Getting Your Appellate Ducks in a Row:
Preserving Issues Subsequent to Trial
Changes to the Rules of Civil Appellate Procedure that took effect January 1 require increased vigilance in describing how issues were raised at trial and preserved for appeal, while not incidentally underscoring the importance of moving for a new trial where an appeal is contemplated and such a motion is allowed.
By Joseph Trojack
It’s a rare attorney who, having filed his first appellate brief, doesn’t after appearing before the bench wish he had done some things differently. Those who are fortunate, however, are met with an opposing attorney who proves equally prone to error. In my case, good fortune delivered an opponent who challenged several evidentiary rulings on appeal without first seeking a new trial—one of several mistakes that will likely be fatal to a number of issues.
All attorneys—experienced or not—should know the importance of seeking a new trial where an appeal is contemplated and a motion for new trial is allowed. This rule of thumb was recently confirmed when the Minnesota Supreme Court promulgated amendments to the Rules of Civil Appellate Procedure that took effect January 1, 2010.
The amendments change the way issues are presented in the formal brief. Every issue presented in the statement of the issues section must now include:
- A description of how the issue was raised in the trial court, including citations to the record;
- A description of how the issue was subsequently preserved for appeal, including citations to the record.2
The same requirement is imposed on both the appellant and the respondent. Note that the new amendments do not expand what is required to raise or preserve an issue for appeal, but only oblige the parties to provide specific information in the statement of issues about how these steps were taken.3
These amendments highlight the importance of issue preservation in appellate practice. Issue preservation is important both in terms of policy and practice because if proper steps have not been taken to preserve issues for review, the scope of appellate review may be limited.4 Moreover, it is good practice to describe where the issues are preserved in the statement of the case as well as in the formal brief.
Matters of Policy
The requirements in Minn. R. Civ. App. P. 128.03, Subd. 1 (b) were crafted to make it easier for the appellate court to determine whether an issue was properly raised, decided, and preserved for appeal. The new rules allow the court of appeals to quickly determine which issues are reviewable. Appellate courts will usually not consider matters not argued and considered by the district court.5 Hence, if an appellant cannot cite a portion of the record where the issue was raised in the lower court, the court of appeals can promptly determine that the issue is outside appellate review. This, in turn, will lead to a more efficient appellate process, because the court can exclude certain issues from review and reduce the number of issues that it must consider.
Motion for New Trial
Filing a motion for new trial is frequently necessary to preserve issues for appeal. In the 1986 case of Sauter v. Wasemiller, the Minnesota Supreme Court held that “matters such as trial procedure, evidentiary rulings, and jury instructions are subject to appellate review only if there has been a motion for a new trial in which such matters have been assigned as error.”6 This rule applies to bench and jury trials.7
Since making a motion for new trial is frequently necessary to preserve issues for appeal, a new trial should always be sought when such a motion is allowed and the party is considering an appeal.8 The motion should identify any specific errors or grounds for a new trial. A motion which alleges only “errors of fact and law” and that the decision below was not “justified by the evidence and was contrary to law” is not specific enough to preserve any issues for appeal.9 In addition, if a party fails to identify the specific errors or grounds for a new trial, an order denying the motion must be affirmed.10 If a party moves only for amended findings and fails to make a motion for a new trial, an order denying the motion is not appealable.11 Lastly, it is important to note that a party may not raise an issue for the first time in a motion for new trial.12 Therefore, if an issue is raised in a post-trial motion but not in the principal proceeding, then the issue will not be reviewed.13
Exceptions & Consequences
The Sauter rule was later clarified in Tyroll v. Private Label Chemicals, Inc.14 In that case, the Minnesota Supreme Court held that sui generis rights which are not simply matters of “trial procedure,” such as the right to a jury trial, are reviewable despite the failure to raise such matters in a motion for new trial. These rights “define the basic nature of the decision-making process itself” and may be raised on appeal without first being assigned as error in a motion for a new trial.15
The supreme court case of Alpha Real Estate Co. of Rochester v. Delta Dental Plan of Minnesota further clarified Sauter.16 In that case, the supreme court held that a motion for new trial is not a prerequisite for appellate review of “substantive questions of law” properly raised and considered in district court.17 The court defined substantive law as “the part of the law that creates, defines, and regulates the rights, duties, and powers of the parties.”18 However, absent a motion for new trial or motion to amend findings, the scope of review is generally limited to substantive legal issues, whether the evidence supports the findings of fact, and whether those findings support the conclusions of law and judgment.19 In spite of this, issues of statutory interpretation are outside the scope of appellate review when an appellant fails to move for a new trial.20 Therefore, a new trial should always be sought when such a motion is allowed and the party is considering an appeal.
