Partial Final Judgment: The Court May, by Express Designation, Enter A Final Judgment On Some Claims

APPEALS
A. Motions to Terminate Without Trial

A motion to dismiss for failure to state a claim, motion for judgment on the pleadings, motion for summary
judgment, or motion for judgment as a matter of law made before the jury retires are WAIVED if the moving
party proceeds with trial once the motions are denied.
Preliminary motions are no longer relevant once there has been a full trial.
Appellate review is based on the judgment rendered after full trial, not the earlier motion.
B. Motion for New Trial (filed within 28 days after judgment entered)
Usually made with a renewed motion for judgment as a matter of law, but very different.
Grounds for new trial include:
o Errors during trial that rendered the judgment UNFAIR
o NEWLEY DISCOVERED evidence;
o Prejudicial misconduct by a lawyer, party, or juror; and
For jurors, includes the failure to answer voir dire honestly if an honest response would have
been a valid basis for challenging the jurors service
o Excessive verdict and the winning party refused to accept a reduction (remittitur).
The court must SPECIFY the reason(s) for granting a new trial in its order.
o Reason for granting a new trial is purely a question of law appellate court reviews the question(s) of
law DE NOVO.
o Most grounds for new trial are within the SOUND DISCRETION of the trial court - reviewed on appeal
only for ABUSE OF DISCRETION.
C. Appeals
1. Final Judgment Rule
Ordinarily, appeals lie only from final judgments.
o Resolves ALL the CLAIMS of ALL the PARTIES on the MERITS
Partial final judgment: the court may, by express designation, enter a final judgment on some claims.
o Such a judgment is immediately appealable.
A judgment becomes final when entered by the clerk on the court's docket.
Notice of appeal must be filed in the trial court within 30 days of entry of judgment.
o A timely post-judgment motion (e.g., renewed motion for JMOL or a new trial motion) TOLLS (suspends)
the 30-day limit.
2. Interlocutory Orders
a. Interlocutory Orders Immediately Appealable as of Right
o 1. Injunctions (granting or modifying)
o 2. Receivers: Any order that changes or affects possession of property
b. Discretionary Interlocutory Appeal
o Any interlocutory order is appealable on LEAVE OF COURTS (both)
BOTH the trial and appellate courts must agree to allow the appeal.
o The trial court can issue a certificate for interlocutory appeal stating:
1. That it involves a controlling question of law; AND
2. That the immediate appeal may materially advance termination of the litigation.
o The appellate court must then agree to accept the appeal.
3. Collateral-Order Doctrine
Authorizes immediate appeal of orders separable from and collateral to the main suit and too important to
deny immediate review
Most likely case: The denial of a motion to dismiss for forum non conveniens is almost always a collateral order
and immediately appealable.
4. Mandamus
Provides for immediate appellate review of an order that is an abuse of authority
5. Class Actions
Appellate courts have discretion to hear interlocutory appeals from orders certifying or refusing to certify a class
action.
6. Standards of Review
a. Questions of Law
o Appellate review is DE NOVO
b. Findings of Fact
Appellate review is more limited:
o Jury verdicts must be affirmed if supported by SUBSTANTIAL EVIDENCE.
o Judge's findings of fact must be affirmed unless CLEARLY ERRONEOUS.
o Judge's conclusions of law are reviewed DE NOVO.
c. Matters of Discretion
o Standard of appellate review is ABUSE OF DISCRETION
o Any reasonable decision will be upheld.
D. Full Faith and Credit
Courts in the United States, both state and federal, must give full faith and credit to judgments rendered by
courts of other states, provided that the rendering court had JURISDICTION.
THE EFFECT OF FORMER ADJUDICATION

A. Introduction
Preclusion consists of two doctrines:
o CLAIM Preclusion (res judicata)
o ISSUE preclusion (collateral estoppel)
Ask two questions:
o (1) Is the CLAIM in the second suit precluded by the prior adjudication? If so, thats the end of it.
o (2) If not, is the ISSUE in the second suit precluded by the prior adjudication?
o Exam Tip 7: Always ask these questions separately and in order.
B. Claim Preclusion (Res Judicata)

