{"id":161,"date":"2017-03-14T02:47:53","date_gmt":"2017-03-14T02:47:53","guid":{"rendered":"http:\/\/davidcorbettlaw.com\/blog1\/?page_id=161"},"modified":"2017-03-15T02:23:50","modified_gmt":"2017-03-15T02:23:50","slug":"persuading-the-court-of-appeals","status":"publish","type":"page","link":"https:\/\/davidcorbettlaw.com\/blog1\/persuading-the-court-of-appeals\/","title":{"rendered":"Persuading the Court of Appeals"},"content":{"rendered":"

How does the Court of Appeals understand its job on review<\/span><\/em>?<\/p>\n

In theory, how the Court of Appeals defines its job in a particular case should depend on the interplay between the \u201cscope of review\u201d and the applicable \u201cstandard of review.\u201d\u00a0 Roughly, the scope of review establishes the set of issues before the court, and the standard of review establishes the criteria that are applied in reviewing an issue within that set.\u00a0 Different issues within the scope of review are commonly subject to different standards of review.<\/p>\n

Scope of Review<\/span><\/em>:\u00a0 The scope of the review undertaken by the court of appeals is governed by RAP 2.4, RAP 2.5, and RAP 10.3(a)(4).\u00a0 \u00a0\u00a0Generally, the party seeking review has the burden of informing the Court of Appeals which parts of the decision it believes are erroneous.\u00a0 The appellant begins this process by listing the decisions it wishes to have reviewed in the Notice of Appeal or the Notice for Discretionary Review.\u00a0 RAP 2.4(a).\u00a0 Seeking review of orders on certain timely posttrial motions will automatically bring up the final judgment for review, even if the final judgment was not designated in the Notice.\u00a0 RAP 2.4(c).\u00a0 Moreover, if the party seeking review fails to designate a trial court order or ruling in its Notice, the Court of Appeals will review it if \u201c(1) the order or ruling prejudicially affects the decision designated in the notice, and (2) the order is entered, or the ruling is made, before the appellate court accepts review.\u201d\u00a0 RAP 2.4(b).\u00a0 This expansion of the scope of review is undercut by the express qualification that an appeal of a decision relating to attorney fees and costs does not <\/span>bring up for review a previously entered final judgment (appeal from a final judgment, however, does bring up a subsequent award of attorney fees\u2014compare RAP 2.4(b) and 2.4(g)).<\/p>\n

The appellant\u2019s burden of alerting the Court of Appeals to assignments of error and issues that correspond to them also shapes the appellant\u2019s opening brief.\u00a0 RAP 10.3(a)(4).\u00a0 Appellant\u2019s failure to make proper assignments of error in its opening brief can lead the Court of Appeals to refuse to consider the alleged errors, although the Court may excuse compliance with this rule where \u201cthe nature of the appeal is clear and the relevant issues are argued in the body of the brief and citations are supplied so that the court is not greatly inconvenienced and the respondent is not prejudiced.\u201d[1]<\/a><\/p>\n

Standards of Review<\/span>:\u00a0 <\/em>The applicable standard of review tells the court whether it is scrutinizing the record on an issue within the scope of review with completely fresh eyes (\u201cde novo\u201d review), or is instead granting some degree of deference to the trial court\u2019s decision. \u00a0\u00a0Case law and statutes determine that different types of decision below are subject to different standards of review.\u00a0 The table below summarizes the standard of review for a few important types of trial court decisions in civil matters.\u00a0 Of course, one appeal may bring up multiple issues each subject to a different standard of review.<\/p>\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n
Type of Trial Court Decision<\/strong><\/td>\nStandard of Review applied<\/strong><\/td>\nSource<\/strong><\/td>\nComment<\/strong><\/td>\n<\/tr>\n
 <\/td>\n <\/td>\n <\/td>\n <\/td>\n<\/tr>\n
Grant of summary judgment<\/td>\nDe novo (but see discussion of injunctive relief below)<\/em><\/p>\n

\u00a0<\/em><\/p>\n

Note:\u00a0 a ruling denying summary judgment is not reviewable as a matter of right.<\/em><\/p>\n

