Appeals Regarding Property Matters


Any person aggrieved by a final order or judgment in a property matter can appeal against the order.  The rules generally governing appealability, apply to property matters as well.  An appeal will lie only from a final judgment, and a judgment in order to be final must dispose of all parties and of all issues involved in the suit.[i] In the absence of any final appealable judgment or order, an appeal is premature and will be dismissed.[ii]

When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may make a final judgment on one or more claims.  An order or other form of decision adjudicating fewer than all the claims does not terminate the action as to any of the claims, and the order is subject to revision before entry of final judgment.  Such an order or other form of decision is not appealable as of right before entry of final judgment.  A party may file an application for leave to appeal from such an order.[iii]

A notice of lis pendens constitutes and gives constructive notice to the public of the pendency of an action and of its object and purpose.[iv] An order striking a notice of lis pendens does not end a litigation on merits.  A district court’s order striking lis pendens is not an appealable collateral order.[v] The collateral order doctrine creates a small class of orders that are appealable.  To be appealable under the collateral order doctrine, an order must satisfy three requirements:

  • the order must conclusively determine a disputed question
  • the order must resolve an important issue completely separate from the merits of the action, and
  • the order must be effectively unreviewable on appeal from a final judgment.

A district court’s order expunging a notice of lis pendens is not an appealable collateral order because the determination of whether a claimant has established the probable validity of his/her real property claim will drive the court into the merits of the dispute.[vi]

An appellate court reviews a district court’s ruling on a motion to dismiss a condemnation appeal for correction of errors at law.  A decision to sustain or overrule a motion to dismiss must rest on legal grounds.[vii]

In case of mortgage and foreclosure, an appeal can be preferred, when the rights of parties are settled and nothing remains to be done by the court but to make the sale and pay out the proceeds.  However an appeal is not permitted, where an order of foreclosure does not find the amount due or order the sale of the property.  A decree of foreclosure of a mortgage and for a sale is a final decree, and it is not necessary that the sale must take place and be confirmed.[viii] When a decree decides the right to the property in contest, and directs it to be delivered up by the defendant to the complainant, or directs it to be sold, or directs the defendant to pay a certain sum of money to the complainant, and the complainant is entitled to have such a decree carried immediately into execution, the decree must be regarded as final.  An appeal can be preferred to the U.S Supreme Court although bill is retained in the lower court for adjusting between the parties by a further final decree.[ix]

In a partition case, a judgment will not be final until there is a final distribution of the property.  However, in partition suits, the interlocutory judgment of partition can be appealed prior to the partition sale and distribution, if the judgment determines the rights of the parties.[x] Hence, an order appointing commissioners to divide land is not a final order for purposes of appeal.  Additionally, an interlocutory decree ordering or denying partition by sale is not an appealable interlocutory order.  However, a partition order which effectively transfers separate possession to each party is sufficiently final and is appealable.  For an appeal to be properly taken, it must be from an interlocutory order that determined the rights of the parties.

[i]Davis v. McCray Refrigerator Sales Corp., 136 Tex. 296 (Tex. 1941)

[ii]Graham v. Bottorff, 240 S.W.2d 191 (Mo. Ct. App. 1951)

[iii]Children’s Hosp. v. Auto Club Ins. Ass’n, 450 Mich. 670 (Mich. 1996)

[iv]Bragg v. Burlington Res. Oil & Gas Co. LP, 2009 ND 33 (N.D. 2009)

[v]Orange County Airport Hotel Assocs. v. Hongkong & Shanghai Banking Corp., 52 F.3d 821 (9th Cir. Cal. 1995)

[vi]Orange County Airport Hotel Assocs. v. Hongkong & Shanghai Banking Corp., 52 F.3d 821 (9th Cir. Cal. 1995)

[vii]Kimberley v. Iowa DOT, 2002 Iowa App. LEXIS 814 (Iowa Ct. App. July 31, 2002)

[viii]Keystone Manganese & Iron Co. v. Martin, 132 U.S. 91 (U.S. 1889)

[ix]Keystone Manganese & Iron Co. v. Martin, 132 U.S. 91 (U.S. 1889)

[x]Davis v. Howe, 144 S.W.3d 899 (Mo. Ct. App. 2004)