COURTOF KLEEBLATT, GALLER ABRAMSON, L.L.C.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3442-14T1

KLEEBLATT, GALLER,

ABRAMSON, L.L.C.,

Plaintiff-Appellant,

v.

EDWARD FEUER,

Defendant-Respondent.

______________________________________

November 15, 2016

Submitted September 29, 2016 Decided

Before Judges O'Connor and Whipple.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-5154-08.

Richard P. Galler, attorney for appellant.

Respondent has not filed a brief.

PER CURIAM

Plaintiff Kleeblatt, Galler, Abramson, L.L.C. appeals from (1) the December 20, 2011 order vacating default judgment; (2)

the provision in the February 27, 2015 order denying reconsideration of the August 1, 2014 order denying it summary judgment; and (3) the provision in the February 27, 2015 order denying reconsideration of the October 29, 2014 order denying reinstatement of the complaint under Rule 1:13-7. We dismiss the appeals from the December 20, 2011 order and the provision in the February 27, 2015 order denying plaintiff's motion for reconsideration of the August 1, 2014 order. We reverse the provision in the February 27, 2015 order denying plaintiff's motion for reconsideration of the October 29, 2014 order and remand for further proceedings.

I

Plaintiff was a law firm that had represented defendant Edward Feuer in a criminal matter. In 2008, plaintiff filed a complaint against defendant for non-payment of attorney's fees. The trial court eventually entered default judgment against him for $66,719.56, plus interest.

Several months later, defendant filed a motion to vacate the default judgment, arguing it was void because he had never been served with the summons and complaint. The trial court denied the motion on the grounds defendant had failed to appeal the default judgment and to establish a meritorious defense. We affirmed on appeal in an unpublished decision. Kleeblatt, Galler, Abramson, LLC v. Feuer, No. A-0730-09 (App. Div. Nov. 15, 2010). The Supreme Court granted defendant's petition for certification, and summarily remanded the matter to the trial court to determine whether plaintiff complied with Rule 4:4-4(b)(1) and served defendant with the summons and complaint. Kleeblatt, Galler, Abramson, LLC v. Feuer, 212 N.J. 491 (2011).

On remand, the trial court determined defendant had not been served with the summons and complaint and, on December 20, 2011, entered an order vacating the default judgment and directing plaintiff to return to defendant any funds it had seized in its efforts to collect the judgment.

Plaintiff then successfully served its summons and complaint upon defendant. Although defendant served plaintiff with a copy of his answer, he failed to file his answer with the court. Thereafter, defendant moved to dismiss the complaint, arguing plaintiff failed to return all seized funds, as ordered. On April 5, 2013, the court granted the motion and dismissed plaintiff s complaint without prejudice.

Notwithstanding its complaint was dismissed, plaintiff moved for summary judgment, arguing there was no dispute legal services were performed and no challenge to the amount due.

On August 1, 2014, the court denied the motion, reasoning plaintiff could not seek summary judgment when its complaint was dismissed for ignoring the prior order to repay defendant.

Meanwhile, apparently unbeknownst to plaintiff and the trial court, on June 4, 2014, plaintiff's complaint had been administratively dismissed without prejudice for lack of prosecution. See R. 1:13-7(a). After learning of the dismissal, plaintiff moved to reinstate its complaint. In its moving papers, plaintiff acknowledged the complaint was dismissed because defendant failed to file an answer; however, because the matter was being actively litigated, the complaint must be reinstated. On October 29, 2014, the court denied plaintiff's motion for the same reason it denied plaintiff's motion for summary judgment: plaintiff failed to return defendant s funds acquired in executing upon the vacated judgment.

On February 27, 2015, plaintiff's motion for reconsideration was denied. In the February 27, 2015 order the court stated, without elaboration, plaintiff failed to comply with the "condition of reinstatement and R. 4:49-2[1] standard not met by movant." The court did not identify the condition of reinstatement to which it was referring or how plaintiff failed to meet the standards in Rule 4:49-2.

II

We first address plaintiff s arguments the court erred by vacating default judgment and by failing to reconsider plaintiff's motion for summary judgment.2 The provisions in the orders memorializing these specific decisions are clearly interlocutory, for which plaintiff has not obtained leave to appeal. See R. 2:2-3(a) and R. 2:5-6(a). Only final judgments may be appealed as of right. See R. 2:2-3(a).

