Commentary: May a Trial Court Force the Parties to Waive Appellate Review?

Howard J. Bashman

Special to Law.com

July 23, 2007

Howard J. Bashman

Related: Bashman Archive

One of the great things about appellate litigation is that even after nearly 18 years in practice, sometimes a fascinating procedural issue that I have never contemplated will present itself in an appeal on which I am working.

Just last week, for instance, I filed a brief for appellant in a case that presented some interesting issues on the merits. But, according to the trial court's opinion, the appellate court should refuse to reach the merits of those issues because the trial court had supposedly extracted a pledge from the opposing parties not to appeal as a condition of receiving the trial court's ruling on the merits of the dispute.

I say "supposedly" because the transcript of the hearing during which the trial court claims to have obtained that pledge does not, in my view, contain an actual appellate waiver. All that the transcript reflects is that the parties agreed that the trial court's ruling would be binding and that they had to abide by the ruling.

Of course, any trial court ruling binds the parties and must be abided by unless stayed or overturned on appeal, and thus a party's acknowledgement of that reality does not equate to a waiver of the right to seek appellate review. If a trial court actually wanted to obtain a waiver of the parties' right to seek appellate review as a condition to issuing a ruling on the merits of a dispute, it was easy enough to use language which unambiguously communicates that the parties are waiving that right. That, however, did not happen in the case on which I am working.

Here's the even more interesting point: If a trial court may permissibly condition its willingness to rule on the merits of a dispute on the parties' agreement to waive appellate review, one wonders why appellate review of trial court rulings continues to be available. If a trial court has the power to require parties to provide the trial court with the ability to decide a case with no prospect of appellate review, surely trial courts far and wide would be utilizing that power.

Of course, I do not mean to suggest that a party is incapable of waiving its right to seek appellate review. If the party on the losing end of a trial court's ruling purposely fails to appeal within the time allowed, that party will have forfeited its ability to appeal. Moreover, criminal defendants regularly enter into plea agreements that curtail or eliminate their ability to obtain appellate review of their conviction and resulting sentence. I can even envision the enforceability of a contract whereby two parties agree between themselves that neither would appeal from a trial court's resolution of the dispute.

Yet what distinguishes those permissible instances of a party's waiving its right to appellate review from the impermissible instance that my client's appeal involves is that in my client's case, the trial court extracted from the parties a waiver of their right to seek appellate review as a condition of delivering a ruling on the disputed issues in the case. In essence, what happened is the equivalent of a trial court's forcing a settlement of a case on one or more parties that are unwilling to agree to a settlement. The parties are unable to settle the dispute themselves, and thus the trial court decides what the settlement should be. If any party is dissatisfied or considers the outcome that the trial court directed to be unlawful or even unconstitutional, that party is sadly out of luck because no further judicial review is available.

What my client argues in its recently filed appellate brief is that not only does a trial court lack the power to order the parties to a lawsuit to waive their ability to seek appellate review as a condition of obtaining the trial court's ruling on matters in dispute, but also that any such agreement would be unenforceable due to lack of consideration. The trial court had a pre-existing obligation to decide the merits of the dispute between the opposing parties, and therefore those parties obtained nothing from the trial court beyond what they were already entitled to in exchange for their supposed promise not to appeal.

Perhaps as an appellate lawyer I find particularly repugnant the prospect that a trial court could force the parties to a dispute to give up their right of appellate review as a condition to obtaining a ruling on the merits. But I anticipate that the appellate court before which my client's appeal is pending will find the idea equally as troubling. After all, that intermediate Pennsylvania appellate court has yet to figure out a way to require litigants before it to waive their right to seek further review in the next higher court up the ladder, the Supreme Court of Pennsylvania. And if the power to put an appellate court out of business should exist anywhere, it certainly should not exist in the hands of the trial courts.

Howard J. Bashman operates his own appellate litigation boutique in Willow Grove, Pa., a suburb of Philadelphia. He can be reached via e-mail at hjb@hjbashman.com. You can access his appellate Web log at http://howappealing.law.com/.