Appellate Advocacy

18 Pages·2013·5.25 MB·English

2013 Family Law Seminar
2013 Family Law Seminar
Appellate Advocacy: How to Win on Appeal
4:00 p.m.-5:00 p.m.
Presented by
Andrew B. Howie
HUDSON, MALLANEY, SHINDLER
& ANDERSON, P.C.
5015 Grand Ridge Drive, Suite 100
West Des Moines, IA 50265
Phone: [phone]
Fax: [phone]

Friday, October 25, 2013
Friday, October 25, 2013
APPELLATE ADVOCACY- STANDARDS & SECRETS
(Musings from a Practitioner)
Andrew B. Howie
HUDSON, MALLANEY, SHINDLER & ANDERSON, P.C.
5015 Grand Ridge Drive, Suite 100
West Des Moines, Iowa 50265
515-223-4567; FAX: [phone]
AHowie@H udsonLaw .net
Friday, October 25, 2013
ISBA FAMILY LAW SEMINAR
1. CONTEXT
a. de novo review
"An action for dissolution of marriage is an equitable proceeding and,
consequently, this court's review is de novo. In equity matters, such as
this, where our review is de novo, ... it is our responsibility to review the
facts as well as the law and determine from the credible evidence rights
anew on those propositions properly presented, provided issue has been
raised and error, if any, preserved in the trial proceedings. While weight
will be given to findings of the trial court, this court will not abdicate its
function as triers de novo on appeal."
In re Ma1riage of Winegaz·d, 257 N.W.2d 609, 613 (Iowa 1977) (citations
omitted).
b. de novo review diluted
"Even though our review is de novo, we accord the trial court considerable
latitude in making this determination and will disturb the ruling only
when there has been a failure to do equity. This deference to the trial
court's determination is decidedly in the public interest. When appellate
courts unduly refine these important, but often conjectural, judgment
calls, they thereby foster appeals in hosts of cases, at staggering expense
to the parties wholly disproportionate to any benefit they might hope to
realize."
In re Marn·age ofB enson, 545 N.W.2d 252, 258 (Iowa 1996) (citations omitted);
see In re Man·iage ofS mith, 573 N.W.2d 924, 926 (Iowa 1998).
1
c. "[A] trial court, as first· hand observer of witnesses, holds a distinct
advantage over an appellate court which necessarily must rely on a cold
transcript." In 1·e Maniage of Udelhofen, 444 N.W.2d 473, 474 (Iowa
1989).
2. TRIAL
a. Am I trying this case for an appeal?
Yes, always. This is a bench trial, not a jury trial
1.
Protect your record
11.
(1) Your witnesses are testifying, not you
(a) don't lead
(b) let them answer the question
(c) did they answer the question that was asked
(2) Enter and Keep Track of your Exhibits
b. Preservation of Error
Evidentiary Objections
1.
(1) Even in equity, you have to object and cite the appropriate
basis
(2) Evidence is admitted subject to the objection
(a) In re Ma1n'age of Anderson, 509 N.W.2d 138, 142
(Iowa Ct. App. 1993) ("The trial court should have
received objections to evidence but not ruled on the
objections and allowed the evidence in the record.
That way we would have the evidence and could
make our own determination as to its admissibility.")
(b) If not, make your offer of proof.
n. Standing Objections
(1) Disfavored, but allowed. Nepple v. We1fenbach, 274 N.W.2d
728, 732 (Iowa 1979) (holding that when evidence is
properly objected to the objection need not be repeated when
other evidence of the same class is offered.)
(2) Be careful, a standing objection may not preserve error.
Prestype, Inc. v. Carr, 248 N.W.2d 111, 117 (Iowa 1976);
Ackerman v. James, 200 N.W.2d 818, 824 (Iowa 1972)
m. Motion Limine
(1) Legal Effect of Ruling on Motion in Limine:
The primary purpose of a motion in limine is to preclude reference
to potentially prejudicial evidence prior to the trial court's definitive
ruling on its admissibility. State v. Davis, 240 N.W.2d 662, 663 (Iowa
1976). Generally, any error based on the trial court's disposition of a
motion in limine is not preserved unless the record includes a timely
objection when the challenged evidence is offered at trial. Id. The
resolution of a preservation of error issue is "not controlled by the title of
2
the motion or its prayer." State v. O'Connell, 275 N.W.2d 197, 202 (Iowa
1979). Our concern is "what the ruling of the trial court does or purports
to do." I d. A ruling limited to protection from prejudicial references must
be distinguished from a ruling on the admissibility of the challenged
evidence. State v. M1lle1·, 229 N.W.2d 762, 768 (Iowa 1975). If the trial
court's ruling is dispositive on the issue of admissibility, it is considered
final for purposes of appeal and. no further objection is necessary. I d.
