Appellate Practice

Practitioner Materials: Guide to Interlocutory Appeals

A PRACTICAL GUIDE TO PETITIONING FOR PERMISSION
TO MAKE AN INTERLOCUTORY APPEAL

What is an interlocutory appeal?
What is not an interlocutory appeal?
Steps for Initiating and Interlocutory Appeal
Contents of the Petition
Answer to the Petition
Criteria for Consideration of a Petition for Permission to Appeal
Post-Petition Procedures
Some Practical Considerations
Frequently Asked Questions
A Sampling of Types of Orders Found Suitable for Interlocutory Review
Appendix

I. What is an interlocutory appeal?

For purposes of this presentation, an interlocutory appeal is (1) a discretionary appeal taken (2) from an interlocutory order of the trial court, (3) pursuant to an express grant of permission from the appropriate appellate court under Rule 5 of the Utah Rules of Appellate Procedure. Utah r. App. P. 5(a); see generally A.J. Mackay Co. v. Okland Constr. Co., 817 P.2d 323 (Utah 1991); Pate v. Marathon Steel Co., 692 P.2d 765 (Utah 1991); Kennecott Corp. v. Utah State Tax Comm'n, 814 P.2d 1099 (Utah 1991).

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II. What is not an interlocutory appeal?

A. A direct appeal taken as a matter of right from a final judgment of a trial court. See Utah R. App. P. 3(a).

B. An appeal initiated following a proper certification of an interlocutory order as "final" for purposes of appeal by the trial court under Rule 54(b) of the Utah Rules of Civil Procedure. See generally Kennecott Corp. v. Utah State Tax Comm'n., 814 P.2d 1099 (Utah 1991); see also Weiser v. Union Pacific Railroad Co., 932 P.2d 596 (Utah 1997); Shaw v. Layton Constr. Co., 854 P.2d 1033 (Utah Ct. App. 1993).

C. An appeal from an interlocutory order that is appealable as a matter of right under a statutory or case law exception to the final judgment rule. The following are examples of these orders:

1. An immediate appeal may be taken from an order denying a motion to compel arbitration and other ordered pertaining to arbitration as specified in Utah Code Ann. § 78-31a-19 (1996).

2. A judgment of criminal contempt is generally considered to be separate from ongoing proceedings and appealable as a matter of right. See Von Hake v. Thomas, 759 P.2d 1162, 1167 (Utah 1988).

D. A petition for extraordinary relief under circumstances where the petitioner would have no other plain, speedy and adequate remedy. See KUTV, Inc. v. Conder, 668 P.2d, 513, 517 (Utah 1983) (An extraordinary writ was a proper remedy for a media plaintiff to seek appellate review of an order barring the media from using certain words or disseminating information on past convictions of a criminal defendant during the trial); see also Tyler v. Department of Human Serv., 874 P.2d 119, 120 (Utah 1994) (per curiam) (A petition for extraordinary relief is an avenue for review of a nonfinal order where neither an appeal of right or an interlocutory appeal is available.)

E. An appeal following entry of a conditional plea of guilty. See State v. Sery, 758 P.2d 935 (Utah Ct. App. 1988).

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III. Steps for Initiating an Interlocutory Appeal

A. First, determine the court with subject matter jurisdiction. The jurisdiction of the Utah Supreme Court and the Utah Court of Appeals over interlocutory appeals is synonymous with the courts' jurisdiction over appeals from a final judgment. See Utah Code Ann. § 78-2-2 and § 78-2a-3 (1996). The petition for permission to appeal must be filed in the court that would have jurisdiction over an appeal from a final judgment in the case.

B. A petition for permission to appeal from an interlocutory order must be filed with the clerk of the appellate court with jurisdiction over the case within twenty days after the entry of the order of the trial court with proof of service on all other parties to the action. See Utah R. App. P. 5(a). The appropriate number of copies of the petition to be filed in each court is indicated by Utah R. App. P. 5(b. The time period for petitioning for interlocutory appeal may not be lengthened by the appellate court. See Utah R. App. P. 2.

C. The petitioner shall serve the petition on the opposing parties and serve notice of the filing on the trial court. See Utah R. App. P. 5(b).

D. The petition must be accompanied by the required fee of $190. See Utah R. App. P. 5(b).

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IV. Contents of the Petition

Note that section (c) of Rule 5 was substantially rewritten in 1996 to specify required content. The petition shall contain the following:

A. A concise statement of facts relevant to the issues.

B. A presentation of the issues in the proposed appeal and a demonstration that the issues were preserved in the trial court, as well as a statement of the appropriate standard of review, with supporting authority.