\u00a0<\/em><\/p>\n

Note:\u00a0 a grant of partial summary judgment is only reviewable pursuant to RAP 2.2(d) and CR 54(b).<\/em><\/td>\n

Washington Imaging Services, LLC v. Washington State Dept. of Revenue<\/em>,\u00a0 171 Wn.2d 548, 555, 252 P.3d 885 (2011).<\/td>\nThis is the most favorable standard of review for appellants.\u00a0 At least in theory, the Court of Appeals gives no deference to the trial court\u2019s decision.\u00a0 Based on the same record presented to the trial court, the Court of Appeals makes its own decision as to whether there are genuine issues of material fact that prevent summary judgment.\u00a0 It also makes its own decision as to whether the moving party was entitled to judgment as a matter of law.\u00a0 The trial court\u2019s decision can be affirmed on the basis of any argument supported by the record.<\/td>\n<\/tr>\n
 <\/td>\n <\/td>\n <\/td>\n <\/td>\n<\/tr>\n
Dismissal under CR 12(b)(6)<\/td>\nDe novo<\/td>\nCitizens for Rational Shoreline Planning v. Whatcom County<\/em>,
\n— P.3d —-, 2011 WL 3612312<\/td>\n		 <\/td>\n<\/tr>\n
 <\/td>\n <\/td>\n <\/td>\n <\/td>\n<\/tr>\n
Denial of motion to compel arbitration<\/td>\nDe novo<\/td>\nOtis Housing Ass’n v. Ha,<\/em>\u00a0165 Wn.2d 582, 586\u201387, 201 P.3d 309 (2009)<\/td>\n <\/td>\n<\/tr>\n
 <\/td>\n <\/td>\n <\/td>\n <\/td>\n<\/tr>\n
Final Judgment with findings of fact and conclusions of law.<\/td>\nFindings of fact are reviewed for \u201csubstantial evidence;\u201d conclusions of law are reviewed \u201cde novo.\u201d<\/td>\n\u00a0Rainier View Court Homeowners Ass’n, Inc. v. Zenker,<\/em>\u00a0157 Wn.App. 710, 719, 238 P.3d 1217 (2010).<\/td>\n\u201cSubstantial evidence\u201d is evidence which would convince a reasonable person of the truth of the matter asserted.\u00a0 This is a deferential standard, because the court of appeals does not have to agree with the trial court\u2019s (or jury\u2019s) conclusions of fact to affirm.\u00a0 It just has to believe that those conclusions are not unreasonable.\u00a0 If there is conflicting evidence in the record on a point, the record is reviewed in the light most favorable to the party in whose favor the findings were entered.\u00a0 In re Marriage of Gillespie<\/em>, 89 Wn. App. 390, 948 P.2d 1338 (1997).<\/td>\n<\/tr>\n
 <\/td>\n <\/td>\n <\/td>\n <\/td>\n<\/tr>\n
Amount of damages awarded by jury<\/td>\nSubstantial evidence.<\/p>\n

 <\/p>\n

But note that a judge\u2019s denial of a motion for remittitur is reviewed for abuse of discretion.\u00a0 If remittitur is granted, but the party which benefits from remittitur nonetheless appeals, the grant of remittitur is reviewed de novo<\/em> as per\u00a0 RCW 4.76.030.<\/td>\n