State v. Jensen, Case No. 06-0879, 2007 WL 2963955 at *3 (Iowa Ct. App., filed
Oct. 12, 2007).
(2) The Jensen court held that because the district "court,
without condition or admonition, expressly precluded [an
expert witness'] testimony ... No additional trial objections
were necessary to preserve error on this issue." Id. at *3.
IV. Trial Briefs -raising an issue only in a trial brief is not sufficient
to preserve error. Lamp v. American Prosthetics, Inc., 379 N.W.2d
909, 911 (Iowa 1986); see also Iowa R. Civ. P. 1.442(4) ("no party
shall file legal briefs or memoranda, except in support of or
resistance to a motion for summary judgment, unless expressly
ordered by the court"; therefore, trial briefs typically are not part
of the appeal record).
v. All issues raised in an appeal must have been raised and decided
by the district court to be preserved for review on appeal. B1ll
Gnmde1·'s Sons Constr., Inc. v. Ganze1·, 686 N.W.2d 193, 196-98
(Iowa 2004) (holding that an issue that was not presented to the
trial court will not be considered for the first time on appeal)
(citations omitted); In re Ma1n'age ofOkonkwo, 525 N.W.2d 870,
872 (Iowa Ct. App. 1994).
3. TIME TO FILE APPEAL; CROSS-APPEAL; 1.904(2) MOTION
a. Notice of Appeal- Deadline
30 days from filing of final order, except in
1.
Termination-of-parental-rights and child-in-need-of-assistance
cases under Iowa Code chapter 232. R. 6.101(1)(b).
15 days from filing affinal order in Termination -of-parental-rights
11.
and child· in ·need -of-assistance cases under Iowa Code chapter 232.
R. 6.101(1)(a).
"Tolling of filing deadline by timely service. The time for filing a
111.
notice of appeal is tolled when the notice is served, provided the
notice is filed with the district court clerk within a reasonable
time. See Iowa R. Civ. P. 1.442(4)." R. 6.101(4).
1v. Extensions of time to file notice of appeal "The supreme court
may extend the time for filing a notice of appeal if it determines
the clerk of the district court failed to notify the prospective
3
appellant of the filing of the appealable final order or judgment. A
motion for an extension oftime must be filed with the clerk of the
supreme court and served on all parties and the clerk of the
district court no later than 60 days after the expiration of the
original appeal deadline as prescribed in rule 6.101(1)(a) or (b).
The motion and any resistance shall be supported by copies of
relevant portions of the record and by affidavits. Any extension
granted shall not exceed 30 days after the date of the order
granting the motion."
v. Missing the deadline. Failing to timely file a notice of appeal will
result in the dismissal of the appeal because Iowa's appellate
courts lose subject matter jurisdiction to decide the appeal. Hills
Bank & Trust Co. v. Conve1·se, 772 N.W.2d 764, 771 (Iowa 2009).
"Subject matter jurisdiction cannot be conferred by consent, waiver
or estoppel, but is conferred solely by constitutional or statutory
authority." In l'e Guardianship and Conservato1·ship of Cerven,
334 N.W.2d 337, 340 (Iowa Ct. App. 1983).
b. Final vs. Interlocutory
A party only has the nghtto appeal a final order. Iowa R. App. P.
1.
6.103(1).
What is a "final order"?
11.
(1) Rule 6.103(1) defines a "final order" as: "orders and
judgments of the district court involving the merits or
materially affecting the final decision .. . An order granting
or denying a new trial is a final order. An order setting
aside a default judgment in an action for dissolution of
marriage or annulment is a final order. An order setting
aside a default judgment in any other action is not a final
order."
(2) The Iowa Supreme Court defined a final order as "one that
conclusively adjudicates all of the rights of the parties, and
places the case beyond the power of the court to return the
parties to their original positions." In l'e Mal'l'iage ofWelp,
596 N.W.2d 569, 572 (Iowa 1999) (internal quotation marks
and citations omitted).
All orders that are not final are interlocutory. See Iowa R. App. P.
111.
6.103(1). Rule 6.103(3) states:
No interlocutory order may be appealed until after the final judgment or
order is entered except as provided in rule 6.104. Error in an
interlocutory order is not waived by pleading over or proceeding to trial.
If no appeal was taken from an interlocutory order or a final adjudication
in the district court under Iowa R. Civ. P. 1.444 that substantially
affected the rights of the complaining party, the appellant may challenge
4
such order or final adjudication on appeal of the final order or judgment.
1v. Examples:
(1) orders on temporary matters concerning child or spousal
support or attorney fees are final orders. In reMarriage of
Denly, 590 N.W.2d 48, 49-50 (Iowa 1999); In reMarriage of
Winegard, 257 N.W.2d 609, 614 (Iowa 1977); Iowa R. App.
