What Happens After An Appeal Is Granted?

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What Happens After An Appeal Is Granted?

What happens after an appeal is granted? Your appeal was successful. Now what?

You have been fighting with your former business partner for over five years, which has taken much time, money, and energy. You were shocked when the trial court ruled against you.

It was difficult to decide to commit further resources to an appeals process. Fortunately, the Court of Appeal has ruled in your favor. What happens next?

What happens when an appeal is granted depends on several factors: the stage of the proceedings, the question on appeal, and the terms of the Court of Appeal’s order to the trial court.

Though the comments in this article generally apply to state and federal courts, procedures and deadlines will differ. Reviewing the rules and deadlines that apply to the specific forum in which a case is heard is critical. Such laws are usually strictly enforced.

Interlocutory Appeals

In most cases, appeals occur after a final judgment is entered by a trial judge at the trial court level, but exceptions exist.

An “interlocutory appeal” challenges a non-final trial court order. The appellate court’s opinion decides an issue but does not result in the final judgment. Whether a non-final trial court order can be appealed depends on the rules of the specific jurisdiction.

In state court, interlocutory appeals are usually appropriate when waiting until the final judgment to appeal would cause substantial harm to the appellant.

Examples of typical interlocutory appeals include the failure of a judge to recuse himself or herself, failure to disqualify opposing counsel, failure to grant a motion to dismiss, or an order concerning injunctive relief. Such appeals also frequently occur in family law cases.

The trial court or appellate court may grant a stay pending appeal to preserve the status quo. Whether this occurs or not, the case continues after an interlocutory appeal is given, including possible further appeals if necessary.

Federal Court Approach

The Federal courts take a somewhat different approach. By statute, interlocutory appeals are allowed as a matter of right for issues involving injunctions, receiverships, admiralty (28 USC 1292(a)), and enumerated situations under the Federal Arbitration Act (9 USC 16), including decisions refusing to compel arbitration, refusing to stay litigation pending arbitration, confirming or refusing to confirm an arbitration award, modifying, correcting, or vacating an arbitration award, or granting, continuing, or modifying an injunction against an arbitration subject to the Federal Arbitration Act. A right to interlocutory appeal also applies to any final decision concerning arbitration under the Federal Arbitration Act.

Beyond an interlocutory appeal as a matter of right, the district trial court may certify that its order involves a controlling question of law as to which there are substantial grounds for a difference of opinion and that the immediate appeal from the court’s order will advance the termination of the litigation (28 USC 1292(b)).

In addition to the statutory provisions outlined above, the Federal courts permit an interlocutory appeal under the collateral order doctrine. This rule applies to orders that “finally determine claims of right separable from, and collateral to, rights asserted in 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.”

Beneficial Industrial Loan Corp., 337 U.S. 541, at 546 (1949).  Some commentators argue that these cases should be treated as final judgments subject to standard appellate court procedures, but Beneficial is clear that they are interlocutory appeals.

Effect of Reversal and Remand

The most common disposition on a successful appeal is reversal and remand to the trial court for further proceedings. Without limiting instructions, the parties and the trial court are in the same position as if there had never been a trial. Further, “in the case of a mistrial, order granting a new trial, or remand for a new trial after reversal of a judgment on appeal,” discovery deadlines depend on the date initially set for the new trial, not the original trial.

However, prior discovery still counts towards the numerical limits set by statute. (Fairmont Ins. Co. v. Superior Court, 22 Cal.4th 245 (2000)) An appropriate showing must be made for more extensive discovery. New evidence may be presented. (Weightman v. Hadley 138 Cal.App.2d 831 (1956)), and

Amendment of the pleadings is also allowed after remand upon an appropriate showing.

This does not mean that the parties will necessarily launch into wholesale near discovery or that the case on retrial will bear no resemblance to the prior case.  Some streamlining can be expected, and the parties will probably try to strengthen prior positions rather than starting over.

But winning the appeals process means having the opportunity to spend more time, money, and effort doing things over again.

Of course, legal issues determined by the appellate court are binding in subsequent proceedings. This is known as the law of the case doctrine. It does not apply to questions of fact based on new or different evidence in a new trial.

Full or Partial Reversal with Directions

The court of appeal may limit the potential outcome of a reversal and remand by giving directions to the trial court or partially affirming and reversing the judgment or trial court decision.

