Not all errors committed
at trial constitute grounds for reversal. Only those errors which
are prejudicial to the rights of the complaining party are reversible.
(FRCP
61)
The "harmless error"
rule provides that based on an examination of the entire record, if it
is not reasonably probable that a result more favorable to the appellant
would have been reached in the absence of the error, the error is harmless
and the decision of the lower court will be upheld. I.e., error in
the lower court does not call for reversal unless it is prejudicial.
Reversible error is a relative concept and whether a slight or gross error
is ground for reversal depends upon the circumstances of each case.
Even substantial error which would be prejudicial is not grounds for reversal
where the error was invited, waived or cured.
The Need To Raise
an Issue in the Lower Court
Errors that are not
objected to or arguments that are not raised at trial generally cannot
be raised for the first time on appeal. (Friedenthal, §13.4)
Ordinarily the appellant cannot seek reversal upon a ground not raised
in the trial court. (Wright, §104) The reason for the above
stated rule is to prevent sandbagging of the trial court (luring it into
error, which can then be appealed if the judgment is against one) and to
permit the trial court to rectify its own errors.
Cross Appeals &
New Grounds for Lower Court Rulings
A party who does not
appeal from a final decree of the trial court cannot be heard in opposition
thereto when the case is argued in the appellate court. The respondent
may not attack the decree with a view either to enlarging his own rights
or of lessening the rights of his adversary. However, a respondent
may without taking a cross-appeal, urge in support of a decree any matter
appearing in the record, although his argument may involve an attack upon
the reasoning of the lower court. (Massachusetts
Mutual Life Insurance Co. v. Ludwig, 426 U.S. 479 (1976) In that
case appellant sued respondent to recover benefits under a double-indemnity
provision of a life insurance policy. After an adverse decision,
appellant appealed. Respondent argued in the appellate court that
the trial court was correct and alternatively that even if Illinois (as
opposed to Michigan) law controlled, the result should be the same.
The U.S. Supreme Court held that respondent was notprecluded from
arguing the applicability of Illinois law even though it had not cross-appealed.
The argument of respondent was no more than an attack upon the reasoning
of the lower court and required no cross-appeal.
Standards of Review
A finding is "clearly
erroneous" when although there is evidence to support it, the reviewing
court on the entire evidence is left with the definite and firm conviction
that a mistake has been committed. When there are two permissible
views of the evidence, the fact finder's choice between them cannot be
clearly erroneous. The trial judge's major role is the determination
of fact and with experience in fulfilling that role comes expertise.
(Anderson v. Bessemer
City, 470 U.S. 564 (1985) In that case after a court trial on
a civil rights action, the court found that petitioner had been denied
a job position because of her sex. The court issued findings of fact
and conclusions of law. The court of appeal reversed holding that
three of the trial court's crucial findings were clearly erroneous.
The U.S. Supreme Court held that the appellate court improperly applied
the "clearly erroneous" standard in that the court of appeal improperly
conducted what amounted to a de novo reweighing of the evidence.
The court of appeals failed to give due regard to the ability of the trial
court to interpret and discern the credibility of oral testimony.
The task of appellate tribunals is limited to determining whether the trial
judge's conclusions are clearly erroneous.
Appellate Procedure
The Mechanics of
Bringing an Appeal
The Timing of an
Appeal
Appeal is initiated
by filing a timely notice of appeal. Time for filing notice of appeal is
extended by the pendency of a motion for new trial or a motion to vacate.
The requirement of timely filing is jurisdictional. There is no relief
from untimely filing. The court can neither confer jurisdiction to
hear an appeal without a proper notice nor extend the time for filing the
notice The parties themselves cannot confer jurisdiction on the appellate
court, whether by stipulation or otherwise.
Ordinarily the taking
of an appeal in no way stays or suspends the effect of a judgment.
Some judgments can be stayed if an undertaking or bond is filed with the
trial court after the appeal is perfected. (FRCP
62; Cal.Code.Civ.Proc
§ 917.1 et seq.).
The Requirement of
Finality
Appeals lie only from
"final decisions." A final decision is "one which ends the litigation
on the merits and leaves nothing for the court to do but execute the judgment."
The rationale behind the final judgment rule is that piecemeal review is
inefficient. Since trial judges are affirmed more often then they
are reversed time is saved by holding off all issues until the final appeal.
Under the "final judgment
rule" appeals are only allowed after all the issues involved in a particular
lawsuit have been finally determined by the trial court. (Friedenthal,
§13.1)
In Bankers
Trust Co. v. Mallis, 435 U.S. 381 (1978) an appeal was taken in a case
where the record failed to contain "anything that looks like a judgment."
Both parties and the district court proceeded on the assumption that there
was an adjudication of dismissal. The court of appeals went ahead
and considered the merits of the appeal. The issue was whether a
decision of a district court can be a "final decision" for purposes of
28
U.S.C. § 1291 if not set forth on a document separate from
the opinion? The U.S. Supreme Court held yes. FRCP
58 provides that a judgment shall be set forth in a separate document.
The separate document requirement was intended to avoid the inequities
that were inherent when a party appealed from a document or docket entry
that appeared to be a final judgment only to have the appellate court announce
later that an earlier document or entry had been the judgment and dismiss
the appeal as untimely. The need for certainty as to the timeliness
of an appeal, should not prevent the parties from waiving the separate
judgment requirement where one has accidentally not been entered.