P. 6.103(1).
(2) orders on temporary matters concerning child custody are
interlocutory orders. In reMarriage ofD enly, 590 N.W.2d
48, 50-51 (Iowa 1999); Iowa R. App. P. 6.103(1), .104.
v. Appealing an interlocutory order.
(1) A party may only appeal an interlocutory order with the
Supreme Court's permission. See Iowa R. App. P. 6.103(1),
.104.
(2) An application to appeal an interlocutory order must be filed
within 30 days of the district court's order, but within 15
days in termination -of-parental-rights and
child-in-need-of-assistance cases under Iowa Code chapter
232. Iowa R. App. P. 6.104(1)(b). However, a party does not
waive the right to appeal an erroneous interlocutory order
by failing to file an application for interlocutory appeal, and
the party can challenge that error in the appeal from the
final order. Rule G.l03(3).
(3) In order to grant the application to appeal an interlocutory
order, the appellate court must find:
(1) that the court's order involves substantial rights; (2) the order will
materially affect the final decision; and (3) that a determination of the
order's correctness before trial on the merits will better serve the
interests ofjustice. See Iowa R. App. P. [6.104(1)]; Banco Mortgage Co. v.
Steil, 351 N.W.2d 784, 787 (Iowa 1984) (test for granting permission to
appeal for those appeals improvidently taken from interlocutory orders
is same as test applied under rule [6.104(1)]). We note that in prior cases
"[w]e have been very reluctant to allow interlocutory appeals in this
manner." In re WD. III, 562 N.W.2d 183, 186 (Iowa 1997); see also In re
Marriage ofG raziano, 573 N.W.2d 598, 600 (Iowa 1998) ("We . . _cannot
and do not grant permission under rule [6.104] merely because child
placement is implicated.").
In re Marriage ofD enly, 590 N.W.2d 48, 51-52 (Iowa 1999).
5
c. Tolling the Deadline to File a Notice of Appeal
When a party timely files a motion under rule 1.904(2), rule
1.
6.101(1)(b) tolls the time to file a notice of appeal to within 30 days
of the filing of the district court's ruling on the 1.9 04(2) motion.
u. However, not all 1.904(2) motions will toll the appeal deadline.
The Supreme Court, in Baur v. Baw· Farms, Inc., 832 N.W.2d 663,
668-69 (Iowa 2013) (emphasis added), explained the difference:
Rule 1.904(2) provides that the "findings and conclusions" of the district
court may be enlarged or amended and the judgment or decree modified
accordingly "[o]n motion with or filed within the time allowed for a
motion for new trial." Iowa R. Civ. P. 1.904(2). We have explained that a
motion to enlarge or amend is available only to address rulings on factual
issues tried without a jury and that any legal issues raised in the motion
must have been addressed in the context of an issue of fact tried by the
court without a jury. See Meier v. Senecaut, 641 N.W.2d 532, 538 (Iowa
2002). When a rule 1.904(2) motion amounts to nothing more than a
rehash of legal issues previously raised, we will conclude the motion
does not toll the time for appeal. Explore Info. Servs. v. Ct. Info. Sys.,
636 N.W.2d 50, 57 (Iowa 2001). By contrast, when used to obtain a
ruling on an issue that the court may have overlooked, or to request the
district court enlarge or amend its findings when it fails to comply with
rule 1.904(1), the motion is proper and will toll the time for appeal. See
In reMarriage ofOkland, 699 N.W.2d 2GO, 2GG- G7 (Iowa 2005).
d. R. 1.904(2) motion
Deadline
1.
(1) A posttrial motion, including one per Iowa Civil Procedure
Rule 1.904(2), must be filed within fifteen days of the date
the final order is filed. Iowa R. Civ. P. 1.1007 ("Motions
under rules 1.1003 and 1.1004 and bills of exception under
rule 1.1001 must be filed within fifteen days after filing of
the verdict, report or decision with the clerk or discharge of
a jury which failed to return a verdict, unless the court, for
good cause shown and not ex parte, grants an additional
time not to exceed 30 days."); see R. 1.904(2) ("On motion
joined with or filed within the time allowed for a motion for
new trial, [R. 1.1004].")
(2) The mail rule - adding three days to the time period
permitted to file a response - does not apply to 1.904(2)
motions. Iowa R. Civ. P. 1.443(2) ("Such additional time
shall not be applicable where a court has prescribed the
method of service of notice and the number of days to be
given or where the deadline runs from entry or filing of a
judgment, order or decree.").
6
e. Should I file a 1.904(2) motion?
Iowa Civil Procedure Rule 1.904(2) states:
1.
