New Issues That May Be Raised on Appeal

Posted in Tips and Tactics on By Ann Schwing

As a generally applicable rule, new issues cannot be raised on appeal.  The record is silent and the issue is commonly new to the prejudice of one party.  Appellate courts have little or no difficulty in rejecting the introduction of new issues on appeal in most instances.

General rules generally have exceptions, as is true here.  Although there are a number of new issues listed that may be raised on appeal, the reality is that new issues are successfully raised on appeal very rarely.[1] The new issue may be introduced by one of the litigants or, less often, by the appellate court sua sponte.[2] Most often, the successful new issues concern either the court’s own power and protection or the protection of absent or incompetent persons. In civil cases, litigants select their attorneys and normally are bound by the errors and omissions those attorneys make. Absent compelling circumstances, trial and appellate courts normally should not come to the aid of litigants.[3]

Recognized exceptions that courts may apply in many jurisdictions include the following, although variation among the States and in differing circumstances prevents certainty.

  • Lack  of subject matter jurisdiction,[4] including preemption,6 and sometimes mootness,[5]   but not action in excess of jurisdiction,[6]   or lack of personal jurisdiction,[7] or venue,[8]
  • Abstention,[9]
  • Lack of standing,[10]
  • Failure to exhaust a jurisdictional prerequisite in extraordinary circumstances,[11]
  • Lack of capacity to sue[12]       arising on appeal, including  fugitive disentitlement,[13] and suspended status,[14]
  • Lack of capacity to be sued,[15]
  • Absence  of a guardian or guardian ad litem,[16]  with capacity to sue or appear,[17]
  • Representation of a party by a lay person,[18] and appearance of an entity by a lay person,[19]
  • Failure to join an indispensable party,[20]
  • Mootness when not considered a matter of subject matter jurisdiction,[21] including settlement on appeal,[22] but many considerations apply to the decision,
  • Hypothetical or advisory opinion,[23]  and political question,[24] and
  • Illegality and unconstitutionality.[25]

No one should deliberately plan to rely on an exception to avoid the consequences of failure to raise and an issue in the trial court. The court is likely to conclude that the silence in the trial court was strategic and to the disadvantage of the other party, a conclusion that would increase the burden on the dilatory party.  The other party can often identify evidence that could have been gathered and introduced to rebut the issue in the trial court, establishing the likelihood of prejudice.

Litigants are placed at a significant disadvantage if the court itself steps in to raise issues sua sponte (whether causes of action or defenses) that the court believes one side should have but did not assert. The omission may have been deliberate, if assertion of the point would trigger inquiry into subjects the party would have preferred remain unconsidered.[26] If the omission was inadvertent, the other party should not have to deal with the court in the role of potential advocate. A judge who observes the apparent relevance of an issue may become enamored of it. At least one side in such a case can end up in an improved posture despite having selected a less sophisticated, less expensive, or less careful attorney.[27]

[1] Annot., When Will Federal Court of Appeals Review Issue Raised By Party for First Time on Appeal Where Legal Developments After Trial Affect Issue, 76 A.L.R. Fed. 522 (1986).

[2] Frost, The Limits of Advocacy, 59 Duke L.J. 447, 511 (2009) (in raising issues sua sponte, courts “must be careful to preserve the benefits of the adversarial structure”); Milani & Smith, Playing God: A Critical Look at Sua Sponte Decisions by Appellate Courts, 69 Tenn. L. Rev. 245 (2002); Vestal, Sua Sponte Consideration in Appellate Review, 27 Fordham L. Rev. 477 (1959).

[3]  Jacobsen v. Filler, 790 F.2d 1362, 1365 & n.7 (9th Cir.1986) (“it is not for the trial court to inject itself into the adversary process on behalf of one class of litigant.” “Doing so necessarily implicates the court’s impartiality and discriminates against opposing parties”); Bacharach & Entzeroth, Judicial Advocacy in Pro Se Litigation: A Return to Neutrality, 42 Ind. L. Rev. 19 (2009); Correll, Finding the Limits of Equitable Liberality: Reconsidering the Liberal Construction of Pro Se Appellate Briefs, 35 Vt. L. Rev. 863 (2011); Healey, In Search of the Delicate Balance: Legal and Ethical Questions in Assisting the Pro Se Patron, 90 Law Libr. J. 129 (1998); Swank, In Defense of Rules and Roles: The Need to Curb Extreme Forms of Pro Se Assistance and Accommodation in Litigation, 54 Am. U.L. Rev. 1537 (2005).

