Supreme Court Civil Practice Committee Proposes Amendments to Certain Appellate Rules

The Supreme Court’s Civil Practice Committee has issued its biannual report on proposed changes to the New Jersey Court Rules.  Some of the proposed amendments affect the Part II (Appellate) rules.  Those proposed changes are as follows:

Rule 2:11-6 would be amended to permit motions for reconsideration to be filed 20 days after the entry of a judgment or order, instead of the 10-day time period currently provided.  One reason was to harmonize the time for reconsideration of appellate orders or judgments with the 20-day window permitted for reconsideration of trial level under Rule 4:49-2.  The Committee did not adopt a proposal that would count the time from the date of service of the order or judgment, since there is no official record of when appellate orders or judgments, which are mailed, are placed in the mail, and no way to verify when they are received by counsel.

The Committee likewise proposes to extend the 10-day period of Rule 2:11-4 for attorneys’ fee applications to 20 days.  The stated purpose is to align that time period with proposed Rule 2:11-6.  These changes appear desirable.

Proposed amendments to three different Rules are occasioned by the Supreme Court’s ruling in GMAC v. Pittella, 205 N.J. 575 (2011), in which the Court held that orders declining to compel arbitration are to be deemed as final and immediately appealable.  Rule 2:2-3(a) would be amended to state that such orders are deemed final for purposes of appeal.  Rule 2:9-1(a) would state that when an appeal is taken from an order granting or denying arbitration, the trial court retains jurisdiction over claims and parties that remain in that court. 

Finally, Rule 2:11-1(a) would now state that orders compelling or denying arbitration are entitled to a scheduling preference on the appellate calendar.  Right now, the only other category of cases that is entitled to a preference is “appeals on leave granted.”  A number of years ago, Rule 1:2-5(1) provided a scheduling preference for a number of different specific types of cases, both at the trial level and on appeal.  That Rule was deleted in 1996.  It does not seem that orders regarding arbitration are so critical that they, and not other types of cases where expedition would also be desirable, should get a special scheduling preference.  But that is the Committee’s proposal.

On a related note, Rule 2:9-5 would be amended to make it easier for a party that appeals as of right an order compelling arbitration to obtain a stay of that order pending appeal.  A stay would be required unless “exceptional circumstances warrant the arbitration to proceed while the appeal is pending.”  The stay application would have to be made, in the first instance, in the trial division.  Similarly, if there is an appeal of an order compelling or denying arbitration, a party over whom the trial court retains jurisdiction would be able to seek a stay in that court pending the outcome of the appeal. 

The Committee proposes to eliminate the deposits for costs required by Rules 2:5-2 and 2:12-5.  The main reasons for this proposal are that (1) deposits for costs often are not made but appeals are not dismissed for failure to make the deposit, (2) parties rarely request taxed costs even when allowed to do so, and (3) the costs to the respective Clerk’s Office of collecting and reimbursing deposits for costs exceeds the allowed $5.00 commission. 

This seems to be a perfectly reasonable proposal.  In nearly 30 years of appellate practice, I have never sought an award of taxed costs.  The cost of seeking costs always exceeds the amount that would be paid to the victorious client.

Rule 2:6-1 would be amended to provide that any documents that are to be excluded from public access under Rule 1:38-3 are to be submitted in a separate appendix marked “confidential.”  This suggestion would ensure consistent confidential treatment of materials that Rule 1:38-3 recognizes should not be disclosed at the trial level.

Finally, the supersedeas bond rules, Rules 2:9-5 and 2:9-6, would be revised to permit a form of security other than a supersedeas bond, and to permit security in less than the full amount of the judgment being appealed from.  The proposed amendment to Rule 2:9-5 lists osme factors for the courts to consider in making such a decision, including “the amount and nature of the judgment, anticipated interest and costs, the availability and cost of a supersedeas bond or other form of security, the assets of the judgment debtor and of the judgment debtor’s insurers, sureties and indemnitors, if any, the judgment debtor’s ability to dissipate assets and the risk of harm to the parties on the appeal.”  Many of these factors have been in use in other jurisdictions or in the federal system, by rule or caselaw.

The deadline for comment on these proposed amendments, or any others by this Committee, is April 2, 2012.