MICHAEL BANDLER v. GEORGE KOSTAS

NOT FOR PUBLICATION WITHOUT THE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-2650-19

MICHAEL BANDLER,

          Plaintiff-Appellant,

v.

GEORGE KOSTAS,

     Defendant-Respondent.
________________________

                   Argued February 11, 2021 – Decided March 3, 2021

                   Before Judges Mawla and Natali.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Atlantic County, Docket No. L-2515-18.

                   Michael Bandler argued the cause pro se.

                   Joseph P. McGroarty argued the cause for respondent
                   (Fitzgerald McGroarty attorneys; Joseph P. McGroarty
                   on the brief).

PER CURIAM

          Plaintiff Michael Bandler appeals from a January 14, 2020 order denying

his application to stay the proceedings on his fraud-based complaint against
defendant Joseph McGroarty because he filed a Chapter 13 bankruptcy petition.

He also appeals a February 25, 2020 order dismissing the complaint without

prejudice for his failure to appear for trial. Because the orders under review are

not final, we dismiss the appeal as interlocutory.

      Plaintiff obtained a $10,000 judgment against defendant's daughter and

subsequently discovered that she owned a vehicle, later sold, which would have

partially satisfied the judgment.      After post-judgment discovery, where

defendant initially stated that the vehicle was transferred to him, and then later

admitted it was not, plaintiff filed a complaint alleging fraud. In defendant's

answer, he denied all the allegations and asserted twelve affirmative defenses,

including an assertion that "plaintiff's claims against [defendant] are frivolous

in nature and in violation of  N.J.S.A. 2A:15-59 and . . . Rule 1:4-8(b) and

therefore plaintiff should be sanctioned."

      On November 4, 2019, plaintiff filed for Chapter 13 bankruptcy

protection.   A few days after his petition was filed, plaintiff attended a

previously scheduled arbitration but refused to participate.

      On December 23, 2019, plaintiff filed an application to stay the

proceedings pursuant to United States Bankruptcy Code, 11 U.S.C. § 362(a),

arguing that the automatic stay applied because defendant's affirmative defense


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seeking counsel fees was "a claim against the bankruptcy estate." Judge James

P. Savio denied plaintiff's motion in a January 14, 2020 order.            In his

accompanying written statement of reasons, the judge explained that plaintiff

was not entitled to a stay because "[s]ection 362 is only applicable where a

judgment is rendered against a debtor, not suits by a debtor." The court further

stated that "[a] bankruptcy judgment would have no bearing on a [p]laintiff

bringing a claim, as any potential award would not be forthcoming from the

[p]laintiff but rather from a defendant."

      Plaintiff failed to appear for the February 24, 2020 trial believing that if

he attended the proceedings, he would be in violation of the automatic stay. He

also asserts in his merits brief that he had "contacted the court several times,

seeking a delay in the trial, without success." On February 25, 2020, Judge

Savio dismissed plaintiff's complaint without prejudice for lack of prosecution,

a remedy expressly permitted by Rule 1:2-4(a).1

      On appeal, plaintiff maintains that the judge's January 14, 2020 order

refusing to stay the trial proceedings under 11 U.S.C. § 362(a) was er roneous.

He also argues that Judge Savio's February 25, 2020 order dismissing his



1
  The parties have not included in the record a copy of the transcript from the
February 24, 2020 proceeding.
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                                        3
complaint was improper as the automatic stay provision prevented the court

from scheduling trial and entering the dismissal order.

      We first address the finality of the trial court's January 14, 2020 and

February 25, 2020 orders. The Rules that warrant dismissal of interlocutory

appeals are clear. We consider appeals from final orders of a trial court and

other orders expressly designated as final for purposes of appeal. R. 2:2-3(a)(1),

(3). "To be a final judgment, an order generally must 'dispose of all claims

against all parties.'" Janicky v. Point Bay Fuel, Inc.,  396 N.J. Super. 545, 549-

50 (App. Div. 2007) (quoting S.N. Golden Ests., Inc. v. Cont'l Cas. Co.,  317 N.J.

