What Happens After An Appeal Is Granted?

What Happens After An Appeal Is Granted?

Your appeal was successful. Now what?

You have been fighting with your former business partner for more than five years now. It has taken a great deal of time, money, and energy. You were shocked when the trial court ruled against you.

It was a difficult decision to commit further resources to an appeal. Fortunately, the Court of Appeal has ruled in your favor.  What happens next?

What happens when an appeal is granted depends on a number of factors: the stage of the proceedings, the question on appeal, and the terms of the Court of Appeal’s order to the trial court.

Though the comments in this article generally will apply to both state and federal courts, procedures and deadlines will differ. It is critical to closely review the rules and deadlines that apply to the specific forum in which a case is heard.  Such rules are usually strictly enforced.

Interlocutory Appeals

In most cases, appeals take place after the entry of a final judgment at the trial court level.  But there are exceptions.

An “interlocutory appeal” is a challenge to a non-final trial court order. The appellate court’s opinion decides an issue but does not result in the final judgment. Whether a non-final trial court order can be appealed depends on the rules of the specific jurisdiction.

In-state court, interlocutory appeals are usually appropriate when waiting until the final judgment to appeal would cause substantial harm to the appellant.

Examples of typical interlocutory appeals include the failure of a judge to recuse himself or herself, failure to disqualify opposing counsel, failure to grant a motion to dismiss, or an order concerning injunctive relief. Such appeals also frequently occur in family law cases.

A stay pending appeal may be granted by the trial or appellate court to preserve the status quo. Whether this occurs or not, after an interlocutory appeal is granted, the case continues, including possible further appeals if necessary.

The Federal courts take a somewhat different approach. By statute, interlocutory appeals are allowed as a matter of right in matters involving injunctions, receiverships, admiralty (28 USC 1292(a)), and enumerated situations under the Federal Arbitration Act (9 USC 16), including decisions refusing to compel arbitration, refusing to stay litigation pending arbitration, confirming or refusing to confirm an arbitration award, modifying, correcting, or vacating an arbitration award, or granting, continuing, or modifying an injunction against an arbitration subject to the Federal Arbitration Act. A right to interlocutory appeal also applies to any final decision concerning arbitration under the Federal Arbitration Act.

Beyond an interlocutory appeal as a matter of right, the district court may certify that its order involves a controlling question of law as to which there are substantial grounds for a difference of opinion, and that the immediate appeal from the court’s order will advance the termination of the litigation (28 USC 1292(b)).

In addition to the statutory provisions outlined above, the Federal courts permit an interlocutory appeal under the collateral order doctrine. This rule applies to orders that “finally determine claims of right separable from, and collateral to, rights asserted in action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.”

Beneficial Industrial Loan Corp., 337 U.S. 541, at 546 (1949).  Some commentators argue that these cases should be treated as final judgments subject to normal appellate procedures, but Beneficial is clear that they are interlocutory appeals.

Effect of Reversal and Remand

The most common disposition on a successful appeal is reversal and remand to the trial court for further proceedings. Without limiting instructions, this puts the parties and the trial court in the same position as if there had never been a trial. Further, “in the case of a mistrial, order granting a new trial, or remand for a new trial after reversal of a judgment on appeal,” discovery deadlines are dependent on the date initially set for the new trial, not the original trial.

However, prior discovery still counts towards the numerical limits set by statute. (Fairmont Ins. Co. v. Superior Court, 22 Cal.4th 245 (2000)) An appropriate showing must be made for more extensive discovery. New evidence may be presented. (Weightman v. Hadley 138 Cal.App.2d 831 (1956)), and

Amendment of the pleadings is also allowed after remand, upon an appropriate showing.

This does not mean that the parties will necessarily launch into wholesale near discovery, or that the case on retrial will bear no resemblance to the prior case.  Some streamlining can be expected, and the parties will probably try to strengthen prior positions rather than starting over.

But winning on appeal means having the opportunity to spend more time, money, and effort doing things over again.

Of course, legal issues determined by the appellate court are binding in subsequent proceedings. This is known as the law of the case doctrine. It does not apply to questions of fact based on new or different evidence in a new trial.

Full or Partial Reversal with Directions

The court of appeal may limit the potential outcome of a reversal and remand by giving directions to the trial court, and/or partially affirming and partially reversing the judgment.