A district court review that is in the nature of a motion for amended findings or a new trial, such as a district court’s review of a referee’s ruling, is not a prerequisite for appellate review.21 However, if such a review is available but not employed, review of the matter will likely be limited to whether the evidence sustains the findings of fact and whether the findings support the conclusions of law and the judgment.22 Hence, where a motion or procedure in the nature of a motion for a new trial was available but not exercised, a respondent could argue that the scope of review is limited to whether the evidence sustains the findings of fact and whether the findings support the conclusions of law and the judgment.
A motion for a new trial is usually not necessary to preserve issues for appeal arising from a “special proceeding.”23 Generally, a special proceeding is a statutory creature that is not initiated through a summons and complaint. It has also been defined as a remedy that is not part of the underlying action and is brought by motion or petition, upon notice, for action by the court independent of the merits of the underlying action,24 but this is not always helpful because several special proceedings do not involve underlying actions. Some of the most popular types of special proceedings are implied consent hearings25 and motions to modify maintenance.26 Incidentally, neither of these necessarily involves an underlying action.
However, where special proceedings are intended to proceed as other civil cases, objections must be raised in a motion for a new trial in order to be reviewable.27 Therefore, an appellant must consider carefully whether the particular special proceeding carries the “indicia of a trial.”28 Such indicia are usually present if the statute or rule authorizing the special proceeding allows such a post-trial motion by specifying that the action be tried “as in other civil cases” or by establishing the time for a motion for new trial, and a motion for new trial is probably necessary to preserve issues for appeal.29
Hence, a party contemplating appeal should determine whether the underlying event was a special proceeding and ascertain whether a motion for new trial is permitted. If a party is appealing from a special proceeding and a motion for new trial is allowed, filing a motion for new trial is frequently a prudent course of action.
No motion for new trial is required when appealing the dismissal of a matter.30 Since a trial did not occur, the motion for a new trial that is generally required to preserve issues for appeal is improper.
Requiring an appellant to seek a new trial before appeal has four potential benefits.31 First, it may make appellate review unnecessary, as the lower court may change its ruling on the contested issue. Second, the parties may have more fully developed “critical aspects of the record” in the event of appellate review. Third, the district court may “flesh out the reasoning behind its ruling.” Finally, the original decision-maker has the opportunity to correct any errors he or she may find. Appellate courts like motions for new trial because they increase the efficiency of the judicial system by eliminating issues and allow further development of the record for a more substantial review.
While seasoned appellate practitioners might have issue preservation at the forefront of their minds, attorneys who handle appeals less frequently need to begin thinking about issue preservation as soon as an appeal is contemplated. Even some experienced attorneys may allow this critical detail to slip through the cracks; the Advisory Committee on Civil Appellate Procedure noted that issue preservation is a problem in many appeals.32
Although the requirement applies to the issues presented in the formal brief, it is good practice to describe where the issues were preserved in the statement of the case. Perhaps the greatest benefits of citing where the issues were preserved in the statement of the case, as well as in the formal brief, is that in some cases the appellant may realize that an issue has not been properly preserved and will have an opportunity to correct this defect. For example, if a party is working on the notice of appeal and statement of the case 20 days after the appealable order was issued and realizes that she needs to preserve an issue by filing a motion for new trial, she will still have ten days to make such a motion and thereby preserve the issue for appeal. On the other hand, if the appellant does not think about whether a motion for new trial is necessary to preserve issues for appeal until she has to write the formal brief, a motion for new trial will not be an option and, consequently, an issue may not be preserved for review. Granted that some parties might inevitably wait until the last moment to begin their notice of appeal and statement of the case, surely some parties would reap the benefits of having the question of issue preservation brought to their attention in time for them to actually do something about it.
Citing the portion of the record where the issue was preserved in the statement of the case also increases the efficiency of the judicial economy. In the above example, the party realizes a motion for new trial is necessary ten days before the time for making the motion expires. If the motion for new trial is made, the trial court could reconsider its order and appellate review may become unnecessary. Also, “‘critical aspects of the record’” would be more fully developed for appellate review. In the above example, the district court would also have a chance to “flesh out the reasoning behind its ruling.” Finally, the original decision maker would have the opportunity to correct any errors it may find. Thus citing where an issue was preserved in the notice of appeal increases the likelihood that the four benefits of requiring an appellant to seek a new trial before appeal will be realized.