Rule
o A final judgment on the merits of a claim bars re-litigation of that claim by the same parties or those in
privity with the parties.
o Prevents re-litigation of every claim that was raised OR should have been raised in the first suit.
Three Requirements
o 1. FINAL, VALID JUDGMENT ON THE MERITS in the 1st suit;
court must have PJ and SMJ, D must have had proper notice and opportunity to be heard, court
must have nothing further to do but order entry of judgment, and decision must be made on
merits of claim/defense (rather than technical grounds)
o 2. SUFFICIENTLY IDENTICAL PARTIES as the 1st suit (i.e., or their successors in interest);
P and D must be the same, and in the same roles, in both the original action and subsequently
filed action
o 3. SUFFICIENTLY IDENTICAL CLAIM/CAUSE OF ACTION as 1st first
Original and later filed coa must be sufficiently identical to be barred under claim preclusion
(federal transactional approach)
Final Judgment on the Merits
o Includes a Default judgment, Summary judgment, and dismissal with prejudice (all of these are
judgments on the merits)
o NOT necessary that there had been a trial
Re-litigation between the Same Parties or Their Successors in Interest
o BOTH parties to the second action must have been parties to the first action or successors in interest to
the original parties.
o Same parties - must be same P & D
o The only "exception" that the parties be the exact same is when re-litigation involves successors in
interest - stands in the shoes of his or her predecessor.
o Examples of successors in interest include:
The assignor and assignee of a claim;
A decedent and the executor of the estate; and
The executor of an estate and persons who claim under the will.
o Class action - each member is bound by the judgment, considered to have had their opportunity in court
even if not a named representative.
Re-litigation of the Same Claim or Cause of Action
o ALL legal theories to recover for harm arising out of a single transaction or occurrence are ONE CLAIM.
o Unless state law provides otherwise, if both contract and tort claims seek redress for the same harm,
they are the SAME claim.
o Installment sales - creditor must sue for all that is due at the time of the suit. All debt owed at the time
of the action is one claim even if it was due in 3 or 4 separate payments. Creditor cannot sue for
payments that are not "due and owing." Future debts or obligations are another claim.
Look out for installment sales contracts that provide if a purchaser misses a payment, the entire
outstanding balance becomes due and owing (acceleration of obligation).
C. Issue Preclusion (Collateral Estoppel)

Three Requirements
o 1. The SAME ISSUE OF FACT must arise in 2nd suit;
o 2. That issue must have been LITIGATED AND ACTUALLY AND NECESSARILY DECIDED (valid final
judgment) in the 1st suit; and
o 3. The PARTY TO BE PRECLUDED must have been a party to the 1st suit.
o (4.Issue essential to the jgmt)
Same Issue of Fact
o It doesnt matter if the two suits involve entirely different claims, so long as they have a factual issue in
common.
Actually and Necessarily Decided
o Only applies to issues actually litigated; not to those that MIGHT have been litigated if the case had gone
to trial/trial had been completed
o Default judgment - results in full CLAIM preclusive effect, but no ISSUE preclusive effect. (bc in default
judgment, nothing is actually litigated)
Party to be Precluded Must Have Been a Party to the First Suit
o The party against whom preclusion is invoked must have been a party to the first suit or a successor in
interest.
o The party invoking preclusion NEED NOT have been a party to the prior action, nor in any way involved
in the action.
o NO requirement for mutuality of estoppel
Rule at least applies to the defensive use of issue preclusion.
Whether a succession of plaintiffs could invoke issue preclusion offensively is not clear.
D. Summary
Remember that claim preclusion and issue preclusion are separate doctrines and must be addressed separately
and in order.
o Ask first whether claim preclusion bars the second suit. If so, that ends the matter.
o If not, ask whether issue preclusion bars the second suit.
Conclusion
Remember to concentrate your attention on the areas most often tested:
o Jurisdiction (subject matter, personal, and venue) - MOST important;
o Pleadings, especially amendments;
o Discovery, especially the work-product rule;
o Motions practice, especially summary judgment and the two stages of motion for judgment as a matter
of law; and
o The effect of former adjudication, namely claim and issue preclusion.

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APPEALS

A. Motions to Terminate Without Trial

THE EFFECT OF FORMER ADJUDICATION

B. Claim Preclusion (Res Judicata)

C. Issue Preclusion (Collateral Estoppel)

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