How to
| Publication year | 1995 |
| Pages | 17 |
How to Commence an Appeal:
Steps (and Missteps) in Commencing an Appeal
Merrill F. Nelson, J.
This "how-to" article is intended to serve as a guide to the important steps in commencing an appeal in Utah. This article will first discuss jurisdictional considerations, then timeliness of the appeal, and conclude with a procedural checklist for commencing the appeal.
A. JURISDICTIONAL CONSIDERATIONS
1. Appealable Order
The first step in any appeal is to examine the order and determine whether it is final or otherwise appealable. Without an appealable order, the appellate court has no jurisdiction. Utah rules recognize three basic modes of appeal, depending on the type of order: (a) final order appeal, (b) Rule 54(b) appeal, and (c) interlocutory appeal.
a. Final order.
An appeal as of right may be taken only from an order or judgment that is "final."[1] A "final" order or judgment is one that entirely disposes of the complete action as to all parties and all claims. An appeal from an order that does not dispose of all claims as to all parties is subject to dismissal.[2] Common examples of orders that are not final and appealable as of right include denial of a motion to dismiss, [3] denial of a motion for summary judgment, [4] granting of partial summary judgment, [5] a ruling that leaves unresolved counterclaims or parties, [6] granting of a new trial, [7] an oral ruling, [8] and an unsigned minute entry.[9]
b. 54(b) order.
Rule 54(b) (Utah R. Civ. P.) permits an appeal from an order that is final as to one or more but fewer than all of the claims or parties through an express certification of the order by the trial court. To qualify for certification, there must be multiple claims or parties, the ruling must be certified as final as to at least one claim or party and be separable from the remaining claims, and the court must expressly certify that there is no just reason for delay of an appeal on the ruling.[10] If the requirements are met, the appellate court has no discretion to deny the appeal.[11] However, the appellate court is not bound by an erroneous certification, and if the requirements of the rule are not satisfied, the appeal is subject to dismissal.[12] A timely appeal from an improperly certified order may be treated as a petition for interlocutory appeal.[13]
c. Interlocutory order.
An interlocutory appeal may be taken from nonfinal orders pursuant to Utah R. App. P. 5. The granting of such an appeal is completely within the discretion of the appellate court. Considerations are whether the order involves substantial rights and may materially affect the final decision, or whether a determination of the correctness of the order before final judgment will better serve the administration of justice.[14]
d. Criminal cases.
In criminal cases, the defendant may appeal from a final judgment of conviction, a post-judgment order affecting substantial rights, an interlocutory order in the discretion of the appellate court, or an order of incompetency.[15] The prosecution may appeal from a final judgment of dismissal, an order arresting judgment, an order terminating the prosecution because of double jeopardy or denial of a speedy trial, an order holding a statute invalid, a pretrial supression order in the discretion of the appellate court, or an order withdrawing a plea of guilty or no contest.[16] The prosecution may not appeal from an acquittal, [17] or appeal a sentence.[18] To determine whether a particular order is appealable, the appellate court looks to the substance of the ruling rather than its label.[19]
2. Form and Entry of Judgment
An order or judgment may not be appealed until it is properly entered in compliance with rules of procedure and practice. Rule 58A(c), Utah R. Civ. P. states that a judgment is not "entered" until it is signed by the court and filed by the court clerk. An unsigned minute entry is not appealable.[20] Proper filing and entry also requires that the judgment be served on opposing counsel prior to submission to the court for signing, in compliance with Rule 4-504 of the Code of Judicial Administration. An appeal from a judgment not properly entered in compliance with applicable rules is subject to dismissal.[21] The prevailing party must give notice of entry of the judgment to other parties.[22]
3. Proper Appellate Court
With an appealable order, the next step is to determine which court has jurisdiction to hear the appeal. Appeals can be taken to the circuit court, district court, court of appeals, or supreme court depending on the type of case and the tribunal that issued the ruling. The only overriding rule is that any decision from a court of record invalidating a state or federal statute under either the state or federal constitution is appealed directly to the Utah Supreme Court.[23] The remaining rules of appellate case flow are easier to follow from the point of issuance.
a. Justice Court.
A judgment rendered by a justice court may be appealed to the circuit court for a trial de novo.[24] This right to appeal and trial de novo also applies to a judgment of the small claims department of the justice court.[25] A justice court is not a court of record;[26] therefore, the rule regarding direct appeal to the Utah Supreme Court does not apply.
b. Circuit Court.
A judgment rendered by a circuit court may be appealed to the court of appeals.[27] The only exception is that a trial de novo of a small claims matter may not be appealed unless the circuit court invalidates a state statute or local ordinance.[28]
c. Juvenile Court.
A judgment rendered by a juvenile court may be appealed to the court of appeals.[29] The appellant is not entitled to a trial de novo.[30]
d. District Court.
The course of appeal from an order or judgment of the district court depends on the subject matter.[31] Appeals involving domestic relations, criminal charges less than a first degree or capital felony, and review of certain administrative proceedings go to the court of appeals.[32] All other appeals from the district court go to the Supreme Court.[33] Appellate jurisdiction of a criminal case is determined by the degree of crime in the conviction rather than in the charge.[34]
e. Court of Appeals.
Review of a court of appeals judgment is by petition for writ of certiorari to the Utah Supreme Court.[35] The Supreme Court has sole discretion in granting or denying a petition for writ of certiorari.[36] When exercising certiorari jurisdiction, the Supreme Court reviews the decision of the court of appeals, not that of the district court.[37] If the Utah Supreme Court denies review, certiorari review in certain cases may also be sought in the United States Supreme Court.[38]
f. Supreme Court.
A decision by the Utah Supreme Court is final and nonreviewable, except the United States Supreme Court may review by writ of certiorari any decision invalidating a federal statute or holding a state statute in violation of the federal constitution.[39]
g. Administrative Agencies.
Judicial review of agency decisions is governed by the Administrative Procedures Act, Utah Code Ann. § 63-46b-0.5.[40] The proper reviewing court is determined by the agency that issued the ruling and by whether the agency adjudication was "informal" or "formal." All final agency actions resulting from informal adjudicative proceedings are reviewed by trial de novo in the district court.[41] All final agency actions resulting from formal adjudicative proceedings are reviewed by the court of appeals or Supreme Court, depending on the agency involved.[42] Formal decisions by the Public Service Commission; State Tax Commission; Board of State Lands and Forestry; Board of Oil, Gas, and Mining; and the State Engineer are reviewed by the Supreme Court.[43] All other formal agency decisions are reviewed by the court of appeals.[44]
h. Transfer of Cases Between Appellate Courts.
A timely appeal commenced in the wrong appellate court may be transferred to the proper court without penalty.[45] A case properly appealed to the court of appeals may be...
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