Appeals: Overview

1
Appeals Overview

• When
• Only final decisions (28 USC 1291) unless
  appeal falls in an exception.
• W/in 30 days after entry of the paper appealed
  from. FRAP 4(a)(1)(A).
• Or ten days if 1292(b).
• How
• File a notice of appeal in the district court.
  FRAP 3(a)(1).

• Note Last three slides are for your review not
  class
• Appeals Who and What
• Only parties
• No harm? No appeal!
• Not raised below (error preserved)? No appeal of
  that point, unless falls into narrow exception.

2
Who What Party that Has Adverse Impact it
Preserved

• Generally only parties may appeal.
• Losing a claim or defense isnt enough
• Problems 620
• 1a
• 1b
• 1c
• But moot claims generally cannot be appealed.
• Settlement generally renders an appeal moot

3
What Error Preserved

• If party didnt make trial judge aware of error,
  very hard to get relief (new trial) on appeal.
  See FRCP 46.
• Filing a 12(b)(6), and losing, but not moving for
  JMOL at trial waives the point.
• Must constantly work against waiver by, e.g.,
  seeking jury instructions, objecting to evidence.

4
What Narrow Exceptions to Preservation of Error
(625)

• Change in law
• If after trial the law changed in a very
  fundamental way, how could you have presented
  that to the trial court?
• But someone else obviously did, or there wouldnt
  be a change in the law

• Plain Error Rule
• Very rare for appellate courts to find that error
  was so obvious that it didnt need to be called
  to trial courts attention.
• Last hope of appellant who failed to preserve the
  point below.

5
Cross Appeals

• Same principles apply to cross-appeals
• Suppose plaintiff wins verdict on contract claim,
  but trial court grants jmol to defendant on fraud
  claim, which would have allowed for punitive
  damages.
• Why can defendant appeal judgment against it?
• Why can plaintiff can cross-appeal grant of jmol
  against it?

6
Supporting Judgments (624)

• A judgment cant be attacked by an appellant
  unless error preserved but
• Can judgments be affirmed by appellate court on
  grounds not presented below?
• Even if appellee attacks trial courts reasoning?
• Why?

7
When Final Judgment Rule

• When
• Only final decisions (28 USC 1291) unless it
  falls within an exception.
• 30 days after entry of the paper appealed from.
  FRAP 4(a)(1)(A).
• Or ten days if 1292(b).

• Only final decisions (28 USC 1291) unless it
  falls within an exception (often called
  interlocutory appeals)
• 1292(a)
• courts certify it under 1292(b)
• Its a collateral order
• Mandamus or
• Other statute makes the order appealable (e.g.,
  denial of motion to compel arbitration).
• Why does Yeazell correctly say that the FJR
  effectively precludes appellate review of many
  issues?

8
Final Judgment Rule (634-35)

• The separate document rule is mechanically
  applied but in line with revised Rule 58(a).
• Not our focus in class, but a major headache in
  the real world.

9
Weitzel (628)

• Pre-suit facts?
• What claim? What relief sought?
• What motion did plaintiff file?
• What did court order?
• What relief was granted?

• Why wasnt this
• A final judgment?
• A FJ in a dec action?
• Proper appeal under 54(b)?
• Proper appeal under 1291(a)(1)? (b)?
• Whats ruling mean?

10
Appeals Rule 50

• If district court denies jnov but grants new
  trial, there is no immediate appeal.
• The propriety of the granting of the new trial
  can be reviewed only on appeal from a final
  judgment entered after any second trial.
• If district court denies both, both decisions are
  appealable from the final judgment.
• The verdict-winner as appellee can argue that, if
  denial of jmol is reversed, instead of rendering,
  the appellate court should order a new trial.
• If district court grants both jmol and
  conditional new trial, there is an appeal since
  there is a final judgment.
• The appellate court can, if it decides jmol was
  improper, rule on whether new trial was proper.
• If district court grants jnov but denies
  conditional new trial, there is an appeal
• The verdict loser appeals both points and both
  can be reviewed.

11
Renewed JMOL New Trial

• If trial court grants renewed jmol to verdict
  loser, it must also rule on any alternative
  motion for new trial
• Typically brought by verdict loser in alternative
  if Im not entitled to jnov, there were errors
  and/or verdict was against great weight of
  evidence.
• Trial court must rule on any alternative motion
  for new trial because if appellate court decides
  movant was not entitled to jmol (i.e., it
  reverses grant of JMOL to verdict loser), it can
  in one appeal decide whether errors necessitate
  new trial.

12
A Verdict Winner Beats JMOL at Trial But Loses on
Appeal

• A plaintiff who wins at trial has no reason to
  move for jmol, and, even if having reasons to
  seek a new trial, has no reason to do so.
  Suppose, as is typical, that plaintiff doesnt
  move for new trial, and district court denies
  defendants jmol/new trial motions.
• But, then the appellate court reverses, meaning
  that judgment is now for defendant.
• What 50(e) does is let verdict winner (here,
  plaintiff) argue on appeal, or let the appellate
  court decide for itself, that even though under
  the record that exists judgment should have been
  entered for the verdict loser (appellant/defendant
  ), errors necessitate a new trial.
• The appellate court can
• render judgment for verdict loser,
• let appellee argue for new trial in court of
  appeals, or
• order district court to figure out whether the
  verdict winner is entitled to a new trial on
  remand.