LINDA M. THURBER v. COULTER JAMES THURBER III

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

LINDA M. THURBER,

Plaintiff-Appellant,

v.

COULTER JAMES THURBER, III,

THEODORE M. COSTA, SENATE TITLE

CO., INC., CONESTOGA TITLE

INSURANCE COMPANY, MARIA D. FEAN,

CONGRESS TITLE CORPORATION,

FIDELITY NATIONAL TITLE INSURANCE

COMPANY, SJB HOLDINGS, L.L.C.,

JAMES B. WILSON, CATHIE L. STULL,

WOODBURY TITLE AGENCY, L.L.C.

a/k/a WOODBURY TITLE GROUP,

EFTHEMIOS VELAHOS, FIRST AMERICAN

TITLE INSURANCE COMPANY, NEW

CENTURY MORTGAGE CORPORATION,

SELECT MORTGAGE CORPORATION,

INVESTOR COMMERCIAL CAPITAL,

L.L.C.,

Defendants-Respondents,

and

THEODORE M. COSTA and SENATE

TITLE CO., INC.,

Third Party Plaintiffs,

v.

FRANK OLIVO, ESQ., STEPHANIE

OLIVIO, ESQ. and YOUNGBLOOD,

LAFFERTY & SAMPOLI, P.A. (as

successor in interest to

YOUNGBLOOD, CORCORAN, LAFFERTY

& HYBERT, P.A. and YOUNGBLOOD,

CORCORAN, LAFFERTY, HYBERG &

WALDMAN, P.A.),

Third-Party Defendants.

_____________________________________

February 6, 2014

Argued October 8, 2013 Decided

Before Judges Fisher, Koblitz and O'Connor.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-2467-08.

Joseph M. Pinto argued the cause for appellant (Polino and Pinto, P.C., attorneys; Mr. Pinto, on the brief).

Robert L. Grundlock, Jr., argued the cause for respondents First American Title Insurance Company, Bank of America, and CitiMortgage, Inc. (Rubin, Ehrlich & Buckley, P.C., attorneys; Mr. Grundlock, on the brief).

Stuart B. Dember argued the cause for respondents Congress Title Corporation and Fidelity National Title Insurance Company (Fox Rothschild LLP, attorneys; Mr. Dember, of counsel and on the brief; Heather M. Kumor, on the brief).

Marshall D. Bilder argued the cause for respondents Theodore M. Costa and Senate Title Co., Inc. (Eckert Seamans Cherin & Mellott, LLC, attorneys; Mr. Bilder, of counsel and on the brief).

Law Offices of Robert A. Stutman, P.C., attorneys for respondent Maria D. Fean; and David R. Jacquette (Morris and Clemm, PC), attorney for respondent Conestoga Title Insurance Company, join in the brief of respondents Congress Title Corporation and Fidelity National Title Insurance Corporation.

PER CURIAM

I.

Plaintiff Linda M. Thurber appeals five orders. Two orders, dated August 17, 2009, granted summary judgment and dismissed the complaint, with prejudice, against the following five defendants: First American Title Insurance Company (FA), Bank of America (BOA), CitiMortgage (Citi), Theodore M. Costa, and Senate Title Agency, Inc. (Senate). The parties refer to these five defendants as the "summary judgment defendants" and, for consistency, we do as well. Two orders, dated December 14, 2009, and December 17, 2012, denied plaintiff's motions for reconsideration of the August 17, 2009 orders.

The fifth order, dated December 21, 2012, denied plaintiff's motion to reinstate the complaint she previously dismissed, without prejudice, against the following six defendants: Conestoga Title Insurance Company (Conestoga), Maria Fean, Fidelity National Title Insurance Company (Fidelity), Congress Title Corporation (Congress), James B. Wilson and Efthemios Velahos.

For the reasons that follow, we dismiss the appeal as interlocutory.

II.

In her complaint plaintiff alleges her former husband, defendant Coulter James Thurber, III, fraudulently borrowed against and later sold real property titled solely in her name. Plaintiff claims the other defendants wrongfully aided Thurber's fraudulent transactions. Among other relief, plaintiff seeks to quiet title to and regain possession of the property.

After the summary judgment defendants were dismissed with prejudice from the complaint, defendants Conestoga, Fean, Fidelity, and Congress approached plaintiff and advised they intended to file a motion for summary judgment similar to that filed by the summary judgment defendants. The parties refer to Conestoga, Fean, Fidelity, and Congress as the "dismissed defendants," a description we also adopt.

