This first post of 2013 discusses a fundamental principle of appellate review: “our appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available ‘unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great pubic interest.'” Nieder v. Royal Indemnity Ins. Co., 62 N.J. 229, 234 (1973) (quoting Reynolds Offset Co., Inc. v. Summer, 38 N.J. Super. 542, 548 (App. Div. 1959)).
In Nieder, a plaintiff who had been pro se created a “most unsatisfactory, disorganized and confusing” record that was “haphazardly fragmented and improperly supplemented by affidavits without leave of court.” Some of that supplemental material was presented to the Supreme Court on four different dates after the Court heard oral argument, so that, as the Court observed, “[m]uch of the factual data” before the Court had not presented to the trial court, and some of it was not offered even at the Appellate Division level. Nonetheless, the Supreme Court returned the case to the Law Division for trial on all issues. The Court’s opinion was an unsigned per curiam decision, making it most likely one of the most oft-cited per curiam opinions ever.
Ironically, therefore, the case so often cited for the idea that issues not presented below will not be considered actually ordered a full trial even as to things not presented until after the fact. Since one of the dates on which supplemental materials were filed with the Supreme Court was January 2, 1973, it is fitting that today, exactly 40 years later, we take a moment to revisit Nieder.