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(One of) The Pitfalls of Appellate Litigation

In Living Rivers v. UDEQ, 2017 UT 64, the Utah Supreme Court again dinged an appellant for not individually challenging each of of the reasons that supported the decision on review. In its 22 page opinion, the court affirmed the agency action on appeal "despite reservations about the [agency's] statutory analysis." Id. ¶ 4. The case serves as another in a long line of reminders that procedural rules matter and that litigants face a substantial risk of losing an otherwise viable appeal by failing to understand the nature of appellate review.

Indeed, it's axiomaticand logicalthat an appellant must challenge each ground on which the decision on appeal was based. "When a party appeals one basis for a lower court’s, or agency’s, disposition, but does not challenge the court’s or agency’s separate basis for its decision, the issue on appeal is considered moot because the requested judicial relief cannot affect the rights of the litigants.” Id. ¶ 33 (punctuation altered for readability).

This rule follows from the appellant's normal burden of persuasion. Based on the interest in finality, decisions on review are presumptively valid unless and until successfully challenged on appeal. And in some ways, individual grounds for a decision are like discrete decisions themselves. If the lower court's grant of relief rested on ground A and ground B, but the appellant only challenges A, then ground B is still a self-standing and independent reason for the relief (because B independently enjoys the presumption of finality). In that case, the appellate court has no choice but to dismiss the appeal because the appellant has per se failed to persuade the appellate court that the decision below was wrong.

If you have an issue on appeal, it's imperative to know how the appellate system works. This case is one illustration of why. Whether you're a trial attorney or a pro se litigant, you (and your client) are best served by seeking advice, consultation, or outsourcing parts of the appeal to an appellate specialist. Contact someone who knows the system, like John Robinson (that's me), Emily Adams, or Zimmerman Jones Booher, to discuss your case and to make sure you don't fall into the Living Rivers trap.