By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold, NJ Appellate Law Attorney

A bedrock principle of our court system is that a case only exists when there is an active controversy between the parties.  When a controversy no longer  (or for that matter ever existed) exists, a court declines jurisdiction over the matter, and it is dismissed.  Courts are not in the business of issuing advisory opinions to parties regarding whether something is legal or isn’t.  Some states, like Massachusetts, allow their Supreme Courts to provide opinions to the Legislature or Governor, but neither New Jersey nor the federal government has this type of practice.  In the same way that a controversy that no longer exists, can be dismissed as moot, issues that have already been decided can also be considered moot, and therefore be dismissed.  Fister v. Fister provides us an example of a moot issue on appeal.

The plaintiff is the mother who owns a house in Oceanport, Monmouth County, New Jersey while the defendant is the son whose family lives at the mother’s house.  The mother’s health is declining, and she moves in with her daughter in New York.  To help pay for an assisted living facility, the mother wants to sell her home.  So the mother tells the son to move out.  The son refuses.  The mother then files a complaint for a writ of possession, while the son files a separate guardianship action in New Jersey seeking a declaration the mother is incapacitated.  The court denies the guardianship action, so the son files in New York to declare the mother incapacitated.  The New York court grants the guardianship application and appoints a New York attorney to be the mother’s guardian.

In the writ of possession case in New Jersey, the mother files for summary judgment.  Meanwhile, the attorney in New York asks the New York court for an order to sell the mother’s home.  While the New York application is pending, the son’s attorney argues to the New Jersey court that it should stay its judgment pending the outcome of the New York court’s decision, and if the New York court orders the sale of the house, the son will abide by that decision.  The trial court does not stay its judgment and grants summary judgment for the mother, as the son never had title to the property and no right to live there rent-free after being told to leave.  While the appeal is pending, the New York court also ordered the house to be sold, and the son and his family left the house prior to oral argument of the appeal.  Being that the sole issue appealed was whether the trial court should have stayed its judgment pending the New York court’s judgment, and the New York court resolved the issue which led to the son moving out, the Appellate Division concluded the appeal was moot, and dismissed.

The standard the Appellate Division articulated was whether there was “concrete adversity of interest between the parties.”  Had the New York court held differently, the appeal would have likely been modified to determine whose judgment should stand.  But because the New York court also told the son to leave, which was who the son was waiting to hear from prior to leaving, the issue was considered moot, and the appeal was dismissed with a lack of any adversity of interest between son and mother.

To discuss your NJ Appeals matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at  Please ask us about our video conferencing consultations if you are unable to come to our office.