NOT FOR PUBLICATION WITHOUT THE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-4154-16T1
RICHARD A. VOLL,
Plaintiff-Appellant,
v.
GRANT THORNTON, LLP, DEAN
JORGENSEN, MARK STUTMAN,
JOHN MICHEL, and LOMMEN,
ABDO, COLE, KING & STAGEBERG, PA,
Defendants-Respondents.
_____________________________________
Submitted September 13, 2018 – Decided March 28, 2019
Before Judges Fuentes, Accurso and Vernoia.
On appeal from Superior Court of New Jersey, Law
Division, Bergen County, Docket No. L-019649-14.
Stephen R. Bosin, attorney for appellant.
Alston & Bird, LLP, attorneys for respondents Grant
Thornton, LLP, Dean Jorgensen, Mark Stutman, and
John Michel (Steven L. Penaro, on the brief).
Goldberg Segalla, LLP, attorneys for respondents
Lommen, Abdo, Cole, King & Stageberg, PA (Matthew
S. Marrone, on the brief).
PER CURIAM
This is the second time this case is before this court. Relying on the
Supreme Court's holding in Silviera-Francisco v. Board of Education of City of
Elizabeth, 224 N.J. 126, 136 (2016), we dismissed the first appeal sua sponte as
interlocutory, because the order of the Law Division plaintiff identified in the
notice of appeal only dismissed plaintiff's cause of action against three of the
five defendants named in the complaint. Voll v. Grant Thornton, LLP, No. A-
0500-15 (App. Div. Jan. 5, 2017). We incorporate by reference the procedural
history we described therein. Id. at 2-5.
On March 27, 2017, plaintiff filed a motion pursuant to Rule 4:50-1 to
correct the August 25, 2015 judgment and reinstate counts three (breach of
contract) and four (fraud in the inducement) of the first amended complaint. On
April 19, 2017, the Law Division denied plaintiff's motion. The motion judge
provided the following explanation in support of his ruling:
In the instant matter, [p]laintiff is moving to reinstate
his Counts 3 and 4 against Grant Thornton. However,
this [c]ourt already dismissed the case against Grant
Thornton with prejudice in an Order dated August 25,
2015. The [c]ourt handwrote a notation stating
"Complaint dismissed with prejudice as to Grant
A-4154-16T1
2
Thornton." [Lommen, PA] had previously been
dismissed without prejudice, but never moved to vacate
that dismissal pursuant to R. 4:23-5(a)(1).
Furthermore, Counts 3 and 4 of [p]laintiff's complaint
remain dismissed for the reasons previously stated in
this [c]ourt's Opinion attached to the Order dated
August 25, 2015.
It is unclear from this record why the motion judge cited the discovery
sanction available under Rule 4:23-5(a)(1) as the legal basis for dismissing
without prejudice the claims involving Lommen, P.A. because: (1) Lommen, PA
and plaintiff have not participated in any discovery; and (2) plaintiff's claims
against Lommen, PA were administratively dismissed without prejudice
pursuant to Rule 1:13-7 for lack of prosecution. Accordingly, the status of
plaintiff's case at the time he filed this appeal is as follows: (1) plaintiff
voluntarily dismissed all claims against defendant Jorgenson; the Law Division
also dismissed all claims against Jorgenson with prejudice; (2) all claims against
defendant Stutman were dismissed with prejudice; (3) plaintiff voluntarily
dismissed all claims against defendant Michel; the Law Division also dismissed
all claims against Michel with prejudice; (4) the Law Division dismissed with
prejudice all claims against Grant Thornton, LLP; and (5) all claims against
defendant Lommen, PA, were administratively dismissed without prejudice
pursuant to Rule 1:13-7.
A-4154-16T1
3
In the June 1, 2017 notice of appeal we review here, plaintiff indicated he
is appealing from the judgment entered by the Law Division on April 19, 2017.
The civil case information statement plaintiff filed pursuant to Rule 2:5-
1(e)(3)(i), contains a series of questions that plaintiff must answer truthfully,
accurately, and completely. One of these questions asked plaintiff: "Were any
claims dismissed without prejudice?" Plaintiff answered: "No."
An order dismissing a party's pleading without prejudice as a discovery
sanction pursuant to Rule 4:23-5(a)(1) is not a final order subject to appellate
review as of right under Rule 2:2-3(a)(1). See Thabo v. Z Transp., 452 N.J.
Super. 359, 369-72 (App. Div. 2017) (explaining the procedural safeguards
codified in Rule 4:23-5); see also Kwiatkowski v. Gruber, 390 N.J. Super. 235,
237 (App. Div. 2007). An order from the trial court is considered final for
appellate review:
if it disposes of all issues as to all parties. Thus, 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, 224 N.J. at 136 (citations
omitted).]
A-4154-16T1
4
In our decision dismissing plaintiff's first appeal, this court explained that an
order dismissing the claims against Lommen, PA without prejudice does not
constitute a final resolution of those claims. The April 19, 2017 order is not a
final order ripe for appellate review as of right because the claims against
Lommen, PA were only dismissed without prejudice.
Appeal dismissed.
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5