NJ Family Issues » Appeal

Failure to provide the complete transcript may result in dismissal of an appeal

PaulKostro — Fri, 06 Jan 2012 17:12:43 +0000

Law Lessons from ORLANDO A. MUNZO V. ROBERT P. PERLA, ET AL., App. Div., A-5922-08T3, December 20, 2011:

Rule 2:5-3(b) requires that an appellant, with certain exceptions, file transcripts with the appellate court of “the entire proceedings in the court . . . from which the appeal is taken.”

Rule 2:5-3(a) requires “if a verbatim record was made of the proceedings before the court . . . from which the appeal is taken, the appellant shall, no later than the time of the filing and service of the notice of appeal, serve a request for preparation of an original and copy of the transcript . . . .”

See Cipala v. Lincoln Tech. Inst., 179 N.J. 45, 55 (2004) (upholding the Appellate Division’s refusal to address the plaintiff’s claim because she failed to submit a final order or a trial transcript). See also Pressler and Verniero, Current N.J. Court Rules, comment 2 on R. 2:5-3(b) (2012) (“Failure to provide the complete transcript may result in dismissal of the appeal . . . .”).

Note: There is a print link embedded within this post, please visit this post to print it.

NOTE: My legal and mediation services are offered to clients in Fanwood 07023; Garwood 07027; Kenilworth 07033; Mountainside 07092; New Providence 07974; Roselle Park 07204; Roselle 07203; Elizabeth 07201; Linden 07036; Plainfield 07060; Rahway 07065; Summit 07901; Westfield 07090; Berkeley Heights 07922; Clark 07066; Cranford 07016; Hillside 07205; Scotch Plains 07076; Springfield 07081; Union 07083; Winfield; Carteret 07008; Dunellen 08812; East Brunswick 08816; Edison 08817; Jamesburg 08831; Metuchen 08840; New Brunswick 08901; Old Bridge 08857; Perth Amboy 08861; Sayreville 08871; South Amboy 08878; South River 08877; Avenel 07001; Colonia 07067; Iselin 08830; Woodbridge 07095; Somerset 08873; Somerville 08876 and Watchung 07069, New Jersey.

Failure to provide the complete transcript may result in dismissal of an appeal originally appeared on NJ Family Issues on January 6, 2012.

It is only the judgments or orders or parts thereof designated in the notice of appeal which are subject to the appeal process and review

PaulKostro — Wed, 21 Dec 2011 21:51:58 +0000

Law Lessons from Cedar Knolls Estates LLC v. Analan Inc., App. Div., A-5754-09T3, December 16, 2011:

“[I]t is clear that it is only the judgments or orders or parts thereof designated in the notice of appeal which are subject to the appeal process and review.” Pressler, Current N.J. Court Rules, comment 6.1 on R.2:5-1 (2012); see also 1266 Apt. Corp. v. New Horizon Deli, 368 N.J. Super. 456, 459 (App. Div. 2004) (refusing to consider an issue not addressed in the brief because “it is clear that it is only the judgment or orders designated in the notice of appeal which are subject to the appeal process and review”); Campagna v. American Cyanamid, 337 N.J. Super. 530, 550 (App. Div.) (finding that an issue was not properly before the court because plaintiffs did not appeal from the order specifically addressing that issue), certif. denied, 166 N.J. 294 (2001).

Note: There is a print link embedded within this post, please visit this post to print it.

It is only the judgments or orders or parts thereof designated in the notice of appeal which are subject to the appeal process and review originally appeared on NJ Family Issues on December 21, 2011.

Issues that have not been briefed are deemed abandoned

PaulKostro — Tue, 20 Dec 2011 00:49:10 +0000

Law Lessons from LAURIE SOLOMON V. RANDY SOLOMON, App. Div., A-5014-09T1, December 14, 2011:

Issues that have not been briefed are deemed abandoned. 539 Absecon Blvd., L.L.C. v. Shan Enters. Ltd. P’ship, 406 N.J. Super. 242, 272 n.10 (App. Div.), certif. denied, 199 N.J. 541 (2009) (portions of final judgment set forth in notice of crossappeal but not briefed deemed abandoned); see also Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011) (“An issue not briefed on appeal is deemed waived.”).

