|
In most cases, a decision of a New Jersey state trial court or administrative agency may not be immediately appealed if litigation at that trial level is not completed. Some other states allow immediate appeals of interim decisions, New York for example, but New Jersey court rules authorize an appeal only after a case reaches its final outcome. The same court rules list certain specific exceptions where an immediate appeal may be taken. However, if a ruling is not one of the exceptions and does not conclude the case with finality, a party that disagrees with the ruling must await the final judgment in the entire case before it can appeal an earlier unfavorable decision within the same case.
A judgment or order is considered to be final with a right of appeal only if it disposes of all claims brought by all the parties in the case. If any claim brought by any party remains pending, or can be revived, the judgment is not final, and there is no right of appeal at that time. The Appellate Division may grant permission to bring an earlier appeal before the case reaches a final judgment, called an interlocutory appeal, but it does so infrequently. In a case captioned Grow Co. v. Chokshi, 403 N.J. Super. 443, 457-61 (App. Div. 2008), the Appellate Division explained the reasons for this so-called final judgment rule as set forth in New Jersey State Court Rule 2:2-3. Stated succinctly, the rationale for completing litigation in the trial court before an appeal may be taken is “to promote efficiency, fairness and the reduction of needless costs and delays.” Chokshi, 403 N.J. Super. at 457.
The Appellate Division disfavors attempts by parties or trial courts to circumvent the final judgment rule. A party dissatisfied with an interim decision of the trial court may not create a right to take an immediate appeal by voluntarily dismissing without prejudice its claims while retaining a right to revive and litigate them anew after the appeal is decided. See, e.g., CPC Int'l, Inc. v. Hartford Accident & Indem. Co., 316 N.J. Super. 351, 366 (App. Div. 1998) ("[T]he voluntary dismissal rule . . . should not be used to transmogrify an interlocutory order into a final judgment for the purpose of affording an opportunity to appeal as of right."), certif. denied, 158 N.J. 73, 74 (1999). Nor may a trial court seeking to clear its docket certify a decision it has reached as a final judgment and dismiss without prejudice any remaining ancillary claims and issues to be litigated at a later date. See, e.g., Janicky v. Point Bay Fuel, Inc., 396 N.J. Super. 545 (App. Div. 2007) (disapproving of attempts to seek review of interlocutory orders by improperly certifying them as final and appealable). Failure to adhere to the final judgment rule usually results in dismissal of the appeal.
A party pursuing an appeal must file a Case Information Statement with the clerk of the Appellate Division. The legal and case management staff of the Appellate Division review Case Information Statements for compliance with the final judgment rule. They examine whether all issues before the trial court as to all parties in the litigation have been disposed of. If some claims were dismissed without prejudice so that they can be revived, the Case Information Statement asks what were the circumstances of the dismissals and whether the parties have an agreement as to future disposition of those dismissed claims. If the responses to these questions do not show that the appeal supplants any expectation of future related proceedings in the trial court, the Appellate Division will dismiss the appeal. The party seeking to appeal is not precluded from refiling the appeal in the future after a final judgment is entered in the trial court, but its appeal as filed will not proceed.
Some years ago, the Appellate Division provided guidance in an unpublished decision regarding the manner by which a dissatisfied litigant might obtain the right to appeal a crucial interlocutory order of the trial court while at the same time voluntarily dismissing other ancillary claims with a possible right of revival. In Vieser v. Leventhal, 2010 N.J. Super. Unpub. LEXIS 1256, 2010 WL 2346732 (App. Div. June 9, 2010), the Court said the parties should
clearly set forth in a stipulation of dismissal the conditions under which other claims could be reinstated. A contingent settlement, permitting reinstatement of the other claims only if [the Appellate Division] reverse[s] the interlocutory order . . . would allow [the] appeal to be pursued as a final judgment.
[Id. at *4-*5.] An example of such circumstances is where the trial court has dismissed a plaintiff’s primary claim for damages and only much less significant claims remain. The plaintiff may enter a stipulation of dismissal by which it agrees to revive and pursue the dismissed claims only if the Appellate Division reverses the trial court’s decision on the primary claim and remands the case to the trial court for further proceedings. If dismissal of the primary claim is affirmed on appeal, with no further appellate review available, the case is finished. Plaintiff may not attempt to revive the other claims it voluntarily dismissed. A similar example may be where the primary defendant from whom plaintiff seeks to recover damages is dismissed from the case, leaving only lesser defendants from whom plaintiff has less realistic prospects of recovery. If the decision to dismiss the primary defendant is affirmed on appeal, plaintiff may not revive its case against any other defendants.
Thus, trial counsel willing to forego subordinate or ancillary claims or parties if the central claim in the case is decided against counsel’s client should heed the holdings and guidance of these cases in the pursuit of an immediate appeal.
|
