Appeal and cross-appeal
This is a case I took up on appeal for another lawyer, and won a reversal – the Court of Appeals affirmed the trial court’s rulings in our favor and reversed the trial court’s rulings against us, a complete victory for our clients.
I represented the Knudsens, who had been sued by the Grimstads over an inheritance. Three key legal claims were at issue. The trial court awarded the Grimstads part of the Knudsens’ inheritance under claims of (a) unjust enrichment and (b) money had and received, but denied the Grimstads’ claim of (c) intentional interference with prospective economic advantage.
Both parties appealed, resulting in an appeal and cross-appeal. On June 9, 2015, after extensive legal briefing, the appeal and cross-appeal was argued to the Oregon Court of Appeals.
The Court of Appeals’ opinion
One and one-half years after oral argument, the Court of Appeals issued a complex 29-page opinion, ruling in my clients favor and against the Grimstads on all claims. See Grimstad v. Knudsen, 283 Or App 28 (December 21, 2016). At the end of its opinion, the Court of Appeals favorably concluded as follows:
“In sum, we conclude that the trial court erred in concluding that the [Grimstads] proved a claim for unjust enrichment, because [the Grimstads] failed to show that they had any legal or equitable interest in the proceeds of the sale of the [real estate]. For that same reason, the trial court erred in concluding that [the Grimstads] proved their claim of money had and received. The trial court therefore erred in granting plaintiffs relief on those claims. On cross-appeal, [the Grimstads] failed to put forward evidence to create any genuine issue of material fact with respect to the improper means or purpose element of their intentional interference with prospective economic advantage claim. The trial court therefore did not err in granting [the Knudsens’] motion for summary judgment [on that claim].”
See Grimstad v. Knudsen, 283 Or App 28, 58 (December 21, 2016) (reversing and remanding on appeal; affirming on cross-appeal).
Remand to the Washington County Circuit Court
This appeal and cross-appeal will now be remanded (returned) to the trial court for entry of a new judgment fully in my clients’ favor. As an aside, I predict this case and its opinion will become the new “name case” or “lead opinion” for claims of intentional interference with prospective economic advantage. Time will tell.
Orders versus judgments? When and what to appeal?
As an appeals lawyer, I am occasionally contacted by a trial lawyer on or near the last day to file a notice of appeal, anxious because her or she is uncertain whether a particular order or ruling is appealable. In these cases, the order is in hand, the time to file the notice of appeal is about up, and a judgment has not been entered yet. The trial lawyer’s question is usually something like this: Do I file a notice of appeal from the order, or do I wait for a judgment to be entered? This is no time for uncertainty. If you wait for a judgment to be entered, the time to appeal the order will have passed, and if it turns out the order was the thing to appeal, you will have lost your chance to do so.
When and what to appeal? – the source of the problem
Generally speaking, in both state and federal courts, a notice of appeal is often due within 30 days after entry of a judgment. Appellate lawyers know, however, that depending upon the circumstances of each case, there are shorter and longer periods of time to file a notice of appeal, so each appeal deadline must be independently evaluated and verified. Further complicating matters is the fact that sometimes there will be no judgment and, in these cases, the appeal will instead be taken from an order. This may occur, for example, when an order affects a substantial right and effectively determines an action so as to prevent entry of a judgment. This is just one example. There are many more, too numerous to list here. There are also important differences between state and federal appellate practice. The important thing to know is that often, much time, money, and grief can be saved by taking early action to set the stage for your appeal, just another reason to retain an appellate attorney as soon as you suspect you might need an appeal.
As an appeals lawyer, here is one way I avoid the problem
Time permitting, in close-call cases, when it is uncertain whether the appeal will be from an order or a judgment, I will recommend that the trial lawyer pursue entry of a judgment within the appeal period of the order. Then, with both an order and judgment in hand, I can file a notice of appeal from both documents. This approach ensures that both the order and judgment are appealed, eliminating the need to file a “precautionary notice of appeal” from the order because time is about to run on an appeal from the order. This approach only works, however, when there is time to pursue a judgment within the appeal period for the order. This approach will not work when time is up to appeal from the order, yet another reason to retain an appeals lawyer as soon as you suspect you might need an appeal.