Bandler v. Melillo, 443 N.J. Super. 203 (App. Div. 2015). It is a venerable rule that a party may appeal only a judgment, not the contents of an opinion that supports the judgment. Thus, if a party is not contesting the judgment or its ultimate result, a party may not seek review of the rationale for the judgment. This opinion, issued today by Judge Haas, applies this rule, dismissing an appeal for lack of jurisdiction.
Plaintiff had obtained a default judgment in a collection action against defendant’s former wife, Evelyn. Attempting to gather information about Evelyn’s assets, plaintiff served defendant with a notice of deposition. Defendant declined to attend the deposition. Plaintiff obtained orders compelling defendant’s attendance. Meanwhile, Evelyn filed for bankruptcy. Defendant then appeared for deposition but refused to answer any questions on the grounds that a stay resulting from Evelyn’s bankruptcy was in effect.
Plaintiff then sued defendant, asserting that defendant’s failure to make discovery in the prior action made plaintiff’s default judgment against Evelyn uncollectible, so that defendant should be required to pay the entire judgment. Defendant won summary judgment in the Law Division, on the grounds that plaintiff’s remedy for defendant’s refusal to comply with the order to submit to a deposition lay in the collection action, and that “the failure of a non-party to appear for a deposition, even a court-ordered deposition, is not an independent cause of action” that would support a separate lawsuit.
Plaintiff appealed. He did not challenge the dismissal of his case, but complained that the decision below had discussed, in dicta, “defendant’s argument that the automatic stay in the bankruptcy action excused his failure to comply with the discovery orders.” Judge Haas collected the law that states that “appeals are taken from judgments, not opinions.” This rule, he observed, applies even more “where, as here, the appellant is challenging dicta contained in the trial court’s opinion.”
The Law Division judge had “prudently” discussed the effect of the bankruptcy stay on defendant’s conduct, since both parties had raised it. But he rightly ruled that the issue was not before him, and he declined to render an advisory opinion on it. As a result, the Appellate Division lacked any jurisdiction to consider that issue, and the appeal was required to be dismissed.
Defendant sought attorneys’ fees for the appeal, but the panel declined to consider that request. As Judge Haas noted, Rule 2:11-4 provides that applications for appellate attorneys’ fees be made “after the determination of the appeal.” Thus, the fee request was premature.