Appeals Flashcards
Appeals
Black Letter Law:
Standard of Review:
• Law: de novo;
• Discretionary: Abuse of Discretion
• Facts:
o Jury: Clearly erroneous (50(a)&(b) or 59
o Non-Jury: Clearly Erroneous (City of Bessemer)
- PEP: (1) Error (2) Preserve (3) Prejudicial
- Policy Reasons: Legal uniformity; credibility before the public; safeguards from litigants; abuse of discretion
General Rule for Standard of Review of Appeals
• General Rule: Appeals are taken from FINAL JUDGMENT. [Different Definitions of “finality”]
o Cohen v. Beneficial Indus. Loan Corp (1949): An appeal may be taken from a lower court’s interlocutory ruling that conclusively determines a disputed issue that is separate from, and collateral to, the merits of the action and would be effectively unreviewable after a final judgment in the action.
o Gillespie v. U.S. Steel Corp (1964): Finality required to be given a practical rather than a technical construction.
o Dickinson v. Petroleum Conversion Corp.: Most important considerations are “the inconvenience and costs of piecemeal review on the one hand and the danger of denying justice by delay on the other.
Mechanisms of Rule 54(b); Interlocutory Appeals Act of 1958; and 28 USC 1651
• Rule 54(b): Give a trial court the power to enter a final judgment in a multi-claim or multi-party action on one or more but fewer than all of the claims if there is no reason to delay.
• Interlocutory Appeals Act of 1958:
o § 1292(b): District court may certify an issue that involves a controlling Q of law, that there is a substantial ground for difference of opinion, and that an interlocutory appeal would materially advance the ultimate termination of the case.
• 28 U.S.C. § 1651: Permits SCOTUS and any court established by Congress to issue any writ necessary to the ultimate termination of the case.
Right to Appeal
Federal: No constitutional right, only statutory
New Mexico:
• Constitutional Right to 1 Appeal (Art. VI, § 2)
• Bypass Ct. of Appeals When: o Death Sentence or life imprisonment o Public Regulation Commission o Appeals from Granting Writs of Habeas o Appeals in any other matter in which jurisdiction has been specifically reserved to the SC
• Can have constitutional review of administrative rulings to the Ct. of Appeals
• Supreme Court Certiorari Review.
o Decision is in conflict with a decision of the Supreme Court
o Decision is in conflict with a decision of the Ct. of Appeals
o Involves a significant question of law under the NM or US constitutions
o Involves issue of substantial public interest that should be determined by the Supreme Court
• Court of Appeals Certification to NMSC: (1) Significant question of law under NM or US Constitution (2) an issue of substantial public interest.
Timing of the Appeal/Procedural Requirements: Federal
Federal:
• Federal Rule of Appellate Procedure (FRAP) 4: must be filed w/in 30 days after entry of the judgment; notice filed early is treated as filed on the date of and after the entry.
• Timely filing of a notice of appeal in a civil case is a jurisdictional requirement. Bowles case. (diff. in NM)
Timing of the Appeal/Procedural Requirements
Timing
NM Rule 12-201: Appeal from order suppressing or excluding evidence must be filed w/in 10 days after the decision; All other appeals 30 days after judgment or when order is filed with district court clerk’s office.
• Post-Trial Motions: If any party timely files post-trial motion that is filed not later than 30 days after the filing of the judgment, the full time prescribed in this rule shall commence to run.
• Extensions for Appeal: Upon showing of good cause court may extend by 30 days from the original expiration (excusable neglect)
• If motion is not granted w/in 60 days the motion is automatically denied.
Procedural Requirements:
NM Rule 12-202:
• Parties; Counsel; Court; Attach copy or judgment or order appealed; Service
Govich v. North American Systems
Issue: Are the technical requirements for filing an appeal jurisdictional prerequisites?
Issue: Are the technical requirements for filing an appeal jurisdictional prerequisites?
Holding:
• Court should liberally construe technical deficiencies.
• Once notice has been timely filed, the specificity requirements of 12-202 is meant to inform scope of the proceeding.
• Rule 12-312(C) an appeal timely filed is not to be dismissed for technical violations of Rule 12-202 that do not affect SUBSTANTIVE RIGHTS of parties.