[5] Article III requires that a justiciable case or controversy must remain extant at all stages of review, not merely at the time the complaint is filed. United States v. Juvenile Male, 564 U.S. __, 131 S.Ct. 2860, 2862, 2864, 180 L.Ed.2d 811 (2011) (per curiam) (juvenile aged out of challenged requirement so that “the Court of Appeals had no authority to enter that judgment because it had no live controversy before it”); Utah Animal Rights Coalition v. Salt Lake City Corp., 371 F.3d 1248, 1255 (10th Cir. 2004) (when no party raises mootness on appeal, the court must examine this issue sua sponte because the Constitution “commands that we determine whether an Article III case or controversy is before us”).

[6] E.g., United States v. Lockheed L–188 Aircraft, 656 F.2d 390, 393 (9th Cir.1979) (waiver of excess of prayer for jurisdiction under Tucker Act, 28 U.S.C. §1346(a)(2)); see Rutledge, Decisional Sequencing, 62 Ala. L. Rev. 1 (2010); Trammell, Jurisdictional Sequencing, 47 Ga. L. Rev. 1099 (2013).

[7] Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 119 S.Ct. 1563, 143 L.Ed.2d 760 (1999) (a federal court may dismiss for lack of personal jurisdiction and thereby avoid a difficult question of subject matter jurisdiction even though, normally, the court should determine subject matter jurisdiction first).

[9] Estrada, Pushing Doctrinal Limits: The Trend Toward Applying Younger Abstention to Claims for Monetary Damages and Raising Younger Abstention Sua Sponte on Appeal, 81 N.D.L. Rev. 475 (2005) (collecting cases).

[10] In re First Capital Holdings Corp. Financial Products Securities Litigation, 33 F.3d 29, 30 (9th Cir.1994); Californians for Disability Rights v. Mervyn’s, LLC, 39 Cal.4th 223, 233; 46 Cal.Rptr.3d 57, 138 P.3d 207 (2006), following McKinny v. Board of Trustees, 31 Cal.3d 79, 90, 181 Cal.Rptr. 549, 554, 642 P.2d 460, 465 (1982) (“It is elementary that a plaintiff who lacks standing cannot state a valid cause of action; therefore, a contention based on a plaintiff’s lack of standing cannot be waived under Code of Civil Procedure section 430.80 and may be raised at any time in the proceeding.”); Pidot, Jurisdictional Procedure, 54 Wm. & Mary L. Rev. 1 (2012); Wildermuth & Davies, Standing, on Appeal, 2010 U. Ill. L. Rev. 957.

[11] Compare State Water Resources Control Board Cases, 136 Cal.App.4th 674, 790–91, 39 Cal.Rptr.3d 189, 282–83 (3d Dist.), cert. denied, 549 U.S. 889, 127 S.Ct. 318, 166 L.Ed.2d 156 (2006) (California Environmental Quality Act imposes jurisdictional exhaustion requirement), with Cummings v. Stanley, 177 Cal.App.4th 493, 505-06, 99 Cal.Rptr.3d 284, 293-94 (1st Dist.2009) (collecting many cases: “We choose to follow the influential trend of recent authority that exhaustion does not implicate subject matter jurisdiction, but rather is a judicially created rule of procedure, with numerous exceptions, which must be applied by the courts equitably and depends on a qualitative analysis on a case-by-case basis of the facts presented at trial”); Mokler v. County of Orange, 157 Cal.App.4th 121, 133, 68 Cal.Rptr.3d 568, 576 (4th Dist.2007).

[12] Lack of capacity to sue that is evident in the trial court may be waived if not asserted.  E.g., Quan Wye v. Chin Lin Hee, 123 Cal. 185, 186, 55 P. 783 (1898) (lack of capacity of an assignee); Wheeling v. Financial Indemnity Co., 201 Cal.App.2d 36, 43, 19 Cal.Rptr. 879, 884 (2d Dist.1962) (lack of capacity of a foreign representative).

