Waiting for Judgment Day: Negotiating the Interlocutory Appeal in 8 Easy Lessons
| Publication year | 2009 |
| Pages | 30 |
I. Introduction
On the television show, the judge overrules from the bench the objection by the "Attractive Young Attorney." The Attractive Young Attorney proclaims, "Your honor, we are appealing that decision!" Although the rules for taking appeals on television appear to be fairly liberal, in Kansas state courts the rules are more complex. This article is intended to help the Attractive Young Attorney determine when and how he or she may take an appeal from an interlocutory order when practicing in Kansas.[1]
An interlocutory appeal is an appeal that takes place before the trial court's final ruling on the entire case.[2] Appellate courts frequently reach decisions relating to jurisdiction over interlocutory appeals early in the appellate process, either by ruling on motions to dismiss or by ruling on responses to sua sponte orders to show cause. The decisions may be made by the motions panel of the Court of Appeals or by the Supreme Court sitting in conference, and decisions to dismiss appeals for lack of jurisdiction often do not appear as published orders. This article will occasionally refer to such decisions, which obviously do not constitute binding precedent but may give some guidance relating to how our appellate courts apply the rules relating to interlocutory appeals.
Lesson 1. Make sure each and every claim with respect to each and every party is disposed of before seeking an appeal as a matter of right.
On the surface, the rule for taking appeals in Kansas is simple. An appeal may be taken from "any final decision" in a civil proceeding.[3] A final decision generally disposes of the entire merits of the case and leaves open no further questions or the possibility of future directions or actions by the court.[4] Judgment is effective in civil proceedings when a journal entry or judgment form is signed by the judge and filed with the clerk of the district court.[5] Once a final decision has been made, however, any act or ruling from the beginning of the proceedings is subject to review.[6] The decision is final once the district court has disposed of all claims involving all served parties; the fact that unserved parties were named in the petition but were not addressed by the court does not preclude finality.[7]
If issues remain pending, it is not enough for a district court to declare that its judgment is "final" for purposes of appeal.[8] It is also not enough for a party on appeal to assure the appellate court that it is abandoning a pending claim or crossclaim in order to achieve finality.[9] Parties may not stipulate to jurisdiction and confer jurisdiction on an appellate court by agreeing not to pursue other issues.[10] Our Supreme Court has explained that the term "final decision" is self-defining and refers to an order that definitely terminates a right or liability involved in an action or that grants or refuses to grant a remedy as a terminal act in the case.[11]
If they are not final, most district court rulings are not yet ripe for appeal. Our appellate courts have adopted a policy strongly opposing piecemeal appeals and generally do not allow review of nonfinal orders.[12] For example, an entry of default judgment would normally be appealable, but an order vacating a default judgment is not subject to immediate appeal, because the litigation has been reopened.[13]
Illustrating the finality doctrine are a number of cases that have applied it to find that appellate jurisdiction was lacking.
