Can Partial Summary Judgment Affect A Substantial Right?

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Usually, appellate counsel can confidently say that a grant of partial summary judgment, standing alone, will not allow for an interlocutory appeal.  A complete grant of summary judgment is a final, appealable judgment, but a partial grant is usually not appealable until the end of the case.  A recent published opinion from the Court of Appeals, however, staked out a new path.

In Woody v. Vickrey, the litigants disputed whether Woody was competent to revoke a trust agreement and convey property.  The trial court granted summary judgment to the defendant-trustee on all the claims involving Woody’s competency, determining that there was no genuine dispute that Woody was in fact incompetent to revoke the trust and convey property to family members.

But the grant of summary judgment to the trustee was only partial.  The court left for trial the trustee’s counterclaim for civil conspiracy against Woody’s family members.

Rather than await trial, the parties on the losing end of summary judgment took an interlocutory appeal.  The Court of Appeals fractured over the appealability of the summary judgment order.

The appellants pressed two arguments for the exercise of appellate jurisdiction over the trial court’s interlocutory order.  First, they argued that there was a risk of inconsistent verdicts if the trustee won on civil conspiracy, and the summary judgment order were then reversed after a final judgment.  All three judges on the panel rejected that argument.  It is not enough to merely raise the specter of inconsistent verdicts—the appellant must actually demonstrate how the possibility is likely to happen.

Second, the appellants made an argument going to the constitutionality of the summary judgment procedure itself.  The argument appears to go like this:

  • There is a constitutional—and thus substantial—right to have issues of fact decided by a jury.
  • The right to a jury trial is limited to resolution of facts that are genuinely disputed.
  • If there are facts genuinely in dispute, then granting summary judgment affects a substantial right to a jury trial.
  • Peeking at the merits, there is a genuine dispute of fact about Woody’s competency, so the grant of summary judgment affected the appellants’ substantial rights (and summary judgment shouldn’t have been granted either).

Judge Carpenter, writing the lead opinion, embraced this reasoning.  Judge Carpenter’s opinion is notable because the Supreme Court has emphasized that the grant of partial summary judgment does not, by itself, affect a substantial right.  The Supreme Court has also emphasized that the merits of an order on appeal, and the appealability of the order, are unrelated inquiries that should not be intertwined.

Judge Jackson dissented.  He would have applied the rule that a partial grant of summary judgment, whether right or wrong on the merits, does not by itself affect a substantial right to a jury trial.  Thus, he would have dismissed the appeal for lack of appellate jurisdiction.

Judge Hampson concurred in the judgment only.  He agreed with Judge Jackson’s dissent, that a partial grant of summary judgment does not normally affect a substantial right.  But Judge Hampson would have resorted to a different substantial-right doctrine to allow the appeal.  Orders that affect title to property, the appellate courts have sometimes held, can affect a substantial right, and Judge Hampson believed that the orders here fell within that doctrine.  Interestingly, it does not appear that the appellants raised the “impact on title” doctrine to justify the appeal, nor did the other panelists address it.

What will come of this fractured decision?  As a technical matter, there is nothing binding about the Court’s jurisdictional rulings.  Judge Hampson concurred in the judgment only, and each panelist had a different opinion on appealability.  That said, with Judge Carpenter’s opinion being the lead opinion in a published decision, some attorneys may rely on it to justify an appeal form a partial grant of summary judgment.  Perhaps the trustee will use Judge Jackson’s dissent as a ticket to a further appeal at the Supreme Court.

Regardless, this is a case for appellate attorneys to keep an eye on. 

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