[13] Ortega-Rodriguez v. United States, 507 U.S. 234, 113 S.Ct. 1199, 122 L.Ed.2d 581, 591 (1993), quoting and limiting extension of Molinaro v. New Jersey, 396 U.S. 365, 366, 90 S.Ct. 498, 24 L.Ed.2d 586 (1970) (appeal from conviction); Parretti v. United States, 143 F.3d 508, 511 (9th Cir.) (en banc), cert. denied, 525 U.S. 877, 119 S.Ct. 179, 142 L.Ed.2d 146 (1998) (multiple policies support disentitlement); United States v. Van Cauwenberghe, 934 F.2d 1048, 1054–55 (9th Cir.1991) (disentitlement doctrine is not of jurisdictional dimension but is based on equitable considerations; court may decline to apply rule in cases it deems appropriate); People v. Buffalo, 49 Cal.App.3d 838, 123 Cal.Rptr. 308 (4th Dist.1975) (court exercises its discretion to refuse to consider appeal of one who is not answerable to court process); In re Scott’s Estate, 150 Cal.App.2d 590, 310 P.2d 46 (2d Dist.1957) (innocence does not change fugitive status); Behrens, Voting—Not Quite a Fundamental Right? A Look at Legal and Legislative Challenges to Felon Disenfranchisement Laws, 89 Minn. L. Rev. 231 (2004); Cosgrove, Four New Arguments Against the Constitutionality of Felony Disenfranchisement, 26 T. Jefferson L. Rev. 157 (2004); Karlan, Convictions and Doubts: Retribution, Representation, and the Debate over Felon Disenfranchisement, 56 Stan. L. Rev. 1147 (2004); Annot., Validity, Construction, and Application of State Criminal Disenfranchisement Provisions, 10 A.L.R.6th 31 (2005); Annot., Application of the “Fugitive Disentitlement Doctrine” to Civil Matters—State Cases, 112 A.L.R.5th 399 (2003); Annot., Application of Fugitive Disentitlement Doctrine in Federal Criminal Cases, 179 A.L.R.Fed. 291 (2002).

[14] Annot., Application of Statute Denying Access to Courts or Invalidating Contracts Where Corporation Fails to Comply with Regulatory Statute as Affected by Compliance After Commencement of Action, 23 A.L.R.5th 744 (1994); Annot., What Constitutes Doing Business within State for Purposes of State “Closed Door” Statute Barring Unqualified or Unregistered Foreign Corporation from Local Courts, 88 A.L.R.4th 466 (1991); Annot., Reinstatement of Repealed, Forfeited, Expired, or Suspended Corporate Charter as Validating Interim Acts of Corporation, 42 A.L.R.4th 392 (1985).  The suspended corporation may be allowed to file bankruptcy. In re Feature Homes, Inc., 116 B.R. 731 (E.D. Cal. Bankr.1990); see Barton, Keeping the Debtor in “Suspense”: California Corporate Status in Chapter 11, 30 Cal. Bankr. J. 379 (2010).

[15] Federal Rules of Civil Procedure 17(b) (“The capacity of a corporation to sue or be sued shall be determined by the law under which it was organized”), applied in Community Electric Service of Los Angeles, Inc. v. National Electrical Contractors Ass’n, 869 F.2d 1235, 1239 (9th Cir.), cert. denied, 493 U.S. 891, 110 S.Ct. 236, 107 L.Ed.2d 187 (1989) (suspension by Franchise Tax Board defeated electrical contractor’s capacity to sue in federal court for antitrust violations; reinstatement after statute of limitations has run does not permit prosecution of cause of action), overruled on other grounds in Townsend v. Holman Consulting Corp., 929 F.2d 1358 (9th Cir.1990).

[16] Berg v. Traylor, 148 Cal.App.4th 809, 816, 56 Cal.Rptr.3d 140, 145 (2d Dist.2007) (“That no one—counsel, the arbitrator or the trial court—recognized this conflict and sought appointment of a guardian ad litem for Craig is nothing short of stunning. It is the court’s responsibility to protect the rights of a minor who is a litigant in court.”).

[17] Annot., Capacity of Guardian to Sue or Be Sued Outside State Where Appointed, 94 A.L.R.2d 162 (1964).

