Imagine that your client has been sued for damages in federal court. In a motion for summary judgment, you assert what you believe to be a valid and compelling legal defense, such as the plaintiff’s failure to exhaust administrative remedies. There are no facts in dispute regarding the defense—it presents a purely legal question for the judge to resolve before any trial takes place. Yet the judge denies your dispositive motion, and so you proceed to a jury trial, where your client is hit with a substantial verdict. As you consider post-trial motions, you may wonder: must you re-brief the purely legal defense in a Rule 50 motion — even though the judge previously denied it on summary judgment — in order to preserve that issue for appeal?

The answer to that question has divided the federal circuits, and in January 2023 the U.S. Supreme Court agreed to review a case, Dupree v. Younger, that will give the Supreme Court the opportunity to resolve what has developed into an 8-3-1 circuit split on this recurring issue of appellate procedure.

The petitioner in Dupree — whose exhaustion defense was rejected on summary judgment — faced the conundrum described above, and the Fourth Circuit held that it would “not review, under any standard, the pretrial denial of a motion for summary judgment after a full trial and final judgment on the merits, even in circumstances where the issue rejected on summary judgment and not reasserted in a post-trial motion is a purely legal one.” As the petitioner noted in the successful Dupree cert petition, the Fourth Circuit’s position is the minority position, followed by just three federal circuits. Eight federal circuits — including the Sixth Circuit — do not require appellants to reassert in a post-trial motion purely legal questions that were previously rejected at the summary-judgment stage in order to preserve those questions for appeal. And one federal circuit, the Eleventh, “is simply left to pick sides.”

A circuit split worth resolving

As the petitioner in Dupree explained to the Supreme Court in the cert petition:

The existing situation is intolerable. The question presented raises legal and practical issues of substantial importance, and its correct disposition is critical to the consistent operation of appellate review in the federal courts. It does parties little good to raise a potentially meritorious legal defense on summary judgment only to learn on appeal that doing so was not enough to preserve the issue for review. Parties in most circuits need not (and do not) waste resources and test the court’s patience by relitigating issues already resolved against them; yet in the First, Fourth, and Fifth Circuits they must do so under pain of forfeiture. Because this case presents an optimal vehicle for resolving this important question of federal law, the petition should be granted.

The existing situation is intolerable. The question presented raises legal and practical issues of substantial importance, and its correct disposition is critical to the consistent operation of appellate review in the federal courts. It does parties little good to raise a potentially meritorious legal defense on summary judgment only to learn on appeal that doing so was not enough to preserve the issue for review. Parties in most circuits need not (and do not) waste resources and test the court’s patience by relitigating issues already resolved against them; yet in the First, Fourth, and Fifth Circuits they must do so under pain of forfeiture. Because this case presents an optimal vehicle for resolving this important question of federal law, the petition should be granted.

The answer to a question of appellate procedure such as this should not depend on the federal circuit in which one happens to be litigating. We are interested to learn where the Supreme Court lands as it considers this circuit split — stay tuned to Ohio Appellate Insights for updates. 

Ohio connections to the successful cert petition

Notably for our Ohio readers, one of the resources cited by the successful cert petitioner in Dupree is a 2010 University of Cincinnati law-review article by Thompson Hine IP litigator Jesse Leigh Jenike-Godshalk, called Appealed Denials and Denied Appeals: Finding a Middle Ground in the Appellate Review of Denials of Summary Judgment Following a Full Trial on the Merits. For readers of this blog who may be interested in exploring this topic more deeply, Mr. Godshalk’s article helpfully summarizes the history and development of the circuit split that the Supreme Court has now decided to resolve.

And for readers of this blog litigating here in the Sixth Circuit, the successful cert petition in Dupree also cites a number of Sixth Circuit decisions following the majority rule and permitting appellants to brief rejected summary-judgment issues — purely legal ones — even if those issues were not re-raised in a post-trial Rule 50 motion. For example, in the 2012 case called In re AmTrust Fin. Corp., the Sixth Circuit noted that “[t]he district court’s [contract] ambiguity ruling was a pure question of law. Thus, under this circuit’s longstanding precedent, the district court’s decision may be appealed even in the absence of a post-judgment motion.”

There are no Ohio state-court decisions cited in the Dupree cert petition. And as of the date of this writing, none of the nearly half-dozen Sixth Circuit decisions cited in the Dupree cert petition has been cited or followed by any Ohio state court. So, where do Ohio state courts stand on this procedural issue recently accepted for review by the U.S. Supreme Court? We searched the annotations to Ohio Civil Rule 50 for any references to “summary judgment” and came up empty. The annotations to the rule do not point to Ohio cases addressing this precise topic.

As Ohio’s Tenth District court of appeals noted just last year in Victoria’s Secret Stores, LLC v. Cintas Corp. No. 2, quoting the Ohio Supreme Court’s 1994 decision in Continental Ins. Co. v. Whittington, it has long been the rule in Ohio that “ordinarily, the denial of a motion for summary judgment is not a point of consideration in an appeal from a final judgment entered following a trial on the merits.” But the Ohio Supreme Court in Whittington was careful to note a distinction between cases for which that general rule applies, and other cases in which the unsuccessful summary-judgment movant presented “a pure question of law.” 

So then how, in Ohio, must a summary-judgment (and trial) loser properly preserve for appellate review after a jury trial the unsuccessful, purely legal defense that was rejected on summary judgment? Must the loser (per the federal circuits’ minority rule) re-brief the legal issue in a (surely doomed) Rule 50 motion in order to preserve it for appeal? Or can the loser (per the federal circuits’ majority rule) appeal that purely legal issue without having included it in a Rule 50 motion? 

This is a blog post — not a law-review article or a legal brief — and we have not exhausted our Ohio state-court research on this topic. If any of our readers have previously encountered that procedural issue regarding Ohio Civil Rule 50 in an Ohio state court, we would appreciate hearing from you! For example, have you ever been barred by an Ohio district court of appeals from appealing a purely legal issue that you briefed on summary judgment, but did not re-brief in a (surely fruitless) post-trial motion? If so, then you have been a victim of the minority approach described in the Dupree cert petition. On the other hand, if you have beaten back a waiver argument and been permitted to appeal such a purely legal issue without including it in a Rule 50 motion, you have benefitted from the approach followed in a majority of federal circuits applying the federal version of that rule. 

Experienced appellate practitioners know that a trial counsel unexpectedly waiving an argument is a challenge to both success on appeal and explaining the resulting impact to the client. It will be interesting to see how and when the U.S. Supreme Court’s upcoming decision in Dupree impacts state courts’ (including Ohio’s) approach to this question going forward.