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Appellate Practice

David M. Duree has more than 40 years experience in handling Appeals. With offices in St. Louis, Mo. and O’Fallon, Ill., he also handles appeals in numerous other states. He was the primary attorney in all the appeals listed on the Reported Cases Link.

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Law updates about Appellate Practice law, including appellate jurisdictional rules, the Rooker-Feldman doctrine, Appellate judicial notice, Appellate Litigation, Appellate review standard, the Anti-injunction Act and more. Appellate Attorney.

These materials are in reverse chronological order. New material is added at the top. Older material is inserted in the correct chronological spot. Overruled, modified and/or obsolete material is deleted, revised, consolidated and/or moved, when appropriate. Citations preceded by <>are linked to the complete court opinion. (NOTE: Some linked court sites are not always available). Appellate Lawyer.

A Franchisor was found liable for punitive damages for defrauding the landlord at one of its franchise sites. Attorneys fees were awarded the landlord under a clause in the lease, which entitled the prevailing party to recover its attorneys fees. The Franchisor appealed, contending the clause did not apply to claims for punitive damages because they were not relative to the claims under the lease. The Court of Appeals affirmed the award of attorneys fees and also awarded the landlord additional attorneys fees for defending the appeal, under the same lease clause. <>Jannotta v. Subway Sandwich Shops, Inc, et al., (2000 WL 1222052) 225 F.3d 815 (7th Cir. 8-29-2000)

When parallel federal lawsuits are filed between the same parties in different jurisdictions, the first filed rule provides that the Court which first acquires personal jurisdiction over the parties should take priority over the other Court. Northwest Airlines, Inc. v. American Airlines, Inc. 989 F. 2d 1002 (8th Cir. 1993); <>Keymer v. Management Recruiters International, Inc., 169 F. 3d 501 (8th Cir. 1999); <>Cortez Byrd Chips, Inc. v. Bill Harbert Construction Co., 120 S.Ct. 1331, ____U.S.____, (2000)

Attorneys fees incurred during an appeal, as well as attorneys fees in the district court, may be recovered under 28 U.S.C. § 1447( c ) for improper removal of a state case to the Federal Court, under appellate practice law. <>Garbie v. DaimlerChrysler Corp., 211 F. 3d 407, 2000 WL 520614 (7th Cir. 2000)

A college student raped by two other students filed an action for personal injuries under 42 U.S.C. § 13981, which provides a federal civil remedy for the victims of gender-motivated violence. The Supreme Court determined that this section was unconstitutional because it plainly exceeded congress’ constitutional bounds. It was not authorized by either the commerce clause or Section 5 of the Fourteenth Amendment, citing <>United States v. Lopez, 514 U.S. 549 (1995); <>Civil Rights Cases, 109 U.S. 3 (1883) and <>City of Boerne v. Flores, 521 U.S. 507 (1997). <>United States v. Morrison et el., ____ U.S. _____,120 S. Ct.1740, (2000 WL 574361) (5-15-2000)

A state court determination that the current taxpayer challenging Alabama’s foreign corporation franchise tax is bound by a prior ruling against another taxpayer, under the doctrines of res judicata and/or collateral estoppel, violates the due process clause of the 14th amendment of the U.S. Constitution. Neither case was a class action. The two cases involved different taxpayers for different tax years and there was no privity or special relationship between the taxpayers. The franchise tax statute also impermissibly discriminated against interstate commerce, in violation of the commerce clause of the U.S. Constitution, by imposing more stringent requirements on foreign than domestic corporations. The U.S. Supreme Court had jurisdiction to hear this appeal from a state court determination of a federal question, irrespective of whether the State was the plaintiff or defendant in the trial court. The 11th amendment jurisdictional challenge was recently decided against the State in <>McKesson Corp. v. Division of Alcoholic Beverages and Tobacco, Florida Dept of Business Regulation, 496 U.S. 18, 30 (1990); <>South Central Bell Telephone Co. et al., v. Alabama, 526 U.S. 160 (1999)

