Civil Procedure


Appeal is the process by which a litigant who is unhappy with the decision of the trial court and feels it is erroneous may have that decision reviewed by a higher court.


Decisions Subject to Review

The Requirement of an Adverse Decision

Only parties aggrieved or harmed by the judgment can appeal from it.  Winning parties may not obtain review of findings deemed erroneous if those findings are not necessary to the decree.  (Friedenthal, §13.4)

According to Cal.Code.Civ.Proc § 902 "any party aggrieved" may appeal.  A party is not aggrieved by a judgment granting it all relief sought, and cannot therefore appeal from it.  Likewise, a party is not aggrieved by a judgment or order to which the party has consented or stipulated.  Nor can a party appeal from a judgment which does not adversely affect him.

Harmless Error

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.


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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