hereby dismissed without prejudice subject to the terms, conditions and deadlines set forth herein such that the dismissal of the claims dismissed by way of Summary Judgment in favor of BOA are now Final and subject to immediate appeal; and it is further

(2) ORDERED that to the extent Plaintiffs fail to file an[] appeal of the dismissal of the claims dismissed by way of Summary Judgment in favor of BOA within forty-five (45) days of the date of this Order, both those claims and the Remaining Leonardo Claims will be forever barred; and it is further

(3) ORDERED that to the extent the Court's March 17, 2006 Order is affirmed on appeal, any reinstatement of the Remaining Leonardo Claims shall be through the filing of a new action under a new docket number within ninety (90) days of the final disposition of the appeal of the March 17, 2006 Order and that if Remaining Leonardo Claims are not timely reinstated as set forth herein they shall be forever barred; and it is further

(4) ORDERED that to the extent the Court's March 17, 2006 Order is reversed on appeal and remanded, Plaintiff Leonardo may seek reinstatement of the Remaining Leonardo Claims by way of Amendment to the Complaint within ninety (90) days of the reversal and remand and that if Remaining Leonardo Claims are not timely reinstated as set forth herein they shall be forever barred; and it is further

(5) ORDERED that BOA shall have sixty (60) days from the date of the final disposition of any appeal of the March 17, 2006 Order to re-submit an application for an award of attorneys' fees and costs and, if no appeal is taken, shall have sixty (60) days from the expiration of the period of forty-five days from the date of this Order to re-submit an application for an award of attorneys' fees and costs; and it is further

[6] ORDERED that, subject to the terms, conditions and deadlines set forth herein, BOA has agreed to waive any statute of limitations defense it may have on the Remaining Leonardo Claims to the extent they are timely reinstated as set forth above; and it is further

[7] ORDERED that, within fifteen days of May 31, 2007, BOA shall pay over to Plaintiff Jennifer Leonardo the sum of $2,595.00 representing the proceeds of Check No. 1236 drawn on Sun Trust Bank . . . .

Leonardo then appealed from the May 15, 2007 judgment challenging the March 17, 2006 grant of summary judgment dismissing her CFA claim and the July 28, 2006 order denying her motion for reconsideration.

Rule 2:2-3(a)(1) provides that an appeal as of right may be taken to the Appellate Division only from a "final judgment." To be final, the judgment must "dispose of all claims against all parties" to avoid piecemeal appellate review. Janicky v. Point Bay Fuel, Inc., 396 N.J. Super. 545, 549-50 (App. Div. 2007) (quoting S.N. Golden Estates, Inc. v. Cont'l Cas. Co., 317 N.J. Super. 82, 87 (App. Div. 1998)). If an order is not appealable as of right as a final judgment under Rule 2:2-3(a), the party must be granted leave to appeal by the Appellate Division, which may be granted "in the interest of justice." R. 2:2-4; see also R. 2:5-6(a). We exercise our authority to grant leave to appeal "only sparingly," recognizing that "[i]nterlocutory appellate review runs counter to a judicial policy that favors an 'uninterrupted proceeding at the trial level with single and complete review.'" Janicky, supra, 396 N.J. Super. at 550 (citations omitted); see also S.N. Golden Estates, supra, 317 N.J. Super. at 88.

For appeal purposes, Rule 2:2-3 treats limited categories of orders that do not dispose of all claims against all parties as "final judgments," including an interlocutory order certified as final under Rule 4:42-2. That Rule provides, in pertinent part:

If an order would be subject to process to enforce a judgment pursuant to R. 4:59 if it were final and if the trial court certifies that there is no just reason for delay of such enforcement, the trial court may direct the entry of final judgment upon fewer than all the claims as to all parties, but only in the following circumstances: (1) upon a complete adjudication of a separate claim; or (2) upon complete adjudication of all the rights and liabilities asserted in the litigation as to any party; or (3) where a partial summary judgment or other order for payment of part of a claim is awarded.

[R. 4:42-2.]

Thus, for an order to be certified as final under Rule 4:42-2, it must satisfy two preconditions: "first, it must fall within one of the three numbered subparts of the rule, and second, it must be 'subject to process to enforce a judgment pursuant to R. 4:59 if it were final[.]'" Janicky, supra, 396 N.J. Super. at 550.

We have recently reiterated the admonition that litigants may not attempt to use the finality certification of Rule 4:42-2 as a device to bypass our exclusive authority to determine whether to grant a motion for leave to appeal an interlocutory order, citing a litany of cases articulating our repeated disapproval of this practice and Judge Pressler's explanation of the proper and improper use of a finality certification in her commentary on the Court Rules. Id. at 550-52. We repeat Judge Pressler's explanation:

The rule [4:42-2] makes clear that it is not any interlocutory order which is certifiable and that the certification technique is not available for the sole purpose of achieving interlocutory review. The "no just reason for delay" standard of the rule is limited to situations in which there is no reason to delay enforcement of the interlocutory order. Thus it is only an order susceptible to enforcement as a final order which is eligible for certification. This limited eligibility excludes orders dismissing as to particular parties, denying summary judgment, and indeed the whole panoply of orders which, if final, would confer no enforcement rights under R. 4:59.

The finality for appeal purposes of a certified partial judgment fully adjudicating a separable claim for affirmative relief is a collateral and not a primary consequence of the certification. The primary consequence is eligibility for execution. Hence it is a misuse of the rule for a trial court to "certify" as final a partial adjudication other than one granting affirmative relief in order that the adjudication be immediately appealable.

[Pressler, Current N.J. Court Rules, comment

2 on R. 4:42-2 (2008).]

We have also cautioned the trial court and litigants that the trial court's certification of an order as final is not binding upon us, Delbridge v. Jann Holding Co., 164 N.J. Super. 506, 510 (App. Div. 1978), and that we will not hesitate to vacate such certification if the order does not fall within the terms of Rule 4:42-2, S.N. Golden Estates, supra, 317 N.J. Super. at 88.

The order that is the subject of this appeal transparently fails to qualify for certification as final under Rule 4:42-2 and is contrary to our strong judicial policy against piecemeal appellate review. The posture of the case upon the entry of the May 2007 judgment was no different from when we denied leave to appeal six months earlier. BOA merely agreed to release to Leonardo the $2,595 check proceeds it had sought to interplead into court in connection with her reconsideration motion. The court did not adjudicate any of the "Remaining Leonardo Claims" or BOA's counsel fee application, nor did the parties agree to dismiss these claims with prejudice. Rather, they deactivated the remaining counts of the complaint pending our determination of the CFA issue on appeal, with the agreement that our decision would have no impact on the parties' abilities to proceed with their claims. Under the terms of the order, even if Leonardo were unsuccessful on her CFA claim on appeal, she was not foreclosed from then reinstating and pursuing her claims for wrongful dishonor, conversion, breach of the implied covenant of good faith and fair dealing, and defamation; and BOA's counsel fee claim also remained subject to resubmission. This order was clearly interlocutory, and by terming it a "final judgment," the parties and the court were, in essence, seeking to accomplish indirectly what could not be accomplished directly by Leonardo's unsuccessful motion for leave to appeal. We will not countenance this practice.

Accordingly, the appeal is dismissed as interlocutory.

According to the complaint, at the time of these events Moran resided with Leonardo and Polechek "as a family type unit."

It appears the order inadvertently failed to list "wrongful dishonor" as an outstanding claim. See May 15, 2007 Final Order and Judgment, preamble, infra.

(continued)

(continued)

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A-5448-06T2

April 4, 2008