A Relatively Rare Exercise of Original Jurisdiction by the Appellate Division

Royal Tax Lien Services, LLC v. Shuaib, 2017 WL 1955269 (App. Div. May 11, 2017).  Rule 2:10-5 authorizes an appellate court to exercise “such original jurisdiction as is necessary to the complete determination of any matter on review.”  In comparison to the number of times that parties have asked appellate courts to exercise original jurisdiction, it is relatively rare for courts to do so.  This per curiam opinion by a panel consisting of Judges Messano and Suter is an exception.

The case was a foreclosure arising out of plaintiff’s purchase of a tax lien on defendants’ property.  After a final judgment of foreclosure was entered, three different applications to vacate that final judgment were filed.  The first, filed by one of the defendant property owners, was denied.  The second motion was filed by a person who was allegedly a part owner of the property, but whose name did not appear on the deed.  His motion too was denied.  Finally, one of the defendants submitted the third application, which was based on a lack of proper service upon her (service had been made by publication).  That motion failed, “not based on the merits of the Motion,” but because she had not paid the required fee, so the motion was never filed.

The panel affirmed the result, but on different grounds.  First, the panel observed that neither the notice of appeal, the accompanying Case Information Statement, or appellant’s brief was signed by the defendant whose motion was denied, but only by the other defendant, her brother.  The brother, a non-lawyer, was not his sister’s agent and otherwise had no authority to file an appeal for her, as “[o]nly an aggrieved party may appeal a judgment.”  Thus, no valid appeal was pending.

Nonetheless, the panel took on the matter, exercising original jurisdiction.  As the panel stated, original jurisdiction can appropriately be exercised to complete the disposition of an appeal and/or to avoid unnecessary further litigation.  Here, given those considerations, and the absence of any disputed facts, the panel found it appropriate to address the service issue on its merits, determined that service by publication was valid, and upheld the denial of the sister’s motion to void the final judgment, which was solely dependent on her argument that service was insufficient.