Smith v. JCP&L, 421 N.J. Super. 374 (App. Div. 2011). This opinion, authored by Judge Skillman, addresses a number of interesting issues involving inverse condemnation, nuisance, and other things. From an appellate practice perspective, however, the case is of interest because it holds that the judgment was not final, and therefore appealable, in the circumstances of this case, due to an unresolved application for costs.
There was an appeal and a cross-appeal in this case. Plaintiffs appealed the denial of their inverse condemnation claim even though they had prevailed on their nuisance theory. Plaintiffs did not appeal until more than 45 days after the judgment in their favor. Defendant moved to dismiss the appeal as being too late. The judgment, however, had not addressed plaintiffs’ application for costs, since plaintiffs had yet to seek them. Plaintiffs contended that their time to appeal did not begin to run until the costs issue was resolved.
As Judge Skillman observed, normally, a judgment that awards the winning party its taxed costs is considered final, since “a determination of the amount of taxed costs is usually a routine ministerial function performed by the clerk of the court.” Here, however, where plaintiff sought nearly $50,000 in costs from the clerk, the trial court had to, and eventually did, rule on that application. In this circumstance, the judgment remained interlocutory until the costs issue was resolved. The rule that a judgment or order must dispose of all claims as to all parties in order to be final is “no less applicable to an appeal … of an issue, such as counsel fees and costs, that ought to have been resolved before final appellate review.”