As to affirmed portions, the case is over, except for an award of costs and fees, if appropriate. The trial court may not reopen these issues.

If directions are reversible, the trial court cannot follow them. Failure to do so is grounds for an immediate petition for a writ of mandate.

Post-appeal Motions

The issuance of an opinion is not necessarily the end of appellate proceedings. For example, any party may challenge the Court of Appeal’s decision by filing a petition for rehearing.

A petition for rehearing asks the Court of Appeal to consider the case again and correct a legal error in its opinion. A rehearing is not granted as a matter of right. Generally, the court only agrees to a rehearing if the mistake is a significant error of fact or law, if a vital argument was not included in the court’s decision, or if the basis of the decision was not raised in the briefing so that there was no notice or opportunity to be heard.

Rehearing, whether by the original panel or en banc, is very rarely granted. Though statistics vary by study, the overall likelihood is less than 4%.  Solid grounds should exist before the client is asked to bear the added expense of such work.

Federal courts also may grant rehearing, though the grounds are somewhat different. Under Federal Rule of Appellate Procedure 40, procedural irregularities at trial, serious evidentiary errors, essential and previously unavailable new evidence, accident, surprise, or unavoidable mistake. A rehearing may also consider the effect of an intervening U.S. Supreme Court opinion on the case.

Petition for Review in the California Supreme Court

Either with or without a prior petition for rehearing, a dissatisfied appellate party may file a petition for review with the California Supreme Court.  The federal equivalent is a petition for the Writ of Certiorari). Forgoing the petition for rehearing carries a significant disadvantage. The California Supreme Court will accept the Court of Appeal’s statement of the issues and facts as correct.

That means a party will not be able to challenge on these issue grounds in the Supreme Court regardless of the merits of that challenge if that party did not first raise it in a petition for rehearing before the appellate court. If a petition for review is a real possibility, a petition for rehearing should be filed.

The limited grounds for a petition for review are outlined in California Rule of Court 8.500.

“The Supreme Court may order a review of a Court of Appeal decision:

  1.  When necessary to secure uniformity of decision or to settle an important question of law;
  2.  When the Court of Appeal lacked jurisdiction,
  3.  When the Court of Appeal decision lacked the concurrence of sufficient qualified justices; or
  4.  For the purpose of transferring the matter to the Court of Appeal for such proceedings as the Supreme Court may order.”

Another ground for seeking review in the state Supreme Court is the existence of a federal constitutional error, which may also be pursued in the Federal courts.

Only about 3% of petitions for review are granted each year in California.

Petitions for Writ of Certiorari

If your appeal is being heard in Federal court or turns on an issue of federal law raised in state court, you may file a writ of certiorari in the Supreme Court of the United States.  However, ordinary errors of law or fact will not be sufficient to obtain a review. Supreme Court Rule 10 sets the minimal basis for its discretionary review.

They are:

  • A conflict between two or more Federal appeals courts on an important issue.
  • A conflict between a Federal court of appeals and a state court of last resort on a critical issue of federal law.
  • A conflict between a state court of last resort and another state court of last resort or a United States court of appeals on a critical federal question.
  • A state court of last resort or a United States Court of Appeals has issued a decision that conflicts with Supreme Court precedent.
  • A state court of last resort or a United States Court of Appeals has decided on an issue of first impression that the Supreme Court should settle.
  • On such limited grounds, only 2.8% of cases are granted certiorari.

Settlement

Congratulations on winning your appeal.  While this may mean the end of all proceedings in some cases, as the discussion above shows, this is far from guaranteed.

Further proceedings in the trial court after granting your appeal (such as an award of costs or a new trial) could give rise to new mandamus or appellate filings. Or the losing party could seek rehearing, review, or certiorari. Any of those events will add substantial time and expense to the process.

Most appellate courts have robust settlement programs, which schedule conferences before briefs are due when both perceived risks and the savings flowing from the settlement are high.  Settlement experts recommend trying to resolve again when briefs are complete, and the strength of the arguments can be evaluated with the assistance of a mediator.

Because granting an appeal does not necessarily eliminate risk or expense, this author recommends strongly considering settlement at this stage. At the same time, your client is in a strong position.

To learn more about what happens after an appeal is granted, settlements, negotiations, and more, contact ADR Times!

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