An injunction against federal nonparties, barring them from litigating their state case against the federal plaintiff was vacated as a violation of the anti-injunction act, 28 U.S.C. 2283.<>Doctor’s Associates, Inc. v. Reinert & Duree, P.C. et al., 191 F.3d 297 (2nd Cir. 1999)

Equitable principles require that an eviction action filed against a franchisee, sublessee be stayed where the franchisor, affiliated with the eviction plaintiff, lessee, had obtained a federal injunction barring the franchisee, sublessee from raising otherwise available defenses to the eviction action. <>Subway Restaurants, Inc. et al. v. Riggs, 297 Ill. App. 3d 284, 696 N.E. 2d 733, 231 Ill. Dec. 437 (1998)

The review standard for an award of attorneys fees pursuant to a contract is abuse of discretion. <>Raffel v. Medallion Kitchen of Minn., Inc., 139 F.3d 1142 (7th Cir. 1998)

A Court which is assigned multiple cases from other jurisdictions under the Multi-district Litigation Act for pre-trial and discovery matters, may not retain jurisdiction of the cases once the pre-trial issues are resolved. Instead, they must send the case back to the Districts from which they came. <>Lexecon, Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26 (1998)

Bank officers’ and directors’ liability to the FDIC, replacing the RTC, standing in the shoes of the bank, for losses resulting from bad loans caused, allegedly, by the defendants’ gross negligence, simple negligence and breaches of fiduciary duty are governed by state common law principles, limited by 12 U.S.C. 1821(k), which requires gross negligence or similar or greater misconduct to establish liability. Briggs v Spaulding, 141 U.S. 132 (1891), establishing a federal common law rule of simple negligence for liability, has been rendered inapplicable by<>Erie Railway Co. v Tompkins, 304 U.S. 64, 78 (1938). Normally, after Erie, federal courts may fashion federal common law rules only upon a specific showing that the use of state law will create a significant conflict with, or threat to, some federal policy or interest. <>O’Melveny & Myers v. FDIC, 512 U.S. 79, 87 (1994); <>Atherton v. Federal Deposit Insurance Corporation, 519 U.S. 213 (1997). Appellate Attorney.

Federal Courts may approve “settlements-only” class certification without inquiring whether the case would present intractable problems of trial management. However the other requirements for class certification such as commonality of issues of fact and law and adequacy of representation for the nonparty class members must also be met. <>Amchem Products v. Windsor, 521 U.S. 591 (1997)

When state law provides the rule of decision in federal diversity cases, <>Erie Railway co. v. Tompkins, 304 U.S. 64 (1938) and the Rules of Decision Act, 28 U.S.C. 1652, require the federal courts to ascertain and apply state law; the federal courts may certify a question to the state supreme court when state law is unsettled. Here, the Illinois Supreme Court answered the certified question, holding that under Illinois law an airframe and airplane engine are a single product, precluding recovery for purely economic loss damages to one by the other, under tort, products liability and warranty theories. Illinois Supreme Court rule 20 permits the Illinois Supreme Court to accept certified questions from the U.S. Seventh Circuit and the U.S. Supreme Court, but not from other Federal Courts. <>Trans States Airlines v. Pratt & Whitney Canada, Inc., 86 F.3d 725 (7th Cir. 1996); answering certified questions<>177 Ill.2d 21, 224 Ill.Dec. 484, 682 N.E.2d 45 (Ill. 1997);applying Illinois Supreme Court opinion, 130 F.3d 290 (7th Cir. 1997)

Attorneys fees incurred during an appeal may be recovered, under a clause in a commercial lease, in the proceedings before the court of appeals, under appellate practice law. <>Linc Finance Corp. v. Onwuteaka, 129 F. 3d 917 (7th Cir. 1997)

To be appealable a written judgment must be signed by a judge and designated as a “Judgment”. The designation of “Judgment” may appear as a heading at the top of the page, within the body of the writing or in the docket entry. It must be clear from the writing that the document or the docket entry is being called a “Judgment” by the Trial Court, under appellate practice law. <>City of St. Louis v. Hughes, 950 S.W.2d 850 (Mo. banc 1997)

