The Supreme Court announced amendments to Court Rules and appendices, as well as certain other procedural changes. That announcement is embodied in an Omnibus Rule Amendment Order that is available here.
Unlike in most years, this year’s Omnibus does not amend any Court Rules in Part 2, the appellate rules. The only apparent change is to the Appellate Civil Case Information Statement (“CIS”). And that change, which addresses finality, is somewhat of a subtle one.
The change is to section (6) in the CIS. The previous version of section (6) began by asking “Are there any claims against any party below, either in this or a consolidated action, which have not been disposed of, including counterclaims, cross-claims, third-party claims and applications for counsel fees?” The desired response was “no,” as that would mean that the proceedings below were final and appealable, without more.
Section (6) then went on to ask “If so, [that is, if the answer to the first question was “yes” instead of “no”], has the order been properly certified as final pursuant to R. 4:42-2? (If not, leave to appeal must be sought. R. 2:2-4, 2:5-6).” If the order was certified as final, section (6) concluded by giving instructions about attaching materials that document that certification.
The Instructions for Completing the Civil Case Information Statement Form said this about completing section (6): “FINALITY INQUIRY: Answer whether there are any claims against any part below which have not been disposed of (decided and closed). If the answer is ‘no,’ and all claims have been disposed, you may properly proceed with the filing of a Notice of Appeal. Proceed to section 7. If you check ‘yes,’ you SHOULD NOT be filing a Notice of Appeal but should instead be filing a Motion for Leave to Appeal. The only exception may be if you are able to check ‘Yes’ to the next question, stating the order has been properly certified as final pursuant to Rule 4:42-2.”
The revised CIS, which is to be effective on September 1, 2025, turns things around and makes all this somewhat clearer. The first question within section (6) now asks “Have all the issues that were before the trial court or agency been disposed of as to all parties, including counterclaims, cross-claims, third-party claims and applications for counsel fees in this or a consolidated action?” First, this language makes clear that appeals from an “agency” as well as a “trial court” are encompassed within section (6). The prior version did not mention “agency.” Second, the desired response, which would confirm that the proceedings below were final and appealable, is now “yes.”
If the answer to the first question is “no,” section (6) has rephrased the follow-on question about certification as final to say “If outstanding claims remain open, has the order been properly certified as final pursuant to R. 4:42-2? (If not, leave to appeal must be sought. R. 2:2-4, 2:5-6).” The words “If outstanding claims remain open” are clearer than the more vague “if so” from the prior version of the CIS (although a grammarian might quibble about whether "outstanding" claims are, by definition, "open," so that the language could be something like "If any claims remain open"). The rest of the follow-on is unchanged from that prior version.
To close the circle, the instructions for completing section (6), though slightly longer than before, have also been made clearer. Those instructions read: “FINALITY INQUIRY: If all issues as to all parties are disposed of (decided) in the trial court or agency, including motions for fees or for reconsideration, check ‘Yes.” Stop and go to the next section. If all issues as to all parties are not disposed of (decided), check ‘No.” If you check ‘No,” you should not be filing a Notice of Appeal, but rather a Motion for Leave to Appeal. The only exception may be if you are able to check ‘Yes’ to the next question, stating the order has been properly certified as final pursuant to Rule 4:42-2.”
The final sentence of the instructions is unchanged from the prior version. Most of the rest of the instructions are substantively unchanged, though some of the language itself has been changed. The first sentence, however, contains some substantive changes from the prior version.
First, as with section (6) itself, the instructions now refer to “the trial court or agency.” Second, the sentence now clarifies that issues “are disposed of” when they have been “decided,” instead of “decide and closed,” as the prior version of the instructions stated. The idea that issues have been “closed” seems unclear, unnecessary, or repetitive. Finally, the instructions now specifically flag “motions for fees or for reconsideration.” Presumably, there have been instances where practitioners mistakenly believed that proceedings below were final despite the pendency of an application for attorneys’ fees, which is the rule in federal courts. Now things are clearer.
