MARINER FINANCE LLC v. CAITLIN ANDREN

NOT FOR PUBLICATION WITHOUT THE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-1859-18T2

MARINER FINANCE LLC,

          Plaintiff-Appellant,

v.

CAITLIN ANDREN,

          Defendant/Third-Party
          Plaintiff-Respondent,

v.

SHAKE-A-PAW and JEFF
MORTON,

     Third-Party Defendants.
____________________________

                    Submitted February 4, 2020 – Decided February 18, 2020

                    Before Judges Fisher, Accurso and Rose.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Middlesex County, Docket No. SC-001225-
                    17.
            Law Offices of Randolph Walzer & Associates, LLC,
            attorneys for appellant (Randolph Walzer, on the
            briefs).

            Skoller Law LLC, attorneys for respondent (Stephen H.
            Skoller, on the brief).

PER CURIAM

      The issues presented in this appeal have their genesis in Caitlin Andren's

purchase of a puppy from Shake-a-Paw. A dispute arose when the puppy was

found to have health issues, causing Andren to incur unexpected veterinary bills.

Ultimately, plaintiff Mariner Finance LLC, a company that financed the

purchase, commenced this suit against Andren, alleging she was obligated to

pay what was due on the puppy purchase. Andren answered the complaint and

filed both a counterclaim against Mariner and a third-party complaint against

Shake-a-Paw and Jeff Morton, alleging consumer fraud and breach of contract.

      The parties settled their disputes and filed a stipulation of settlement in

January 2018 that obligated Andren to make ten monthly $200 payments to

Mariner. They agreed that if Andren made all the payments on time, the suit

would be dismissed with prejudice; they also agreed that if Andren defaulted,

Mariner would "have the right to enter [j]udgment against [her] for the full sum

due" as alleged in the complaint "less credit for any payments made on account

hereof."

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      In July 2018, Mariner moved for the entry of judgment, asserting that

Andren made only three of the ten required payments. Andren responded with

a certification, claiming that all payments were made and, in fact, replacement

checks had been provided because either Mariner or its attorney misplaced some

of her checks. She asserted that the final payment was made on June 1, 2018.

Without explanation, the judge denied the motion by way of an order entered on

August 6, 2018. 1

      Mariner moved for reconsideration forty-two days later. The judge found

the motion untimely and denied relief. This time, however, the judge explained

his prior ruling, stating that Andren had "presented sufficient documentation to

establish that [Mariner] had mishandled and misapplied timely payments made

by [Andren] to an extent sufficient to preclude [Mariner] from seeking recovery

of an amount in excess of that agreed [to] in the [s]tipulation of [s]ettlement."

      Undeterred, Mariner again moved for judgment on October 29, 2018. This

motion was denied by order entered on November 21, 2018; in so ruling, the


1
  The record on appeal does not contain either a written decision or a transcript
of an oral decision, and the August 6 order does not state or suggest that such a
decision exists. Instead, in ruling on the motion, it seems the judge merely took
Mariner's proposed order, wrote the word "denied" beneath the title "order for
judgment" on the first page, dated it, ran a line through the "ordered" paragraph,
added nothing in place of the "ordered" portion of the proposed order to
memorialize his ruling, and signed it.
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judge referred to his disposition of the earlier reconsideration motion and

directed that "no further motions of this nature will be considered by this

[c]ourt."

      Mariner filed a notice of appeal on January 2, 2019, 149 days after the

first order, eighty-four days after the second, and forty-two days after the third.

The notice of appeal expressly seeks our review only of the third order, not the

earlier two, but Mariner only argues in its brief that the judge erred in entering

the first order, not the others. For the reasons that follow, we need not consider

the impact of these circumstances on Mariner's right to maintain this appeal or

on the argument it poses. 2

      Instead, we first consider Andren's suggestion that the appeal is untimely.

To make that determination we must first consider whether the August 6, 2018



2
  An aggrieved party is obligated to identify in the notice of appeal the judgment
and all interlocutory orders being appealed, R. 2:5-1(e)(3)(i), on pain of losing
the opportunity to obtain our review of those orders unmentioned, see Sikes v.
Twp. of Rockaway,  269 N.J. Super. 463, 465-66 (App. Div.), aff'd o.b.,  138 N.J. 41 (1994). When appropriate and in the absence of prejudice, an appellate court
may ignore an appellant's oversight. In these circumstances – particularly when
the parties have focused their briefs on the August 6 order – we see no harm in
treating the appeal as concerning only that order and, because Mariner has not
argued in its brief that the second and third orders were erroneous, we conclude
that any argument about those orders has been waived. See Gormley v. Wood-
El,  218 N.J. 72, 95 n.8 (2014).


