CENTERTON COUNTRY CLUB, LLC, et al. v. Q & P

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2253-05T52253-05T5

CENTERTON COUNTRY CLUB, LLC;

CENTERTON GOLF, LLC; CENTERTON

GOLF COURSE, LLC; JOSEPH SCARPINATO,

individually; TERESA SCARPINATO,

individually; and KAREN CURCIO,

individually,

Plaintiffs-Appellants,

v.

Q & P ASSOCIATES, LLP,

Defendant-Respondent.

__________________________________

 

Argued November 27, 2006 - Decided December 18, 2006

Before Judges Lintner and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Chancery Division, Salem County, Docket Number C-11-05.

Joel L. Schwartz argued the cause for appellants (Joel L. Schwartz, attorney; Mr. Schwartz and A. Wesley Bridges, on the brief).

Richard B. Supnick argued the cause for respondent.

PER CURIAM

In this matter, plaintiffs Centerton Country Club, LLC, Centerton Golf, LLC, Joseph Scarpinato, Teresa Scarpinato, and Karen Curcio filed a Notice of Appeal on December 23, 2005, from an interlocutory Chancery Division order entered on November 30, 2005, which discharged a lis pendens and dismissed plaintiffs' claim for specific performance with respect to an alleged option to purchase real estate owned by defendant. In their Case Information Statement filed on January 24, 2006, plaintiffs indicated that they were appealing the November 30, 2005, order as well as another interlocutory order entered on December 29, 2005, denying plaintiffs' application to enforce a purported settlement on the ground that there was no meeting of the minds with respect to material terms in the proposed settlement, and transferring the matter to the Law Division. The Case Information Statement also indicated that there were still claims pending and that the orders had not been certified as final pursuant to R. 4:42-2.

There is no right to appeal from interlocutory orders. R. 2:2-3(a). Rather, appeals respecting interlocutory orders are governed by R. 2:2-4, which provides that "the Appellate Division may grant leave to appeal, in the interest of justice, from an interlocutory order of a court." In order to secure leave to appeal, a litigant must comply with R. 2:5-6(a), which requires the filing of a notice of motion for leave to appeal within twenty days of the service of the order.

It is the exclusive prerogative of this court to determine whether extraordinary circumstances are present warranting a piecemeal appeal. See, e.g., Fu v. Fu, 309 N.J. Super. 435, 439-40 (App. Div.), appeal granted, 155 N.J. 585 (1998); Hallowell v. Am. Honda Motor Co., 297 N.J. Super. 314, 318 (App. Div. 1997); DeFelice v. Beall, 274 N.J. Super. 592, 595 n.1 (App. Div.), certif. denied, 138 N.J. 268 (1994); Kurzman v. Appicie, 273 N.J. Super. 189, 191-92 (App. Div. 1994); Procanik v. Cillo, 226 N.J. Super. 132, 143 n.4 (App. Div.), certif. denied, 113 N.J. 357 (1988); DiMarino v. Wishkin, 195 N.J. Super. 390, 395-96 (App. Div. 1984).

In order to secure leave to appeal, the litigant must demonstrate the presence of "extraordinary circumstances" that "warrant[] a piecemeal appeal" that is "in the interest of justice." Edwards v. McBreen, 369 N.J. Super. 415, 420 (App. Div. 2004). A litigant may not bypass R. 2:5-6(a) by filing an appeal as of right from an interlocutory order because "[o]ur calendar is not subject to a party's whim or an attempt to avoid the necessity of a formal motion." Ibid. We conclude that no such showing has been made here and, thus, decline to treat the Notice of Appeal as though it were a Notice of Motion for Leave to Appeal.

Appeal dismissed.

 

At the time of oral argument the balance of the action pending in the Law Division had not yet been settled or tried.

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A-2253-05T5

December 18, 2006