The disposition of each separate claim must comply with Missouri Supreme Court Rule 74.01 (a) and be declared to be a judgment, before a final, appealable, judgment is entered. <>Jon E. Fuhrer Co. v. Gerhardt, 955 S.W.2d 212 (Mo. App. 1997)

The standard of review for questions of law either determined or certified by the trial court, is de novo. <>In Re Chicago Flood Litigation, 176 Ill. 2d 179, 223 Ill. Dec. 532, 680 N.E. 2d 265 (Ill. 1997)

Where parallel state and federal actions are filed raising claims to be determined solely by state law (the state case was removed, then remanded), the federal district court abused its discretion by abstaining from hearing the federal case because of the pending parallel state case, without first discussing and evaluating the 10 factors under the abstention doctrine, which requires “exceptional circumstances” for the Federal Court to abstain. <>Sverdrup Corp. v. Edwardsville Community Unit School District No. 7, 125 F. 3d 546 (7th Cir. 1997). Appellate Lawyer.

Punitive damage awards violate the due process clause of the 14th amendment of the U.S. Constitution when grossly excessive, considering the ratio to compensatory damages and the degree of reprehensibility of the defendant’s conduct. An award of $10,000,000 in punitive damages and $19,000 for compensatory damages was not grossly excessive, where the defendant’s conduct was truly reprehensible. <>TXO Production corp. v. Alliance Resources corp, 509 U.S. 443 (1993). Where the defendant’s conduct (fraudulent in Alabama) was lawful, by statute, in most other states, its’ reprehensibility level was low, and an award of $2,000,000 in punitive damages and $4,000 in compensatory damages met the grossly excessive standard, violating the due process rights of the defendant. The trial court also erred in permitting the jury to consider the defendant’s conduct in other states, where it was lawful, is assessing punitive damages. Principles of sovereignty and comity forbid a state of enact policies for the entire nation, or to impose its’ own policy on neighboring states. <>BMW of North America, Inc v. Gore, 517 U.S. 559 (1996)

The federal courts do not have federal question jurisdiction to hear motions to vacate or confirm arbitration awards even where the arbitrated claim was based upon a federal statute. Motions to vacate, filed in the federal court, must be dismissed if the court does not have diversity jurisdiction. <>Kasap v. Folger Nolan Fleming & Douglas, 166 F. 3d 1243 (D.C. Cir. 1999); <>Minor v. Prudential securities, Inc., 94 F. 3d 1103 (7th Cir. 1996)

The Court of Appeals will not review the denial of a pre-trial motion for summary judgment under any circumstances after a full trial and final judgment on the merits. <>Chesapeake Paper Products Co. v. Stone & Webster Engineering Corp. et al., 51 F.3d 1229, (4th Cir. 1995)

Orders compelling arbitration, when that is the only issue in the case, are deemed to dispose of the entire case thereby permitting appellate review, under a de novo standard. However, when the arbitration issue is embedded within other pending claims, an Order compelling arbitration is not reviewable until the arbitration has been completed and the award confirmed or vacated. Orders denying motions to compel arbitration, whether embedded or the only issue in the case, are immediately appealable; 28 U.S.C. § 1291; 9 U.S.C. § 16(a); Filantro v. Chilewich Int’l, 984 F. 2d 58 (2nd Cir. 1993); Gammaro v. Thorpe Consumer Discount Co., 15 F. 3d 93 (8th Cir. 1994); <>S-L-H S.P.A. v. Miller-St. Nanianz, Inc., 988 F. 2d 1518 (7th Cir. 1994)

In Missouri an interlocutory appeal is appropriate where the Trial Court disposes of a separate claim, to be proved by differing facts and the application of distinguishable law, while other claims remain pending in the Trial Court. Missouri Supreme Court Rule 74.01(b); Committee for Educational Equality v. State of Missouri, 878 S.W. 2d 446 (Mo. banc 1994); Architectural Lighting Co., Inc. v. General Electric Company, Inc. et al., 886 S.W. 2d 166 (Mo. App. 1994)

