Appellate Preservation and Summary Judgment

The necessity of preserving issues for appeal can be a trap for the unwary, leaving litigants without recourse if they fail to take proper steps to preserve a particular argument.  Near the end of its recent term, the Supreme Court made this requirement slightly less fraught.  In Dupree v. Younger, the Court clarified that a party who wishes to preserve for appeal a purely legal issue resolved at summary judgment need not raise the issue anew in a post-trial motion.

A quick background primer.  In 2011, the Supreme Court held in Ortiz v. Jordan that an order denying summary judgment on sufficiency-of-the-evidence grounds is not appealable after trial.  Most interlocutory decisions are not immediately appealable, and simply merge into the final judgment for appeal after entry of final judgment.  Some interlocutory orders, however, are “unreviewable after final judgment because they are overcome by later developments in the litigation.”  In Ortiz, the Court explained that denial of summary judgment on sufficiency-of-the-evidence grounds is one such order because the factual record on summary judgment is superseded at trial.  Accordingly, any sufficiency-of-the-evidence argument must be raised in a post-trial motion to be preserved for appeal.  After Ortiz, circuit courts of appeal disagreed regarding how broadly the principles of Ortiz apply; some concluded that the same rule applies to purely legal issues resolved at summary judgment.

Dupree resolves that circuit split.  Justice Barrett, writing for a unanimous court, went back to first principles.  The Ortiz rule was based on the practical consideration that a trial court is best positioned to resolve evidentiary questions.  With sufficiency-of-the-evidence arguments, the requirement that a party file a post-trial motion “allows the district court to take first crack at the question that the appellate court will ultimately face: Was there sufficient evidence in the trial record to support the jury’s verdict?” That same consideration does not apply in the context of purely legal challenges.

Because a district court’s purely legal conclusions at summary judgment are not superseded by later developments in the litigation, these rulings follow the general rule and merge into the final judgment, at which point they are reviewable on appeal.

There being “no benefit to having a district court reexamine a purely legal issue after trial,” the Court held that there is no need to file a post-trial motion to preserve for appeal a purely legal issue resolved at summary judgment.

So far, so good. But what is a “purely legal issue”? There’s the rub, as the Supreme Court acknowledged.  It is not always easy to determine what is or is not purely legal.  The Court did not attempt to resolve that issue in Ortiz, but left it to lower courts to sort out.  Accordingly, as the Court noted, “it would not be surprising if prudent counsel make sure to renew their arguments in a Rule 50 motion out of an abundance of caution.”  That aside makes good sense:  when an issue may be a mixed question of law and fact, it is wise to file a post-trial motion to make sure the issue can be resolved on appeal.