Here, the district court clearly evidenced its intent that the opinion
and order from which an appeal was taken would represent the final decision
in the case. Respondents did not object to the taking of the appeal
in the absence of a separate judgment. Under these circumstances,
the parties should be deemed to have waived the requirement of Rule 58.
FRCP
54(b) provides that a trial court in an action with multiple claims
or parties may identify as appealable a particular order issued with respect
to a claim or party by making an express direction for the entry of a judgment
as to that claim or party involved and by certifying that there is no just
reason to delay an appeal. In the absence of this trial court certification
no appeal will lie. The parties need not fear losing their right
of appeal by failing to file a timely notice of appeal after an interlocutory
order has been entered unless a Rule 54(b) certificate has been entered.
(Friedenthal § 13.1) Rule 54(b) allows appeal from a portion
of a case that could have been brought as a separate action. It simply
removes the penalty that liberal joinder would inflict if it prevented
separate appeals in portions of a case that could have been separate cases.
Rule
54(b) does not apply to a single claim action. It is limited
to multiple claim actions in which one or more but less than all of the
multiple claims have been finally decided and are found otherwise to be
ready for appeal. (Liberty
Mutual Insurance Co. v. Wetzel, 424 U.S. 737 (1976). In that
case Respondents filed a complaint alleging Civil Rights violations.
Respondents moved for partial summary judgment only as to the issue of
liability. They received a favorable ruling on the issue of liability
but received none of the relief which they expressly prayed for in their
complaint. The district court made the recital required by Rule 54(b).
The U.S. Supreme Court held that despite the fact that the trial court
made the finding required by Rule 54(b), those findings do not make the
order appealable because the rule is not applicable. Only a single
claim was plead. To rule otherwise would make it possible for a trial court
in virtually any case before it to render an interlocutory decision on
the question of liability of the defendant and the defendant would thereupon
be permitted to appeal without satisfying any of the requirements that
Congress set forth.
Exceptions to the
Final Judgment Rule
Practical Finality
In Coopers
& Lybrand v. Livesay, 437 U.S. 463 (1978) respondents
filed a class action alleging violations of the securities act. The
trial court first certified and then later decertified the class.
The issue before the U.S. Supreme Court was whether a trial court's determination
that an action may not be maintained as a class action is a "final decision"
and therefore appealable as a matter of right? The court held
no. An order passing on a request for class certification does not
fall in that category. (Orders within the collateral order exception.)
Such an order is subject to revision in the trial court and the class determination
involves considerations that are enmeshed in the factual and legal issues
comprising the plaintiff's cause of action. Finally, an order denying
class certification is subject to effective review after final judgment
at the behest of the named plaintiff or intervening class members.
To come within the "small class" of decisions excepted from the final judgment
rule as "collateral orders," the order must conclusively determine the
disputed question, resolve an important issue completely separate from
the merits of the action, and be effectively unreviewable on appeal from
a final judgment.
Injunctions
In federal courts, appeals
are specifically allowed for interlocutory orders, "granting, continuing,
modifying, refusing or dissolving injunctions." (28
U.S.C. 1292(a))
Interlocutory Appeals
Under 28 U.S.C. 1292(b)
28
U.S.C. 1292(b) grants discretion to the courts of appeals to review
any interlocutory order in a civil case if the trial judge, in making the
order, has stated in writing that the order involves a controlling question
of law as to which there is substantial ground for difference of opinion
and that an immediate appeal from the order may materially advance the
ultimate termination of the litigation.
1292(b) review is inappropriate
for challenges to a judge's discretion in granting or denying transfers.
The Congressional policy against piecemeal appeals, as expressed in the
final judgment rule, to which 1292(b) is a narrow exception is eroded by
permitting review of exercise of the judge's discretion under the transfer
statute as a "controlling question of law." The issue is not one
of convenience to the litigants, or to the court, but of appellate jurisdiction.
1292(b) allows discretionary appeals from interlocutory orders when both
the trial & appellate courts agree that an appeal is appropriate.
For 1292(b) to apply
there must be (1) a "controlling question of law." Many cases have
held a 1292(b) appeal not proper on matters that lie within the discretion
of the district court. (2) There must be a "difference of opinion"
about the controlling question of law. i.e., it must not be a question
which is controlled by clear precedent. (3) It must be thought that
immediate appeal "may materially advance the ultimate termination of the
litigation." Hence, the appeal must carry the potential of avoiding
litigation altogether. (Wright § 102)
The last category of
exceptions to the final judgment rule involves applications to the appellate
courts for writs of mandamus or prohibition to reverse some intermediate
court ruling. Technically this is not an appeal but an original proceeding
in the appellate court seeking an order directing the judge to enter or
vacate a particular order. (Friedenthal § 13.3)
The remedy of mandamus
is a drastic one, to be invoked only in extraordinary situations.
The writ has traditionally been used in the federal courts only to confine
an inferior court to a lawful exercise of its proscribed jurisdiction or
to compel it to exercise its authority when it is its duty to do so.
Only exceptional circumstances amounting to a judicial usurpation of power
will justify the invocation of mandamus. Issuance of the writ is
in a large part a matter of discretion with the court to which the petition
is addressed. (Kerr.
v. U.S. District Court, 426 U.S. 394 (1976). The party seeking
issuance of the writ must have no other adequate means to attain the relief
he desires. He must satisfy the burden of showing that his right
to issuance of the writ is clear and indisputable.
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