Appellate Preservation And Summary Judgment

The necessity of preserving issues for appeal can be a trap for the unwary, leaving litigants without recourse if they fail to take proper steps to preserve a particular argument. Near the end of its recent term, the Supreme Court made this requirement slightly less fraught. In Dupree v. Younger, the Court clarified that a party who wishes to preserve for appeal a purely legal issue resolved at summary judgment need not raise the issue anew in a post-trial motion.

A quick background primer. In 2011, the Supreme Court held in Ortiz v. Jordan that an order denying summary judgment on sufficiency-of-the-evidence grounds is not appealable after trial. Most interlocutory decisions are not immediately appealable, and simply merge into the final judgment for appeal after entry of final judgment. Some interlocutory orders, however, are "unreviewable after final judgment because they are overcome by later developments in the litigation." In Ortiz, the Court explained