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If at First Your Appeal Doesn’t Succeed, You May be Able to Try Again

Worry not – if the Court of Appeals dismisses your interlocutory appeal, you can likely try again later. In WLAE, LLC v. Edwards, the Court made it clear that its order dismissing an appeal of the trial court’s order dismissing claims against one defendant did not prejudice the plaintiff from appealing that order once the final judgment was entered.

The plaintiff in WLAE brought claims against two defendants for alleged property damage to real estate owned by a limited partnership in which the plaintiff was the general partner.  The first defendant, Weinhold, moved to dismiss on the grounds that the plaintiff did not have standing to bring the claims on May 26, 2016.  (The central issue was whether an attempted assignment of claims from the limited partnership to the plaintiff was valid).  The second defendant, Edwards, moved to dismiss for lack of standing on June 5, 2016.

Weinhold’s motion was granted on June 17, 2016. The plaintiff filed a notice of appeal on June 17, 2016.  On August 31, 2016, the trial court then granted Edwards’ motion to dismiss, and the plaintiff filed a second notice of appeal on September 30, 2016, purporting to appeal both the Weinhold dismissal (that was already the subject of the pending appeal) and the Edwards’ dismissal.  Both appeals were eventually docketed on November 7, 2016, and February 10, 2017, respectively.

The plaintiff’s brief in the first appeal was due January 9, 2017. Rather than filing a brief, the plaintiff filed a motion for voluntary dismissal of that appeal without prejudice, citing the second appeal and judicial economy.  That motion was denied.  Weinhold then moved to dismiss plaintiff’s first appeal with prejudice on January 27, 2017, on the grounds that Plaintiff had failed to timely file an appeal brief in that appeal.  The Court granted the motion in a February 14, 2017 order stating:  “Appeal dismissed.  Appellant to pay costs.”  In the meantime, the record on appeal for the second appeal had been settled, and the appeal had been docketed.  The record reflects that Weinhold participated in that process.

In his brief in the second appeal, Weinhold argued that the Court had granted his motion to dismiss the prior appeal with prejudice and therefore the second appeal was barred. The Court disagreed, noting that the order did not purport to dismiss the appeal with prejudice.  It further noted:

[T]he Court of Appeals does not label its dismissals as being issued with or without prejudice. Rather, an appellant whose appeal has been dismissed may appeal the matter again if that is within his right (e.g., if his first appeal was from an interlocutory order) or he may petition this Court for discretionary review by writ of certiorari.

Because the first appeal was from an interlocutory order and the second appeal was from a final judgment, the Court reasoned that it was within the plaintiff’s right to bring the second appeal following the entry of a final judgment and that both orders were properly before the Court. The Court reached this conclusion notwithstanding the fact that the Court had previously denied the plaintiff’s own motion for voluntary dismissal of the first appeal without prejudice.  Moreover, the plaintiff’s first appeal was seemingly dismissed not because it was interlocutory but because the plaintiff had failed to file its appeal brief.  These facts suggest the Court will give a losing party fairly wide latitude to appeal an interlocutory order a second time if the Court dismisses the appeal.  Just how wide that latitude is remains to be seen.

–Liz Hedrick

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