Rather than be burdened with motion practice, plaintiff and the dismissed defendants agreed plaintiff would file a stipulation of dismissal, without prejudice, in favor of the dismissed defendants, but if plaintiff were successful in having

the August 17, 2009 orders1 granting summary judgment vacated on a motion for reconsideration or reversed on appeal, in whole or in part, the stipulations of dismissal would be rescinded and the complaints against the dismissed defendants revived. The terms of the parties' agreement were placed into the stipulation of dismissal, without prejudice.

The disposition of the remaining defendants was as follows. Default judgment was entered against defendants Thurber; SJB Holdings, LLC; Woodbury Title Agency, L.L.C. a/k/a Woodbury Title Group; American Home Lending, Inc.; Donna Fisher; and Brian Mammoccio. Plaintiff settled with defendant Investor Commercial Capital, L.L.C., and defendant Cathie Stull was discharged in bankruptcy. Shortly after Costa and Senate prevailed on their motions for summary judgment, they dismissed the third-party complaint in its entirety.

When the trial was about to start, in February 2012, the two remaining defendants, James B. Wilson and Efthemios Velahos, advised plaintiff they intended to file a petition in bankruptcy. Thereafter, however, plaintiff and these defendants reached an agreement, which was similar to the agreement plaintiff reached with the dismissed defendants except that the complaint would be reinstated against them even if the appeal resulted in an affirmance of the grant of summary judgment. Specifically, the parties agreed plaintiff would file stipulations of dismissal, without prejudice, in favor of Wilson and Velahos, but if the August 17, 2009 orders2 granting summary judgment were reversed, in whole or in part, remanded or affirmed by the Appellate Division, the stipulations of dismissal would be rescinded and the complaints against Wilson and Velahos would be restored. The terms of the agreement were placed into the stipulations of dismissal, without prejudice.

Believing there was a final disposition of all issues as to all parties, plaintiff filed a notice of appeal on February 15, 2012, challenging the two August 17, 2009 orders granting summary judgment, as well as the December 14, 2009 order denying plaintiff's motion for reconsideration of the orders granting summary judgment. On April 18, 2012, we entered an order stating the appeal would be dismissed as interlocutory, unless plaintiff filed a motion for leave to appeal and addressed the following issues.

Plaintiff was directed to advise whether there were overlapping issues of fact and law that affected the rights of those defendants who had not obtained summary judgment. If there were overlapping issues, plaintiff was to address whether those defendants agreed to be bound by our determinations if leave to appeal were granted. If such defendants did not agree to be bound, plaintiff was to address whether the rights of such defendants would be adversely affected if they did not participate in the appeal.

Plaintiff promptly filed a motion for leave to appeal, but the subject defendants were unwilling to be bound by a merits determination if leave to appeal were granted. We determined that the piecemeal review of this matter was not warranted, see Brundage v. Estate of Carambio, 195 N.J. 575, 599 (2008), and dismissed the appeal.

Plaintiff filed in the trial court another motion for reconsideration of the August 17, 2009 orders granting summary judgment, that was denied, on December 17, 2012. Plaintiff also filed a motion to reinstate the complaint as to Wilson, Velahos, and the dismissed defendants. Finding that none of the agreed upon conditions for reinstatement as set forth in the stipulations of dismissal had been fulfilled, the trial court denied the motion, on December 21, 2012.

During oral argument on the latter motion, the trial judge and plaintiff's counsel expressed the view that the denial of the motion created the requisite finality to enable plaintiff to appeal any of the trial court's rulings, as of right. See R. 2:2-3(a). Consistent with that assumption, plaintiff understandably did not seek leave to file an interlocutory appeal but filed a notice of appeal.

III.

Only final judgments may be appealed as of right. R.

2:2-3; Grow Co. v. Chokshi, 403 N.J. Super. 443, 457-58 (App. Div. 2008). "To be a final judgment, an order generally must dispose of all claims against all parties." Vitanza v. James, 397 N.J. Super. 516, 518 (App. Div. 2008) (quoting Janicky v. Point Bay Fuel, Inc., 396 N.J. Super. 545, 549-50 (App. Div. 2007)) (internal quotation marks omitted). Without finality, appeal is available only by leave granted by the Appellate Division under Rules 2:2-4 and 2:5-6(a). Janicky, supra, 396 N.J. Super. at 550. While there are some limited exceptions to the rule that only final judgments may be appealed as of right, they are few in number and none is applicable in this matter.

