In this episode of Decision Dive, Balch’s Jason Tompkins, Chair of Balch & Bingham’s Issues & Appeals Practice, is joined by Robert Baxley, attorney in the firm’s Litigation Practice, to explore the Eleventh Circuit’s new decision examining what it takes to preserve an argument for appeal, emphasizing the need for appellate counsel at all stages of litigation.

The Eleventh Circuit found a party cannot preserve an argument for appeal from summary judgement simply by raising it in an earlier motion to dismiss.

As we dive into the Xu v. Porsche Cars North America decision, Jason and Robert discuss the case and what it takes to preserve an argument for appeal.

DECISION DIVE:

Hosted by Balch & Bingham’s Jason Tompkins, Decision Dive is a video series exploring the impact of new, key appellate rulings from the United States Courts of Appeals for the Fifth and Eleventh Circuits, and decisions from State Supreme Courts across the Southeast and Texas. Jason will be joined by guests from across the firm’s footprint to discuss how the new decisions impact companies moving forward.

TRANSCRIPT:

Jason: Welcome to Balch's Decision Dive, where we explore the impact of new appellate rulings and the effects they have moving forward. I'm Jason Tompkins, Chair of the firm's Issues and Appeals Practice. Today, we'll be discussing the 11th circuits recent decision in Xu v. Porsche Cars North America, a decision that highlights the importance of having appellate counsel involved in your case at all stages of litigation. Joining me today is Robert Baxley, also an attorney in our issues and appeals practice. Robert, why do companies need to pay attention to this decision?

Robert: So this case involved the plaintiff, but it really affects any litigant. Waiver will kill your case before you even have the chance to make an argument on appeal. It's kryptonite to any appellate attorney. If you do not preserve an issue for an appeal, you've lost.

Jason: And that's exactly what happened in this case.

Robert: Absolutely.

Jason: The Xu decision involves plaintiffs who sued Porsche for defects in the cooling systems of the cars they purchased. Porsche raised a statute of limitations defense to their claims and statute of limitations is the period of time that the law allows the plaintiff to sue for a wrong, and generally, in its simplest terms, the statute of limitations begins to run when the alleged wrongful event causes damage. There are exceptions to that, including one that arose in this case. So Robert, can you tell us some of the exceptions to the statute of limitations accruing at the specific time of damage?

Robert: Sure. One of the big things about the statute of limitations that Jason mentioned is you have to know that you're damaged to know if you're going to sue. And so one of the exceptions to that is called the discovery rule. That simply is a rule saying that in certain situations, if the plaintiff has to actually know or reasonably should have the opportunity to know or investigate that they were harmed. In this case, this involved a defect on their car. So I'm not a mechanic, most people aren't. So you may not know that your car has an issue until it starts breaking down.

Jason: So the plaintiff here raised exactly that argument. That the discovery rule should have basically tolled beginning the statute of limitations so that his claims are still timely. The district court here determined that that was a factual question, that facts developed during the course of discovery might inform its decision better on that statute of limitations argument. So it denied Porsche's motion to dismiss and allowed the claims to go forward. Discovery did move forward and Porsche ultimately filed a motion for summary judgment, again raising the statute of limitations argument. In response, this time, however, the plaintiff did not argue the discovery rule that he had argued in response to the motion to dismiss. Instead, he argued a separate basis for tolling the accrual of statute of limitations that is that Porsche fraudulently concealed defect from him. The district court granted Porsche's motion for summary judgment and the plaintiff appealed to the 11th circuit. On appeal, the 11th circuit did not even reach the statute of limitations argument however, because it concluded that the plaintiff did not properly preserve it for appeal. So Robert, tell us more about what went wrong here for the plaintiff.

Robert: Well, the plaintiff didn't preserve their argument. The appellate court's job is to look at the errors made in the trial court, the district court. Its job is not to reach any decision, whatever, reach the right result every time. Its job is only to look at the errors in the district court and say yay or nay, call the balls and strikes. So for them to reach the decision below, you have to really make an effort to present your argument to the district court or the trial court and make sure that the trial court can recognize what you're saying and give them a chance to rule on it. That usually takes, usually raising it in briefing is good enough if you're appealing from that decision. You usually need a couple sentences in a brief, cite a case or two, legal authority and make your argument. But in this case, the problem arose where the plaintiff raised the argument in the motion to dismiss at the beginning of the case and then later after they developed facts went into discovery, got actual evidence, they didn't raise the same argument at summary judgment. Now that's a problem.

Jason: It is, and the 11th circuit is often reminding litigants that a single footnote or a single sentence or a single case citation is not enough to preserve an argument. But here, Robert, the plaintiff did do more than that. He fully briefed it in the motion to dismiss. Why did the court conclude that that wasn't good enough to preserve it for appeal?

Robert: Again, this goes back to the function of an appellate court. The plaintiff may have raised this early in the case in response to a motion to dismiss, but they didn't raise it in the motion for summary judgment. The reason why it's a problem here is because the plaintiff won that motion to dismiss. The District Court denied that motion. And so when they lost summary judgment, they could appeal that. But you can't appeal a decision that you win. Or you can only appeal the ones that you lose.

Jason: Well, we've talked a lot about the importance of preserving an argument. We do sometimes see circumstances when a court will nonetheless consider an argument that wasn't raised in the trial court. For example, we've had other videos where we talk about the concept of standing, which goes to the court's subject matter jurisdiction. That can be raised at any time. Even if you didn't raise it in the district court, you can raise it in the Court of appeals for the first time. Are there any other issues like that that don't necessarily have to be raised in the district court in order to argue them on appeal?

Robert: So one of the other problems that the plaintiff had here was this was a mixed question of fact and law. There was a recent Supreme Court case, Dupree v. Younger, and in that case, the Supreme Court held that if you raise a discreet issue of law, doesn't involve any facts, just the law, that you can raise that at summary judgment and not argue it in a post-judgment motion or a trial and still preserve it for an appeal. The idea being it just involves law. A trial court is all about facts. If it just involves law, there's no reason that appellate court can't make that decision as long as it gave the District Court a chance to rule on it.

Jason: So while there are exceptions to the preservation rule, they are extremely rare and the better course of action of course, is if you know about an argument in the trial court to go ahead and raise it. And I think that this case shows the pitfalls of not doing so and why litigants should really have appellate attorneys involved at all stages of litigation because we, appellate attorneys, specialize in identifying and preserving errors like this so that when you get on appeal, you can make all the arguments that are available to you.

Jason: Thank you for joining us for Decision Dive. I'm Jason Tompkins. Thank you Robert Baxley for joining us today, and we'll be back next time when there's an appellate decision that you need to know about.