Note: There is a print link embedded within this post, please visit this post to print it.

Issues that have not been briefed are deemed abandoned originally appeared on NJ Family Issues on December 19, 2011.

Failure to properly prosecute an appeal constitutes grounds for the imposition of sanctions, “including, but not limited to, dismissal of the appeal

PaulKostro — Thu, 08 Dec 2011 23:00:17 +0000

Law Lessons from Amir v. Amir, App. Div., A-2772-08T1, A-3197-09T1, December 2, 2011:

Pursuant to Rule 2:9-9, failure to properly prosecute an appeal constitutes grounds for the imposition of sanctions, “including, but not limited to, dismissal of the appeal . . . .”

[Sometimes a man who represents himself in court doesn't have a fool for a client ... BUT, are you willing to risk it?! Be smart, and retain an attorney.]

Note: There is a print link embedded within this post, please visit this post to print it.

NOTE: My Law Office is located at 726 West Saint Georges [W. St. Georges] Avenue (Route 27), Linden, Union County, NJ. Telephone: 908-486-2200; EM@IL

Failure to properly prosecute an appeal constitutes grounds for the imposition of sanctions, “including, but not limited to, dismissal of the appeal originally appeared on NJ Family Issues on December 8, 2011.

It is only the judgments or orders or parts thereof designated in the notice of appeal which are subject to the appeal process and review

PaulKostro — Thu, 08 Dec 2011 22:53:35 +0000

Law Lessons from Miller v. Gallagher, App. Div., A-0340-10T1, December 2, 2011:

“[I]t is only the judgments or orders or parts thereof designated in the notice of appeal which are subject to the appeal process and review.” Pressler & Verniero, Current N.J. Court Rules, comment 6.1 on R. 2:5-1(f)(1) (2012); see also 1266 Apt. Corp. v. New Horizon Deli, Inc., 368 N.J. Super. 456, 459 (App. Div. 2004); Fusco v. Bd. of Educ. of Newark, 349 N.J. Super. 455, 461-62 (App. Div.), certif. denied, 174 N.J. 544 (2002); Campagna v. Am. Cyanamid Co., 337 N.J. Super. 530, 550 (App. Div.), certif. denied, 168 N.J. 294 (2001); Sikes v. Twp. of Rockaway, 269 N.J. Super. 463, 465-66 (App. Div.), aff’d o.b. 138 N.J. 41 (1994).

Note: There is a print link embedded within this post, please visit this post to print it.

It is only the judgments or orders or parts thereof designated in the notice of appeal which are subject to the appeal process and review originally appeared on NJ Family Issues on December 8, 2011.

The Appellate Division’s role in reviewing the decision of an administrative agency

PaulKostro — Mon, 14 Nov 2011 00:57:33 +0000

Law Lessons from N.J. Dept. of Children and Families v. W.G., App. Div., A-5894-08T1, September 30, 2011:

The Appellate Division’s role in reviewing the decision of an administrative agency is limited. In re Anthony Stallworth, ___ N.J. ___ (2011) (slip op. at 13). The Appellate Division will not reverse an agency’s decision unless it is “`arbitrary, capricious, or unreasonable, or[] not supported by substantial credible evidence in the record as a whole.’” Id. at 14 (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)). However, “our appellate obligation requires more than a perfunctory review.” Blackwell v. Dep’t of Corr., 348 N.J. Super. 117, 123 (App. Div. 2002). The Appellate Division’s function is not to merely rubberstamp an agency’s decision; rather, the Appellate Division must “engage in a `careful and principled consideration of the agency record and findings.’” Williams v. Dep’t of Corr., 330 N.J. Super. 197, 204 (App. Div. 2000) (quoting Mayflower Sec. Co. v. Bureau of Sec. in Div. of Consumer Affairs of the Dep’t of Law & Pub. Safety, 64 N.J. 85, 93 (1973)).

