Is My Case Ripe for Appeal?

What to Do When the Existence of a Right to Appeal is Unclear

The New Jersey Court Rules are fairly clear as to when a litigant has a right to appeal to the Appellate Division of the New Jersey Superior Court and how much time a litigant has to do so. Pursuant to Rules 2:2-3 and 2:4-1, litigants in New Jersey courts have a right to appeal from final orders, judgments or decisions within 45 days of their entry by filing a notice of appeal. Nonetheless, a poorly drafted order that is not clearly final or interlocutory can cloud the application of these clear rules. When this occurs, given the relative shortness of the 45 day period, an appeals attorney seeking to challenge the order must act quickly to address the ambiguity, determine whether it is final or interlocutory, and determine whether to seek relief from the trial court or the Appellate Division.

For example, consider an order granting summary judgment and awarding a specific dollar amount in damages to a plaintiff, which appears final on its face, but makes no mention of the disposition of counterclaims also raised in a simultaneously decided cross-motion for summary judgment. Given the absence of any decision or order addressing the counterclaims directly, and the awarding of a specific dollar amount of damages in the only existing decision and order, did the judge intend his ruling to constitute the entry of summary judgment in favor of the plaintiff as to the counterclaims? Should the order be construed as final or interlocutory? If your client, the defendant, wants to challenge the order, should you seek relief from the trial court or the Appellate Division?

An Appeals Attorney Should Seek Clarification From the Trial Court Immediately

To address the ambiguity, it makes sense to first seek clarification from the trial court judge as soon as possible. There is an obvious argument to be made that the order is interlocutory and not final in nature due to the failure to explicitly address the counterclaims. If the order is interlocutory, it is not a final judgment subject to the 45 day time limit, and reconsideration of the interlocutory order may be sought from the trial court at any time before, or within 20 days after, the entry of final judgment. R. 4:49-2. If the judge expresses agreement as to the interlocutory nature of the order, concern over the expiration of time to appeal will be eliminated.

Unfortunately, a swift response is not always forthcoming from a judge, and a judge may require a formal motion before providing the desired clarification. The passage of a motion cycle could easily eat up most, if not all, of the 45 day time to file an appeal, depending on when the subject order is entered and an appropriate motion is filed relative to the motion calendar. If the order is deemed to be final, the 45 day time to appeal begins to run upon entry of the order. Thus, there is danger in assuming the order is interlocutory while the time to appeal a final order or judgment passes.

When an Appeals Attorney Should File Both a Motion for Reconsideration and a Notice of Appeal

Accordingly, if clarification is not forthcoming from the judge who authored the order, and the 45 day time to file an appeal approaches expiration, a clients’ interests are best served by assuming the order is final and filing an appeal. If the time to appeal is allowed to expire and the judge, rightly or wrongly, later deems the order final, then the client who declines to file a notice of appeal may have permanently forfeited their right to appeal. At the very least, the client will be in the unenviable position of explaining to the Appellate Division why the particular circumstances of the case justify consideration of the appeal despite the expiration of the time to appeal as of right under Rule 2:4-1.

While a trial court judge’s ruling as to final nature of an order is not binding upon the Appellate Division, and an appellate panel may ultimately agree that trial court wrongly deemed the order final, there is no way to know the Appellate Division’s position until after the time to file an appeal as of right under the rule has already expired. See e.g. Leonardis v. Bunnell, 164 N.J. Super. 338 (App. Div. 1978), certif. den. 81 N.J. 265 (1979). Making an assumption as to how the Appellate Division will rule would expose the client to the unnecessary risk of forfeiting his right to appeal. As a result, when the deadline to appeal threatens to imminently expire and the appeals attorney is forced to guess as to the procedural status of the order and case, the correctness of the trial court judge’s later determination as to the finality of the order is not a genuine consideration.

Ultimately, if the trial court judge is unresponsive in this situation, in order to protect the client’s rights, an appeals lawyer should address both possible interpretations of the subject order by the trial court judge. To do so, one should file both motions for clarification and/or reconsideration with the trial court and a notice of appeal with the Appellate Division.

If you are considering pursuing an appeal from a ruling in a civil, criminal, administrative or other proceeding in New Jersey state or federal court, the New Jersey appeals attorneys at the Law Office of Bart J. Klein can help you determine whether it is advisable to proceed, and if so, the best approach to take. We welcome you to contact us at (973) 763-6060,, or by completing our online contact form.