top of page


Preservation of Appellate Review – Is It Waived?

July 21, 2023

Share to:

<p style="text-align: justify;"><em><a href="">Dupree</a> v. Younger,</em> Case Number 22-210 (May 25, 2023) addresses the preservation of legal issues for appellate review. In <em>Dupree</em>, the U.S. Supreme Court found that a summary judgment motion “allows the district court to take first crack at the question that the appellate court will ultimately face: Was there sufficient evidence in the trial record to support the jury’s verdict?” The court also found that “[b]ecause the factual record developed at trial supersedes the record existing at the time of the summary judgment motion, it follows that a party must raise a sufficiency [of the evidence] claim in a post-trial motion in order to preserve it for appeal.” The court further found that a “repeat-motion requirement” would be an “empty exercise,” where the averse ruling is based on a purely legal issue because “a purely legal question is, by definition, one whose answer is independent of disputed facts” and, thus, “factual development at trial will not change the district court’s answer.” Applying this reasoning to the case at hand, the Dupree Court unanimously held that where an averse pretrial ruling is based on a purely legal issue, a litigant need not, to preserve the issue for appellate review, re-raise the issue at or after trial.</p>
<p style="text-align: justify;">The Take Away.</p>
<p style="text-align: justify;">Be careful! While <em>Dupree</em> eliminates the need to re-raise averse rulings on purely legal issues; to avoid waiver, and preserve appellate review of fact-based issues, one must re-raise the fact-based issue(s) at trial and by post-trial motion.</p>
<p style="text-align: justify;">Thanks to Charles "Chip" George for this post. Please contact <a href="">Chip</a> with any questions.</p>


bottom of page