Normally, when the Appellate Division perceives that a purported appeal as of right, which must be from a final judgment, is in fact an interlocutory appeal from a non-final judgment, the court will dismiss the appeal. That is because there is no automatic right to appeal from a non-final decision. Rather, such appeals are discretionary with the Appellate Division. Only occasionally does the Appellate Division make an exception and permit such an improvidently filed appeal to proceed.
But the Appellate Division does not depend exclusively on its own devices to identify improvidently filed appeals. Rather, the court has long stated that “in a situation where an appeal has been improvidently filed, respondent has a duty to the court to file a timely motion to dismiss the appeal.” That passage, from Butler v. Buenaga, 107 N.J. Super. 80, 83 (App. Div. 1969), mod. on other grounds sub nom. Butler v. Bonner & Barnewall, Inc., 56 N.J. 567 (1970), appears to be the first time that the Appellate Division enunciated that principle. By an “improvidently filed” appeal, the court meant a purported appeal as of right that in fact seeks review of an interlocutory decision. The Appellate Division has reiterated that rule in subsequent cases, such as Gloucester City v. American Arbitration Ass’n, 333 N.J. Super. 511, 519-20 (App. Div. 2000), and Brown v. Brown, 147 N.J. Super. 156, 157 (App. Div. 1977).
Respondents do not always do their “duty” in this regard, however. In Brown, the court’s per curiam opinion did not recite that the respondent there had filed a motion to dismiss what was plainly an interlocutory appeal masquerading as an appeal as of right. Despite that, the court dismissed the appeal. In Gloucester City, however, Judge Skillman’s opinion for the panel declined to dismiss an improvidently filed appeal. The court observed that the respondent had not moved to dismiss the appeal, and the appeal meanwhile had been fully briefed and argued. As a result of that, and because the appeal involved “a claim by a governmental agency for recovery of substantial losses allegeedly incurred as a result of a contractor’s failure to perform a public construction project,” the panel would not accept the respondent’s argument, made at the merits stage, that the appeal should be dismissed as interlocutory.
In short, a respondent who waits until merits briefing or oral argument to seek dismissal of an improvidently filed appeal as of right does so at its peril. The Appellate Division might conclude, as in Gloucester City, that since the parties and the court went through the whole appellate process, the court might as well decide the merits even where the appeal was plainly improper. Respondents are thus well advised to move to dismiss an improvident appeal as soon as possible.