An Important Decision That Has Had Five Years to “Grow” on Everyone

Five years ago today, the Appellate Division decided Grow Company, Inc. v. Chokshi, 403 N.J. Super. 443 (App. Div. 2008).  There, Judge Fisher, writing for the panel, produced a seminal opinion that emphatically expressed the Appellate Division’s disapproval of tactics to create an order “that merely pretends to be final” in order to allow an appeal as of right in a case where, in fact, leave to appeal is required. 

Judge Fisher’s opinion canvassed the numerous prior Appellate Division opinions that had condemned various forms of such tactics, and ruled that the stratagem employed there– an order dismissing the issue of attorneys’ fees without prejudice, and declaring that the entire controversy doctrine would not be violated if the party seeking fees filed a new action to obtain those fees, all in order to permit the parties to appeal, as of right, issues that had been decided– was improper.  The panel “condemn[ed] the creation of the appearance of finality through the dismissal with prejudice of unadjudicated claims that have not been concluded in fact but are left to be resurrected in a new suit.”   

Judge Fisher left no doubt that the Appellate Division would come down hard on parties who try to contrive appellate jurisdiction as of right when any appeal would in fact have to be interlocutory.  Nonetheless, there have been cases after Grow where the Appellate Division has found it necessary to reiterate that lesson again, and again, and again.  This fifth anniversary of Grow is a good opportunity for appellate counsel and parties to remind themselves that the Appellate Division will not tolerate interlocutory appeals that are improperly designated as final.

Grow is also important for a less prominent principle of appellate practice:  when a supersedeas bond is appropriate.  In Grow, the Chancery Division below required the appellant, the plaintiff, to post a bond even though plaintiff did not seek a stay pending appeal and there was no money judgment entered against Grow (the fee issue that might have generated a money judgment having been dismissed without prejudice, as described above).  Judge Fisher explained at length why a bond cannot be required absent both a request for a stay pending appeal and the existence of a money judgment.  Grow is thus also a useful tutorial on supersedeas bonds, a subject not often discussed in published opinions.