In general, to be a final judgment, an order must dispose of all claims against all parties. "To have the finality required to create appellate jurisdiction, an order must not only completely dispose of all pleaded claims as to all parties, but all its dispositions must also be final." Grow Co. v. Chokshi, 403 N.J. Super. 443, 460 (App. Div. 2008) (citing Lawler v. Isaac, 249 N.J. Super. 11, 17 (App. Div. 1991)). If devoid of the required finality, an order is interlocutory and appellate review is available only by leave granted under Rule 2:2-4 and Rule 2:5-6(a).

Here, there is no question the orders vacating default judgment and denying plaintiff s motion for reconsideration of the order denying summary judgment are interlocutory. The order vacating default judgment permitted the litigation to be re-opened, not closed with finality. The provision in the order denying plaintiff's motion for reconsideration of the order denying summary judgment did not terminate the litigation. By denying summary judgment, the claims plaintiff asserted in its complaint remained unresolved. Accordingly, we decline to address plaintiff s challenges to the subject provisions in these orders because they are interlocutory.

We turn to the dismissal of plaintiff's complaint under Rule 1:13-7(a). Prior to our review of plaintiff's challenges, we note the provision in the February 27, 2015 order denying plaintiff's motion for reconsideration of the October 29, 2014 order, which denied reinstatement of the complaint, is not precluded from our review as interlocutory. When the trial court determined plaintiff was not entitled to have its complaint reinstated under Rule 1:13-7, plaintiff reached an end point, as it was thwarted from advancing the case any further. Plaintiff could not move to reinstate his complaint under the April 5, 2013 order, which dismissed the complaint because plaintiff failed to return all seized funds, because the case was on the inactive list. The complaint would have needed to be restored to the active list before plaintiff could move to reinstate the complaint for its failure to return defendant's money. However, restoring the complaint to the active list became unattainable when the trial court rejected plaintiff's arguments in support of its motion to restore the complaint under Rule 1:13-. Thus, the provision in the February 27, 2015 order denying plaintiff's motion for reconsideration of the October 29, 2014 order had the requisite finality to create appellate jurisdiction.

Rule 1:13-7 is "designed to clear the docket of cases that cannot, for various reasons, be prosecuted to completion." Mason v. Nabisco Brands, Inc., 233 N.J. Super. 263, 267 (App. Div. 1989). The rule seeks "to balance the institutional needs of the judiciary against the principle that a just result should not be forfeited at the hands of an attorney's lack of diligence." Baskett v. Kwokleung Cheung, 422 N.J. Super. 377, 379 (App. Div. 2011). Rule 1:13-7 is an administrative tool designed to control the court's docket; therefore, a request for reinstatement "should be viewed with great liberality." Ghandi v. Cespedes, 390 N.J. Super. 193, 197 (App. Div. 2007).

"Our review of an order denying reinstatement of a complaint dismissed for lack of prosecution proceeds under an abuse of discretion standard." Baskett, supra, 422 N.J. Super. at 382. However, we are not bound by a trial court's legal conclusions or its "'interpretation of the law and the legal consequences that flow from established facts . . . .'" Alfano v. BDO Seidman, LLP, 393 N.J. Super. 560, 573 (App. Div. 2007) (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

Rule 1:13-7(a) provides in pertinent part

[E]xcept as otherwise provided by rule or court order, whenever an action has been pending for four months . . . without a required proceeding having been taken therein as hereafter defined in subsection (b), the court shall issue written notice to the plaintiff advising that the action as to any or all defendants will be dismissed without prejudice 60 days following the date of the notice . . . unless, within said period, action specified in subsection (c)[3] is taken. If no such action is taken, the court shall enter an order of dismissal without prejudice as to any named defendant and shall furnish the plaintiff with a copy thereof.

[Rule 1:13-7(a).]

When a complaint has been dismissed pursuant to Rule 1:13-

7(a), reinstatement of a complaint in which there is only one defendant is permitted if plaintiff establishes good cause for

reinstatement. Baskett, supra, 422 N.J. Super. at 383-84. "'Good cause' is an amorphous term . . . 'difficult of precise delineation. Its application requires the exercise of sound discretion in light of the facts and circumstances of the particular case considered in the context of the purposes of the Court Rule being applied.'" Ghandi, supra, 390 N.J. Super. at 196 (quoting Delaware Valley Wholesale Florist, Inc. v. Addalia, 349 N.J. Super. 228, 232 (App. Div. 2002)).

