In an earlier post we explored the sometimes difficult task of determining whether an order or judgment is interlocutory or final. This question is critical to a litigant or lawyer considering filing an appeal, because only a final order or judgment may be appealed as of right. R. 2:2-3. If an order, decision or judgment is not final, the permission of the Appellate Division is required to proceed with an appeal. On January 27, 2016, in the context of a decision from an administrative agency, the New Jersey Supreme Court issued an opinion clarifying the appropriate analysis to apply in determining whether a decision is interlocutory or final. The decision serves as useful guidance for New Jersey appeals lawyers and litigants faced with judgments or orders that are ambiguous but potentially final.
As the Court’s analysis in Silviera-Francisco v. Elizabeth Bd. of Educ., __ N.J. __ (2016), makes clear, relative to the analysis with respect to an appeal from the trial level in Superior Court, the issue of finality can become even more complicated given the procedural dynamic between state agencies and New Jersey’s Office of Administrative Law (“OAL”). Before focusing on the issues of finality specific to administrative agency decisions, the Court acknowledged the potential difficulty of determining whether a judgment or order is final. The Court stated, “Whether a trial court order is final or interlocutory has bedeviled courts and attorneys for decades.” The Court then summarized the existing law governing finality determinations:
Generally, an order is considered final 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.
The Court went on to specify that the above rubric applies equally to orders and decisions of state agencies, and identified a slew of other features that distinguish final agency decisions from interlocutory ones. The list includes:
As discussed in a prior post, the seemingly straightforward analysis can be surprisingly hard to apply when orders or judgments at the trial level are imprecisely or sloppily written. In Silviera-Francisco, the Court seemed to acknowledge this, stating,
Finally, no party may confer jurisdiction on an appellate tribunal simply by filing a notice of appeal. No agreement between or among parties may confer jurisdiction on the Appellate Division in the absence of a final order, and the Appellate Division has repeatedly admonished parties for attempting to disguise an interlocutory order or orders as final for purposes of pursuing an appeal as of right. . . .To that end, an appellate tribunal always has the authority to question whether its jurisdiction has been properly invoked.
Of course, in order to find out what the Appellate Division thinks, a New Jersey appeals lawyer and his or her client must expend the energy and expense of at least filing a Notice of Appeal, possibly briefing the issue of the appellate court’s jurisdiction, and perhaps even fully briefing the appeal. If there is ambiguity in a judgment or order and reason to believe the trial court or administrative agency is inclined to construe the judgment or order as final, the safest bet may be filing the Notice of Appeal before expiration of the time to appeal. While any ambiguity persists, doing so will preserve the right to appeal to the extent it actually exists.
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, firstname.lastname@example.org, or by completing our online contact form.
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