Challenging Interlocutory Decisions on Appeal – What Not to Do
The Law Court recently issued a short decision, Wilmington Savings Fund Society, FSB v. Abildgaard, which provides a reminder of the importance of taking the appropriate steps at trial to ensure that interlocutory orders can be challenged on appeal.
On its facts, Abildgaard is fairly straightforward. Wilmington Savings Fund sought to foreclose on Abildgaard’s mortgage. To prevail, Wilmington was required to prove (among other things) that it had sent a proper notice of default and right to cure. The notice, however, was excluded at trial on the basis that it did not comply with statutory requirements. At that point, Wilmington rested its case without presenting evidence regarding a number of other elements of its foreclosure claim. In Wilmington’s view, it was unnecessary to proffer any other evidence because, without a notice, Wilmington could not prevail. After the Superior Court entered judgment against Wilmington, Wilmington appealed and challenged the exclusion of the notice.
It was the wrong path to follow. On appeal, the Law Court refused to answer the question whether the Superior Court had erred by excluding the notice. The Law Court invoked the final judgment rule, which embodies the judicial policy prohibiting piecemeal appellate review. If the Law Court ruled in Wilmington’s favor regarding the notice, the only available relief would have been remanding for completion of the trial. Such relief, the Law Court held, would run afoul of the final judgment rule.
As the Law Court noted, Wilmington could have chosen a different path to preserve its rights. It could have presented all evidence necessary to establish the remaining elements of its claim – thereby finalizing all issues and preventing piecemeal litigation. Alternatively, it could have sought a report to the Law Court under M.R. App. P. 24, which allows the Law Court to consider interlocutory questions of law reported by the trial court. The latter is a particularly useful provision that, properly utilized, can significantly streamline judicial proceedings. (Parties and judges should consider the Rule 24 option when applicable, as it can provide substantial efficiencies for litigants and the courts.)
The bottom line, however, is this: counsel must be careful and aware of appellate rules and procedure when making strategic decisions in the trial court.