Parties to an Appeal

Every appeal requires opposing parties, at least one appellant and one appellee.  There can be no appeal without both appellant and appellee.[i]  An appellant is the party who seeks review of lower court’s decision.  The term appellee includes any non-appellant party to a suit, whether involved in the appeal or not.[ii]

Only parties to a lawsuit have standing to appeal.  A non-party cannot appeal an adverse judgment or attack a consent decree.[iii]  Also, a witness who is a stranger to the litigation may not be party to an appeal.[iv] Further, appeal is available only to parties of record.[v]

Ordinarily only a litigant who is a party in the lower court and who is aggrieved by the judgment or order may appeal.[vi]  If no aggrieved party is before it, the appellate court is without jurisdiction.[vii]  The right to appeal is limited to parties aggrieved in some appreciable manner by the judgment.[viii]

A person is aggrieved if the judgment bears directly and injuriously upon his/her interests.[ix]  To be a party aggrieved there must be a denial of some personal or property right to the party by the decree, and such denial should come as a direct result of the decree, and not merely as a result in some other proceeding of the application of a legal principal established in the decree appealed from.[x]

However, if a decree affects a third party’s interests, he is often allowed to appeal.[xi]  A person may be an aggrieved party entitled to appeal from a judgment even though s/he is not a named party to the suit if s/he has a substantial interest adverse to the judgment either directly or by privity.[xii]

Similarly, an exception exists when the appellant is deemed to be a party under the doctrine of virtual representation.  To claim virtual representation, an appellant should show that:[xiii]

  • it is bound by the judgment;
  • its privity of estate, title, or interest appears from the record; and
  • there is an identity of interest between the appellant and a party to the judgment.

Further, a class member who had not opted out of a class settlement can appeal from a district court’s approval.[xiv]  Also, a non-party may intervene to challenge a consent decree.[xv]  Any person who has an interest in the litigation, the success of either of the parties, or who has an interest adverse to both, may intervene.[xvi]

Also, media, even if not parties to a case, may appeal closure orders.[xvii]  Generally, attorneys for a litigant are not personally affected by a judgment.  However, an attorney may appeal when his/her fees are denied.[xviii]

Thus, only a party or someone privy to the record is entitled to appeal.[xix]  The right to appeal is also recognized in certain circumstances where the appellants are deemed to be parties under the doctrine of virtual representation or are otherwise bound by the judgment and where their privity of estate, title or interest appear from the record of the cause below.[xx]

Federal statute provides that in any action, suit or proceeding in a court of the U.S. to which the U.S. or any agency, officer or employee thereof is not a party, wherein the constitutionality of any Act of Congress affecting the public interest is drawn in question, the court should certify such fact to the Attorney General, and should permit the U.S. to intervene.[xxi]

Further, in any action, suit, or proceeding in a court of the U.S. to which a State or any agency, officer, or employee thereof is not a party, wherein the constitutionality of any statute of that State affecting the public interest is drawn in question, the court should certify such fact to the attorney general of the State, and should permit the State to intervene.[xxii]

Where a party of record in the trial court is a party only in official capacity, that party may lack standing to appeal in personal capacity.[xxiii]  Similarly, a judge or magistrate whose decision is being reviewed does not have standing to appear in appellate proceedings in support of the ruling at issue.[xxiv]

Further, the board of appeals is considered a quasi-judicial tribunal and such a board is not vested with the power to reopen and rehear a proceeding which has once been terminated.[xxv]

A party cannot appeal from a judgment rendered in his favor in strict accordance with his prayer for relief.[xxvi]  The basic reasoning behind this rule is that a party is not aggrieved or prejudiced by the trial judgment which affords him/her the full relief requested.  This rule applies even though the judgment or holding in favor of the party is clearly erroneous.[xxvii]

Further, a party who obtains a judgment in accordance with his prayer is estopped to deny the correctness of the judgment in the same manner as if s/he had acquiesced in it or executed it voluntarily.

Similarly, a party who does not appeal from a final decree of the trial court cannot be heard in opposition thereto when the case is brought to an appellate court by the appeal of the adverse party.[xxviii]

However, an appeal is allowed where an injustice will result or the judgment contains adverse adjudications which will prejudice the appealing party.[xxix]  Further, an exception may exist where an adverse finding which is made a part of the judgment is likely to have collateral estoppel or res judicata effects detrimental to the party who obtained judgment.[xxx]

A necessary party to an appeal is a party to the record below directly affected by a ruling on the merits of the appeal.[xxxi]  Where an appeal is taken from a judgment of a trial court, all parties whose interest in the subject matter of the proceeding could be adversely affected by a reversal or modification of the judgment are necessary parties to the appeal.[xxxii]

A notice of appeal should specify all of the appellants and all of the appellees.  Failure to specify any party whose absence prevents the appellate court from granting complete relief among those already parties is fatal to the appeal.[xxxiii]  The purpose of a notice of appeal is to inform the party in whose favor judgment has been rendered that the unsuccessful party desires a review of the judgment.[xxxiv]

Further, the court has the inherent authority to allow additional parties to participate in the appeal upon timely application or upon the court’s invitation.[xxxv]

If a party dies after a notice of appeal has been filed or while a proceeding is pending in the court of appeals, the decedent’s personal representative may be substituted as a party on motion filed with the circuit clerk by the representative or by any party.[xxxvi]

If a party entitled to appeal dies before filing a notice of appeal, the decedent’s personal representative may file a notice of appeal within the time prescribed by the Federal Rules of Appellate Procedure.[xxxvii]

