The Civil Practice Committee Recommends One Appellate Rule Change

The Supreme Court Civil Practice Committee has issued its 2024 report, which addresses recommended changes to Court Rules as well as Rule change proposals not recommended. The report is available here.

The report reflects that the Committee considered only one proposed change to the appellate rules. That change involves Rule 2:11-4, which addresses attorneys’ fees on appeal. This proposed change arose out of the Supreme Court’s decision last year in Hansen v. Rite Aid Corp., 253 N.J. 191 (2023), in which the Court requested an amendment to Rule 2:11-4 that would deal with applications for attorneys’ fees on appeal when the result of the appeal is a remand for further proceedings. The Committee, of course, obliged.

As the Committee’s report explained, in Hansen, the Court “requested the Committee propose an amendment to Rule 2:11-4 analogous to the remand provision in Local Rule 39-2 of the Eleventh Circuit. The proposed rule amendment would provide a mechanism by which a party who prevailed on its appeal but is not yet a ‘prevailing party’ entitled to attorney’s fees and costs under a relevant fee-shifting statute, to make application for fees and costs after the conclusion of the remanded matter in the trial court.

“The Court directed that, ‘[a]bsent exceptional circumstances, such amendment would apply only in fee-shifting cases in which an appellate court reverses and remands for further proceedings such that the party that has succeeded in the appeal is not yet a prevailing party entitled to an award of fees and costs. In such a setting, a party that later becomes a prevailing party by virtue of a determination on remand should be permitted to seek appellate legal fees directly from the trial court.’”

The Eleventh Circuit local rule to which the Supreme Court referred sets a fourteen-day deadline for applications for appellate fees in the Eleventh Circuit Court of Appeals. But that rule contains an exception for circumstances where the result of the appeal is a remand for further proceedings. In that instance, a party seeking appellate fees may “request attorney’s fees for the appeal in a timely application filed with the district court upon disposition of the matter on remand.”

Essentially following that example, the Civil Rules Committee has proposed a new section (b) to Rule 2:11-4 that states: “(b) When the disposition on appeal results in a remand for further proceedings in the trial court or administrative agency, and where the award of counsel fees abides the event, a party who may be eligible for attorney’s fees on appeal after prevailing on the merits upon remand shall request any attorney’s fees sought for the appeal after completion of the remand. The request shall be made by motion filed with the trial court, or, if applicable, the administrative agency that is serving solely as the forum and that has the authority to award counsel fees against litigants appearing in that forum, upon disposition of the matter on remand. The motion shall be filed no later than 30 days after the completion of the remand proceedings or, if a motion for reconsideration is filed, 10 days after a ruling on the motion for reconsideration.”

Comments on this proposed Rule change (and all of the others) are due by March 29, 2024. Comments can be mailed to Acting Administrative Director Glenn A. Grant, Administrative Office of the Courts, Attn: Rules Comments, Hughes Justice Complex; P.O. Box 037, Trenton, New Jersey 08625-0037, or e-mailed to