Argument Not Raised Below, and Raised on Appeal Only in a Footnote, Would Not be Considered

Oyola v. Liu, 431 N.J. Super. 493 (App. Div. 2013).  The main thrust of this opinion by Judge Alvarez was to affirm a decision of the Law Division that granted summary judgment in favor of plaintiffs and against the New Jersey Property-Liability Insurance Guaranty Association in connection with a motor vehicle accident.  The decision required the Association to pay plaintiffs on behalf of an insolvent insurer.  In essence, Judge Alvarez found that the case was controlled by Thomsen v. Mercer-Charles, 187 N.J. 197 (2006), and that amendments to the Property-Liability Insurance Guaranty Association Act, N.J.S.A. 17:30A-1 to -20, after Thomsen did not call for a different result here.

From 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 appellant sought to raise not presented below, it was raised on appeal only in a footnote in the appellant’s brief.  Judge Alvarez found that insufficient.  Because the issue was raised only in a footnote, “it was not addressed at oral argument because it was not briefed.  Accordingly,  [the Court did] not address the merits of the argument.” 

In Almog v. ITAS, 298 N.J. Super. 145, 155 (App. Div. 1997), Judge Pressler’s opinion for the Appellate Division stated that the court would not countenance the raising of issues in footnotes.  Today’s opinion, though not citing Almog, reaffirms that principle.  A party that wishes to present an argument on appeal must do so under “appropriate point headings,” as required by Rule 2:6-2(a)(5).  Failure to do that will result in arguments not being considered.