C. A statement of the reasons why an immediate interlocutory appeal should be permitted, with an analysis of the determinative statutes, rules or cases.

D. A statement of the reasons why the appeal may materially advance the termination of the litigation.

E. An attachment consisting of the order of the trial court from which an appeal is sought and any related findings of fact and conclusions of law and opinion.

F. If the appeal would be subject to assignment by the Supreme Court to the Court of Appeals, the phrase "Subject to assignment to the Court of Appeals" shall appear immediately under the title of the document. The petitioner may also set forth in the petition itself a concise statement why the Supreme Court should decide the case in light of the relevant factors listed in Utah R. App. P. 9(c)(7), which is the docketing statement rule.

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V. Answer to the Petition

A. Within ten days after service of the petition, any other party may file an opposing or concurring answer. If the appeal would be subject to assignment by the Utah Supreme Court to the Court of Appeals, the answer may also respond to the petitioner's contentions regarding assignment. See Utah R. App. P. 5(d).

B. The petition and answer are submitted for decision without oral argument, unless otherwise ordered. See Utah R. App. P. 5(d).

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VI. Criteria for Consideration of a Petition for Permission to Appeal

Permission to appeal from an interlocutory order may be granted only if it appears that the order (1) involves substantial rights, (2) may materially affect the final decision in the case, (3) a determination of the correctness of the order before final judgment may materially affect the final decision, or (4) a determination of the correctness of the order will better serve the administration and interests of justice. Utah R. App. P. 5(e).

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VII. Post-Petition Procedures

If the petition is granted, the appeal is deemed filed and docketed by granting of the petition, and all other deadlines shall be in accordance with the rules concerning appeals from final judgments, except that no docketing statement shall be filed unless the court otherwise orders. See Utah R. App. P. 5(e).

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VIII. Some Practical Considerations

A. Will an immediate appeal materially advance the litigation, or will it cause unnecessary delay?

B. Will the record of proceedings be adequate to allow effective appellate review of the issues presented?

C. Why should the appellate court review this issue now, rather than at the end of the case?

D. Does an appeal at this juncture have sufficient merit to justify granting a petition?

E. Would a ruling on the issues presented in the interlocutory appeal effectively dispose of the case in the trial court, i.e., would it dictate the outcome?

F. Will the issue to be presented on appeal become moot?

G. Is a resolution of the issues presented in the interlocutory appeal critical to the ongoing proceedings, i.e., will it be determinative of important legal, procedural and jurisdictional or evidentiary issues?

H. Is a basis for appellate jurisdiction necessary to obtain interim relief in the form of a stay of the interlocutory order?

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IX. Frequently Asked Questions

A. How are interlocutory appeals under Utah R. App. P. 5 distinguishable from appeals pursuant to orders certified under Utah R. Civ. P. 54(b)?

Answer: Both types of appeals are exceptions to the "final judgment rule," as expressed in Utah R. App. P. 3(a). An interlocutory appeal under Utah R. App. P. 5 is a "discretionary" appeal allowed by the appellate court with jurisdiction pursuant to a grant of permission. An appeal under Utah R. Civ. P. 54(b) is an appeal from an order certified by the trial court as "final" for purposes of appeal. If the order in question is eligible for certification under Utah R. Civ. P. 54(b) and has been properly certified," the appellate court must consider the appeal. However, if the appellate court determines that the order certified by the trial court under Utah R. Civ. P. 54(b) was not eligible for certification or was not properly certified, it is subject to dismissal. The appellate court may, in its discretion, consider such an appeal "as a petition for permission to appeal from an interlocutory order." See Utah R. App. P. 5(a).

B. What kinds of orders lend themselves to interlocutory review?

Answer: Orders (1) materially advance a pending case by effectively being dispositive of the case or (2) rule on legal or procedural issues crucial to the future proceedings on the case are particularly suited for interlocutory appeal. However, if a single appeal after final judgment would permit resolution of all issues with a savings of cost and time or if an interlocutory appeal is unlikely to preclude the parties from a later appeal from the resolution of issues remaining in the trial court, it is not appropriate for interlocutory appeal. See A.J. Mackay Co. v. Okland Constr. Co., 817 P.2d 323, 326 (Utah 1991).