Illinois Courts may take Appellate judicial notice of public documents, the authenticity of which is not in dispute, at the appellate level even though judicial notice was not requested in the trial court. Muller v. Zollar, 267 Ill. App. 3d 339, 204 Ill. Dec. 959, 642 N.E. 2d 860 (Ill. App. 1994)

The Noerr-Pennington Doctrine. The Noerr-Pennington Doctrine was developed to protect efforts to influence legislative or executive action by the government (by petitioning and/or filing lawsuits) from liability under the antitrust statutes. Litigation or other conduct petitioning the government cannot be the basis for claims of malicious prosecution or abuse of process or the basis for enforcing or establishing a monopoly under the antitrust laws, unless the litigation is sham litigation, i.e. litigation which is objectively baseless. <>Eastern Rail Road President’s Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961);<>United Mine Workers v. Pennington, 381 U.S. 657 (1965); <>California Motor Transport v. Trucking Unlimited, 404 U.S. 508 (1972); Defino v. Civic Center Corp., 780 S.W. 2d 665 (Mo. App. 1989); Oregon Natural Resources Council v. Mohla, 944 F. 2d 531 (9th Cir. 1991); Franchise Realty Interstate Corp. (McDonald’s Affiliate) v. San Francisco Local Joint Executive Board of Culinary Workers, 542 F. 2d 1076 (9th Cir. 1976); <>Whelan v. Abell, 48 F. 3d 1247 (D.C. Cir. 1995); Havoco of America, LTD. v. Hollobow, 702 F. 2d 643 (7th Cir. 1983); <>Professional Real Estate v. Columbia Pictures Industries, Inc., 508 U.S. 49 (1993)

The standard of review of a District Court finding of mutuality, or lack of mutuality, in an agreement to arbitrate, is clear error. St. Mary’s Medical Center of Evansville, Inc. v. Disco Aluminum Products Co., 969 F. 2d 585 (7th Cir. 1992)

An appellate court must affirm the decision below, even if the lower court gave the wrong reason for its decision, so long the record on appeal establishes that the decision below was correct. <>J.E. Riley Investment Co. v Commissioner of Internal Revenue, 311 U.S. 55 (1940); United States v. Mendoza-Acevedo, 950 F.2d 1 (1st Cir. 1991)

Federal Courts apply a de novo appellate review standard for district court determinations of state law and review district court determinations of fact and mixed questions of fact and law under clear error and abuse of discretion standards. <>Salve Regina College v. Russel, 499 U.S. 225 (1991)

The appellate review standard for the admission of evidence is abuse of discretion. Oldaker v. Peters, 817 S.W. 2d 245 (Mo. banc 1991). Appellate Lawyer.

Judicial economy, in limited circumstances, allows the Illinois Supreme Court, on appeal from an Appellate Court’s denial of leave to appeal, to rule on the merits of the case. Rollins v. Ellwood, 141 Ill. 2d 244, 152 Ill. Dec. 384, 565 N.E. 2d 1302 (Ill. 1990)

An appellant seeking to reverse a Judgment has a responsibility to make sure that the evidence presented at the hearing below was preserved in an approved manner and transcribed for use by the Appellate Court. The Court of Appeals cannot consider matters asserted by the appellant which are not preserved on the record and contained in the record on appeal. Fireman’s Fund Ins. Co. v. Brouk-Zeigler Motor Co., 841 S.W. 2d 778 (Mo. App. 1992); Volvo Finance North America Inc. v. Raja, 754 S.W. 2d 955 (Mo. App. 1988)

Mandamus is available for appellate review as an exception to the final judgment rule, where (1) there are no other adequate means to attain the relief desired and (2) the right of issuance of the writ is clear and indisputable. In re Life Ins. Co. of North America, 857 F. 2d 1190 (8th Cir. 1988)

The appellate jurisdictional rules of the United States Supreme Court do not depend on whether the state court addressed the federal question on which federal question jurisdiction is based. It is enough that the Federal claim was made, and not accepted, in the State Court. Lynk v. La Borde Superior Court No. 2, 789 F. 2d 554 (7th Cir. 1986)

A petition for appellate Attorneys fees may be filed either in the court of appeals or in the district court , after remand.. Ekanem v. Health & Hospital Corp. of M.C. v. Ind., 778 F. 2d 1254 (7th Cir. 1985)

