If a judge has ruled against you, you likely wonder: Can I appeal the judge’s decision?
The short answer is: In general, if a decision is a “final judgment” you may appeal, but if the decision is not a final judgment, you may not appeal.
This raises two questions:
What is a “final judgment”?
What are the exceptions to this rule that do allow you to appeal even if an order is not a final judgment?
This post will summarize what a final judgment is, and when there are circumstances when you may appeal from an order that is not a final judgment. A post of this length cannot cover every question regarding whether you may appeal a particular order. Indeed, many appeals courts have struggled to formulate an answer as to which lower court orders may be appealed. If you’re interested in delving further into this issue, this post will link to statutes and case law on the subject. If you still have questions, you may contact our office.
What is a “final judgment”?
In Catlin v. United States, the U.S. Supreme Court held, “A ‘final decision’ generally is one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.”
A simple (but imperfect and imprecise) test to see whether an order is final is to ask: After the judge made the order, are there still issues in the case that the order did not dispose of? If yes, then you do not have a final judgment. If no, then you do have a final judgment.
For example: Suppose someone sues you for $10,000. The case goes to trial, and the judge orders you to pay $10,000. That’s a final judgment because the judge’s decision – ordering you to pay $10,000 – takes care of every issue in the case. Or, if the judge rules that you do not have to pay your opponent, that’s also a final order, because the order disposes of every issue in the case. In the words of Catlin, the decision “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.”
But, suppose someone sues you for $10,000. In the course of the lawsuit, your adversary serves you with written questions and asks you to answer the questions. You refuse to answer the written questions, and the judge orders you to answer. Is the judge’s decision, ordering you to answer the questions, a final order? No, because the judge’s decision did not resolve every issue in the case. The issue, of whether you have to pay $10,000, has yet to be decided.
Exceptions to the rule – times when you may appeal a judgment that isn’t final
1. Interlocutory orders
An interlocutory order is an order that is not a final judgment. Most interlocutory orders aren’t appealable, but Oklahoma law allows you to appeal from some interlocutory orders. Rule 1.60 of the Oklahoma Supreme Court Rules says,
“Orders of the district court that are interlocutory and may be appealed by right in compliance with the rules in this part are those that:
(a) Grant a new trial or vacate a judgment on any ground, including that of newly discovered evidence or the impossibility of making a record (12 O.S. § 655, 12 O.S. § 952(b)(2));
(b) Discharge, vacate or modify or refuse to discharge, vacate or modify an attachment (12 O.S. § 993(A)(1));
(c) Deny a temporary injunction, grant a temporary injunction except where granted at an ex parte hearing, or discharge, vacate or modify or refuse to discharge, vacate or modify a temporary injunction (12 O.S. § 952(b)(2) and 12 O.S. § 993(A)(2));
(d) Discharge, vacate or modify or refuse to discharge, vacate or modify a provisional remedy which affects the substantial rights of a party (12 O.S. § 952(b)(2) and 12 O.S. § 993(A)(3));
(e) Appoint a receiver except where the receiver was appointed at an ex parte hearing, refuse to appoint a receiver or vacate or refuse to vacate the appointment of a receiver (12 O.S. § 993(A)(4));
(f) Direct the payment of money pendente lite except where granted at an ex parte hearing, refuse to direct the payment of money pendente lite, or vacate or refuse to vacate an order directing the payment of money pendente lite (12 O.S. § 993(A)(5));
(g) Certify or refuse to certify an action to be maintained as a class action (12 O.S. § 993(A)(6));
(h) Are enumerated in 58 O.S. § 721 (interlocutory probate orders but not orders allowing a final account and granting a decree of distribution);
(i) Are made under the provisions of 12 O.S. § 1879 [this statute allows you to appeal certain orders relating to arbitration]; or
(j) Temporary orders of protection made in proceedings pursuant to the Protection From Domestic Abuse Act, 22 O.S. §§ 60 et seq.”
2. Writs of mandamus and prohibition
A “writ of mandamus” is a writ in which a court commands a public official to do something. A “writ of prohibition” is a writ in which a court commands a public official not to do something. Oklahoma law says,
“The writ of mandamus may be issued by the Supreme Court or the district court, or any justice or judge thereof, during term, or at chambers, to any inferior tribunal, corporation, board or person, to compel the performance of any act which the law specially enjoins as a duty, resulting from an office, trust or station; but though it may require an inferior tribunal to exercise its judgment or proceed to the discharge of any of its functions, it cannot control judicial discretion.”
Because the Oklahoma Supreme Court may issue a writ of mandamus “to any inferior tribunal”, lawyers sometimes use the writ of mandamus to ask the state Supreme Court to order a trial court judge to perform an act that the law requires. Technically, the writ of mandamus is not an appeal – it’s an original proceeding. However, a writ of mandamus issued to a judge is similar to an appeal, in that the writ provides one way of getting the state Supreme Court to review the acts of a lower court judge.
But, note the words, “to compel the performance of any act which the law specially enjoins as a duty.” Also, note the words, “though it [the state Supreme Court] may require an inferior tribunal to exercise its judgment or proceed to the discharge of any of its functions, it cannot control judicial discretion.”
This means that to get a writ of mandamus, you have to show that the trial court judge must do something “which the law specifically enjoins as a duty.” Because the writ of mandamus “cannot control judicial discretion”, you can’t use the writ of mandamus simply because you disagree with a trial court judge’s decision; you must show that the trial court judge is not doing something that the law specifically requires him to do.
Do you want to appeal a judge’s ruling?
The Persaud Law Office has handled many appeals. If a lower court judge has ruled against you, the Persaud Law Office may be able to represent you on appeal. If a judge has made a ruling, and you don’t know whether you may appeal the order (which is a difficult question), the Persaud Law Office may be able to tell you whether you may appeal the order. If you want us to help you with your appeal, contact us today.
For more information on how the appeals process works, see my page on appellate law.