On motion joined with or filed within the time allowed for a motion for
new trial, the findings and conclusions may be enlarged or amended and
the judgment or decree modified accordingly or a different judgment or
decree substituted. But a party, on appeal, may challenge the sufficiency
of the evidence to sustain any finding without having objected to it by
such motion or otherwise. Resistances to such motions and replies may
be filed and supporting briefs may be served as provided in rules 1.431(4)
and 1.431(5).
n. Rule 1.904(2) permits an aggrieved party to file a motion
requesting enlargement or expansion of the court's findings or
conclusions which "is primarily designed for the party faced with
an adverse judgment, not for the party defending the judgment."
In re Man·iage ofOkland, 699 N.W.2d at 267.
(1) "The rule can be used by a party, with an appeal in mind, as
a tool for preservation of error. Similarly, it can be used to
better enable a party to attack 'specific adverse findings or
rulings in the event of an appeal' by requesting additional
findings and conclusions. Additionally, it can be used, with
no appeal in mind, to obtain a ruling on an issue that the
court may have overlooked in making its judgment or
decree." Id. at 266.
(2) "[W]hen the district court fails to make specific findings, a
rule 1.904(2) motion is an appropriate mechanism to
preserve error. Moreover, if the movant asks the court to
examine facts it suspects the court overlooked and requests
an expansion of the judgment in view of that evidence, then
the motion is proper." Sierra Club Iowa Chapter v. Iowa
Dept. ofTransp., 832 N.W.2d 636, 641 (Iowa 2013) (citations
omitted).
(3) Proper. When using a rule 1.904(2) motion to preserve
error, it is proper for the motion to address "purely legal
issue[s]" presented to the district court prior to its ruling but
not decided by it. Sierra Club, 832 N.W.2d at 641.
(4) Essential. "[If] the district court failed to make sufficiently
specific findings and conclusions, then the [party] must file
a rule 1.904(2) motion to preserve [the error]." Lamasters
v. State, 821 N.W.2d 856, 863, 864 n.2 (Iowa 2012); accw·d
Meier v. Senecaut, 641 N.W.2d 532, 538·39 (Iowa 2002).
7
(5) Improper.
A "rule 1.904(2) motion is improper where the motion only seeks
additional review of a question of law with no underlying issue of fact.
Additionally, if the posttrial motion amounts to no more than a rehash of
legal issues raised and decided adversely to the movant, the motion is not
appropriate. Thus, a rule 1.904(2) motion is not proper if it is used
merely to obtain reconsideration oft he district court's decision."
Sierra Club Iowa Chapter v. Iowa Dept. ofTTansp., 832 N.W.2d 636, 641 (Iowa
2013) (emphasis added, internal quotations omitted, and citations omitted).
f. Should my client cross-appeal?
Only if client also wants to review district court's decision
1.
"Failure to bring a cross-appeal in the manner provided by the
11.
Rules of Civil Procedure precludes examination of this question
upon appeal. Review is de novo as respondent states but it is such
only on matters properly presented to this court." In re Novak's
Maniage, 220 N.W.2d 592, 598 (Iowa 1974) (holding that wife's
failure to bring cross appeal from trial court's decree in marriage
dissolution proceeding precluded her raising on appeal issue of
award of custody of minor son to husband) (citing In re Main·age
of Williams, 199 N.W.2d 339, 346 (Iowa 1972); see Becker v.
Cent1·al States Health & Life Co. ofO maha, 431 N.W.2d 354, 356
(Iowa 1988), oven·uled in pal"t by Johnston Equipment Coip. of
Iowa v. IndustJ"ial Indem., 489 N.W.2d 13, 16 (Iowa 1992) ("a
successful party need not cross-appeal to preserve error on a
ground urged but ignored or rejected in trial court") (emphasis
added).).
4. APPEAL
a. Time. How ever long you estimate it will take to draft your brief- triple
it.
b. Always be Arguing
c. Start with the Statement of Facts
What is your client's story?
1.
Adverse witness testimony carnes more weight than friendly
11.
witnesses.
Don't exaggerate or ramble
111.
iv. Always cite to record
d. Apply the Facts to the Law
Simplify and Clarify
1.
(1) know your audience
(2) chronological order is the best order
8
(3) Short sentences, concise points
ii. give the appellate court a sense of injustice
(1) always defer to the district court
(a) never insult the district court
(b) use the district court's findings to favor your
argument
(2) make the appellate court feel that by reversing the district
court, they are righting a wrong
Admit mistakes and address them
111.
e. Be visual- use graphs and tables.
f. Ask for specific relief
g. Oral Argument
Typically granted when panel has question needed
1.
supplementation
Granting or denying oral argument is not indicative of outcome
11.
If granted oral argument, preparation is key. You may not win
111.
your case, but you can sure lose it, e.g., panel wants the litigant to
concede a crucial point.
9