C. Does the filing of an interlocutory appeal automatically result in a stay of proceedings in the trial court:

Answer: No. The appellant must apply for a stay in the trial court and, if denied, in the appellate court to obtain a stay. Some trial courts will sua sponte stay proceedings upon filing of a petition in the interest of fairness or judicial economy, but the trial court is not obligated to do so.

D. What are my chances of getting a petition for permission to appeal granted?

Answer: For the eight-year period ending in December of 1998, approximately 16% of petitions filed in the Utah Supreme Court and 25% of petitions filed in the Court of Appeals were granted. A more detailed analysis appears as an appendix to this document.

E. Is an interlocutory appeal necessary to preserve an issue for appeal from a final judgment?

Answer: Generally all issues can be appealed in an appeal as a matter of right at the end of the case, and it is not necessary for an appellant to file an interlocutory appeal to preserve an issue. (By the same token, the parties must take all other steps necessary to preserve the issue in the trial court.) However, some issues may become moot by the time of final judgment if an interlocutory appeal is not pursued and granted. For example, if an appeal is not allowed of an interlocutory order requiring a party to produce documents claimed to be protected by privilege, the issue will become moot upon production of the documents.

F. What is the relationship of continuing jurisdiction to interlocutory appeals?

Answer: The continuing jurisdiction of the district court in divorce proceedings can result in several appeals as a matter of right in a single proceeding, i.e., appeals from the divorce decree, from an order on a petition to modify, for an order enforcing the decree, etc. However, not all orders are final and appealable. See White v. State, 795 P.2d 648 (Utah 1990) (per curiam); Copier v. Copier, 939 P.2d 202 (Utah Ct. App. 1997) (per curiam).

G. Is the collateral order doctrine another exception to the final judgment rule in Utah?

Answer: Both appellate courts have rejected the federal collateral order doctrine as another exception to the final judgment rule. See Tyler v. Department of Human Servs., 874 P.2d 119 (Utah 1994) (per curiam); In re Southern American Insurance Co., 930 P.2d 276 (Utah Ct. App. 1996); Merit Electrical & Instrumentation v. Utah Dept. of Commerce, 902 P.2d 151 (Utah Ct. App. 1995).

H. Is review allowed of the interlocutory orders of administrative agencies?

Answer: Rule 5 of the Utah Rules of Appellate Procedure is not applicable to judicial review of decisions or orders of administrative agencies. See Utah R. App. P. 18; see also Merit Electrical & Instrumentation v. Utah Dept. of Commerce, 902 P.2d 151 (Utah Ct. App. 1995); Barney v. Division of Occupational and Professional Licensing, 828 P.2d 542 (Utah Ct. App. 1992) (per curiam), cert. denied, 843 P.2d 516 (Utah 1992) (dismissing petitions on the basis that the court lacked jurisdiction to review interlocutory orders of an administrative agency); but see Barker v. Utah Public Service Comm'n, 338 Utah Adv. Rep. 3 (Utah 1998) (clarifying definition of "final agency action" to include actions in the nature of seriatim final orders). In appropriate cases, interlocutory review could be sought through a petition for extraordinary relief.

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X. A Sampling of Types of Orders Found Suitable for Interlocutory Review

A. Jurisdictional Rulings: Werner-Jacobsen v. Bednarik, 946 P.2d 744 (Utah Ct. App. 1997) (appeal from order joining a party under Utah R. Civ. P. 19 as necessary and indispensable); Mori v. Mori, 896 P.2d 1237 (Utah Ct. App. 1995), rev'd, 931 P.2d 854 (Utah 1997) (appeal challenging assertion of personal jurisdiction).

B. Denial of Motion to Dismiss Criminal Case: State v. Davis, 903 P.2d 940 (Utah Ct. App. 1995), rev'd, 347 Utah Adv. Rep. 31 (Utah 1998) (appeal from denial of a motion to dismiss on Double Jeopardy grounds based upon civil forfeiture); State v. Arbon, 909 P.2d 1270 (Utah Ct. App. 1996) (appeal from denial of motion to dismiss DUI prosecution on Double Jeopardy grounds).

C. Denial of Motion to Dismiss Civil Case: Richardson v. Matador Steak House, 948 P.2d 347 (Utah 1997) (appeal from denial of motion to dismiss claims of decedent's family under the Utah Dramshop Liability Act); Peterson v. Board of Education, 855 P.2D 241 (Utah 1993) (appeal from denial of motion to dismiss claims based on governmental immunity); Dow v. Gilroy, 910 P.2d 1249 (Utah Ct. App. 1996), cert. denied, 916 P.2d 909 (Utah 1996) (appeal from denial of motion to dismiss paternity petition as barred by statute of limitations).