[19] United States v. High Country Broadcasting Co., 3 F.3d 1244 (9th Cir.1993), cert. denied, 513 U.S. 826, 115 S.Ct. 93, 130 L.Ed.2d 44 (1994) (nonattorney may not represent corporation and may not intervene to represent interests of corporation); Restatement (Third) of the Law Governing Lawyers § 4 (2000); Annot., Propriety and Effect of Corporation’s Appearance Pro Se Through Agent Who Is Not an Attorney, 8 A.L.R.5th 653 (1992).

[21] County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 1383, 59 L.Ed.2d 642, 649 (1979) (issue becomes moot on appeal when there is no reasonable expectation that alleged violation will recur and interim relief or events have completely and irrevocably eradicated effects of alleged violation); Feldman v. Bomar, 518 F.3d 637, 642-44 (9th Cir.2008); Annot., What Circumstances Render Civil Case, or Issue Arising Therein, Moot So as to Preclude Supreme Court’s Consideration of Their Merits, 44 L.Ed.2d 745 (1975); Note, Mootness on Appeal in the Supreme Court, 83 Harv. L. Rev. 1672 (1970).  A litigant who fails to obtain a stay pending appeal and thereby permits the judgment to be carried out may render the appeal moot without necessarily intending it. In re Mann, 907 F.2d 923, 926 (9th Cir.1990) (foreclosure sale pending appeal); Koppers Industries, Inc. v. United States Environmental Protection Agency, 902 F.2d 756, 759 (9th Cir.1990) (failure to obtain stay precludes use of mootness exception for issues capable of repetition yet evading review since such situations do not by their nature evade review); see Cammermeyer v. Perry, 97 F.3d 1235, 1239 (9th Cir.1996) (appellate court would not vacate judgment for plaintiff when defendant made appeal moot; district court may do so based on equities).

[22] E.g., Okuda v. Superior Court, 144 Cal.App.3d 135, 137 n.1, 192 Cal.Rptr. 388, 389 n.1 (4th Dist.1983) (parties’ stipulation and request for dismissal three days after oral argument of appeal does not result in automatic right to dismissal, and dismissal was denied given public importance of decision).  Whether a settlement moots an appeal when the parties continue to seek a decision on appeal may depend on whether the decision will determine the merits of an issue reserved in the settlement.  Once the decision has issued or the settlement has been reached, courts are reluctant to allow mootness to negate the decision already made public in the case.  E.g., United States v. Payton, 593 F.3d 881 (9th Cir.2009) (collecting many cases).

[23] Spann, Advisory Adjudication, 86 Tul. L. Rev. 1289 (2012).

[24] Annot., Application of Political Question Doctrine by U.S. Supreme Court, 75 A.L.R. Fed. 2d 1 (2013); Annot., Construction and Application of Political Question Doctrine by State Courts, 9 A.L.R.6th 177 (2005).

[26] Taylor, Filing With Your Fingers Crossed: Should a Party Be Sanctioned for Filing a Claim to Which There Is a Dispositive, Yet Waivable, Affirmative Defense, 47 Syracuse L. Rev. 1037 (1997), citing Hazard & Hodes, The Law of Lawyering, §3.1:204–2 at 558.3 (2d ed. Supp. 1996) (discussing reasons a defendant might not raise an available affirmative defense, ranging from incompetence, to public vindication, to a moral or social decision to forego the defense); see ABA Comm. on Ethics and Professional Responsibility, Formal Op. 387 (1994) (a defendant may not assert an affirmative defense for reasons “ranging from incompetence to a considered decision”; it is not an ethical violation to file a time-barred lawsuit, nor is it an ethical violation to negotiate with an opponent about a claim that would be subject to a defense of expiration of the statute of limitations).

[27] See generally Milani & Smith, Playing God: A Critical Look at Sua Sponte Decisions by Appellate Courts, 69 Tenn. L. Rev. 245 (2002); Miller, Sua Sponte Appellate Rulings: When Courts Deprive Litigants of an Opportunity to be Heard, 39 San Diego L. Rev. 1253 (2002); Steinman, Appellate Courts as First Responders: The Constitutionality and Propriety of Appellate Courts’ Resolving Issues in the First Instance, 87 Notre Dame L. Rev. 1521 (2012).