Collins v. Clark County Fire Dist. No. 5,<\/em>
\n155 Wn. App. 48, 231 P.3d 1211 (2010)<\/td>\n		 <\/td>\n<\/tr>\n
 <\/td>\n <\/td>\n <\/td>\n <\/td>\n<\/tr>\n
Decisions in marital dissolution actions regarding division of property, child support, and residential placement of child<\/td>\nAbuse of discretion<\/td>\nPollock v. Pollock,<\/em>\u00a07 Wn. App. 394, 399, 407, 499 P.2d 231 (1972);\u00a0In re Marriage of Kovacs,<\/em>\u00a0121 Wn.2d 795, 801, 854 P.2d 629 (1993);\u00a0In re Marriage of Foley,<\/em>\u00a084 Wn. App. 839, 842-43, 846, 930 P.2d 929 (1997)<\/td>\n <\/td>\n<\/tr>\n
 <\/td>\n <\/td>\n <\/td>\n <\/td>\n<\/tr>\n
Evidentiary rulings (i.e., allowing or prohibiting testimony or evidence)<\/td>\nAbuse of discretion<\/td>\nUniv. of Wash. Med. Ctr. v. Wash. Dep’t of Health,<\/em>\u00a0164 Wn.2d 95, 104, 187 P.3d 243 (2008).<\/td>\nA trial court abuses its discretion\u00a0when the ruling is \u201cmanifestly unreasonable or based upon untenable grounds or reasons.\u201d An error is harmless, and will not lead to reversal, if it is \u201ctrivial, or formal, or merely academic, and was not prejudicial to the substantial rights of the party assigning it, and in no way affected the final outcome of the case.\u201d\u00a0Mackay v. Acorn Custom Cabinetry, Inc.,<\/em>\u00a0127 Wn.2d 302, 311, 898 P.2d 284 (1995).<\/td>\n<\/tr>\n
 <\/td>\n <\/td>\n <\/td>\n <\/td>\n<\/tr>\n
Injunctive relief<\/td>\nAbuse of discretion<\/td>\nBrown v. Voss,<\/em>\u00a0105 Wn.2d 366, 372-73, 715 P.2d 514 (1986).<\/p>\n

 <\/p>\n

Example:\u00a0 an order of specific performance is reviewed for abuse of discretion, even if it is issued at summary judgment:\u00a0 Cornish College of the Arts v. 1000 Virginia Ltd. Partnership<\/em>,
\n158 Wn. App. 203, 221 n. 10, 242 P.3d 1 2010).\u00a0 This is an area where the law may continue to develop.<\/td>\n

 <\/td>\n<\/tr>\n
 <\/td>\n <\/td>\n\u00a0<\/em><\/td>\n <\/td>\n<\/tr>\n
Attorney\u2019s fee award<\/td>\nAbuse of discretion<\/td>\nProgressive Animal Welfare Soc. v. Univ. of Wash.,<\/em>\u00a0114 Wn.2d 677, 688, 790 P.2d 604 (1990).<\/td>\n <\/td>\n<\/tr>\n
 <\/td>\n <\/td>\n <\/td>\n <\/td>\n<\/tr>\n
Rule 11 Sanctions<\/td>\nAbuse of discretion<\/td>\nBiggs v. Vail,<\/em>\u00a0124 Wash.2d 193, 197, 876 P.2d 448 (1994)<\/td>\n <\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

 <\/p>\n

How does the Court of Appeals apply the \u201csubstantial evidence\u201d standard of review to factual findings that had to be established by \u201cclear, cogent, and convincing\u201d evidence at trial<\/span><\/em>?<\/p>\n

The standard burden of proof in civil trials is by a preponderance of the evidence.\u00a0 However, there are a number of factual issues that must be established by \u201cclear, cogent, and convincing evidence,\u201d including fraud, undue influence in making a will, and the best interest of the children and parental failure to perform duties in termination matters.[2]<\/a>\u00a0\u00a0 Once a trial court makes such findings, the court of appeals reviews them\u2014like all other findings of fact\u2014for \u201csubstantial evidence.\u201d [3]<\/a> However, the state Supreme Court has noted that when facts “must be established by clear, cogent and convincing evidence . . . the question to be resolved [on review] is not merely whether there is ‘substantial evidence to support the trial court’s determination of the factual issue but whether there is substantial evidence to support such findings in light of the highly probable test.”[4]<\/a>\u00a0 As a respected commentary puts it, there is \u201cconsiderable ambivalence\u201d in published opinions as to how (or even whether) this heightened \u201csubstantial evidence\u201d standard is applied.[5]<\/a>\u00a0 Although the Supreme Court\u2019s language seems fairly clear at first glance, at least one division of the Court of Appeals has argued that any heightening of the \u201csubstantial evidence\u201d standard is incompatible with the prohibition on Courts of Appeals evaluating credibility or weighing evidence.[6]<\/a>\u00a0 Since this continues to be an unsettled area of law, Appellants who need to challenge findings of fact that had to be proven by \u201cclear, cogent, and convincing evidence\u201d may find it worthwhile to develop arguments supporting a stricter standard of review.<\/p>\n