In a criminal case where the defendant has died pending appeal, there should be no determination of the issues on appeal and the judgment of conviction should be set aside and the indictment dismissed.[xxxviii]

Where the interests of a party to an appellate proceeding have delegated on another, the party acquiring such interest will be allowed to be joined and to prosecute or defend the appeal in place of the original party.[xxxix]

When a public official becomes a party to an appeal, subsequent changes in the identity of the officeholder will not act to abate the action and that the case will proceed with the new official being automatically substituted for the predecessor.[xl]  Similarly, dissolution of a corporation which is a party to an appeal does not abate the appeal.[xli]

[i] Sarasota-Fruitville Drainage Dist. v. Certain Lands, etc., 80 So. 2d 335 (Fla. 1955)

[ii] Waguespack v. Prosperie, 592 So. 2d 460 (La.App. 5 Cir. 1991)

[iii] United States v. Nozik, 1998 U.S. App. LEXIS 14704 (6th Cir. Ohio June 25, 1998)

[iv] Cobbledick v. United States, 309 U.S. 323 (U.S. 1940)

[v] Motor Vehicle Bd. of the Tex. DOT v. El Paso Indep. Auto. Dealers Ass’n, Inc., 1 S.W.3d 108 (Tex. 1999)

[vi] State v. Catherine H. (In re Alycia P.), 258 Neb. 258 (Neb. 1999)

[vii] Chambers v. United Farm Workers Organizing Committee, 541 P.2d 567 (Ariz. Ct. App. 1975)

[viii] Koller v. Liberty Mut. Ins. Co., 190 Wis. 2d 263 (Wis. Ct. App. 1994)

[ix] id

[x] Chambers v. United Farm Workers Organizing Committee, 541 P.2d 567 (Ariz. Ct. App. 1975)

[xi] United States v. Chagra, 701 F.2d 354 (5th Cir. Tex. 1983)

[xii] Koller v. Liberty Mut. Ins. Co., 190 Wis. 2d 263 (Wis. Ct. App. 1994)

[xiii] Motor Vehicle Bd. of the Tex. DOT v. El Paso Indep. Auto. Dealers Ass’n, Inc., 1 S.W.3d 108 (Tex. 1999)

[xiv] Weinman v. Fid. Capital Appreciation Fund (In re Integra Realty Res., Inc.), 354 F.3d 1246 (10th Cir. Colo. 2004)

[xv] United States v. Nozik, 1998 U.S. App. LEXIS 14704 (6th Cir. Ohio June 25, 1998)

[xvi] Nampa Highway Dist. v. Graves, 77 Idaho 381 (Idaho 1956)

[xvii] United States v. Chagra, 701 F.2d 354 (5th Cir. Tex. 1983)

[xviii] Lipscomb v. Wise, 643 F.2d 319 (5th Cir. Tex. 1981)

[xix] Adams v. Morton, 581 F.2d 1314 (9th Cir. Mont. 1978)

[xx] Jernigan v. Jernigan, 677 S.W.2d 137 (Tex. App. Dallas 1984)

[xxi] 28 USCS § 2403 (a)

[xxii] 28 USCS § 2403 (b)

[xxiii] Bender v. Williamsport Area Sch. Dist., 475 U.S. 534 (U.S. 1986)

[xxiv] Wilmington Trust Co. v. Barron, 470 A.2d 257 (Del. 1983)

[xxv] BOARD OF ZONING APPEALS v. McKINNEY, 174 Md. 551 (Md. 1938)

[xxvi] Capital Bank v. Salley, 575 So. 2d 951 (La.App. 2 Cir. 1991)

[xxvii] Trus Joist Corp. v. Safeco Ins. Co., 153 Ariz. 95 (Ariz. Ct. App. 1986)

[xxviii] Dalle Tezze v. Director, Office of Workers’ Compensation Programs, United States Dep’t of Labor, 814 F.2d 129 (3d Cir. 1987)

[xxix] Capital Bank v. Salley, 575 So. 2d 951 (La.App. 2 Cir. 1991)

[xxx] Chambers v. United Farm Workers Organizing Committee, 541 P.2d 567 (Ariz. Ct. App. 1975)

[xxxi] Golembieski v. O’Rielly R.V. Ctr., 147 Ariz. 134 (Ariz. Ct. App. 1985)

[xxxii] Texas Employment Com. v. Gant, Inc., 604 S.W.2d 211 (Tex. Civ. App. San Antonio 1980)

[xxxiii] Braden v. Republic-Vanguard Life Ins. Co., 657 S.W.2d 241 (Ky. 1983)

[xxxiv] Dunaway v. Ashland Oil, 189 Ill. App. 3d 106 (Ill. App. Ct. 5th Dist. 1989)

[xxxv] Cooper v. Picayune, 511 So. 2d 922 (Miss. 1987)

[xxxvi] USCS Fed Rules App Proc R43(a)(1)

[xxxvii] USCS Fed Rules App Proc R43(a)(2)

[xxxviii] People v. Lipira, 621 P.2d 1389 (Colo. Ct. App. 1980)

[xxxix] Tapiador v. North American Lloyds, 778 S.W.2d 207 (Tex. App. Houston 1st Dist. 1989)

[xl] USCS Fed Rules App Proc R43(c)(2)

[xli] Walling v. James V. Reuter, Inc., 321 U.S. 671 (U.S. 1944)


Inside Parties to an Appeal