§ 13.01 Final Judgment Rule

 

[1] In General

 

In most jurisdictions, an entry of final judgment is a jurisdictional prerequisite to appeal. Under the final judgment rule, parties can only appeal upon final judgment on all claims in the action. 

 

FRCP 58 provides for clear determination of entry of a judgment by requiring judgments to be set forth on a separate document, although the appellate court must still determine whether such judgment is final.  The Supreme Court has declared that a final judgment “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” [Catlin v. United States, 324 U.S. 229 (1945)]

 

[2] Finality in Multi-Claim and Multi-Party Cases

 

Because literal application of the final judgment rule in cases involving multiple claims or parties would prohibit appeal of decisions on individual claims until all have been decided, perhaps delaying an appeal for years, FRCP 54(b) authorizes the trial court in multi-claim actions to make “express direction for the entry of judgment” on fewer than all of the claims or parties upon “express determination that there is no just cause for delay.”

 

FRCP 54(b) applies to trial court decisions that would have been appealable final judgments standing alone, but for the liberal joinder permitted by the federal rules.  A threshold issue on appeal is whether the trial court has finally disposed of an individual claim in a multi-claim or multi-party case or merely one of several legal theories or alternative requests for relief on a single claim.

 

 

§ 13.02 Statutory Interlocutory Appeal

 

[1] As of Right

 

An exception to the final judgment rule is the appealability of certain interlocutory orders that may have immediate and irreparable consequences.  Under federal law, interlocutory orders granting, modifying, refusing or otherwise affecting injunctions may receive immediate review prior to final judgment in the case, upon a showing that the order might have a significant, perhaps irreparable, consequence that can be only be effectually challenged by immediate appeal.  The statutory provision, 28 U.S.C. §1292(a)(1), applies to permanent and preliminary injunctions; it is unclear whether interlocutory appeals extend as well to temporary restraining orders.

 

The federal statute also makes immediately appealable orders appointing receivers, or refusing to wind up receiverships or to direct sales or other disposals of property. [28 U.S.C. § 1292(a)(2)]

 

[2] By Permission

 

Section 1292(b) allows for discretionary interlocutory appeal when three requirements are met:

(1)    the trial court must have issued an order from which appeal is taken;

(2) the trial court must exercise its discretion to certify that the order

(a) “involves a controlling question of law as to which there is substantial ground for difference of opinion”; and

(b) “that an immediate appeal from the order may materially advance the ultimate termination of the litigation”; and

(3) the court of appeals must also agree in its discretion to allow the appeal.

 

[3] Mandamus and Prohibition

 

Interlocutory appeal is also available in rare cases where the trial court error may be sufficiently costly to either the parties or the integrity of the judicial system, warranting immediate appeal even without irreparable harm. In such cases, the appeals court can issue a writ of mandamus to either order the trial judge to issue an order or fulfill a mandatory duty, or forbid the trial judge from acting in excess of his/her jurisdiction. Mandamus is not a substitute for appeal and is only available when there is no other adequate means to attain relief from judicial error.

 

Mandamus may generally be warranted in two situations: 

 

(1) Breach by the trial judge of a clear legal duty, such as when a trial court, on the grounds that it was too busy, abdicated its duty to try a case by referring it to a special master, and when a trial court denied a party its constitutional right to a jury trial.

 

(2) Errors for which appellate review may carry broad precedential significance for judicial administration.  An interlocutory order presenting a question of first impression about the federal discovery rules may justify a kind of supervisory mandamus, on the theory that appellate precedent in such a case can generally improve the administration of justice.

 

 

§ 13.03 Collateral Order Doctrine

 

A judge-made exception to the final judgment rule in federal courts applies for interlocutory orders that are incidental — collateral — to the merits and that cannot be effectively preserved for review on appeal from a final judgment.  In Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949), the Court recognized “claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.”

 

In Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978), the Court imposed three requirements for invocation of the collateral order doctrine. The order must:

(1) finally and conclusively determine the disputed question;

(2) resolve an important issue completely collateral to the merits; and

(3) be effectively unreviewable on appeal from the final judgment, so that the “opportunity for meaningful review will perish unless immediate appeal is permitted.”

