Opinion
DOCKET NO. A-0439-11T3
07-03-2013
MNR CLAT, LLC, Plaintiff-Appellant, v. TOWNSHIP OF MONTCLAIR, Defendant-Respondent.
Robert C. Epstein argued the cause for appellant (Greenberg Traurig, LLP, attorneys; Mr. Epstein, on the brief). Respondent Township of Montclair has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves and Espinosa.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-301-10.
Robert C. Epstein argued the cause for appellant (Greenberg Traurig, LLP, attorneys; Mr. Epstein, on the brief).
Respondent Township of Montclair has not filed a brief. PER CURIAM
Plaintiff MNR Clat, LLC (MNR), appeals from an order dated August 17, 2011, erroneously characterized as a "final judgment." The order specifically states it is based on the court's March 18, 2011 order, which denied plaintiff's motion for summary judgment. Because the order plaintiff appeals from does not dispose of all issues between the parties, and we have not granted leave to appeal pursuant to Rule 2:2-4, we dismiss the appeal as interlocutory.
MNR is the owner of the Wellmont Theatre in the Township of Montclair (the Township). After MNR renovated the theatre, the Township's construction official inspected the building on August 5, 2009, and issued a "Notice of Violation and Order to Terminate" (Notice of Violation) on August 6, 2009. The Notice of Violation stated plaintiff violated the State Uniform Construction Code in that: "The reserved seating layout that has chairs blocking the egress aisle to the east and west stairs on the first and second tiers is a violation of the IBC NJ 1025.9.1." Plaintiff was notified that it could be assessed "penalties of up to $2,000.00 per week per violation" if the violations were not corrected by September 7, 2009.
"IBC" refers to the International Building Code.
Plaintiff appealed the Notice of Violation to the Essex County Construction Board of Appeals (the Board), and the Board held a hearing on October 20, 2009. Three witnesses testified at the hearing: Robert McLaughlin, the Township's construction official; Sam Souza, the Township's building inspector; and Michael Costantin, AIA, plaintiff's architect. McLaughlin produced photographs that were admitted into evidence to show that when moveable chairs were used for reserved seating, the chairs blocked access to the exits. On the other hand, Costantin maintained that the reserved seating layout complied with all applicable provisions of the IBC.
In a resolution adopted on November 24, 2009, the Board upheld the Notice of Violation and remanded the matter to allow the parties to resolve "the seating-layout issue." The Board's resolution provided in pertinent part as follows:
WHEREAS, this Board finds that the evidence submitted shows that the existing layout of reserved seating in tiers 1 and 2 of the subject premises has the seats arranged such that certain seats block access to the egress aisle to the east and west stairs in violation of International Building Code Section 1025.9.1.; andOn January 12, 2010, MNR filed a complaint in lieu of prerogative writs, asserting the Board's decision should be reversed because it is "arbitrary, capricious and unreasonable." Plaintiff further alleged the Board's decision "is not supported by substantial evidence," and it "does not comport with the law." After the Township filed its answer, MNR moved for summary judgment. Following oral argument on March 18, 2011, the court determined that MNR was not entitled to summary judgment as a matter of law:
WHEREAS, this Board further finds that seating-layout compliance at the subject premises with the above listed building code requirements can apparently be achieved by the rearrangement of seats, and good cause having been shown;
NOW, THEREFORE, BE IT RESOLVED by unanimous vote of the Essex County Construction Board of Appeals that the August 6, 2009 violation issued by the Township of Montclair citing appellant for having a reserved seating layout in the subject premises that has chairs blocking the egress aisle to the east and west stairs on the first and second tiers in violation of International Building Code Section 1025.9.1. is hereby upheld; and
BE IT FURTHER RESOLVED that this case is hereby remanded back to the Montclair
Construction Official for resolution of the seating-layout issue among the parties.
[W]hen there's a final hearing in this matter if Montclair can convince the tribunal that the plan is a fire hazard, I can't conceive of any court not affirming.
Now, maybe they won't do that, which is fine as well. But to grant summary judgment I think I would have to be saying . . . that Montclair would lose even if it proves that there's a fire safety hazard, and that can't be the law.
Plaintiff presents two arguments on appeal. First, "the Board's and trial court's rulings should be reviewed de novo on the record below." Second, "the Board's and trial court's rulings are erroneous and should be reversed."
However, we do not address the merits of plaintiff's arguments at this stage of the proceedings because the order that plaintiff appeals from is not appealable as of right under Rule 2:2-3(a). "To be final, a judgment must dispose of all claims against all parties." S.N. Golden Estates, Inc. v. Cont'l Cas. Co., 317 N.J. Super. 82, 87 (App. Div. 1998). This rule reflects "our strong judicial policy against piecemeal appellate review." Ibid. Moreover, as this court has noted, orders "denying motions for summary judgment are intrinsically interlocutory" because they contemplate "plenary rather than summary disposition of the matter in issue." Rendon v. Kassimis, 140 N.J. Super. 395, 398 (App. Div. 1996).
Appeals respecting interlocutory orders are generally governed by Rule 2:2-4, which provides that "the Appellate Division may grant leave to appeal, in the interest of justice, from an interlocutory order of a court." "The grant of interlocutory review is 'highly discretionary' and 'customarily exercised only sparingly.'" Vitanza v. James, 397 N.J. Super. 516, 517 (App. Div. 2008) (quoting State v. Reldan, 100 N.J. 187, 205 (1985)). Furthermore, "[i]t is the exclusive prerogative of this court to determine whether extraordinary circumstances are present warranting a piecemeal appeal." Edwards v. McBreen, 369 N.J. Super. 415, 420 (App. Div. 2004).
In this case, leave to appeal, which was neither sought nor obtained, is not warranted. See Parker v. City of Trenton, 382 N.J. Super. 454, 458 (App. Div. 2006) ("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 warrant pretrial review."). Consequently, any further review must await the entry of a final determination disposing of all issues between the parties, and the timely filing of a proper notice of appeal from that final order or judgment.
The appeal is dismissed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION