THE MARLBORO PARTNERSHIP v. PAGANO DEVELOPMENT COMPANY, INC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

THE MARLBORO PARTNERSHIP,

a New Jersey Partnership,

Plaintiff-Appellant,

v.

PAGANO DEVELOPMENT COMPANY, INC.,

a New Jersey Corporation,

Defendant-Respondent,

and

ROBERT M. PAGANO,

Defendant.

_________________________________________

December 9, 2014

Submitted November 13, 2014 Decided

Before Judges Fuentes, Ashrafi and Kennedy.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-3537-11.

The Weingarten Law Firm, LLC, attorneys for appellant (George Bruk, on the brief).

Respondent has not filed a brief.

PER CURIAM

On July 27, 2011, plaintiff Marlboro Partnership filed a declaratory judgment action in the Law Division seeking to terminate a contract it entered into on August 5, 2008 with defendant Pagano Development Company, Inc., to sell certain real property located in the Township of Marlboro in Monmouth County. Plaintiff also named Robert M. Pagano as a defendant, claiming he agreed to act as a "Guarantor" and assume personal liability to pay plaintiff $150,000 in the event the contract was terminated.

Plaintiff filed an order to show cause (OTSC) on August 22, 2011 seeking to preclude defendant from interfering with its property rights and declaring the contract terminated. Defendant responded and cross-moved seeking to enjoin plaintiff from selling the property. The trial court denied all of the parties' requests for interlocutory relief, including plaintiff's OTSC. The court signed an order reflecting this ruling on December 6, 2011. This is one of two interlocutory orders plaintiff seeks to appeal.

The second interlocutory order plaintiff seeks to appeal was entered by the court on March 29, 2012. In this order, the trial court granted defendant's motion seeking a judicial determination that plaintiff's time of the essence letter dated January 20, 2012 was "unreasonable." Conversely, the court denied plaintiff's cross-motion seeking the opposite relief, namely, that a time of the essence letter plaintiff sent to defendant setting a closing date of February 21, 2012 was "reasonable." Neither party at the time sought leave to appeal pursuant to Rule 2:5-6(a).

On June 11, 2013, plaintiff filed a Notice of Appeal specifically identifying for appellate review the two interlocutory orders entered by the trial court on December 6, 2011 and March 29, 2012. Section (5) of the Civil Case Information Statement plaintiff is required to file pursuant to Rule 2:5-1(f) asks plaintiff/appellant to: "Give Date and Summary of Judgment, Order, or Decision Being Appealed and Attach a Copy." Plaintiff again identified by date and narrative description the orders entered by the trial court on December 6, 2011, and March 29, 2012.

Rule 2:2-3(a)(1) provides, in pertinent part, that an appeal to this court may be filed "as of right" only from "final judgments of the Superior Court trial divisions." Furthermore, Rule 2:5-6(a) provides, in pertinent part

Applications for leave to appeal from interlocutory orders of courts or of judges sitting as statutory agents and from interlocutory decisions or actions of state administrative agencies or officers shall be made by serving and filing with the court or agency from which the appeal is taken and with the appellate court a notice of motion for leave to appeal, as prescribed by [Rule] 2:8-1, within 20 days after the date of service of such order, administrative decision or notice of such administrative action.
 

Here, the parties entered into the following Consent Judgment

THIS MATTER being brought before the Court by Plaintiff by way of Complaint against Defendants; and Defendants having answered Plaintiff's Complaint and filed a Third Party Complaint against Third Party Defendants; and the parties hereto having asserted various claims, cross-claims, counter-claims, defenses and affirmative defenses as set forth in the pleadings filed in this matter; and a trial date of January 14, 2013 having been set for this matter but the parties having agreed to forego trial and dismiss all claims while reserving the right to appeal any order (interlocutory or otherwise) entered in this matter; and for good cause shown,

It is on this 25th day of April, 2013 ORDERED as follows

l. All claims, counter-claims, cross-claims are hereby dismissed without costs assessed to any party;

2. This Consent Order shall serve as a Final Order for purposes of any appeal a party (or parties) may file in connection with this matter;

3. Despite this dismissal of claims, the right is reserved by all parties to appeal any order (interlocutory or otherwise, with the exception of this Consent Order) entered in this matter within the time so prescribed by the New Jersey Court Rules;

4. This matter shall be removed [from] the Court's trial calendar; and

5. A copy of this Order shall be served upon Counsel for all parties within five (5) days of Plaintiff's Counsel's receipt of same.

[(Emphasis added).]

It has long been settled law in this State that an order entered with the consent of all parties is not appealable as a final judgment under Rule 2:2-3(a)(1). Winberry v. Salisbury, 5 N.J. 240, 255, cert. denied, 340 U.S. 877, 71 S. Ct. 123, 95 L. Ed. 638 (1950); see also Pemberton v. Pemberton, 41 N.J. Eq. 349 (E. & A. 1886). The jurisprudential policy underpinning this fundamental principle of appellate jurisdiction is grounded on the self-evident notion that appeals as of right from final judgments actually reflect a judgment entered involuntarily against the losing party. N.J. Sch. Constr. Corp. v. Lopez, 412 N.J. Super. 298, 308 (App. Div. 2010). Thus,

[a] party may not seek appellate review of an adverse interlocutory order without seeking relief from the outcome of the litigation as embodied in the judgment. A litigant satisfied with the judgment cannot have an advisory appellate evaluation of an alleged interlocutory error.

[Ibid. (quoting Magill v. Casel, 238 N.J. Super. 57, 62 (App. Div. 1990)).]

We are satisfied that the Consent Order dated April 25, 2013, is an attempt at circumventing the principles of appellate jurisdiction we have described herein. As such, this court is without jurisdiction to review the propriety of the two interlocutory orders entered by the trial court on December 6, 2011, and March 29, 2012, respectively.

This appeal is dismissed for lack of jurisdiction.