MIDLAND FUNDING L.L.C. v. DOUGLAS ALPRIN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

MIDLAND FUNDING L.L.C.,

Plaintiff-Appellant,

v.

DOUGLAS ALPRIN,

Defendant-Respondent.

________________________________

August 26, 2013

Submitted August 21, 2013 Decided

Before Judges Waugh and Haas.

On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Bergen County, Docket No. DC-028849-11.

Pressler and Pressler, L.L.P., attorneys for appellant (Lawrence J. McDermott, Jr., on the brief).

Respondent has not filed a brief.

PER CURIAM

Plaintiff Midland Funding, LLC appeals from the May 4, 2012 decision of the Special Civil Part denying its motion to have a default judgment entered against defendant Douglas Alprin. Plaintiff also challenges the court's June 8, 2012 decision denying its motion for reconsideration. We dismiss this appeal as interlocutory because the decisions being appealed are not final as to all issues.

Plaintiff is the owner by assignment and purchase of defendant's defaulted Visa credit card account. The amount due was $717.33. On October 11, 2011, plaintiff filed a Special Civil Part suit against defendant seeking to recover this amount, plus interest. Defendant did not file an answer to the complaint and, pursuant to Rule 6:6-2, default was entered against him.

Thereafter, on December 8, 2011, plaintiff and defendant negotiated a settlement under which defendant agreed to pay the amount due in monthly installments. The settlement was embodied in a written stipulation of settlement, which was prepared by plaintiff's attorney and signed by defendant.1 The stipulation provided that, if defendant "default[ed] under the terms of this settlement," plaintiff could "move for an Order for the entry of judgment . . . ." Plaintiff submitted the stipulation to the court for filing.

According to a certification filed by plaintiff's attorney, defendant only made one of the required installment payments. Plaintiff then filed a motion with the Special Civil Part "to enter judgment" against defendant for the amount still due.

On May 4, 2012, the motion judge denied plaintiff's request. The judge found that plaintiff's motion was "tantamount to a request for [the entry of] a default judgment" under Rule 6:6-3(a) and, therefore, he believed that plaintiff was required to submit certain documentation in support of its application before it could be considered. Specifically, the judge found that plaintiff should have submitted an affidavit demonstrating that defendant was not in military service, and a separate affidavit setting forth the source of the address used for service of the summons and complaint.

Rather than supplying this requested documentation, plaintiff filed a motion for reconsideration, which the judge denied on June 8, 2012. This appeal followed and plaintiff has raised the following argument for our consideration:

POINT I- THE MOTION JUDGE ERRED IN NOT ENFORCING THE PARTIES' WRITTEN SETTLEMENT AGREEMENT.

A). THERE WAS NO FRAUD OR ABUSE

B). DEFENDANT WAIVED HIS RIGHTS TO DEFEND.

C). DEFENDANT APPEARED VIA SETTLEMENT

D). R. 1:5-7 AFFIDAVIT OF NON-MILITARY SERVICE IS NOT REQUIRED.

E.) PLAINTIFF'S "PROOFS" SATISFIED R. 6:6- 3.

Based on our review of the record and applicable law, we decline to review the matter on the merits at this juncture of the case. It is "well settled that a judgment, in order to be eligible for appeal as a final judgment, must be final as to all parties and all issues." Pressler & Verniero, Current N.J. Court Rules, comment 2 on R. 2:2-3 (2013); See Smith v. Jersey Cent. Power & Light Co., 421 N.J. Super. 374, 383 (App. Div.), certif. denied, 209 N.J. 96 (2011) (holding that in order for a "judgment to be final and therefore appealable as of right, it must dispose of all claims against all parties") (internal quotation marks and citation omitted).

Here, it is clear that the judge's order denying plaintiff's motion to enter a default judgment against defendant and his subsequent order denying plaintiff's motion for reconsideration were not "final" within the intendment of Rule 2:2-3(a)(1). Contrary to plaintiff's assertion, the judge did not refuse to enforce the settlement it reached with defendant. Rather, the judge simply denied plaintiff's motion for a default judgment based upon his determination that plaintiff was required to supply certain documentation before the motion could be considered. Thus, the orders did not foreclose plaintiff from resubmitting its motion for a default judgment with the requested documentation. Under these circumstances, the May 4, and June 8, 2012 orders are plainly interlocutory.

If an order is interlocutory, upon good cause shown and an absence of prejudice, we may "[g]rant leave to appeal as within time from an interlocutory order, decision or action, provided that the appeal was in fact taken within the time for appeals from judgments, decisions or actions." R. 2:4-4(b)(2). We decline to grant such leave under the circumstances of this case. As stated almost forty years ago:

[T]he grant of leave to appeal [as within time] is most extraordinary relief and . . . the haphazard employment of it can have but a deleterious impact on appellate practice and the overall administration of justice. Piecemeal reviews, ordinarily, are anathema to our practice, as expressed in the rules which require the final disposition of all issues at one hearing on the trial level followed by orderly appellate review. The interruption of the litigation at the trial level, by the taking, as here, of an unsanctioned "appeal", disrupts the entire process and is wasteful of judicial resources.

[Frantzen v. Howard, 132 N.J. Super. 226, 227-28 (App. Div. 1975).]

We do not perceive dismissal of this appeal to be an unjust result. See Parker v. City of Trenton, 382 N.J. Super. 454, 458 (App. Div. 2006) (dismissing appeal as interlocutory, explaining that "[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") (citations omitted). Accordingly, this interlocutory appeal must be dismissed.

1 No representative of plaintiff signed the stipulation.