Will the Court of Appeals consider new evidence on appeal<\/span><\/em>?<\/p>\n

The Court of Appeals in theory has the power to order the trial court to consider new evidence before it renders a decision. RAP 9.11.\u00a0\u00a0\u00a0 However, this power is applied very sparingly.\u00a0 Six criteria must be met before the trial court will order the taking of new evidence.\u00a0 Generally, if a party or its attorney could have presented the \u201cnew\u201d evidence at trial, but failed to do so through no fault of the opposing party, the Court of Appeals will not consider or order the consideration of new evidence.\u00a0 In practice, this means that the Court of Appeals almost always reviews the same evidentiary record as was available to the trial court.<\/p>\n

Will the Court of Appeals revisit a trial court\u2019s decisions about witness credibility<\/span><\/em>?<\/p>\n

No.\u00a0\u00a0 The \u201c[c]redibility of parties and witnesses, and the weight to be given to evidence, is for the trial court.\u201d[7]<\/a>\u00a0 \u00a0\u00a0If your case on appeal depends on convincing the Court of Appeals that the trial court made the wrong choice about which live testimony to believe, save your (or your client\u2019s) money, and don\u2019t appeal.<\/p>\n

Even if the only evidence bearing on an issue takes the form of affidavits or declarations, the Court of Appeals will defer to the trial court\u2019s credibility determinations.\u00a0 \u00a0\u00a0See, e.g., In re \u00a0Marriage of Rideout<\/em>, 150 Wn.2d 337, 351-52, 77 P.3d 1174 (2003) (applying substantial evidence review to trial court\u2019s determination in family law matter based on warring affidavits submitted by ex-spouses); and Dolan v. King County<\/em>,—P.3d—, 2011 WL 3612148 (Wa. 2011) (holding that \u201cwhere competing documentary evidence must be weighed and issues of credibility resolved, the substantial evidence standard is appropriate\u201d).<\/p>\n

Will the Court of Appeals consider new arguments on appeal<\/span><\/em>?<\/p>\n

Under RAP 2.5(a), \u201cthe appellate court may<\/em> refuse to review any claim of error<\/em> which was not raised in the trial court\u201d (italicized emphasis added).\u00a0 What is the relationship between a \u201cclaim of error,\u201d an \u201cargument,\u201d and \u201cauthority\u201d?\u00a0 Clearly \u201c[t]here is no rule preventing an appellate court from considering case law [or other \u201cauthority\u201d] not presented at the trial court level.\u201d[8]<\/a>\u00a0 Indeed, RAP 10.8 allows a party to file a \u201cstatement of additional authorities\u201d at any time prior to the decision on the merits, and surely such a statement may include authorities not cited to the trial court.\u00a0 What about new \u201carguments\u201d in support of a previously claimed error?\u00a0 The case law seems to be rather hostile toward allowing new theories or contentions in support of reversal, even if they can be construed as supporting a more general \u201cclaim of error\u201d that was raised below.[9]<\/a>\u00a0\u00a0 However, \u00a0the court of appeals has the discretion<\/em> to either reject or consider claims of error that were not raised below, and it does not commit error by doing either.[10]<\/a>\u00a0 Moreover, a party has the right to raise the following claims of error for the first time on appeal:\u00a0 \u201c(1) lack of trial court jurisdiction; (2) failure to establish facts upon which relief can be granted, and (3) manifest error affecting a constitutional right.\u201d\u00a0 RAP 2.5(a).\u00a0 Finally, there is an asymmetry between new arguments offered for reversal (generally frowned upon), and new arguments offered to support the trial court\u2019s ruling:\u00a0 \u201c[a] party may present a ground for affirming a trial court decision which was not presented to the trial court if the record has been sufficiently developed to fairly consider the ground.\u201d\u00a0 RAP 2.5(a).<\/p>\n

 <\/p>\n

Tips for writing persuasive briefs<\/span><\/em>.<\/p>\n