Avoiding Procedural Traps on Appeal: Part I – Tips 1-10

Seeking a comprehensive review of proper appellate procedure in Washington state court? Hear from the experts!

Below are the first 10 tips recommended by The Honorable Rebecca Glasgow and Ian Cairns of Smith Goodfriend during our 7th Annual Advanced Appellate Program (Washington), which is available for download here.

1. Failure to timely a notice of appeal
   1. Generally, the notice of appeal is due within 30 days of entry of the appealed order. See RAP 5.2(a).
   2. Exceptions to the 30-day rule:
      1. Certain posttrial motions extend the time for filing (e.g., a CR 59 motion for new trial or reconsideration, etc.). See RAP 5.2(e); RAP 2.4(c).
      2. Statutory deadlines. A list of applicable statutes is available in the drafters’ comments to RAP 5.2 and in Tegland’s Appellate Practice Deskbook.
      3. An order does not have to be labeled a “final judgment” to be one.
2. Appeal as a matter of right
   1. See RAP 2.2(a) for a list of appealable orders.
      1. If an order is not on this list, it is not appealable and a party must instead seek discretionary review under RAP 2.3.
   2. For review of decisions of courts of limited jurisdiction, see RAP 2.2(c).
3. Failure to timely file a notice of discretionary review
   1. A notice of discretionary review is due 30 days from any non-appealable act by the trial court. See RAP 2.3. An “act” does not have to be memorialized by an order to start the clock.
4. Respondent’s failure to timely cross-appeal
   1. The “appellate court will grant a respondent affirmative relief by modifying the decision which is the subject matter of the review only (1) if the respondent also seeks review of the decision by the timely filing of a notice of appeal or a notice of discretionary review, or (2) if demanded by the necessities of the case.” See RAP 2.4(a).
   2. A respondent presenting an alternative basis for affirmance, as opposed to seeking affirmative relief, need not cross-appeal. See McGowan v. State, 148 Wn.2d 278, 287-88, 60 P.3d 67 (2002).
5. Failure to designate orders in a notice of appeal.
   1. The appellate court will review orders (or portions of orders) that have been designated in the notice of appeal or notice of discretionary review. See RAP 2.4(a).
   2. If a trial court order or ruling is not designated in the notice, the appellate court will review if the order “prejudicially affects the decision designated in the notice.” See RAP 2.4(b).
6. Jurisdiction
   1. Minimum dollar amount ($200) limits jurisdiction in Court of Appeals and Supreme Court. RCW 2.06.030; RCW 2.04.010. “Original amount in controversy”
   2. Subject matter jurisdiction can be raised at any time
7. Aggrieved party and standing
   1. Only an aggrieved party may seek appellate review. See RAP 3.1.
   2. An aggrieved party is one whose proprietary, pecuniary, or personal rights are substantially affected. Randy Reynolds & Assocs., Inc. v. Harmon, 193 Wn.2d 143, 150, 437 P.3d 677 (2019).
8. Mootness/Ripeness
   1. “A case is moot if a court can no longer provide effective relief.” State v. Gentry, 125 Wn.2d 570, 616, 888 P.2d 1105 (1995).
   2. For relevant mootness rules, see RAP 8.3; 18.12,
   3. Parties seeking dismissal should bring a motion if a case becomes moot mid-appeal.
   4. Ripeness generally arises in criminal cases where there is a vagueness challenge, in cases involving the Administrative Procedures Act, and in cases involving the constitutionality of statutes.
9. Failure to assign error
   1.  Briefs should include concise assignments of error. See RAP 10.3(a)(4).
   2. Provide separate assignments of error for each jury instruction improperly proposed, given, or refused. See RAP 10.3(g).
   3. Unchallenged findings of fact are verities on appeal.
   4. The appellate court does have discretion to review unassigned errors “if the issues are reasonably clear from the arguments in the brief, the opposing party has not been prejudiced, and the court has not been overly inconvenienced.” State v. Croy, 3 Wn. App. 2d 1067, 2018 WL 2437316, at *3 (2018) (citing State v. Olson, 126 Wn.2d 315, 323, 893 P.2d 629 (1995)).
   5. However, to be safe, make sure to include assignments of error and err on the side of being overinclusive in assignments. Include assignments of error that are specific without including argument.
10. Failure to support assignments of error
    1. “A party that offers no argument in its opening brief on a claimed assignment of error waives the assignment.” Brown v. Vail, 169 Wn.2d 318, 336 n. 11, 237 P.3d 263 (2010).
    2.  After finishing a draft of the opening brief, compare the assignments of error to the arguments to confirm each assignment is supported.
    3. Include references in the assignments of error to the brief sections with the corresponding argument and vice versa.

See the final 10 tips in our next blog!