 

Some courts have furthermore imposed an “importance requirement” for collateral order appeals.  Without specifically endorsing a distinct fourth requirement, the Supreme Court suggested that such “importance requirement” is at least integral to the consideration of whether an issue is “effectively unreviewable” by stating that “whether a right is ‘adequately vindicable’ or ‘effectively reviewable,’ simply cannot be answered without a judgment about the value of the interests that would be lost through rigorous application of a final judgment requirement.” [Digital Equipment Corp. v. Desktop Direct, Inc., 511 U.S. 863, 878-879 (1994)]

 

 

§ 13.04 Scope of Review

 

The scope of review is restricted to errors that are:

 

(1) prejudicial – Errors alleged must have been harmful to the appellant in the sense that they may have materially contributed to the adverse part of the judgment. (The harmless error doctrine, which allows courts to disregard errors so long as they do not "affect the substantial rights of the parties," is codified in FRCP 61 and 28 U.S.C. § 2111.)

 

(2) preserved below – A party seeking appellate review must preserve the error in the record by making timely objection; failure to do so is tantamount to a waiver for purposes of reviewability on appeal. In the federal system objection need not take the form of formal exception, provided that the party makes known to the trial court what action the party desires the court to take or the general grounds for the party’s objection. However, creation of a strong record for appeal frequently requires more than cursory objection.

 

(3) presented above – An appellant must identify and present the issue in an appellate brief.  Aside from questions of subject matter jurisdiction, the court will not search the record for error.

 

 

§ 13.05 Standards of Review

 

[1] Questions of Law; De Novo Review

 

Appellate courts consider questions of law de novo, i.e., by reviewing the matter anew and freely substituting its judgment for that of the lower court where necessary.  Questions of statutory intent, sufficiency of a defense, adequacy of jury instructions, admission of evidence, and choice of law are typical questions of law.  In addition, trial motions granted “as a matter of law” – e.g., motions to dismiss for failure to state a claim, summary judgment, and judgment as a matter of law – are reviewed de novo.

 

De novo review may also apply to limited issues that are not strictly questions of law, e.g.:

 

(1) questions regarding whether undisputed facts satisfy the rule of law applied in the case.

 

(2) largely factual questions, resolution of which may have significance in other cases. [See Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485 (1984)]

 

            (3) awards of punitive damages with regard to whether it is constitutionally excessive. [Cooper Industries, Inc. v. Leatherman Tool Group, Inc., 121 S. Ct. 1678, 1683 (2001)]  The imposition of punitive damages is not deemed factual but rather an issue which is subject to substantive limits imposed by the Due Process Clause.

 

[2] Judicial Findings of Fact; Clearly Erroneous

 

FRCP 52 provides that judge-made findings of fact, “whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of witnesses.”

 

The Supreme Court has clarified that a finding is clearly erroneous “when although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed.” [United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)]  The standard is not met simply because the appellate court would have decided the issue differently.

 

As reflected in the language of FRCP 52, there is a stronger presumption that the trial court’s finding of fact is correct when based on oral evidence than when it is based on documentary evidence.  A strong presumption also exists when the trial was protracted and complex.  The strength of these presumptions is based on the theory that the trial judge is in a better position than the appellate court to render findings of fact due to the trial judge’s opportunity to evaluate the credibility of witnesses and more extensive exposure to the evidence.  The trial court’s comparative fact-finding advantage diminishes when the evidence is entirely documentary and the trial short and simple.

 

[3] Discretionary Trial Court Orders; Abuse of Discretion

 

The standard for reviewing discretionary orders by trial courts – e.g., decisions regarding scheduling, amendment by permission, complex joinder, consolidation and separation of claims for trial, order of discovery, order of proof, and FRCP 11 and 37 sanctions – is abuse of discretion.

 

[4] Jury Findings of Fact; Reasonableness

 

A jury’s findings of fact are given deference, and the standard of appellate review is whether a reasonable jury could have reached the same verdict.

 

[5] Findings by Administrative Agencies

 

Similarly, statutes subject many administrative agency findings to a reasonableness standard.  Many administrative agency findings are given weight because of the agencies’ expertise in specific areas of factual determination.

 

Certain substantive decisions of some administrative agencies, typically mass justice benefit determinations by social service agencies, have been statutorily made final and not subject to review outside the agencies.  Such designated administrative decisions are numerous, lack precedential importance, and subject to a reliable adjudicative process by the agencies.  Nevertheless, such statutes do not preclude review of associated issues of procedure, regulatory authority, and constitutional law, which are less likely to flood the federal courts and which may carry precedential value.