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order was a final order. If it was, then – to stop the expiration of the time to

appeal3 – Mariner would have been required to move for reconsideration within

twenty days. See R. 4:49-2. It failed to do so. The reconsideration motion was

filed forty-four days after entry of the August 6 order, and, therefore, could not

toll the time to appeal. If the August 6 order was a final order, Mariner's forty-

five days to appeal ran out on September 20, 2018, and in those circumstances

we would be obligated to dismiss this appeal. 4

      On the other hand, if the August 6 order was only interlocutory, then the

motion for reconsideration would not be untimely because a party aggrieved by

an interlocutory order may move for its reconsideration any time prior to entry

of final judgment. See R. 4:42-2 (declaring that an interlocutory order "shall be



 3 If the August 6 order was a final order, then Rule 2:4-1(a) required Mariner to
file a notice of appeal within forty-five days. That forty-five days may be tolled
by a motion for reconsideration pursuant to Rule 4:49-2 but, as declared in Rule
2:4-3(e), only if the reconsideration motion was "timely" filed and served. Rule
1:3-4(c) declares that the time to file a motion pursuant to Rule 4:49-2 may not
be enlarged. When such a motion is timely filed and served, the forty-five-day
time period for filing an appeal is tolled, but the clock restarts when the order
denying reconsideration is entered. An untimely reconsideration motion does
not stop the time within which an appeal must be filed. See Cabrera v.
Tronolone,  205 N.J. Super. 268, 270-71 (App. Div. 1985).
4
  Even affording Mariner a thirty-day extension as permitted by Rule 2:4-4(a)
but only when the appellant has shown "good cause and the absence of
prejudice," the January 2, 2019 notice of appeal would still be untimely.
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subject to revision at any time before the entry of final judgment in the sound

discretion of the court in the interest of justice"). Moreover, the denial of

reconsideration of an interlocutory order would have no impact on the timeliness

of the appeal because – without trial court finality – the aggrieved party has no

right to appeal; in that circumstance, Mariner would be left to seek leave to

appeal by motion. It didn't do that either. But that failure would not deprive

Mariner of the right to appeal the August 6 order once finality was achieved in

the trial court.

      The August 6 order itself does not provide the clarity required for our

resolution of the finality issue. See n.1, above. Indeed, it says nothing but that

Mariner's motion was denied. For that reason, we look to what the judge said to

understand the meaning of the August 6 order. Since it appears he never

explained his August ruling until he denied reconsideration in October, we can

look only to that October ruling, which we quoted earlier, to understand what

the judge intended in August. We interpret what the judge said on that latter

occasion as holding that Mariner failed to make its case that Andren defaulted

or that Andren's submission sufficiently rebutted what Mariner alleged and,

therefore, Mariner had failed to prove its entitlement to relief as a matter of law

or undisputed fact. We do not understand this ruling as suggesting that Mariner


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could not – on a better showing – seek and obtain relief. Instead, we compare

his ruling to a denial of summary judgment.

      To be sure, reasonable minds might differ as to the judge's intentions. But

we think the proper course is to assume that Mariner had not been completely

foreclosed from seeking enforcement of the stipulation of settlement. That

assumption comports better with our general preference for the disposition of

cases on their merits, not on procedural niceties. See Galik v. Clara Maass Med.

Ctr.,  167 N.J. 341, 356 (2001).

      Since we conclude that the August 6 order is not a final order, we must

also conclude that the following two trial court motions, which were properly

understood by the trial judge as seeking only reargument or reconsideration,

could not convert the interlocutory August 6 order into a final order. The

culmination of all this is that the appeal itself is subject to dismissal, not because

it is untimely but because it is premature. Whether Mariner is entitled to relief

based on a default by Andren on the stipulation of settlement or whether Andren

is entitled to a declaration that she has fully performed the stipulation of

settlement has – in our view of these ambiguous circumstances – yet to be

determined.




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      When faced with the circumstance of a party having mistakenly filed an

appeal when that party should have sought leave to appeal, we have a strong

tendency to dismiss and remand for the final disposition of the case's remaining

issues. See Grow Co. v. Chokshi,  403 N.J. Super. 443, 459-60 (App. Div. 2008).

But, we may also grant leave to appeal out of time in appropriate circumstances.

See Caggiano v. Fontoura,  354 N.J. Super. 111, 125 (App. Div. 2002).

      The simplicity of the case counsels against a dismissal. Instead, to move

this case forward to an expeditious conclusion, we conclude that the motion

judge correctly determined that Mariner failed to demonstrate its entitlement to

judgment pursuant to the stipulation of settlement because the parties'

submissions revealed unresolved questions about their performances of the

promises contained in the stipulation of settlement.

      The August 6, 2018 order is affirmed. We also remand for whatever

proceedings may be appropriate for reaching a final disposition as to whether

Andren breached or fully complied with the stipulation.5 We do not retain

jurisdiction.


5
   It is fair to question the entire process pursued by Mariner. It may very well
be that the filing of the stipulation of settlement terminated this lawsuit. That
is, the parties' pleaded claims had been finally resolved and replaced with a
stipulation of settlement that provided other rights and obligations. Any future


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disputes between these parties would arise from that stipulation only and
logically would have to be pursued in a suit based on that agreement. See Raji
v. Saucedo,  461 N.J. Super. 166, 171-72 (App. Div. 2019). Because neither
party has so viewed the case, and considering all that has occurred so far since
the filing of the stipulation of settlement, we decline to require such additional
proceedings at this time; after all that has gone on, it is better that the parties'
disputes be expeditiously resolved – even if the procedure is flawed – than to
start over in some other lawsuit.
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