Opinion
DOCKET NO. A-0500-15T2
01-05-2017
RICHARD A. VOLL, Plaintiff-Appellant, v. GRANT THORNTON, LLP, DEAN JORGENSEN, MARK STUTMAN, and JOHN MICHEL, Defendants-Respondents, and LOMMEN, ABDO, COLE, KING & STAGEBERG, P.A., Defendants.
John S. Lopatto III of the District of Columbia bar, admitted pro hac vice, argued the cause for appellant (Law Offices of Stephen R. Bosin, and Mr. Lopatto, attorneys; Stephen R. Brosin, on the brief). Jonathan G. Rose of the Pennsylvania and District of Columbia bars, admitted pro hac vice, argued the cause for respondents (Alston & Bird, LLP, and Mr. Rose, attorneys; Steven L. Penaro, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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. Before Judges Fuentes and Carroll. On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-19649-14. John S. Lopatto III of the District of Columbia bar, admitted pro hac vice, argued the cause for appellant (Law Offices of Stephen R. Bosin, and Mr. Lopatto, attorneys; Stephen R. Brosin, on the brief). Jonathan G. Rose of the Pennsylvania and District of Columbia bars, admitted pro hac vice, argued the cause for respondents (Alston & Bird, LLP, and Mr. Rose, attorneys; Steven L. Penaro, on the brief). PER CURIAM
Plaintiff Richard A. Voll appeals from an order entered by the Law Division dismissing his cause of action against three of the five defendants named in this case. In this light, we dismiss the appeal without prejudice sua sponte because the order from which plaintiff seeks appellate review is interlocutory. A party may appeal to the Appellate Division as of right only from final judgments of the trial divisions of the Superior Court. R. 2:2-3(a)(1). The following undisputed facts inform our decision.
On May 13, 2015, plaintiff filed an amended sixty-nine-page complaint consisting of 232 individually numbered paragraphs. Plaintiff named as defendants his former employer Grant Thornton, LLP, a national accounting firm organized as a limited liability partnership, Mark Stutman, a Senior Partner in Charge of the Firm's tax Practice, John Mitchel, a former partner at Grant Thornton, Dean Jorgensen, who held Stuman's position until Jorgensen was promoted to Partner in Charge of the National Office, and the law firm of Lommen, Abdo, Cole, King & Stageberg, PA (Lommen Abdo), which has offices in Minneapolis, Minnesota.
Plaintiff's cause of action against these defendants was predicated on four theories of liability, which he described in four separate counts. Plaintiff described his theories of liability in question 8 of the Civil Case Information Statement that he filed pursuant to Rule 2:5-1(b), which requires an appellant to "Give a Brief Statement of the Facts and Procedural History" of the case. Plaintiff wrote:
Plaintiff, N.J., citizen and tax law practitioner in this state, was employed by Grant [Thornton] as an Associate Partner, tax attorney from 2000 to 2004, and again from 2011 through 2014 as a contract attorney to review documents and testify as a fact witness under N.J. Subpoena to submit to N.J. depositions associated with a Kentucky state court lawsuit, Yung v. Grant Thornton. Plaintiff entered into a Tolling Agreement with Grant in January 2013. Plaintiff filed a Complaint against Grant Thornton and Lommen, Abdo law firm on November 14, 2014, then filed a First Amended Complaint. Four counts were alleged: (1) violation of N.J. Conscientious Employee Protection Act [CEPA] in the retaliatory termination of plaintiff in 2004 because he would not sign illegal tax opinions and further violation of CEPA in refusing to pay plaintiff's employment contract billings through 2013 and 2014; (2) Trade Libel by Grant against Plaintiff in a December 2006 (discovered January 2007) communication by Grant to another accounting firm considering an affiliation with Mr. Voll; (3) Breach of Contract by Grant and Lommen law firm in not paying plaintiff's 2011-2014 witness service, employment contract billed account. (4) Fraud by Grant and Lommen in inducing plaintiff to alter his law practice in New Jersey to
fulfill the witness service contract and then not make payment on such account.
Defendant Lommen, Abdo law [firm] filed an Answer to all counts on June 25, 2015.
