Park Crest Cleaners, LLC v. A Plus Cleaners & Alterations Corp., 458 N.J. Super. 465 (App. Div. 2019). This opinion by Judge Fisher today dismissed an appeal under convoluted facts. To dramatically oversimplify (and it’s worth reading the opinion, which, characteristically for Judge Fisher, was not long), the parties litigated a commercial case that resulted, after a jury trial, in a judgment for plaintiffs against defendants and the owner of property that was involved in the lawsuit. The Chancery Division reduced the damage figure awarded by the jury to a lesser amount.
The property owner, however, had not been made a party to that case. Defendants appealed, and the property owner cross-appealed. Defendants did not perfect their appeal, and the Appellate Division dismissed it. The property owner won its appeal, over plaintiffs’ opposition. The Appellate Division directed that the judgment be amended to delete the relief awarded against the property owner.
On remand, the trial court entered an amended judgment as directed. That court also restored the full amount of the jury’s damage award against defendants. Defendants then filed a new appeal, but that appeal contested only matters that related to the pre-trial, trial, and post-trial proceedings that preceded defendants’ first appeal. Judge Fisher stated that “[a]ll these arguments could have been pursued to a final appellate disposition on their merits in the original appeal filed in December 2015 but for defendants’ failure to perfect their [original] appeal.”
Judge Fisher observed that there is a strong policy in favor of “a single and complete review” on appeal. “[P]iecemeal appeals,” in contrast, are anathema to the courts. “Because defendants’ appeal does not suggest any error in the amended judgment and seeks only review of trial court rulings cognizable in the prior appeal and dispensed with when we dismissed that appeal, there is nothing here for us to review,” Judge Fisher said.
Judge Fisher also focused on the mandate that resulted from the Appellate Division’s disposition of the first appeal. “By dismissing defendants’ original appeal and by issuing a mandate that only required trial court action for the benefit of [the property owner], we brought an end to any controversy about all other prior pretrial, trial, and post-trial orders and rulings, and barred defendants from further seeking our review of anything but those aspects of the November 6, 2017 amended judgment that may have aggrieved them.” Once that occurred, “any disputes still subject to litigation derive only from the court’s mandate.” The mandate from the first appeal was limited to the amendment of the original judgment for the benefit of the property owner, and “did not open the door to a renewal of defendants’ complaints about the denial of a pretrial motion, the admission of evidence at trial, or the denial of their post-trial motion.”
Judge Fisher was careful to state that “We do not mean to suggest defendants could not have permissibly appealed aspects of the new judgment not cognizable in the earlier appeal. But defendants plainly do not quarrel with the new judgment, only the old.”
There are at least two lessons here. The first is this: a party abandons an appeal at its peril. If the result is such that, after further proceedings, that party wishes to revive its appeal, it may not be able to do so.
The second lesson arises from the submission that defendants made on their attempted second appeal. Judge Fisher noted, with evident displeasure, that “defendants’ merits brief goes so far as to pretend there never was an earlier appeal. Their appendix does not include a copy of our prior opinion and their procedural history breezes right by the prior appeal as if it never occurred.” To say the least, that decision by defendants did not show good judgment. It is never a good idea to misstate the facts or procedural history, and this panel made clear its disapproval of that here.
One other question: how did it come to pass that there was a jury trial in the Chancery Division? Chancery cases virtually never receive jury trials, as discussed here (and in a more detailed law review article that I co-authored with (now-Judge) Gary K. Wolinetz, “The Right to a Civil Jury Trial in New Jersey,” 47 Rutgers L. Rev. 1461 (1995)). Today’s opinion does not explain that, because it did not need to do so, but the question remains.