Most Arguments Not Raised Below Won’t be Considered on Appeal

This first post of 2013 discusses a fundamental principle of appellate review:  “our appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available ‘unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great pubic interest.'”  Nieder v. Royal Indemnity Ins. Co., 62 N.J. 229, 234 (1973) (quoting Reynolds Offset Co., Inc. v. Summer, 38 N.J. Super. 542, 548 (App. Div. 1959)). 

In Nieder, a plaintiff who had been pro se created a “most unsatisfactory, disorganized and confusing” record that was “haphazardly fragmented and improperly supplemented by affidavits without leave of court.”  Some of that supplemental material was presented to the Supreme Court on four different dates after the Court heard oral argument, so that, as the Court observed, “[m]uch of the factual data” before the Court had not presented to the trial court, and some of it was not offered even at the Appellate Division level.  Nonetheless, the Supreme Court returned the case to the Law Division for trial on all issues.  The Court’s opinion was an unsigned per curiam decision, making it most likely one of the most oft-cited per curiam opinions ever.   

Ironically, therefore, the case so often cited for the idea that issues not presented below will not be considered actually ordered a full trial even as to things not presented until after the fact.  Since one of the dates on which supplemental materials were filed with the Supreme Court was January 2, 1973, it is fitting that today, exactly 40 years later, we take a moment to revisit Nieder.

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  1. […] amendment was unconstitutional, but Judge Sapp-Peterson rejected that contention because it had not been raised below.  Moreover, the constitutional claim related to another aspect of the 2010 amendment, which […]

  2. […] an appellate practice perspective, however, the case is another example of the principle that arguments not raised below will not be considered.  But the ruling here went one step further.  Not only was the additional issue that the […]

  3. […] hardship” to defendant, in violation of Rule 4:58-2– were rejected under the familiar principle that an argument not raised below normally will not be considered on […]

  4. […] The panel considered, however, the possible effect of the Judicial Article, Article VI, section 6, paragraph 3, even though defendant had not argued that clause below.  This constitutional issue was an exception to the normal rule that issues not raised below cannot be presented for the first time on appeal. […]

  5. […] Court to take up the issue.  The presence of a matter of great public interest is an exception to the general rule that issues not raised below will not be considered on appeal (and the issue here had been raised below, in connection with the motions in […]

  6. […] Defendant had not raised that argument below, but Judge Fisher noted that, contrary to the normal rule that does not permit issues to be raised for the first time on appeal, “lack of subject matter jurisdiction may be asserted for the first time on appeal.”  […]

  7. […] arguments that plaintiff presented for the first time on appeal.  He cited the familiar rule of Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973), for the idea that arguments not raised below will ordinarily not be […]

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