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  1. #1
    Join Date
    Jul 2007
    Posts
    2

    Default Appealing The Denial Of Summary Judgment

    Name of State:NY

    The Judge denied our summary judgment and said there are issues of fact which require a trial. My attorney wants to appeal. Can you appeal this decision and not go to trial? My attorney keeps saying he wants to get away from this Judge, that if we go to trial we will still have the same Judge and we will probably lose. I would really appreciate if someone can tell me if I can go straight to appeal and not go to trial?

    Thank you.

  2. #2

    Default Re: Appealing The Denial Of Summary Judgment

    Without knowing the facts there is no way for us to tell. I would ask the advice of another attorney. As a general rule, an appeals court is unlikely to overturn the decision of the trial judge unless there is a clear error.

  3. #3
    Join Date
    Sep 2005
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    Behind a Desk
    Posts
    98,846

    Default Re: Appealing The Denial Of Summary Judgment

    If you win on appeal, typically the case is sent back to the same judge.

    In any case, the type of appeal you are describing is typically described as an "interlocutory appeal", and it usually occurs by leave of the appellate court (you have to ask for their permission to appeal). Often there is no stay of trial court proceedings while the application, and sometimes while the appeal, is pending. It typically involves a considerable effort from the lawyer to prepare and submit the application for leave to appeal, translating into expense for the appellant. Appellate courts often deny leave, preferring to have all appellate issues submitted together at the conclusion of lower court proceedings.

    You need to discuss this further with your lawyer.

  4. #4
    Join Date
    Jul 2006
    Posts
    5,437

    Default Re: Appealing The Denial Of Summary Judgment

    This is a hopeless cause.

    Appeals courts hate summary judgments and will look for ways to send it back to the trial court.

  5. #5

    Default Re: Appealing The Denial Of Summary Judgment

    Do you have a written judgment resulting from the motion? An appeal would be based on the legal theories and bases therefor as explained in the judge's ruling. If the judge is wrong, say, due to an interpretaton of the law as applied to the facts, or something of that nature, then you may have a basis for appeal. Often, a judgment on a motion for summary judgment is granted in part, and denied in part, thus winnowing down the allegations of the complaint upon which the parties are arguing over. In the meantime, discovery and conferences, etc. continue, thus putting more cards on the table, and eventually you will have narrowed the case to just a couple points of law and/or amount of damages and its supporting evidence, upon which the matter will go to trial. And you will likely have to present these final issues to a mediator, at a pretrial settlement conference, be summarized in a demand letter -- all opportunities to come to some agreement or settlement to prevent a trial, because really nobody wants that. If you're just too far apart, a trial will ensue for a jury to sort out. So, it's not appeal or trial - an appeal can proceed right along with the main case procedure, which may or may not reach trial. If you lose the appeal, you'll be liable for attorney's fees and costs.

  6. #6
    Join Date
    Mar 2005
    Location
    Michigan
    Posts
    28,906

    Default Re: Appealing The Denial Of Summary Judgment

    It is unlikely that the loser of an appeal would be liable for the other party's lawyer fees.

  7. #7
    Join Date
    Jul 2007
    Posts
    2

    Default Re: Appealing The Denial Of Summary Judgment

    Let me see if I can explain a little of my case. When we submitted the summary jugdment the judge says to the defendants attorney show me case law on point that shows we abandoned our easements. So the defendant's attorney shows him something and the Judge say O.K.

    Then we get this one page Decision. I'm not even sure if its a Decision, because it doesn't say Decision on it. but it says - Plaintiff's motion for summary judgment declaring plaintiffs are entitled to an easement of ingress and egree across a common driveway shared with defendants, directing defendants to remove the fence in the common driveway and for attorneys fees is denied. There are issues of fact which require a trial.

    I have an unopened easement that says we can build a garage. I don't understand why we have to go to trial for something like this. That's why my attorney wants to appeal. But how do you appeal something that really hasn't been decided on yet by the Judge. I don't want to go through with an appeal which will cost me around $7,000.00 and then lose. I feel like my attorneys are not making the right decision. I think I should go to trial first and then if I lose I can appeal it. Isn't that the process. I just would like to know from someone is my attorney stirring me in the right direction or is he just trying to make some money off of me.

    Thanks everyone for your help

  8. #8

    Default Re: Appealing The Denial Of Summary Judgment

    Quote Quoting kandi6
    View Post
    do you have a written judgment resulting from the motion? An appeal would be based on the legal theories and bases therefor as explained in the judge's ruling. If the judge is wrong, say, due to an interpretaton of the law as applied to the facts, or something of that nature, then you may have a basis for appeal. Often, a judgment on a motion for summary judgment is granted in part, and denied in part, thus winnowing down the allegations of the complaint upon which the parties are arguing over. In the meantime, discovery and conferences, etc. Continue, thus putting more cards on the table, and eventually you will have narrowed the case to just a couple points of law and/or amount of damages and its supporting evidence, upon which the matter will go to trial. And you will likely have to present these final issues to a mediator, at a pretrial settlement conference, be summarized in a demand letter -- all opportunities to come to some agreement or settlement to prevent a trial, because really nobody wants that. If you're just too far apart, a trial will ensue for a jury to sort out. So, it's not appeal or trial - an appeal can proceed right along with the main case procedure, which may or may not reach trial. If you lose the appeal, you'll be liable for attorney's fees and costs.
    who defines if the judge is lawful in his or her decsion on the summary judgement? Is there a difference between law and the judges law?

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