As to affirmed portions, the case is over, except for an award of costs and fees, if appropriate. The trial court may not reopen these issues.

As to any reversal with directions, the trial court has no discretion to do anything but follow them. A failure to do so is grounds for an immediate petition for a writ of mandate.

Post-appeal Motions

The issuance of an opinion is not necessarily the end of appellate proceedings. For example, any party may challenge the Court of Appeal’s decision by filing a petition for rehearing.

A petition for rehearing asks the Court of Appeal to consider the case again and correct a legal error in its opinion. A rehearing is not granted as a matter of right Generally, the court only agrees to a rehearing if the mistake is a major error of fact or law, if an important argument was not included in the court’s decision, or if the basis of the decision was not raised in the briefing so that there was no notice or opportunity to be heard.

Rehearing, whether by the original panel or en banc, is very rarely granted. Though statistics vary by study, the overall likelihood is certainly less than 4%.  Very strong grounds should exist before the client is asked to bear the added expense of such work.

Federal courts also may grant rehearing, though the grounds are somewhat different. Under Federal Rule of Appellate Procedure 40, procedural irregularities at trial, serious evidentiary errors,  important and previously unavailable new evidence; accident, surprise; or unavoidable mistake. A rehearing may also be used to consider the effect of an intervening U.S. Supreme Court opinion bearing on the case.

Petition for Review in the California Supreme Court

Either with or without a prior petition for rehearing, a dissatisfied appellate party may file a petition for review with the California Supreme Court.  The federal equivalent is a petition for the Writ of Certiorari). Forgoing the petition for rehearing carries with it a significant disadvantage. the California Supreme Court will accept the Court of Appeal’s statement of the issues and facts as correct.

That means a party will not be able to challenge on these issue grounds in the Supreme Court regardless of the merits of that challenge if that party did not first raise it in a petition for rehearing before the appellate court. If a petition for review is a real possibility, a petition for rehearing should be filed.

The limited grounds for a petition for review are set forth in California Rule of Court 8.500.

“The Supreme Court may order a review of a Court of Appeal decision:

(1)  When necessary to secure uniformity of decision or to settle an important question of law;

(2)  When the Court of Appeal lacked jurisdiction;

(3)  When the Court of Appeal decision lacked the concurrence of sufficient qualified justices; or

(4)  For the purpose of transferring the matter to the Court of Appeal for such proceedings as the Supreme Court may order.”

Another ground for seeking review in the state Supreme Court is the existence of a federal constitutional error. This ground may also be pursued in the Federal courts.

Only about 3% of petitions for review are granted each year in California.

Petitions for Writ of Certiorari

If your appeal is being heard in Federal court or turns on an issue of federal law raised in state court, you may file a writ of certiorari in the Supreme Court of the United States.  But ordinary errors of law or fact will not be sufficient to obtain review. Supreme Court Rule 10 sets forth the extremely limited bases for its discretionary review.

They are:

  • A conflict between two or more Federal appeals courts on an important issue.
  • A conflict between a Federal court of appeals and a state court of last resort on an important issue of federal law.
  • A conflict between a state court of last resort and another state court of last resort or of a United States court of appeals on an important federal question.
  • A state court of last resort or of a United States court of appeals has issued a decision that conflicts with Supreme Court precedent.
  • An issue of first impression that should be settled by the Supreme Court has been decided by a state court of last resort or a United States court of appeals.
  • On such limited grounds, only 2.8% of cases are granted certiorari.


Congratulations on winning your appeal.  While in some cases this may mean the end of all proceedings, as the discussion above shows, this is far from guaranteed.

Further proceedings in the trial court after the granting of your appeal (such as an award of costs or a new trial) could give rise to new mandamus or appellate filings. Or the losing party could seek rehearing, review, or certiorari. Any of those events will add substantial time and expense to the process.

Most appellate courts have robust settlement programs, which schedule conferences before briefs are due when both perceived risks and the savings flowing from the settlement are high.  Settlement experts recommend trying to reach a resolution again when briefs are first to complete, and the strength of the arguments can be evaluated with the assistance of a mediator.

Because the granting of an appeal does not necessarily eliminate either risk or expense, this author recommends strongly considering settlement at this stage, while your client is in a strong position.

Mark Fotohabadi
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