http://appellatelaw-nj.com/
« Tentative Opinions in Appellate Cases | Main | New Laws to Help Celebrate 2015! »
Wednesday
Jan212015

Appellants must provide a meaningful record or forfeit their claims

 An appellate attorney’s mantra to trial attorneys is to always protect the record.  Our job on appeal is to provide that record to the Court of Appeal.  If we don’t provide a record that shows the trial court committed prejudicial error, we may have forfeited our claims.

In an unpublished opinion in Bonito v. Huntington Condominium Association, #G049338, by the Fourth Appellate District, Division Three, a homeowners’ association appealed from a judgment entered against it for breach of fiduciary duty and negligence claims.  The basis for the claim was that the Association failed to remediate elevated groundwater levels despite obtaining funds in a construction defect lawsuit against the developer.

The appellate court found the Association forfeited all of its challenges except one because the appellant offered little more than bare assertions of trial court error, and failed to address the express basis given by the lower court in its statement of decision.

The Court of Appeal listed several appellate principles that bear repeating here:

  • The appellant’s opening brief must include a summary of the significant facts, not just those favorable to the appellant, and a relevant procedural history, citing California Rules of Court, rule 8.204(1)(2). (Opn., pg. 3.)

  • Although exhibits are “deemed” part of the record on appeal, they are not typically included in the clerk’s transcript nor are they transmitted unless (1) designated as part of the record, or (2) a party makes a timely request to transmit them pursuant to Rules of Court, rules 8.122(a)(3) and 8.224. (Opn., pg. 3, fn. 1.)

  • As a cardinal rule of appellate review, judgments are presumed correct, and therefore, the burden falls on the appellant to prejudicial error.

  • Unless the record shows otherwise, all presumptions favor the trial court and it is presumed matters that could have been presented actually were and the trial court followed the law. (Opn., pg. 7.)

  • The appellant has an affirmative duty to provide relevant portions of the record and, failure to do so, will result in a forfeiture of the point.  (Opn., pg. 7.)

  • Appellate briefs must provide argument and legal authority for each ground.  Failure to do so waives the point. “‘We are not bound to develop appellants’ argument for them . . . The absence of cogent legal argument or citation to authority allows this court to treat the contention as waived.’”  (Opn., pg. 7.)

  • Appellant’s must address the trial court’s express findings and controlling authority.  If not, the point will be deemed waived.  (Opn., pg. 9.)  “‘One cannot simply say the court erred, and leave it up to the appellate court to figure out why.’”  (Niko v. Foreman (2006) 144 Cal.App.4th 344, 368.)


Although the Association’s brief included a “Factual Background,” it was incomplete, forcing the Court of Appeal to rely on trial court’s statement of decision for a factual summary.  The appellant failed to even acknowledge the lower court issued a statement of decision and ignored that court’s findings.  The appellant prevailed on one issue – good news for the client – but the court’s decision was to simply remand it to the trial court to prepare a new statement of decision.  Not much of a victory.