Defendant Grant Thornton filed a Motion to Dismiss Counts 1 and 2 only. The [c]ourt decided the matter without oral argument, and on August 25, 2015, issued a Decision and Order dismissing with prejudice the complaint against Grant Thornton on all counts.
[(emphasis added).]
However, the trial court's order dated August 25, 2015, dismissed with prejudice the first amended complaint only against defendants Dean Jorgensen, Mark Stutman, and John Michel. In this order, the Law Division did not grant any relief to defendants Grant Thornton or Lommen Abdo. Indeed, Lommen Abdo did not join or otherwise participate in the motion filed by the other defendants despite having filed a responsive pleading in this litigation. With respect to the order under review, we acknowledge that the copy included in the appellate record contains a handwritten notation in block letters stating: "2. Complaint dismissed with prejudice as to Grant Thornton. See attached opinion." As the party appealing from the order, plaintiff is obligated to submit competent authority or evidence that establishes the motion judge intended to include this notation as part of the printed order. Furthermore, because this handwritten notation is located below the judge's signature, we cannot be certain that the judge intended to include it as part of the order.
Even if we accepted this notation as a part of the August 25, 2015 order, the appeal remains irreparably deficient because the order does not mention or include in any way Lommen Abdo, a defendant that had filed a responsive pleading in the case. Finally, Stutman, Mitchel, and Jorgensen argue that the contract entered into by plaintiff and Grant Thornton contains an arbitration provision requiring the parties to adjudicate any dispute arising from their contractual relationship in this forum. Grant Thornton and plaintiff also briefed the enforceability of the arbitration provision before this court, characterizing it as a key and dispositive issue in this appeal. However, the trial judge did not address the enforceability of this alleged arbitration provision in his memorandum of opinion.
Rule 2:5-1(f)(2) provides, in pertinent part:
Failure to comply with the requirement for filing a Case Information Statement or any deficiencies in the completion of this statement shall be ground for such action as the appellate court deems appropriate, including rejection of the notice of appeal, or on application of any party or on the court's own motion, dismissal of the appeal.
[(emphasis added).]
Rule 2:2-3(a)(1) further provides, in relevant part, that parties aggrieved "from final judgments of the Superior Court trial divisions" have the right to appeal to the Appellate Division. "[I]t is well-settled that appeals are taken from orders and judgments and not from opinions, oral decisions, informal written decisions, or reasons given for the ultimate conclusion." Do-Wop Corp. v. City of Rahway, 168 N.J. 191, 199 (2001) (citation omitted). The Supreme Court has also made clear that "in a multi-party, multi-issue case, an order granting summary judgment, dismissing all claims against one of several defendants, is not a final order subject to appeal as of right until all claims against the remaining defendants have been resolved by motion or entry of a judgment following a trial." Silviera-Francisco v. Board. of Educ. of City of Elizabeth, 224 N.J. 126, 136 (2016).
Here, the order from which plaintiff seeks appellate review as of right is not a final order because it neither includes all of the parties in the case nor disposes of all of the legal issues raised by the parties on appeal. Although defendants have not challenged plaintiff's right to seek appellate review of the Law Division's order, this court has an independent non-delegable duty to determine whether it has jurisdiction to decide this appeal. See Hogoboom v. Hogoboom, 393 N.J. Super. 509, 514-516 (App. Div. 2007).
The record shows plaintiff has appealed from an interlocutory order of the Law Division. A party cannot appeal an interlocutory order of the trial court as of right. Brundage v. Estate of Carambio, 195 N.J. 575, 598-99 (2008) (citing In re Pa. R.R. Co., 34 N.J. Super. 103, 107-08 (App. Div. 1955), aff'd, 20 N.J. 398 (1956)). A party aggrieved by an interlocutory decision of the trial court must file a motion for leave to appeal, which will be granted only "in the interest of justice[.]" R. 2:2-4. Here, plaintiff mischaracterized the scope of the relief the trial court granted to defendants as a final order subject to appeal as of right. This threshold deficiency was easily avoidable; its detection could have prevented the needless consumption of judicial resources. We thus invoke the authority conferred by Rule 2:5-1(f)(2) and sua sponte dismiss the appeal without prejudice as interlocutory.
Plaintiff or any other party aggrieved by a final judgment of the Law Division in this case may then seek timely appellate review consistent with the rules of appellate practice.
Appeal dismissed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION