Appealability or Reviewability of Particular Types of Decisions, Proceedings, or Issues

Generally, federal court of appeals have jurisdiction to hear appeals only from final decisions of the district courts.  Discovery orders are considered as interlocutory orders.[i] Ordinarily, appeals from interlocutory orders are not preferred because they delay trial court proceedings and add unnecessary appellate proceedings.

However, departing from the general rule, discovery orders are appealable under the collateral order doctrine.  The doctrine provides that an appeal from a nonfinal order is permitted if the order conclusively determines a disputed question, resolves an important issue completely separate from the merits of the action, and is effectively unreviewable on appeal from a final judgment.  A declaratory judgment dealing with discovery issue alone is considered as a final judgment and can be reviewed.[ii] If a statute in a state provides that a discovery order is appealable because the interlocutory order affects a substantial right, and where an appeal after final judgment will be a late remedy.  Additionally, when a discovery order disposes the proceedings in a trial court it can be taken as an appealable final order.  In cases where a discovery order is issued in an action pending in another state, the order is appealable if such an appeal is the only means for review of the order.

Interlocutory orders concerning consolidation in state civil cases are not generally appealable because such orders are not final, and do not form an exceptional interlocutory order that needs immediate appeal.  However, the consolidation order is appealable under the collateral order doctrine if an interlocutory order granting consolidation goes beyond requiring the parties to join in common discovery and preparation, and constitutes an order denying a party’s rights to prosecute his/her own separate claims without having them so merged into the claims of others, and results in irreparable injury to the party.[iii]

Severance or separate trial orders in state civil cases are not appealable until final decree is not reached.  If denial of a motion for separate trial affects a case’s decision it can be reviewed only after the final judgment.

An injunction order, which is generally not appealable until final decision, can be appealed if a statute empowers review of the order.  An order granting stay in a federal court proceeding when a suit is pending in a state court is considered final and appealable.  When a case in a federal court is stayed and because of the stay an essential part of the federal case will be litigated in a state court the stay order will be appealable.

The question whether trial in a state civil case should be with a jury or without a jury is an interlocutory issue.  Therefore, such orders are not directly appealable in the absence of a statutory provision.  However, orders denying the right to a jury trial can be appealable if such orders cause irreparable injury, or orders affecting substantial rights.

When objection to a court’s jurisdiction is overruled in a case it is not directly appealable.  Review of the order is permitted only from final judgment.  However, a trial court’s decision not to try a case on the ground that it lacks jurisdiction is not an interlocutory decision, and is therefore, appealable.  An interlocutory order regarding change of venue is not directly appealable. However, an order denying a motion for change of venue even when neither party resides in the county where the action has been filed is an appealable interlocutory order.

An interlocutory order regarding denial of a judge to disqualify him/her is not appealable.  Similarly, a nonfinal order disqualifying or refusing to disqualify a law firm is not appealable.  However, an order disqualifying a law firm which has represented a defendant during the trial from continuing its representation in an appeal, because an attorney who represented the plaintiff joined the firm, is a final and appealable order.

Ordinarily, an order regarding the joinder of additional parties is not appealable because it is not final.  Generally, an order passed to interplead claimants to the property in a suit, and orders of substitution is appealable only if the orders affect the substantive rights of the parties.  When a party’s right to intervene in a suit is denied the order is appealable.  However, such an appeal can be denied if the intervention is only discretionary or permissive.  An order regarding revival of a case after death of a party, while the main case is pending before the trial court is not final.  However, an order denying revival can be considered final because it results in termination of a case.  Under such circumstances, direct appeal from the order can be preferred.

An order regarding amendment of pleadings is not reviewable because it is not a final order.  Appealabilty in an order striking a complaint is permitted only if the order caused irreparable injury, and striking off the complaint resulted in disposal of substantial issues in the case.  Similarly, an order striking an answer is also not appealable directly.

When a state civil action is dismissed the order is a final, appealable judgment.  In a federal court, when a civil action is dismissed with prejudice it is final and appealable.  However, in federal courts orders dismissing complaints without prejudice are not final.  In such cases, plaintiffs can cure the deficiency and refile the complaint.  An order refusing dismissal of an action by a plaintiff or defendant is not a final decision, and therefore, not appealable.

When a nonsuit is granted the decision is considered as final and appealable.  However, when a nonsuit motion is denied the order can not be appealed unless final adjudication of the matter.

An order granting or denying a directed verdict is nonappealable because it is not a final order.  On the other hand, an appeal of the denial of a motion for a directed verdict can be treated as a petition for certiorari for the discretionary purpose of appellate review.

When a summary judgment is provided in a case it can be considered as final, and appealable.  This rule is applicable when the matter is wholly decided.[iv] Generally, a judgment by default is appealable like any other judgment if it meets the general requirements of appealability.  However, an order denying a motion for a default judgment is not appealable.  A consent judgment is a settlement reached by the parties.  It is not the judgment of a court and is not reviewable because it is in the form of a contract.  However, if the judgment is against public interest, or lacks actual consent of the parties, it is appealable.  Generally, a final declaratory judgment is reviewable on appeal subject to the general requirements of appealability.  An exparte order is not a final order.  The defendant should vacate or set aside an exparte order before filing an appeal.  Generally, a judgment must not be conditional to become final.  Even if a judgment is conditional, if the condition is self executing the order can be considered final and appealable.

An order denying or granting a motion for a new trial is an interlocutory order and is not appealable.  An order denying or granting motion for rehearing a case is also not appealable.[v]

In some cases, attachment proceedings are supplementary to main action.  Attachment orders will be considered as interlocutory orders and, therefore, not directly appealable.[vi]

In divorce cases the right to a remedy is in the nature of an appeal.  Appeal proceedings can be initiated when a divorce case is decided in finality.[vii] Orders regarding custody of child, alimony, and maintenance are appealable as they are not essential part of a divorce.  Collateral order doctrine applies in such cases.  Such orders can be severed from a judgment of divorce because an appeal from these orders will not disturb the divorce proceedings in the trial court.[viii]

Appellate proceedings can be initiated from final decisions regarding probate of a will.  An appeal can also lie from an order determining heirship.[ix]

[i] Swint v. Chambers County Comm’n, 514 U.S. 35 (U.S. 1995)

[ii] Almgren v. Rush-Presbyterian-St. Luke’s Medical Ctr., 162 Ill. 2d 205 (Ill. 1994)

[iii] Hallie Mgmt. Co. v. Perry, 272 Neb. 81 (Neb. 2006)

[iv] City of Mayfield Heights v. Flanigan, 1993 Ohio App. LEXIS 5567 (Ohio Ct. App., Cuyahoga County Nov. 18, 1993)

[v] Ft. Lauderdale v. Fraternal Order of Police, Lodge No. 31, 582 So. 2d 162 (Fla. Dist. Ct. App. 4th Dist. 1991)

[vi] Tilghman v. United States Fidelity & Guaranty Co., 90 Fla. 282 (Fla. 1925)

[vii] Aloe Vera of America, Inc. v. Cic Cosmetics International Corp., 517 S.W.2d 433 (Tex. Civ. App. Dallas 1974)

[viii] Elliott v. Elliott, 135 Mo. App. 42 (Mo. Ct. App. 1909)

[ix] De Grasse v. H. W. Gossard Co., 236 Ill. 73 (Ill. 1908)


Inside Appealability or Reviewability of Particular Types of Decisions, Proceedings, or Issues