Erica D. Vitanza v. Sam H. James, Jr. a/k/a Samuel James

Defendant appeals from an order granting summary judgment
to plaintiff on liability and denying defendant's motion to
dismiss plaintiff's complaint which alleged libel and slander by
defendant. However, leave to appeal was neither sought nor
obtained.1 Accordingly, we dismiss the appeal.

We may grant leave to appeal from interlocutory orders,
including those granting partial summary judgment, "in the
interest of justice." R. 2:2-4. The grant of interlocutory
review is "highly discretionary" and "customarily exercised only
sparingly," State v. Reldan, 100 N.J. 187, 205 (1985); see also
Moon v. Warren Haven Nursing Home, 182 N.J. 507, 513 (2005);
State v. Alfano, 305 N.J. Super. 178. 190-91 (App. Div. 1997).

Appeals from interlocutory orders are permitted as of right only
when the Rules expressly permit them. See R. 2:2-3.2 A limited
number of specific types of orders, arguably final in nature,
have also been treated as final for specific reasons of policy.
See Moon v. Warren Haven Nursing Home, supra, 182 N.J. at 517-
18;3 Pressler, Current N.J. Court Rules, comment R. 2:2-3 (Gann).

Otherwise (and except where there is a double jeopardy
consequence in a criminal case, see State v. Alfano, supra),
there is strong policy against piecemeal review and interruption
of the orderly processing of cases to disposition in the trial
courts. Pressler, Current N.J. Court Rules, comment to R. 2:2-
3. Thus, interlocutory orders may be challenged when final
judgment is entered, and to be appealable, as of right, a matter
must be resolved in the trial court as to all issues and all
parties. Ibid. (citing e.g. Parker v. City of Trenton, 382 N.J.
Super. 454, 457 (App. Div. 2006); Mango v. Pierce-Coombs, 370
N.J. Super. 239, 245, n.1 (App. Div. 2004); Caggiano v.
Fontoura, 354 N.J. Super. 111, 123 (App. Div. 2002)).

We have recently reminded the bar that while certification
pursuant to R. 4:42-2 constitutes an appealable order as of
right, the order must be properly certifiable, and if not, the
appeal shall be dismissed. See Janicky v. Point Bay Fuel, Inc.,
__ N.J. Super. __ (App. Div. 2007). As Judge Skillman stated
therein:

Under R. 2:2-3(a)(1), an appeal as of right
may be taken to the Appellate Division only
from a "final judgment." To be a final
judgment, an order generally must "dispose
of all claims against all parties." "This
rule, commonly referred to as the final
judgment rule, reflects the view that
'piecemeal [appellate] reviews, ordinarily,
are [an] anathema to our practice.'"
[Id. at __ (internal citations omitted)
(slip op. at __).]

The Janicky panel reviewed the cases disapproving of
attempts to seek review of orders certified as final under R.
4:42-2, and stated "unfortunately . . . our numerous
pronouncements regarding the inappropriateness of using a
finality certification to obtain review of an interlocutory
order have gone unheeded," and dismissed that appeal "as
interlocutory." Id. slip op. at __.

We have given similar warnings in cases in which
interlocutory orders have been appealed and were the subject of
plenary briefing before being presented to the court.

Nevertheless, we have previously reviewed many such cases on the
merits, particularly where respondents have neglected to move,
as they should, to dismiss an appeal from an interlocutory
order. However, recently, in Parker, supra, we reviewed a case
in which a motion to dismiss an appeal as interlocutory was
denied, but no motion for leave to appeal was filed or granted.

On plenary review even in those circumstances we dismissed the
appeal, saying:

We recognize the existence of cases
like Caggiano v. Fontoura, in which leave to
appeal has been granted nunc pro tunc in
similar circumstances. However, if we treat
every interlocutory appeal on the merits
just because it is fully briefed, there will
be no adherence to the Rules, and parties
will not feel there is a need to seek leave
to appeal from interlocutory orders. At a
time when this court struggles to decide
over 7,000 appeals a year in a timely
manner, it should not be presented with
piecemeal litigation and should be reviewing
interlocutory determinations only when they
genuinely warrant pretrial review.
[Parker, supra, 382 N.J. Super. at 458
(internal citations omitted).]

The Rules are written to require uniformity as a means of
providing equal justice. The time has come to enforce the Rules
and not to decide an appeal merely because the respondent did
not move to dismiss it and it was fully briefed.

* * *

http://www.judiciary.state.nj.us/opinions/a4728-06.pdf