The question of submissibility under a motion for a directed verdict at the close of all the evidence is different than the question presented in a post-verdict motion for judgment n.o.v., because, by electing to submit its case on a particular pleaded theory, a plaintiff abandons all other pleaded grounds for recovery. Forinash v. Daugherty, 697 S.W. 2d 294 (Mo. App. 1985)

Doctrine of remittitur abolished. Firestone v. Crown Center Redevelopment Corp., 693 S.W. 2d 99 (Mo. banc 1985)

Issues before the Appellate Court may be shown to be moot by facts extrinsic to the record, if those facts are properly proved in the Appellate Court and uncontested, this would include facts occurring after the date of the Judgment on appeal. Quirk v. Sanders, 673 S.W. 2d 850 (Mo. App. 1984)

The United States Supreme Court does not lack jurisdiction, under appellate jurisdictional rules, to decide a case on review from a State Supreme Court on the asserted ground that the decision below rests on an adequate and independent state ground. However, looking solely to the state court opinion, if the state court decision indicates clearly and expressly that it is alternatively based on bona fide separate, adequate and independent State grounds, the United States Supreme Court will not undertake review of a state court decision which also rests on independent, Federal, alternative grounds. <>Michigan v. Long, 463 U.S. 1032 (1983)

The Rooker-Feldman Doctrine. Under the Rooker-Feldman Doctrine determination of an issue between parties in a state court proceeding, even though not a final judgment, may not be reviewed in a subsequently filed federal action between the same parties. The parties may not treat the federal courts as appellate courts for issues decided in parallel state court proceedings. <>Bank of Boston v. Kamilewicz, 92 F. 3d 506 (7th Cir. 1996); <>Moccio v. New York State Office of Court Administration, 95 F. 3d 195 (2nd Cir. 1996); <>Gash Associates v. Village of Rosemont, 995 F. 2d 726 (7th Cir. 1993); <>Pennzoil Co. v. Texaco, Inc., 481 U.S. 1 (1987);<>Gentner v. Shulman, 55 F. 3d 87 (2nd Cir. 1995); Charchenko v. City of Stillwater, 47 F. 3d 981 (8th Cir. 1995);<>Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); <>District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983)

A Federal District Court abused its discretion by abstaining from hearing an application to compel arbitration under the FAA because of pending state court litigation between the same parties to the construction agreement containing the arbitration clause. The abstention order was final and appealable. <>Moses H. Cone Memorial Hospital v. Mercury Construction Corporation, 460 U.S. 1 (1983)

In determining the preclusive effect of a prior state court judgment between the same parties, the Federal Courts give the same full faith and credit to the Judgment that it would receive in the Courts of the state from which the Judgment emerged. Even if a Federal action is based on federal question jurisdiction (instead of diversity jurisdiction), the federal courts are still required to review State law to determine the preclusive effect of a previous state court judgment between the same parties. The federal courts need not, however, give preclusive effect to prior state judgment if there is reason to doubt the quality, fairness or extensiveness of the state procedures. County of Cook v. Mid Con Corp., 773 F. 2d 892 (7th Cir. 1985); 28 U.S.C. § 1738; <>Allen v. McCurry, 449 U.S. 90 (1980);<>Marrese v. American Academy of Orthopedic Surgeons, 105 S. Ct. 1327, 470 U.S. 373, (1985);<>Kremer v. Chemical Construction Corp., 456 U.S. 461 (1982)

The Court of Appeals does not reach issues raised by a plaintiff-appellant on appeal if the plaintiff failed to establish a prima facia case in the Trial Court. Campbell v. Northern Signal Co., 103 Ill. App. 3d 154, 58 Ill. Dec. 638, 430 N.E. 2d 670 (1981)

The “points relied upon” in appellate briefs must concisely and clearly state wherein and why the Trial Court erred. Statements of abstract principles of law are not sufficient. Violation of this requirement may result in dismissal of the appeal. Thummel v. King, 570 S.W. 2d 679 (Mo. banc 1978)

