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Finality is the key factor for appeals as of right. That means final as to all issues and all parties, including all those in consolidated matters and fee applications. R. 2:2-3(a). But, sometimes, before the case reaches a final disposition, an order can be entered that irrevocably sets the matter on course to a particular end, effectively depriving a party of the right to a fair and just trial. For such cases, the motion for leave to appeal exists, granting leave "in extraordinary cases and in the interest of justice." R. 2:2-3(b).

For example, in criminal matters, a suppression order may strip the State of the opportunity to present potent evidence of guilt. Because double jeopardy does not permit the State to get a second bite of the apple, there is no opportunity to correct a possible error on appeal following an acquittal. A similar order, denying a defendant's request to present evidence, will generally not reach the same level of urgency because the defendant may appeal and, if successful, present the evidence at a re-trial.  

The likelihood of success for the State's motion in this example stands in sharp contrast to last year's statistics, which are typical. Only 14% of motions for leave to appeal filed in civil cases were granted. The observation that the court has an "inhospitable attitude toward most interlocutory appeals" is, therefore, apt. See, State v. Reldan, 100 N.J. 187, 205 (1985) (citing Clifford, "Civil Interlocutory Appellate Review in New Jersey," 47 Law & Contemp. Probs. 87, 97 (1984)).  

In keeping with the general abhorrence of piecemeal litigation, a motion for leave to appeal is more likely to succeed if an appellate ruling will put an end to the litigation. To illustrate, if a trial court erred in permitting a suit to proceed that should have been barred by the applicable statute of limitations, an appellate reversal ends the case. Other types of interlocutory orders that present "make or break" issues that may be worthy of appellate review include cases where: a legal prerequisite to suit has not been satisfied; immunity has not been properly accorded; or evidence required to support a claim, such as an expert opinion, has been excluded. Issues of pressing public concern may also merit granting leave to appeal, such as the constitutionality of a statute or election matters. On the other hand, motions that seek interlocutory review of orders that reflect the trial court's exercise of discretion are less likely to be granted.

If you seek leave to appeal, here are important points to remember.

The filing of a motion for leave to appeal does not act as an automatic stay of either the challenged trial court order or of the proceedings before the trial court. If time is a factor, you must also seek a stay of the proceedings—first in the trial court and, if denied, included as a request for relief in your motion for leave to appeal. See R. 2:5-6; R. 2:9-5(b). Without a stay, the trial court retains jurisdiction to proceed with all pre-trial motions and the trial itself.

The window for filing a motion for leave to appeal is significantly smaller than the period for filing an appeal from a final order. The motion must be filed within 20 days after service of the order appealed from. R. 2:5-6(a). If a motion for reconsideration is filed with the trial court within that 20-day period, the motion for leave to appeal must be filed within 20 days after service of the order on the reconsideration motion. Ibid. 

The trial court must receive notice of the motion. R. 2:5-6(c). The court then may file a statement in which it amplifies reasons for the ruling that is the subject of the appeal and even comment on whether the motion for leave to appeal should be granted. Ibid.

As noted, for an order or judgment to be final, applications for counsel fees must be decided. N.J. Mfrs. Ins. v. Prestige Health, 406 N.J. Super. 354, 358 (App. Div.), certif. den. 199 N.J. 543 (2009). If a notice of appeal is filed before that issue is resolved, the party who applied for the counsel fee must move for a limited remand to the trial court or move for dismissal of the appeal as interlocutory. Id. at 358-59. If the party seeking the fee fails to do either, an appeal from the attorney fee issue will be barred. Shimm v. Toys From the Attic, 375 N.J. Super. 300, 304 (App. Div. 2005).  

If you have progressed to final judgment, remember that appeals are from the final judgment. To preserve an appeal from an interlocutory order, you must specifically identify that order as a subject of appeal in the case information statement filed with the notice of appeal. Synnex Corp. v. ADT Security, 394 N.J. Super. 577, 588 (App. Div. 2007). Indeed, if you lost on an interlocutory issue, and then prevailed in the final judgment, the interlocutory order is not appealable.

Don't forget: Once interlocutory, always interlocutory. See R. 2:2-5. Thus, any appeal to the Supreme Court from an appellate decision on an interlocutory matter must also be presented as a motion for leave to appeal as well.

On occasion, the parties and perhaps even the trial court may strive to bring an otherwise interlocutory order within the scope of appeals as of right. A judgment will not be made final, however, by an order that reserves an issue for decision by the trial court or dismisses a claim without prejudice. Grow Co. v. Chokshi, 403 N.J. Super. 443, 459 (App. Div. 2008).   

Although Rule 4:42-2 permits a trial court to direct the entry of final judgment as to one or more claims, even though all claims as to all parties have not been resolved, this rule has very limited application and is not a vehicle for the sole purpose of obtaining appellate review. First, the nature of the order itself must be one that, if it were final, "would be subject to process to enforce a judgment pursuant to R. 4:59." This limited eligibility excludes orders dismissing particular parties, denying summary judgment, and other orders which, if final, would not result in any enforcement rights allowed by Rule 4:59. For example, an order granting partial summary judgment as to both liability and the amount of damages could be subject to this rule, but an order that only addressed liability would not. Marx v. Friendly Ice Cream Corp., 380 N.J. Super. 302, 305 n.3 (App. Div. 2005). Second, the trial court must certify "there is no just reason for delay of such enforcement." Finally, the rule may be invoked "only" in defined circumstances: upon a complete adjudication of (1) a separate claim or (2) of all the rights and liabilities asserted in the litigation as to any party; or (3) where a partial summary judgment or other order for payment of part of a claim is awarded.

Don't make the mistake of believing a trial judge's certification stating the order is final makes it so. The Appellate Division is not bound by the order and has "the sole discretion" to permit an interlocutory appeal. Brundage v. Estate of Carambio, 195 N.J. 575, 599-600 (2008).

Final advice for such motions?  Cross your fingers.  

Marie E. Lihotz, a former Presiding Judge of the Appellate Division, is now of counsel with Archer and Greiner, providing appellate consulting, mediation and arbitration services. Marianne Espinosa, a former Judge of the Appellate Division, is of counsel with Javerbaum, Wurgaft, Hicks, Kahn, Wikstrom & Sinins. She focuses on appellate consultation, mediation, arbitration and the investigation of employment law disputes.