D. Orders on Summary Judgment Motions: Ross v. Shackel, 920 P.2d 1159 (Utah 1996); Bramley v. Utah State Tax Comm'n., 868 P.2d 796 (Utah 1993) (appeal from partial summary judgment ordering refund of income tax paid on federal retirement income).

E. Evidentiary and Other Preliminary Rulings: Horrell v. Utah Farm Bureau, 909 P.2d 1279 (Utah Ct. App. 1996), cert. denied, 920 P.2d 1194 (Utah 1996) (appeal from ruling on appropriate burden of proof to establish defenses); Hyatt v. Hill, 714 P.2d 299 (Utah 1986) (appeal from denial of petition for jury trial in paternity case); State v. Mirquet, 844 P.2d 995 (Utah Ct. App. 1992), aff'd, 914 P.2d 1144 (Utah 1996) (appeal from order granting motion to suppress statements under Miranda v. Arizona); State v. Simmons, 866 P.2d 614 (Utah Ct. App. 1993) (appeal from order suppressing evidence seized in a nighttime search).

F. Pre-Trial Orders on Governing Legal Issues: State v. Vigil, 842 P.2d 843 (Utah 1992) (appeal from ruling on availability of "attempted depraved indifference homicide" offense); Condemarin v. University of Utah Hosp., 775 P.2d 348 (Utah 1989) (appeal resolving first impression issues on constitutionality of Utah Governmental Immunity Act); Norton v. McFarlane, 818 P.2d 8 (Utah 1991) (appeal from ruling on availability of cause of action for alienation of affection and criminal conversion).

G. Rulings on Constitutionality of Statutes: State v. Gardner, 947 P.2d 630 (Utah 1997) (appeal from ruling on facial challenge to constitutionality of statute allowing death penalty to be imposed for assault by a prisoner); Ryan v. Gold Cross, 903 P.2d 423 (Utah 1995) (appeal from ruling upholding constitutionality of statute providing failure to wear a seat belt may not be used as evidence of contributory or comparative negligence or as a basis for mitigation of damages); State v. Mohi, 901 P.2d 991 (Utah 1995) (appeal from ruling on constitutional challenge to "direct file" provisions of Utah's Juvenile Courts Act); State v. Herrera, 895 P.2d 359 (Utah 1995) (appeal from ruling on facial challenge to constitutionality of Utah's insanity defense statute).

H. Discovery Rulings: Benson v. Intermountain Healthcare, 866 P.2d 537 (Utah 1993) (appeal from ruling on order compelling production of documents claimed to be protected by privilege); Trail Mountain Coal Co. v. Arco, 749 P.2d 637 (Utah 1988) (appeal from order denying motion to compel production of materials claimed to be attorney work product).

I. Denial of Preliminary Injunction: Kasco Servs. Corp. v. Benson, 831 P.2d 86 (Utah 1992) (appeal from denial of preliminary injunction).

J. Orders in Condemnation Proceedings: Utah Department of Trans. v. Ogden & Sons, 805 P.2d 173 (Utah 1990) (appeal from order setting statutory date of valuation of condemned property).

K. Improperly Certified Appeals under Rule 54(b): Field v. Boyer Co., 952 P.2d 1078 (Utah 1998) (granting leave to have judgment improperly certified under Utah R. Civ. P. 54(b) considered as an interlocutory appeal under Utah R. App. P. 5(a)).

L. Interlocutory Appeals by Prosecution in Criminal Cases: Utah Code Ann. § 77-18a-1 (1998 Supp.) limits the prosecution to seeking interlocutory appeal of pretrial orders suppressing evidence or interlocutory orders refusing to bind the defendant over for trial on a felony or dismissing or quashing in part a felony information. See also Utah R. Crim. P. 26.

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APPENDIX

DISPOSITION OF PETITIONS FOR PERMISSION TO APPEAL

filed 1/190 through 12/31/98

Petitions that were initially filed in the incorrect appellate court and then transferred to the appropriate court are included only in the totals for the transferee court, which entered the dispositive order on the petition. The largest category of dismissals were voluntary dismissals (9 for the Supreme Court and 5 for the Court of Appeals) with the remainder based upon mootness or consolidation.

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