Federal Courts will not grant an interlocutory appeal under 28 U.S.C. § 1292(b) unless the moving party shows “exceptional circumstances” warranting a departure from the basic policy of postponing appellate review until the entry of a final Judgment. <>Coopers & Lybrand v. Livesay, 437 U.S. 463 (1978)

The denial of an application for a writ of prohibition or mandamus, under an appellate review standard of abuse of discretion, does not necessarily reflect the views of the appellate court on the merits, in a subsequent appeal. Denials of applications for writs reflect only that the situation did not warrant utilization of the extraordinary writ. The doctrines of res judicata and collateral estoppel do not apply to rulings denying applications for writs. Lewis v. Lewis, 930 S.W. 2d 475 (Mo. App. 1996); Estate of Sympson, 577 S.W. 2d 68 (Mo. App. 1978)

A Rule 11 Order imposing sanctions is appealable as a collateral order if it conclusively determined the disputed question, resolved an important issue completely separate from the merits of the action and is effectively unreviewable on appeal from a final judgment. Sanko Steamship Co., Ltd. v. Galin, 835 F. 2d 51 (2nd Cir. 1987);<>Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949); Coopers & Lybrand v. Livesay, 437 U.S. 463 (1978)

Appellate review of a judgment entered by a Trial Court sitting without a jury will not be reversed unless (1) there was no evidence to support the judgment (2) the judgment was against the weight of the evidence (3) the judgment erroneously declared the law or (4) the judgment erroneously applied the law. The terms de novo and clear error no longer describe appellate review in such cases. Murphy v. Carron, 536 S.W. 2d 30 (Mo. banc 1976)

Alleged errors relating solely to the question of damages do not warrant reversal in the absence of a claim that the damages awarded were excessive or inadequate. Wilczak v. General Motors, 34 Ill. App. 3d 773, 340 N.E. 2d 684 (Ill App.1976)

An Appellate Court may reverse a Trial Court for refusing to grant a directed verdict in favor of the party with the burden of proof in those rare cases where there are no genuine issues of fact which should be submitted to the jury. Morris v. Katz, 280 S.W. 2d 79 (Mo. 1955); Commerce Trust Company v. Howard, 429 S.W. 2d 702 (Mo. banc 1968); Morris v. Reed, 510 S.W. 2d 234 (Mo. App. 1974)

An Appellate Court will affirm a directed verdict in favor of the defendant only if all the evidence, viewed in the aspects most favorable to the plaintiff, so overwhelmingly favors the defendant that no contrary verdict based on that evidence could ever stand. Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 229 N.E. 2d 504 (Ill. 1967)

An Appellate Court may disregard testimony which is manifestly untrue, incredible, impossible or contrary to scientific principles established by the laws of physics or mechanics because it does not amount to substantial evidence and has no probative value. Kelly v. Terminal Railroad Ass’n, 315 S.W. 2d 699 (Mo. 1958)

Federal courts hearing cases based on diversity jurisdiction apply state substantive law and federal procedural law. The “outcome-determination” test, applied to decide whether an issue is governed by procedural or substantive law is not to be applied mechanically, but must be guided by the twin aims of the Erie Rule (1) discouragement of forum-shopping and avoidance of inequitable administration of the laws.<>Erie R. Co. v. Tompkins, 304 U.S. 64 (1938);<>Guaranty Trust Co. v. York, 326 U.S. 99 (1945);<>Hanna v. Plumer, 380 U.S. 460 (1965); <>Byrd v. Blue Ridge Rural Elec. Co-op, Inc., 356 U.S. 525 (1958)

Where construction of a statute is changed by an opinion of the court of last resort, and such statute had previously been interpreted otherwise by a court of last resort, the change in construction of the statute is applied prospectively only, not to the case at bar and not to other pending cases, because the parties have a right to rely on the prior judicial construction of the statute. This is distinguished from cases dealing with procedural statutes and rules and from cases dealing with changes in the substantive common law. State v. Haid, 38 S.W. 2d 44 (Mo. banc 1931); Eberle v. Koplar, 85 S.W. 2d 919 (Mo. App. 1935)