No Special Burden
Fulfilling this requirement in the statement of the case would not substantially burden the party preparing the statement of the case. The Minnesota Rules already require an appellant to describe the issues in the statement of the case.33 The main objective is to alert the lawyer at an early stage if there are problems with preservation of an issue, perhaps early enough to correct the problem. Indicating where an issue was preserved at the lower court and what steps were taken to preserve the issue after trial in the statement of the case accomplishes this objective. One potential burden would be that a party contemplating appeal may have to order the transcripts before filing the statement of the case. This, however, is a small price to pay for easing the risk that an issue may be non-reviewable because it was not properly preserved. Therefore, practitioners might want to get in the habit of indicating where the issue was preserved in the statement of the case instead of waiting until the issues are presented in the formal brief.
1 Minn. R. Civ. App. P. 128.02, subd. 1 (b)1 (January 1, 2010).
2 Minn. R. Civ. App. P. 128.02, subd. 1 (b)3 (January 1, 2010).
3 Minn. R. Civ. App. P. 128.02, subd 1 (b) (January 1, 2010), Comm. Cmt.
4 Minn. R. Civ. App. P. 103.04 (2008).
5 Thiele v. Stich, 425 N.W.2d 580, 582 (Minn.1988).
6 Sauter v. Wasemiller, 389 N.W.2d 200, 201 (Minn. 1986).
7 See David F. Herr & Sam Hanson, 2 Minnesota Practice Series: Minnesota Rules Annotated §103.19 (2009).
8 See Peter S. Popovich & Donald W. Niles, “A Practitioner’s Guide to Bringing an Appeal in the Minnesota Court of Appeals,” 11 Wm. Mitchell L.Rev. 627, 635 n. 46 (1985).
9 See Waldner v. Peterson, 447 N.W.2d 217, 219 (Minn. App. 1989).
10 Amatuzio v. Amatuzio, 431 N.W.2d 588, 589 (Minn. App. 1989), review denied, July 27, 1989.
12 See In re Welfare of Child of T.D., 731 N.W.2d 548, 553 (Minn. App. 2007).
14 Tyroll v. Private Label Chemicals, Inc., 505 N.W.2d 54, 57 (Minn. 1993).
16 Alpha Real Estate Co. of Rochester v. Delta Dental Plan of Minnesota, 664 N.W.2d 303 (Minn. 2003).
17 Id.at 310.
18 Id. at 310, n. 5.
19 Id. at 310; Gruenhagen v. Larson, 246 N.W.2d 565, 569 (Minn. 1976).
20 See Novack v. Northwest Airlines, Inc., 525 N.W.2d 592, 597 (Minn. App. 1995).
21 See Kahn v. Tronnier, 547 N.W.2d 425, 428 (Minn. App. 1996), review denied, July 10, 1996.
23 Huso v. Huso, 465 N.W.2d 719, 721 (Minn. App. 1991).
24 In re Estate of Janecek, 610 N.W.2d 638, 642 (Minn. 2000); but see In re GlaxoSmithKline PLC, 699 N.W.2d 749, 756 (Minn. 2005) (“A special proceeding is defined as usually meaning such a proceeding as may be commenced independently of a pending action by petition or motion, upon notice, in order to obtain special relief. Its existence is not dependent upon the existence of any other action and it therefore is not an integral part of the original action but is separate and apart. It adjudicates by final order a substantial right distinct from any judgment entered upon the merits of the original action.”).
25 See, e.g., Garcia v. Commissioner of Public Safety, 572 N.W.2d 311, 312 (Minn. App. 1997).
26 See, e.g., Huso, 465 N.W.2d at 720-721 (Minn.App.1991).
27 See Schiltz v. City of Duluth, 449 N.W.2d 439, 440-441 (Minn. 1990).
28 Id. at 441.
29 David F. Herr & Sam Hanson, 2 Minnesota Practice Series: Minnesota Rules Annotated §103.12 (2009).
30 Amatuzio v. Amatuzio, 431 N.W.2d 588, 590 (Minn. App. 1988).
31 Alpha Real Estate Co. of Rochester, 664 N.W.2d at 309 (Minn.2003).
32 Minn. R. Civ. App. P. 128.02, subd 1 (b) (January 1, 2010) Comm. Cmt.
33 Minn. R. Civ. App. P. 133.03 (2008).
JOSEPH TROJACK is an associate at the John E. Trojack Law Office, P.A., where he concentrates his practice in probate-related litigation and estate planning. He graduated magna cum laude from the University of St. Thomas School of Law.