Jeffrey S. Mandel             
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NJ Appellate Practice-12


NJ Appellate Practice-01    New Jersey Appellate Court Rules
NJ Appellate Practice-02    Gann's NJ App Practice chapters
NJ Appellate Practice-03    Nightmare for appellate lawyers
NJ Appellate Practice-04    Appellate judge's locations
NJ Appellate Practice-05    Appellate oral argument locations
NJ Appellate Practice-06    Federal Appellate Court web links
NJ Appellate Practice-07    New Jersey Appellate Division Parts
NJ Appellate Practice-08    Supreme Court of New Jersey
NJ Appellate Practice-09    Civil Appeals Settlement Program
NJ Appellate Practice-10    Megan's Law Special App. Div. Part
NJ Appellate Practice-11    Prelim. Statements in briefs
NJ Appellate Practice-13    Considerations for the respondent
NJ Appellate Practice-14    Appellate Notices to the Bar
NJ Appellate Practice-15    Judges assigned, Emergent Appeals
NJ Appellate Practice-16    Appellate judge's blurbs/biographies
NJ Appellate Practice-17    NJ Appellate Practice (Gann)
NJ Appellate Practice-18    (coming soon)

You can't effectively pursue an interlocutory appeal by reading one article on the subject, but that's all you're getting here!  (WARNING: The Appellate Division rarely discloses its reason for denying interlocutory relief.  You usually get back from the court a one page Order that has a box checked off 'granted' or 'denied' (or, 'other').  Do you really want to have your motion for leave to appeal denied because you screwed up the filing?  If not, check out New Jersey Appellate Practice

New Jersey Law Journal
Vol. CLX, No. 8, Index 677
Copyright 2000 by American Lawyer Media, ALM LLC
May 22, 2000


Jeffrey S. Mandel

often make critical decisions in the early stages of litigation that affect discovery, settlement discussions and trial strategies. A dilemma arises when the decision is one that a litigant believes will ultimately be reversed on appeal.

    Should practitioners wait until the trial is over and then seek an appeal or fight the battle right away? If the choice is to immediately fight, then the remedy is an interlocutory appeal. There is no automatic right to an interlocutory appeal. Litigants must file for leave on an expedited basis. This article will familiarize practitioners with some of the essentials to filing for interlocutory relief in the Appellate Division.

                           The Basics

    The court rules provide that an appeal as of right may only be taken to the Appellate Division from a "final" judgment of the Superior Court, Tax Court, Office of Administrative Law or in such cases as are provided by law. R. 2:2-3(a).

    The order or judgment being appealed must be final as to all issues and all parties. Sometimes, "in the interest of justice," the Appellate
Division may entertain an appeal that is not final as to all issues and all parties. R. 2:2-4. In these cases, commonly referred to as interlocutory decisions, an applicant must seek leave to appeal. R. 2:2-4; R. 2:2-2.

    The Appellate Division, however, "will not grant leave to appeal in order to correct minor injustices, such as those commonly attendant on orders erroneously granting or denying interrogatories or discovery. Redress for such
grievances can be had only through an appeal from the final judgment, provided the judgment results from the interlocutory orders complained of." Romano v. Maglio, 41 N.J. Super. 561, 567-68 (App. Div.), certif. denied, 22 N.J. 574 (1956), cert. denied, 353 U.S. 923 (1957).

    In 1948, the New Jersey Supreme Court revised the court rules and opted for a judicial system that would be more wary of piecemeal litigation and more congruous with
Federal Rule of Civil Procedure 54. Two years later, the Supreme Court gave the Appellate Division discretionary authority to grant leave to appeal an interlocutory order, but only "in the interest of justice." R. 2:2-4.

    Appeals as of right, however, remain the preferred remedy to comport with this state's strong public interest in one trial and one review. See generally
Appeal of Pennsylvania R.R. Co., 20 N.J. 398 (1956) (distinguishing the New Jersey approach with that of other jurisdictions).

    An exception to the finality
rule lies in R. 4:42-2, which provides:

        [T]he trial court may direct the entry of final judgment upon fewer than all the claims as to all parties, but only in the following circumstances: (1) upon complete adjudication of a separate claim; or (2) upon complete adjudication of all the rights and liabilities asserted in the litigation as to any party; or (3) where a partial summary judgment or other order for payment of part of a claim is awarded.

[end indent].

    In the absence of a trial court's certification under R. 4:42-2 that ""there is no just reason for delay," the order or judgment shall remain subject to revision "at any time before the entry of final judgment in the sound discretion of the court in the interest of justice." R. 4:42-2. This rule also comports with Federal Rule of Civil Procedure 54.

    Obtaining R. 4:42-2 certification is only a small victory because a trial court's decision on finality is not binding on the Appellate Division. R. 4: 42-2 "was not intended to permit trial judges to control appellate calendars by granting, in effect, a motion for leave to appeal."
Delbridge v. Jann Holding Co., 164 N.J. Super. 506, 110 (App. Div. 1978); see also Taylor by Wurgaft v. General Electric Co., 208 N.J. Super. 207, 211 (App. Div.), certif. denied, 104 N.J. 379 (1986) ("An improvident certification by a trial judge is not binding upon us").

