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I Lost, Can I Appeal?

I Lost, Can I Appeal?

          Like most things in the law, it depends. In last month’s blog, we extolled the virtues of hiring a trial lawyer who understands appeals and the appellate process. Litigators who understand appeals can protect you throughout the trial process and help you avoid the need for an appeal at all. Most judgments, however, are not easily appealed, even when one or both of the parties is unhappy with the result. Here is a guide to figuring out whether you can appeal:

Did you reach an agreement?

          If you voluntarily agreed to a settlement, you probably cannot undo the agreement. Courts assume parties are informed and make voluntary decisions when reaching settlements. Courts are not in the business of undoing these types of contracts, and in fact routinely enforce them even if one party tries to renege before the final judgment is entered. If there is evidence of fraud or duress, the trial court could set aside the agreement, but the odds are extremely low. If you have entered into an agreement to resolve your case, you likely have no grounds for appeal.

Did you have a trial?

          If you have not yet had a final trial in your case, your case is probably not yet appealable. Typically, the appellate court reviews only final judgments. In rare cases, you may be able to appeal an interlocutory (not final) order if: (1) the trial court has made a legal error; (2) that legal error will affect the ultimate outcome of the case; (3) the legal error is not curable after trial; and (4) the trial court grants a certificate of immediate review. If you have had a final trial and a jury has rendered a verdict or a judge has entered an order, you may be able to appeal the final judgment.

What is the process for appealing?

          Only in cases exclusively involving child custody can a litigant file a one-step direct appeal. In such a case, the litigant must file a notice of appeal and then brief the court by identifying all errors at the trial court, showing how the error harmed the appellant, and demonstrating that reversal would benefit the appellant.

          In all other cases, including cases involving any combination of child custody and, for example, divorce, child support, or alimony, litigants must complete a two-step appellate process by first filing an application for discretionary appeal with the Georgia Court of Appeals. In the application, the applicant must identify any errors that occurred at the trial level, demonstrate how the error caused harm, that the appellant would benefit from winning the appeal, and explain why the case is worthy of appellate review.

          If the application is denied, the applicant is not entitled to pursue the appeal. If the application is granted, the second step requires the applicant to file a notice of appeal. Both sides then have the opportunity to file briefs laying out the arguments in support of their respective positions. Sometimes, the appellate court will permit the attorneys to make an oral argument, as well. All in, the appellate process can take a year or more from the filing of the application through the decision by the appellate court.

What does it mean to “win” on appeal?

          A complete win on appeal is a reversal. A full reversal generally occurs only when the appellate court is presented with a pure question of law and the appellate court substitutes its judgment for the trial court’s judgment without remand. A remand simply means the case is returned to the trial court for additional proceedings consistent with the appellate opinion.

          A reversal without remand is rare because there is almost always some loose end that would need to be tied up by the trial court in order to fully resolve the case. For example, if the trial court has ruled that a certain asset is one party’s separate property, the court of appeals may reverse that decision and hold that the property is marital. While there would be no additional action required by the trial court in terms of classifying the property, the trial court would have to reconsider the equitable distribution of the marital estate to account for the additional marital asset.

          Most typically, a win on appeal means that the appellate court reverses or vacates the lower court’s decision and remands the case for further proceedings. In reality, that means the court of appeals agrees that the trial court committed an error, explains how the error occurred, and sends the case back for the trial court to correct the error.

          Just because a case is reversed and remanded does not mean that the ultimate result will be very different the next time. For example, the court of appeals may reverse a case because the trial court did not make sufficient findings of fact to support a child support deviation. On remand, the trial court could impose the very same deviation (or a greater one) but correct the error by making more explicit findings of fact. In other words, the end result for the appellant may not change, and it could be worse, even if the appellant wins on appeal.

          The appellate court could also affirm the trial court’s decision. In that case, the court of appeals essentially ratifies the trial court’s judgment below, and there would be no new proceedings in the case.

What are the risks of appealing?

          Appeals are time-consuming and expensive, and while an appeal is pending, the judgment accrues interest. So, if the court of appeals ultimately affirms the trial court’s judgment, the appellant will owe both the judgment and interest on the judgment (7% per annum as of December 4, 2019).

          The likelihood of prevailing on appeal is also governed by the type of issue raised. If the error claimed is that the judge or jury erred in making findings of fact, the court of appeals will probably not reverse the decision. On questions of fact, the appellate court cannot reverse the decision unless the ruling was clearly erroneous. This means that if there is any shred of evidence to support the factual decision (including conflicting evidence), the court of appeals does not have the power to reverse, even if the court of appeals would have made a different decision on the facts. The court of appeals is similarly limited on questions within the discretion of the trial court, like whether to grant or deny a continuance. Unless the trial court abused its discretion, the appellate court cannot reverse the judgment. You can imagine that appellate courts generally disfavor finding that a trial court has abused its discretion.

          On the other hand, if the trial court has erred on a question of law, the appellate court has broad discretion to reverse the judgment. Appellate judges are experts in interpreting the law while trial judges are experts in fact-finding. Thus, if the appellate court is presented with a pure question of law, it can substitute its own judgment for that of the trial court. If you file an appeal, you have better odds of winning if you raise a legal issue than if you raise a factual or discretionary issue.

If I’m considering an appeal, what should I do?

          Talk to an attorney right away. Strict timelines govern when you are eligible to appeal your case, and you do not want to risk missing the window to appeal. An application for discretionary appeal must be filed within thirty days of the final judgment. You should also ask your attorney the following:

  1. Should I file a motion for new trial or reconsideration before filing the application for discretionary appeal? A motion for new trial and/or reconsideration buys you additional time before you must file the application because it permits the trial court to reevaluate its judgment and correct any errors on its own. There are some risks, however. For example, if your attorney fails to raise all the issues that could be raised on appeal, it may constitute a waiver of that issue. In other words, you cannot raise a new issue for the first time on appeal if you had the opportunity to raise it with the trial court and did not. Also, the timelines are different for Motions for New Trial and Reconsideration. A Motion for New Trial must be filed within 30 days of the Final Judgment, but a Motion for Reconsideration must be filed within 20 days. If a Motion for New Trial is combined with a Motion for Reconsideration, the 20-day timeframe applies.
  2. Have I waived my right to appeal by accepting benefits from the final judgment and decree? If you have accepted alimony or a distribution of property under the divorce decree, you have likely waived your right to appeal the final judgment. If you intend to file a motion for new trial or appeal, you must first return any benefits you have received before filing.
  3. What issues can I raise on appeal? Ask your attorney to explain whether the issues are questions of law, discretion, or fact. If they are questions of law, your chances of prevailing on appeal are better; if they are questions of discretion or fact, prevailing on appeal is much harder. You may not want to risk filing the appeal if you cannot raise an issue of law.

          If you are unhappy with your final judgment, contact our office today to schedule an appointment with Elizabeth Berenguer, our appellate specialist, to review your case and evaluate your options.

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