Here, in its motion to reinstate the complaint, plaintiff essentially argued it had assumed defendant had filed an answer and thus the procedures in Rule 1:13-7(c) were inapplicable. More important, plaintiff noted the matter was being prosecuted. The court denied the motion. The denial of the motion was not based on whether the rule was triggered, but on plaintiff's failure to return defendant s funds as ordered. The court seemingly did not consider whether good cause existed to restore the complaint to the trial calendar.

We appreciate by the time the case had been dismissed for lack of prosecution under Rule 1:13-7(a), the complaint had already been dismissed because of plaintiff's failure to return the subject money to defendant. However, in our view, the complaint should have been reinstated to the trial calendar even if the complaint were to remain in a state of dismissal for another reason, specifically, the plaintiff's failure to abide by the April 5, 2013 order directing it to return defendant's money. The matter should not have continued to be dismissed under Rule 1:13-7 for lack of prosecution.

Plaintiff provided good cause why the complaint should be reinstated under this rule. Plaintiff reasonably believed defendant's answer had been filed and both parties were engaged in litigating the matter. For example, after he served a copy of his answer upon plaintiff, defendant filed and prevailed on the motion to dismiss the complaint. Even the trial court was under the impression defendant had filed an answer, as it heard and granted defendant's motion.

In light of the facts when considered in the context of the purpose of Rule 1:13-7, see Delaware Valley Wholesale Florist, Inc., supra, 349 N.J. Super. at 232, we conclude the trial court mistakenly exercised its discretion when it denied plaintiff's motion to restore the complaint to the trial calendar for lack of prosecution. The provision in the February 27, 2015 order denying plaintiff's motion for reconsideration of the October 29, 2015 order is reversed and the complaint is reinstated under Rule 1:13-7. Further, to end the confusion caused by defendant's failure to file the answer, we remand this matter to the trial court to enter an order directing defendant to file his answer within twenty days. Although the complaint has been restored under Rule 1:13-7, to continue with its prosecution of this matter, plaintiff still must address the April 5, 2013 order dismissing the complaint without prejudice because not all of defendant s funds have been returned.

Finally, defendant requests that if this matter is remanded, it be heard by a different judge. This argument is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

To summarize, plaintiff's appeals from the December 20, 2011 order and the provision in the February 27, 2015 order denying plaintiff's motion for reconsideration of the August 1, 2014 order are dismissed. The provision in the February 27, 2015 order denying plaintiff's motion for reconsideration of the October 29, 2014 order is reversed, and the matter is remanded for proceedings consistent with this opinion.

Dismissed in part; reversed and remanded in part. We do not retain jurisdiction.

1 Rule 4:49-2 governs motions for reconsideration. It provides

Except as otherwise provided by R. 1:13-1 (clerical errors) a motion for rehearing or reconsideration seeking to alter or amend a judgment or order shall be served not later than 20 days after service of the judgment or order upon all parties by the party obtaining it. The motion shall state with specificity the basis on which it is made, including a statement of the matters or controlling decisions which counsel believes the court has overlooked or as to which it has erred, and shall have annexed thereto a copy of the judgment or order sought to be reconsidered and a copy of the court's corresponding written opinion, if any.

2 Plaintiff's notice of appeal stated it is challenging the February 27, 2015 order. In its brief, plaintiff argues the trial court erred in one other respect. Plaintiff contends the trial court erred by "reinstat[ing] the answer and defenses of the defendant [and allowing] an answer to be filed." Although somewhat unclear, we surmise from plaintiff's brief it is also challenging the order that vacated the default judgment.

3 Rule 1:13-7(c) provides

(c) The order of dismissal required by paragraph (a) shall not be entered if, during the period following the notice of dismissal as therein prescribed, one of the following actions is taken

(1) a proof of service or acknowledgment of service is filed, if the required action not timely taken was failure to file proof of service or acknowledgment of service with the court;

(2) an answer is filed or a default is requested, if the required action not timely taken was failure to answer or enter default;

(3) a default judgment is obtained, if the required action not timely taken was failure to convert a default request into a default judgment;

(4) a motion is filed by or with respect to a defendant noticed for dismissal. If a motion to remove the defendant from the dismissal list is denied, the defendant will be dismissed without further notice.