    In addition to the finality rule, some rules specifically declare certain actions final for purposes of appeal, such as enrollment in a pre-trial intervention program over the state's objection, R. 3:28(f); appointments of receivers and liquidating trustees, R. 4:53-1; child custody orders, R. 5: 8-6; and adoption orders, R. 5:10-6. [NOTE: THE COURT RULES HAVE BEEN AMENDED AND ADD NEW SITUATIONS RESULTING IN FINALITY FOR PURPOSES OF APPEAL].  Therefore, practitioners in these areas of the law should be mindful of the finality provisions in these rules.

    A notice of motion for leave to appeal an interlocutory order must be filed within 15 days of the order's entry. R. 2:5-6(a). [NOTE: THE COURT RULES HAVE BEEN AMENDED TO ADD MORE TIME].  A response is due within 10
days of "service" of the moving papers. R. 2:8-1(b). Parties cannot consent to an enlargement of time. R. 2:9-2.

    Failing to recognize that an appeal is interlocutory and should be filed within 15 days is not always fatal. Court rules provide that "upon a showing of good cause and the absence of prejudice" the Appellate Division may extend the time to file for a period not exceeding 15 days. R. 2:4-4(b)(1). That means a party can file an interlocutory appeal within 30 days of the order in limited situations. [NOTE: THE COURT RULES HAVE BEEN AMENDED TO ADD MORE TIME].  Furthermore, the Appellate Division may grant
leave to appeal nunc pro tunc provided that the interlocutory appeal is filed within the 45-day period for ordinary appeals. R. 2:4-4(b)(2).

    Carefree reliance on these exceptions is not recommended and should only be used sparingly because an extension of time is "an extraordinary remedy, invocable only when a genuinely excusable mischance has prevented the filing of the appeal in time, the adverse party is not prejudiced and the question involved is shown to be substantial and meritorious. These are conjunctive, not disjunctive, requirements."
In re Appeal of Syby, 66 N.J. Super. 460, 464 (1961). Mere negligence will not suffice. Id.

    The notice of motion for leave to appeal should follow the provisions of R. 2:8-1 (motions), not R. 2:5-1 (notice of appeal). Notice must be served on the trial court as well as the adversary. R. 2:5-6(c). The adversary should be served with two copies, while the clerk of the Appellate Division should be
given the original plus four copies. R. 2:8-1(b).

    The clerk's office transfers motions to the intake unit where an appellate docket number is assigned (the "AM" in the docket number). The motion is then forwarded to a case processing team (a "T2" at the end of the docket number would represent team two), and eventually the motion is assigned to a part and sent out to the judges who will entertain the motion. There is no right to oral argument on an appellate motion, but one may be granted.

                            The Brief

    The brief's contents should conform with R. 2:6-2, the form with R. 2:6-10 and the appendix with R. 2:8-1(a). Briefs cannot exceed 25 pages exclusive of the table of contents, table of citations and the appendix. R. 2:8-1(a). Parties, however, may seek leave to file an over-length brief. Such applications should be accompanied by an affidavit explaining the necessity of exceeding the 25- page limit.

    The issue of over-length remains a troubling aspect of appellate practice because, in reality, the brief will be read in its entirety before the appellate judge decides whether or not leave to file it should be granted. This is usually done simultaneously with the granting or denying of the motion for leave to appeal. Therefore, chances are that an appellate judge compelled to
read the entire over-length brief will be more inclined to grant the motion because he or she has already taken the time to read the brief.

    Additionally, logic dictates that the contents of the brief and proffered arguments cannot be removed from the judge's mind, although court rules require such. Perhaps the Appellate Division should assign a different law clerk each week whose sole job would be to go through papers and make recommendations for the grant or denial of an over-length brief without advancing the parties' arguments in great detail. After all, the Appellate Division recently assigned extra law clerks to each part to handle the same caseload that existed under the old system.

    Seeking leave to appeal does not stay the trial,
R. 2:5-6(a), nor does it effect the authority of the trial court to enter additional orders. Therefore, it is good practice to seek a stay with the trial court upon learning of the decision being appealed. If the trial court denies the stay, reprieve can be sought simultaneously with the filing of the motion for leave to appeal. If a stay is needed prior to the leave to appeal being adjudicated, an option may be to file an emergent stay with the Appellate Division.

    However, emergent applications should be reserved for cases that are truly emergent and likely to cause irreparable harm if not immediately resolved by the court.

    The Appellate Division can grant leave to appeal, R. 2:2-4, simultaneously
consider the merits, R. 2:11-2, and exercise its original jurisdiction to bring an end to the litigation, R. 2:10-5. Upon granting leave to appeal, a decision may be made based on the papers submitted with the motion or the court may permit the parties to submit additional papers.

    Therefore, it may be advantageous to submit your best brief with the accompanying motion in case a decision is made solely on the submitted papers. Sending a $175 fee for an appeal,
N.J.S.A. 22A:2-1, along with the $25 motion fee, N.J.S.A. 22A:2-1; R. 2:8-1(e), may not be a bad idea either. If this option is chosen, the $175 check should be separate from the $25 check and accompanied by a self-addressed stamped envelope in the event that leave to appeal is denied.  [NOTE: THE COURT RULES HAVE BEEN AMENDED TO INCREASE THE FILING FEES].

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