• Policies in state, and purpose of the rule are vindicated if the intent to appeal a specific judgment fairly can be inferred from the notice of appeal and if the appellee is not prejudiced by any mistake.
Trujillo v. Serrano
Is the timing for filing a notice of appeal a jurisdictional requirement?
Facts: Court told parties taking matter under advisement, then failed to tell them he entered a final order.
Holding:
o Even the time for filing a notice of appeal was only a precondition to the exercise of jurisdiction rather than a jurisdictional prerequisite.
o BUT only in the most unusual circumstances beyond the control of the parties (i.e. “error of the court”). “Romero v. Pueblo of Sandia/Sandia Casino.”
o The SC excused the late filing of the notice but warns only when it is “judicial error”
The Final Judgment Rule: Federal
Federal Rule: Judgment adjudicating basic rights and liabilities in controversy is to be given a practical, not technical, construction and treated as final even though other, more or less ministerial actions remain to be taken by the rendering court. “Budinich v. Becton (SCOTUS, 1988).
The Final Judgment Rule: NM
New Mexico: An order or judgment is not considered final unless all issues of law and fact have been determined and the case disposed of by the trial court to the fullest extent possible. “Goldberg & Associates v. Uptown, Inc.”
• Retention of jurisdiction for purpose of distributing funds does not destroy finality for allowing appeal to be taken.
• “Finality” Practical rather than technical construction. Look at substance and not its form. “Sacramento Valley Irrigation Co. v. Lee” (1910).
• Twilight Zone Guidelines (see other flash card*)
• Pending appeal does not divest trial court jurisdiction if action will not affect judgment on appeal.
• Strong policy disfavoring piecemeal appeals.
The Final Judgment Rule for NM: Twilight Zone Guidelines
Twilight Zone Guidelines:
o Where a judgment declares rights and liabilities of parties, questions remaining wont’ destroy finality if resolution of these questions will not alter judgment or revise decisions
o Where a post judgment request, such as attorney’s fees, raises issues “collateral to” or SEPARATE FROM decision on the merits, request will not destroy the finality of the decision.
o Proceedings to carry out or give effect to the judgment does not destroy finality because trial court always retains jurisdiction to enforce its un-superseded judgment.
Kelly Inn No. 102, Inc. v. Kapnison, 113 N.M. 231
Issue: When there are pending post-judgment motions in the district court, is the case “final”?
Issue: When there are pending post-judgment motions in the district court, is the case “final”? Does the fact that case is on appeal strip district court of jurisdiction to resolve post-trial motion?
Facts: Trial court ruled lessors properly terminated lease and ordered attorney fees to be established later.
Lessees appeals before the motion can be heard.
Trial court thought they lost jurisdiction.
Lessors appealed that decision.
Holding: Holding:
• A judgment is final that declares the rights and liabilities of the parties
• If remaining matters are collateral to or separate from decision on the merits and will not destroy finality of decision, trial court can hear those matters.
• Term finality is to be given a practical, rather than a technical construction
• “It is impossible to devise a formula to resolve all marginal cases coming within what might well be called the “twilight zone” of finality.” (Gillespie & NM Case)
AND Pending appeal does not divest trial court of jurisdiction when:
- Action will not affect judgment on appeal and when
- Further action enables trial court to carry out or enforce the judgment
Examples of Collateral Matters Allowed to Continue
- Granting injunction and adapting receiver final even with need for further proceedings regarding disposition and distribution of assets (Sacramento Valley)
- Claims of indebtedness between partners held final, despite needing to determine assets (Cantrell)
- Mortgage Foreclosure: Decree adjudicating mortgagor’s indebtedness is final, notwithstanding necessity for further proceedings to enforce judgment and supervise sale of property – sale of property is interlocutory and only becomes final when judicial sale is confirmed.