Super. 82, 87 (App. Div. 1998)). This "final judgment rule[] reflects the view

that 'piecemeal [appellate] reviews, ordinarily, are [an] anathema to our

practice.'" Janicky at 550 (all but first alterations in original) (quoting S.N.

Golden Ests.,  317 N.J. Super. at 87).

      If an order is not final, or among those orders expressly designated as final

for purposes of appeal, a party must seek leave to appeal from the Appellate

Division. R. 2:5-6(a). A grant of leave to appeal from an interlocutory order is

left to the discretion of this court, and that discretion is exercised sparingly and

"in the interest of justice." R. 2:2-3(b); R. 2:2-4; Janicky,  396 N.J. Super. at
 551. It is clear that we will not decide an appeal from an interlocutory order


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                                         4
merely because the appellant's notice of appeal mischaracterized the order, the

respondent did not move to dismiss, or the appeal was "fully briefed." Vitanza

v. James,  397 N.J. Super. 516, 519 (App. Div. 2008).

      Here, the orders under review were not final as they did not resolve all

issues against the parties. Further, the February 25, 2020 dismissal order was

expressly without prejudice.2 A dismissal without prejudice is generally not a

final order from which an appeal as of right can be taken. Kwiatkowski v.

Gruber,  390 N.J. Super. 235, 237 (App. Div. 2007) (order dismissing plaintiff 's

complaint without prejudice pursuant to Rule 4:23-5 is not a final order).

Further, "if a dismissal without prejudice is entered under a particular rule that

itself provides for vacation of the dismissal . . . the order of dismissal may not

be appealable unless vacation is first sought." Pressler & Verniero, Current N.J.

Court Rules, cmt. 2.2.4 on R. 2:2-3 (2021).3



2
   Plaintiff's notice of appeal and corresponding case information statement
incorrectly state that the court's February 25, 2020 order was not a without
prejudice dismissal.
3
  We acknowledge that unlike Rules 1:13-7(a) and 4:23-5(a), Rule 1:2-4(a) does
not, itself, specify the procedures for reinstating a dismissal without prejudice.
See, e.g., Scalza v. Shop Rite Supermarkets,  304 N.J. Super. 636, 638 (App.
Div. 1997). We are satisfied, however, that such a remedy is clearly
contemplated by that Rule. Indeed, defendant conceded at oral argument that
neither Rule 1:2-4(a), nor the court's February 25, 2020 order, precluded
plaintiff from filing such an application, subject to defendant's opposition.
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      We recognize that we may, in appropriate cases, grant leave to appeal

nunc pro tunc. R. 2:4-4(b)(2); see e.g., Yuhas v. Mudge,  129 N.J. Super. 207,

209 (App. Div. 1974) (granting leave to appeal nunc pro tunc "in the interest of

prompt disposition of the matter"). However, such relief is not automatic and

should not be presumed as granting leave to appeal nunc pro tunc is "most

extraordinary relief." Hallowell v. Am. Honda Motor Co.,  297 N.J. Super. 314,

318 (App. Div. 1997) (quoting Frantzen v. Howard,  132 N.J. Super. 226, 227-

28 (App. Div. 1975)). In dismissing an appeal as interlocutory after it was fully

briefed, we stated:

            [I]f we treat every interlocutory appeal on the merits
            just because it is fully briefed, there will be no
            adherence to the Rules, and parties will not feel there is
            a need to seek leave to appeal from interlocutory orders.

            At 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.

            [Parker v. City of Trenton,  382 N.J. Super. 454, 458
            (App. Div. 2006) (citations omitted).]

      We are convinced that the interests of justice do not warrant consideration

of plaintiff's interlocutory appeal from the trial court's orders of January 14,

2020 and February 25, 2020. R. 2:2-3(b); R. 2:2-4. In sum, we conclude the


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                                         6 January 14, 2020 and February 25, 2020 orders were not final orders. We also

decline to treat plaintiff's improvidently filed appeal as a request for leave to

appeal nunc pro tunc as there is nothing about the issues on appeal that warrant

such "extraordinary" relief. See Hallowell,  297 N.J. Super. at 318.

      Appeal dismissed without prejudice.




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