(908)402-4770It is important for any attorney who litigates in New Jersey state courts to have a complete understanding of the differences between final orders and interlocutory orders in New Jersey.
Final Order (Rule 4:49-2)
A final order, as per Rule 4:49-2, is one that marks the conclusion of a particular stage in litigation. It signifies the end of a particular phase of a case, allowing for an appeal or further legal action.
If a party wants to “alter or amend” a final order, they must file a motion within 20 days of the entry of that order. Moreover, to succeed on such a motion, the moving party must show the prior decision was “based upon a palpably incorrect or irrational basis” or the judge “failed to appreciate the significance of probative, competent evidence.” Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996).
Appealing Final Orders
Rule 2:2-1 and Rule 2:2-3 cover the appeal of final judgments/orders for the Supreme Court and the Appellate Division, respectively. Final orders may be appealed “as of right” to the Appellate Division and the Supreme Court as detailed in the court rules cited above.
Interlocutory Order (Rule 4:42-2)
An interlocutory order, on the other hand, is issued during litigation but does not bring a particular phase to a final close. Rule 4:42-2 dictates that interlocutory orders are “subject to revision at any time before the entry of final judgment in the sound discretion of the court in the interest of justice.” They are interim decisions made to facilitate the ongoing legal process and can be revisited as the case develops. Unlike challenging a final order, there is no time limitation placed on filing such a motion; it only has to be filed before entry of final judgment. Additionally, the standard for overturning an interlocutory order is much lower than what is necessary to overturn or change a final order or judgment.
Appealing Interlocutory Orders
First, the moving party must obtain the permission of the trial judge to appeal the interlocutory order/decision. If the moving party gets the permission, the party has 20 days after the entry of the order to file the appeal. The Appellate Division, on good cause shown and with no prejudice to other parties, can extend that another 15 days.
As a practical matter, it is usually very difficult to get the trial court to agree to permit the immediate filing of the appeal.
In addition to the opposing sides, the trial judge gets a copy of the moving papers. The judge has 10 days from receipt of the copy to provide a written statement to the Appellate Division whether leave should be granted. It is common practice that when the motion for leave is filed, a motion to stay the trial court proceedings is also filed with the trial court, and if denied, filed with the Appellate Division.
Under Rule. 4:42-2 the moving party must show the Appellate Division it is in the “interests of justice” to consider this one issue before the trial commences, and not to do so at this point is irremediable.
The Appellate Division can grant or deny leave to appeal the interlocutory order. If the Appellate Court grants leave, it can reverse the trial court’s decision on the papers before it. The Court can also allow the parties to brief and argue the issues further.
If the Appellate Court denies leave, or grants leave and affirms the trial court’s order, the moving party may make a motion for leave to appeal to the New Jersey Supreme Court. The moving party would have 20 days from the date the opinion is posted by the Appellate Division to ask for leave from the Court.
Should a dissenting opinion be filed on the motion for leave, the issue in the interlocutory order becomes preserved for appeal after final judgment is entered, and there is an appeal as of right to the Supreme Court after the Appellate Division hears the appeal of the final judgment.
Under Rule 2:2-2, appeals from interlocutory orders may be heard by the Supreme Court “when necessary to prevent irreparable injury” or on certification by the Supreme Court to the Appellate Division.
New Jersey Case Law on Final and Interlocutory Orders
One of the controlling New Jersey cases on interlocutory orders is Lombardi v. Masso, 207 N.J. 517 (2011). In that case, the Supreme Court ruled it is well established that the trial court has the inherent power to be exercised in its sound discretion, to review, revise, reconsider, and modify its interlocutory orders any time prior to the entry of final judgment (citing Johnson v. Cyklop Strapping Corp., 220 N.J.Super. 250, 257 (App .Div. 1987), certif. denied, 110 N.J. 196 (1988). The Court noted that this rule, which originated in the common law and codified in Rule 4:42-2, sets no restrictions on the exercise of the power to revise an interlocutory order.
Lombardi only dealt with interlocutory orders. Recently, the Appellate Division issued an opinion clarifying the differences between final and interlocutory orders. Lawson v. Dewar, 468 N.J. Super. 128 (App. Div. 2021), involved a claim that the defendant’s police officers beat the plaintiff while he was under arrest. He sued the town, police chief, and individual police officers. The case was complicated procedurally due to three changes in venue and the COVID-19 pandemic.
The first judge to hear the case denied several motions. The plaintiff filed for reconsideration of interlocutory denial orders entered by the first judge earlier in the case. The plaintiff filed another motion for reconsideration, which was never heard because of the multiple changes of venue. However, as noted by the Appellate Division, when the pending motion was finally heard, the third judge assigned to the case stated in his oral decision that the moving party had not met the requirements set forth in Cummings (“palpably incorrect or irrational basis” or the judge “failed to appreciate the significance of probative, competent evidence”), to justify overturning the interlocutory orders. The Appellate Division made clear the third judge should have used the lower standard of R. 4:42-2 (“the sound discretion of the court in the interest of justice” ).
The opinion further addressed the defendants’ position that the pending reconsideration motions were not filed within 20 days of the disputed orders, as required by Rule 4:49-2.
Once again, the Appellate Division noted that the rule for final orders did not apply to this case, which involved only interlocutory orders. Therefore the 20-day time period did not apply.
The Law of the Case Doctrine
The law of the case doctrine is a principle that guides courts when dealing with previously established rulings in a case. However, its application differs for interlocutory orders.
In New Jersey, the law of the case doctrine is invoked when one court faces a ruling on the merits of a different and co-equal court on an identical issue. It mandates that a court adhere to a previous decision made by another court of equal stature regarding the same matter. This doctrine promotes consistency and stability in the legal process.
However, for interlocutory discovery orders, the law of the case doctrine doesn’t apply in the same manner. Interlocutory rulings are provisional and designed to facilitate the progression of litigation. Therefore, they are not considered “law of the case” and are always subject to reconsideration until the entry of a final judgment. Both the Lombardi and Lawson opinions referenced the law of the case doctrine:
Similarly, the law of the case doctrine has no bearing when a party seeks reconsideration of interlocutory discovery orders. In writing for the Supreme Court, Justice Long recognized 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.” Lombardi, 207 N.J. at 539, 25 A.3d 1080 (emphasis added). In support, Lombardi cited Gonzalez v. Ideal Tile Importing Co., Inc., 371 N.J. Super. 349, 356, 853 A.2d 298 (App. Div. 2004), aff’d o.b., 184 N.J. 415, 877 A.2d 1247 (2005), where we held in similar circumstances that the law of the case doctrine does not obligate a court to “slavishly follow an erroneous or uncertain interlocutory ruling.” Interlocutory rulings are “not considered ‘law of the case’ ” and are “always subject to reconsideration up until final judgment is entered.” Lombardi, 207 N.J. at 539, 25 A.3d 1080 (citing Johnson, 220 N.J. Super. at 257, 531 A.2d 1078 ).
[Lawson, at 135-36.]
New Jersey Civil Litigation Attorneys
Schiller, Pittenger & Galvin, P.C. civil litigation lawyers appear in federal, state, and municipal courts throughout New Jersey. We are experienced in New Jersey civil procedure and handling appeals. If you are looking for an attorney to handle your appeal, contact the firm’s New Jersey civil litigation lawyers in their Scotch Plains office at 908 490 0444 or email them here.