Once plaintiff was wrongfully denied reinstatement of her complaint, she assumed she could file a notice of appeal as of right, as she had seemingly exhausted all action that could be taken in the trial court. After all, the trial court had twice denied her motion to reconsider the orders granting summary judgment, and had rejected her request to reinstate the complaint as to Wilson, Velahos, and the dismissed defendants. Nevertheless, this predicament did not create the finality required to appeal a matter as of right. To appeal as of right, plaintiff was required to appeal from a final judgment which, for purposes of Rule 2:2-3, is a judgment, order or stipulation that disposes of all claims against all parties, which does not yet exist in this case.

While all issues as to the summary judgment defendants were resolved, the same cannot be said for Wilson, Velahos, and the dismissed defendants. If the appeal were heard and the orders for summary judgment reversed, the complaint against the dismissed defendants, Wilson and Velahos would resurrect and the adjudication of those claims would resume. If the orders for summary judgment were affirmed, the complaint against Wilson and Velahos would revive and the adjudication of those claims would proceed.

Because the dismissals in favor of Wilson, Velahos, and the dismissed defendants failed to conclude all matters as to these defendants, plaintiff has not filed an appeal of a final judgment in accordance with Rule 2:2-3. Plaintiff's appeal is interlocutory. A voluntary dismissal, without prejudice, which is in reality an interlocutory order cannot become "a device to foist jurisdiction upon this court" by the filing of a notice of appeal. CPC Int'l, Inc. v. Hartford Acc. & Indem. Co., 316 N.J. Super. 351, 366 (App. Div. 1998), certif. denied, 158 N.J. 73-74 (1999); Grow, supra, 403 N.J. Super. at 461.

The appeal must be dismissed, as the appeal is interlocutory, for which leave was not obtained. However, we would be remiss if we did not address the status of the agreement between plaintiff and Velahos, Wilson, and the dismissed defendants in light of our ruling, and provide guidance for the trial court regarding the future handling of what remains unadjudicated.

It may appear, at first blush, plaintiff is prohibited from proceeding in the trial court. After all, the complaint against all defendants has, for one reason or another, been dismissed, although of course the complaint as to Wilson, Velahos and the dismissed defendants has been merely dismissed without prejudice. But the agreement between plaintiff and the aforementioned defendants was premised upon the assumption an appeal of the orders granting summary judgment would be heard and decided by us on the merits.

The parties' expectations were that if the trial court denied plaintiff's motion for reconsideration of the orders granting summary judgment, plaintiff would appeal. But the status of the matter in the trial court through the aforementioned stipulations of dismissal is such that, regardless of our disposition of the appeal, the complaint against Wilson and Velahos would be revived. The stipulation regarding those parties is tantamount to the shelving of those issues pending our disposition of this interlocutory appeal merely for the convenience of the parties and the trial court. This type of artifice cannot be permitted to require that we decide what may, on the surface, appear to be a final order but, in truth, is merely interlocutory. The trial judge's December 21, 2012 order, which breathed life into this artifice by memorializing the trial court's refusal to proceed further with the claims against Wilson and Velahos until we disposed of the appeal, was erroneous and is now reversed.3 The consequence of this holding is that the matter is now remanded to the trial court for a final disposition of the claims against Wilson and Velahos.

The December 21, 2012 order is reversed and the remainder of the appeal is dismissed. The remaining claims should be listed for trial and adjudicated as soon as practicable and no later than 90 days from today's date. We do not retain jurisdiction.

1 The agreement between plaintiff and the dismissed defendants mentions that only one order granting summary judgment was entered on August 17, 2009, when in fact two were entered. One order granted summary judgment in favor of FA, BOA, and CITI, and the other granted summary judgment in favor of Costa and Senate. We assume the reference to just the one order was an oversight.

2 The agreement between plaintiff and defendants Wilson and Velahos also recites that only one order was entered on August 17, 2009, granting summary judgment, when in fact two orders were entered. Again, we assume this error was an oversight.

3 To the extent it may be argued that the December 21, 2012 order is also, at least technically, interlocutory, we will grant leave to appeal that order out of time for the purpose of reversing it.