- Cases where costs remain to be assessed to prevailing party, the proceedings to fix costs do not render judgment nonfinal. (Schleft)
Examples of Continuing Trial Court Jurisdiction
- To determine amount of costs for prevailing party (Prudential Insurance Company of America)
- Deficiency judgment (despite pending appeal re: D’s indebtedness)(Armijo)
- To award supplemental relief to enforce a declaratory judgment
- Fix amount of supersedes bond, approve 30 day extension on filing bond, rule on motion to stay execution of judgment
Garcia v. Burlington Northern Railroad Co. (10th Circuit)
Timely notice and jurisdiction
Rule: Timely notice of appeal divests district court of jurisdiction. In collateral matters, district court retains jurisdiction. Again mentions attorney’s fees.
Trujillo v. Santa Fe (NM 1993)
Issue: Can a party file an appeal after attorney’s fees have been awarded?
Facts: Party waited to file appeal until after attorney’s fees awarded. Winning party objected.
Holding. Party can choose appropriate time for appeal. In the twilight zone of marginal cases the zone of appeal should be one of practical choice.
FRCP 60(b) note on Resolving Post-Trial Motion
Must go to Court of Appeals and ask for remand to the trial court for resolution of post-trial 60(b) motion.
Ray Haluch Gravel Co. v. Cent. Pension Fund of Int’l Union of Operating Eng’rs
Issue: Whether Budinich, which held that a decision on the merits is a final decision under § 1291 even if award or amount of attorney fees for the litigation remains to be determined?
Issue: Whether Budinich, which held that a decision on the merits is a final decision under § 1291 even if award or amount of attorney fees for the litigation remains to be determined?
Holding: For purposes of the FRCP and § 1291, whether the claim for attorney fees is based on a statute, contract, or both, pendency of a ruling on an award for fees and costs does not prevent the judgment from becoming final for appeal.
Coopers & Lybrand v. Livesay, 437 U.S 463.
Issue: Is a district court’s determination that an action may not be maintained as a class action a final decision?
Issue: Is a district court’s determination that an action may not be maintained as a class action a final decision?
Holding:
• Orders relating to class certification are not independently appealable prior to judgment.
• Fact may cause party to abandon claim is irrelevant
• Order refusing to certify or decertify a class does not force termination of the entire litigation
• P is free to proceed on individual claim.
• Death Knell Doctrine only operates in favor of Ps when class issue affects both parties.
*Note: NM & Fed Rule 23 give Court of Appeals discretion to allow appeal on what?
NM & Fed Rule 23 give Court of Appeals discretion to allow appeal on order of district court denying or granting class certification.
• NM Guidelines: "Salcido v. Farmers Ins. Exch" (2004): o When there is a death-knell situation for either P or D independent of merits of the underlying claim, coupled with questionable class certification question. o When certification decision presents an unsettled and fundamental issue of law relating to class actions that is likely to evade end of the case review o District court’s class cert decision is manifestly erroneous
Post Judgment Orders Affecting Substantial Rights: New Mexico
NMSA 1978, § 39-3-2: Any party aggrieved may appeal within 30 days of the entry of any final order after judgment that affects substantial rights or interlocutory order which practically disposes of the merits of the action.
Hall v. Hall, 115 NM 384
Issue: Can you appeal a Rule 60(b) determination granted to vacate a judgment?
Holding:
No.
• Follow federal rule that orders granting relief pursuant to 60(b) are not appealable.
• Looks at whether the order after entry of judgment affects substantial rights.
• Not all 60(b) will be final, but most will.
• Because order here vacated the judgment and leaves case pending it is merely interlocutory.
Mlosevich v. Bd. of County Comm’rs of McKinley County
Order for a new trial and merits of the action
Rule: Order granting a new trial lacks the essential element of practically disposing of the merits of the action because it may be that on another trial, the judge who tried the case and who granted the new trial may reconsider prior rulings that seem to foreclose victory on the new trial or that different evidence may be presented.
THE COLLATERAL ORDER DOCTRINE
Black Letter:
Collateral order doctrine is a narrow exception with limited reach to trial court orders affecting rights separable from and collateral to rights asserted in action that will be irretrievably lost in absence of an immediate appeal. There are three conditions the order must satisfy:
1. Must conclusively determine the disputed question
2. Resolve an important issue completely separate from the merits of the action
3. Effectively unreviewable on appeal from final judgment.