Orders relating to discovery are generally not subject to immediate appeal as a matter of right.[14] An order denying a motion to dismiss is not subject to immediate appeal.[15] An order disqualifying counsel is not subject to immediate appeal as a matter of right.[16] The Court of Appeals has dismissed an attempted appeal from an order denying a request for a jury trial.[17] An order granting a new trial is not final and appeal-able.[18] Summary judgment for one of several defendants is not appealable.[19] The Court of Appeals has likewise dismissed attempted appeals from orders staying arbitration or vacating arbitration awards and directing rehearings.[20] When the plaintiff filed a declaratory judgment action on three issues, but the parties asked the district court for an answer on a single issue and "preserved for later consideration" the remaining two questions, the ruling on the single issue was not ripe for appellate review.[21]
If the district court bifurcates its proceedings, such as separating issues of liability from issues of damages, the case becomes ripe for appeal only after both parts of the proceedings have been resolved. A judgment in a divorce proceeding, for example, in which the district court elects to bifurcate the divorce decree from the property division, may not be appealed until the district court has resolved both the divorce and the property issues.[22] Similarly, in a case in which the district court ruled on a portion of damages but ordered the parties to participate in a settlement conference with respect to other damages, the Court of Appeals dismissed the appeal as premature and interlocutory.[23]
The same general requirement of finality also applies to administrative proceedings.[24] There is, for example, no statutory provision for immediate judicial review of preliminary rulings in workers' compensation cases.[25] A district court order remanding an administrative proceeding to the administrative agency for additional findings of fact is not a final, appealable order.[26] A district court order requiring a school board to conduct a due process hearing for a terminated teacher is likewise not a final, appealable order.[27]
Note, however, that where the district court remands a case to an agency to perform a particular act, the order requiring the agency to perform the act is considered final and ripe for appeal.[28] Similarly, an agency's decision that it lacks jurisdiction to review a particular issue may also constitute a final and appealable order.[29]
The district court must not only dispose of all parties and claims, but it must also dispose of post-trial motions. In one recent case,[30] the Court of Appeals dismissed the appeal because the plaintiffs had filed a motion to reconsider an earlier order on the same date on which they filed a notice of appeal from that order. The plaintiffs docketed the appeal without the district court ruling on the post-trial motion, and the appellate court found that the appeal was not yet ripe for review. Motions filed under K.S.A. 60-260(b), however, do not toll the time to take an appeal and do not affect the finality of the underlying judgment.[31]
Filing a notice of appeal does not deprive a district court of jurisdiction to resolve pending matters, including post-trial motions.[32] Docketing the appeal or filing a motion to docket out of time, however, immediately transfers jurisdiction over most matters to the appellate courts. The district court may not then rule on pending matters without a remand from the appellate courts.[33]
Lesson 2. Be wary of dismissals as vehicles to achieving finality.
Sometimes orders appear to be final but are not really final, because they leave open the possibility of further action on the same subject matter. An order dismissing a case and imposing conditions on refiling is not subject to immediate appeal.[34] An order granting voluntary dismissal without prejudice is not final for appellate purposes.[35] An order granting involuntary dismissal of some claims and voluntary dismissal of other claims is not final for appeal purposes.[36]
The jurisdictional trap that voluntary dismissals can create is illustrated by the following set of unsuccessful appeals. In Arnold v. Hewitt 1,[37] multiple plaintiffs sued the defendants for breach of contract, fraudulent misrepresentation, and negligent failure to procure insurance. The district court granted the defendants summary judgment on the breach of contract and fraudulent misrepresentation claims, while the failure to procure insurance claim survived but was limited in damages to the insurance policy maximum. The plaintiffs then moved for voluntary dismissal of their negligence claim without prejudice. The district court granted the motion in the hope of avoiding a piecemeal trial. After filing a notice of appeal, the plaintiffs then refiled their negligence claim in district court under a different case number. The Court of Appeals dismissed the appeal that had already been docketed, finding that the plaintiffs were seeking a piecemeal appeal of a case in which litigation was ongoing, albeit under a new district court case number.[38]
Arnold v. Hewitt II[39] was filed after the district court granted the defendants summary judgment on the remaining negligence claim. The plaintiffs sought appellate review of the adverse judgments on all three claims, two from their original action and the third from the refiled negligence claim. The Court of Appeals dismissed the second appeal, finding that the original action kept the case in a kind of perpetual appellate limbo. Because the original action had become res judicata and because the second action represented a forbidden splitting of the causes of action, the plaintiffs now appear to be forever barred from appellate review of any of the adverse decisions.
The plaintiffs attempted to use a voluntary dismissal to circumvent the finality requirement and consequently forfeited their opportunity for appellate review. The Court of Appeals explained: "The plaintiffs had a simple option after the summary judgment motions were granted in the original action. They could have waited, received a final decision on the negligence action, and then appealed the entire case to this court...
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