The Appellate Division also defers to an agency’s interpretation of statutes and regulations within its implementing and enforcing responsibility. Wnuck v. N.J. Div. of Motor Vehicles, 337 N.J. Super. 52, 56 (App. Div. 2001) (quoting In re Appeal by Progressive Cas. Ins. Co., 307 N.J. Super. 93, 102 (App. Div. 1997)). “Nonetheless, that deference is tempered by the well-established principle that an agency’s legal interpretation is in no way binding on us.” Dep’t of Children & Families, Div. of Youth & Family Servs. v. K.A., 413 N.J. Super. 504, 509 (App. Div.) (citing In re Carter, 191 N.J. 474, 483 (2007)), certif. granted, 204 N.J. 40 (2010); see also G.S. v. Dep’t. of Human Servs., 157 N.J. 161, 170 (1999).

Additionally, where an agency head rejects a recommendation of an ALJ, the basis for rejection must be set forth with particularity and new or modified findings must be supported by sufficient, competent, and credible evidence in the record. N.J.S.A. 52:14B-10(c).

Note: There is a print link embedded within this post, please visit this post to print it.

The Appellate Division’s role in reviewing the decision of an administrative agency originally appeared on NJ Family Issues on November 13, 2011.

Only final judgments are appealable as of right

PaulKostro — Sun, 13 Nov 2011 15:09:05 +0000

Law Lessons from The Law Offices of Peter C. Humblias LLC v. Estate of Nobile, App. Div., A-6164-09T1, September 9, 2011:

Only final judgments are appealable as of right, see R. 2:2-3; otherwise, a motion for leave to appeal must be sought, see R. 2:2-4. “[A] judgment, in order to be eligible for appeal as a final judgment, must be final as to all parties and all issues.” Pressler and Verniero, Current New Jersey Court Rules, comment 2.2.2 on R. 2:2-3 (2011). Interlocutory appeals are, normally, not entertained because of the “judicial policy that favors an uninterrupted proceeding at the trial level with a single and complete review.” Golden Estates v. Cont’l Cas. Co., 317 N.J. Super. 82, 88 (App. Div. 1998) (quoting State v. Reldan, 100 N.J. 187, 205 (1985)).

Note: There is a print link embedded within this post, please visit this post to print it.

NOTE: Adwokat / Prawnik Pawel Kostro mowi po polsku.

Only final judgments are appealable as of right originally appeared on NJ Family Issues on November 13, 2011.

The court shall, by an opinion or memorandum decision, either written or oral, find the facts and state its conclusions of law thereon in every motion decided by a written order that is appealable as of right

PaulKostro — Wed, 09 Nov 2011 22:58:45 +0000

Law Lessons from Bhatnagar v. Bhatnagar, App. Div., A-0298-10T1, August 31, 2011:

Rule 1:7-4(a) states that “[t]he court shall, by an opinion or memorandum decision, either written or oral, find the facts and state its conclusions of law thereon in . . . every motion decided by a written order that is appealable as of right.” “[A]n articulation of reasons is essential to the fair resolution of a case,” and “[f]ailure to perform this duty constitutes a disservice to the litigants, the attorneys and the appellate court.” Schwarz v. Schwarz, 328 N.J. Super. 275, 282 (App. Div. 2000). Moreover, unsupported conclusions are insufficient. Curtis v. Finneran, 83 N.J. 563, 570 (1980).

Note: There is a print link embedded within this post, please visit this post to print it.

NOTE: My legal services include family law, divorce, child support, litigation, arbitration, mediation, child custody and visitation, alimony, equitable distribution, separation agreements, palimony, PSA, property settlement agreement, premarital and prenuptial agreements, midmarriage and marital agreements.

The court shall, by an opinion or memorandum decision, either written or oral, find the facts and state its conclusions of law thereon in every motion decided by a written order that is appealable as of right originally appeared on NJ Family Issues on November 9, 2011.

The law of the case doctrine is only triggered when one court is faced with a ruling on the merits by a different and co-equal court on an identical issue

PaulKostro — Wed, 09 Nov 2011 22:43:30 +0000

Law Lessons from Lombardi v. Masso, __ N.J. __ (2011), No. A-28/29 September Term 2010, 066488, August 26, 2011:

The law of the case doctrine teaches us that a legal decision made in a particular matter “should be respected by all other lower or equal courts during the pendency of that case.” Lanzet v. Greenberg, 126 N.J. 168, 192 (1991) (citing State v. Reldan, 100 N.J. 187, 203 (1985); State v. Hale, 127 N.J. Super. 407, 410-11 (App. Div. 1974)). It is a non-binding rule intended to “prevent relitigation of a previously resolved issue.” In re Estate of Stockdale, 196 N.J. 275, 311 (2008) (citing Pressler, Current N.J. Court Rules, comment 4 on R. 1:36-3 (2008)). “A hallmark of the law of the case doctrine is its discretionary nature, calling upon the deciding judge to balance the value of judicial deference for the rulings of a coordinate judge against those `factors that bear on the pursuit of justice and, particularly, the search for truth.’” Hart v. City of Jersey City, 308 N.J. Super. 487, 498 (App. Div. 1998) (quoting Reldan, supra, 100 N.J. at 205).

Importantly, the law of the case doctrine is only triggered when one court is faced with a ruling on the merits by a different and co-equal court on an identical issue. See, e.g., Gonzalez v. Ideal Tile Imp. Co., 371 N.J. Super. 349, 355-56 (App. Div. 2004), aff’d by, 184 N.J. 415 (2005), cert. denied, 546 U.S. 1092, 126 S. Ct. 1042, 163 L. Ed.2d 857 (2006); Rosenberg v. Otis Elevator Co., 366 N.J. Super. 292, 301-02 (App. Div. 2004); Cineas v. Mammone, 270 N.J. Super. 200, 207-08 (App. Div. 1994). It is entirely inapposite where, as here, in trial court proceedings, the same judge is reconsidering his own interlocutory ruling. City Check Cashing, Inc. v. JUL-AME Constr. Co., 326 N.J. Super. 505, 519 (App. Div. 1999), rev’d on other grounds sub nom, City Check Cashing v. Mfrs. Hanover Trust Co., 166 N.J. 49 (2001). Because such a ruling is always subject to reconsideration up until final judgment is entered, Johnson, supra, 220 N.J. Super. at 257, it is not considered “law of the case.” See Franklin Med. Assocs. v. Newark Pub. Schs., 362 N.J. Super. 494, 512 (App. Div. 2003).

Under the law of the case doctrine, an interlocutory ruling by the Appellate Division generally is not subject to review on direct appeal. See State v. Myers, 239 N.J. Super. 158, 164 (App. Div.), certif. denied, 127 N.J. 323 (1990). However, that principle must be understood in light of the goal of the doctrine: the avoidance of “relitigation of a previously resolved issue.” Stockdale, supra, 196 N.J. at 311.

Note: There is a print link embedded within this post, please visit this post to print it.

NOTE: My legal and mediation services are offered to clients in Union, Middlesex, Somerset, Essex, Hudson, Bergen, and Morris counties in NJ.

The law of the case doctrine is only triggered when one court is faced with a ruling on the merits by a different and co-equal court on an identical issue originally appeared on NJ Family Issues on November 9, 2011.

A trial court’s obligation to make findings of fact and conclusions of law is critical to an appellate court’s meaningful review

PaulKostro — Wed, 09 Nov 2011 16:09:12 +0000

Law Lessons from Cacioppo v. Emolo, App. Div., A-2236-08T2, August 19, 2011:

A trial court’s obligation to make findings of fact and conclusions of law is critical to an appellate court’s “meaningful review.” Ronan v. Adely, 182 N.J. 103, 110-11 (2004). This requirement is succinctly stated in Rule 1:7-4(a), which mandates the court “shall, by an opinion or memorandum decision, either written or oral, find the facts and state its conclusions of law . . . on every motion decided by a written order that is appealable as of right.”

Generally, when a trial court has not made adequate findings and conclusions, the appellate court will remand for the trial court to do so. Foley, Inc. v. Fevco, Inc., 379 N.J. Super. 574, 588-89 (App. Div. 2005); Barnett & Herenchak, Inc. v. State of N.J., Dep’t of Transp., 276 N.J. Super. 465, 470-73 (App. Div. 1994). However, if the appeal turns on an interpretation of the law and the legal consequences that flow from established facts, our review is de novo, making remand unnecessary. Manalapan Realty v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

Note: There is a print link embedded within this post, please visit this post to print it.

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

A trial court’s obligation to make findings of fact and conclusions of law is critical to an appellate court’s meaningful review originally appeared on NJ Family Issues on November 9, 2011.