Appellate Insights

Feb 12, 2022 Alana H. Rotter
Movin’ Right Along

When the trial court eliminates key causes of action or evidence, but leaves part of the case intact, parties sometimes dismiss the remaining claims as a way to hasten entry of a final judgment and move along to the Court of Appeal.  In attempting to maneuver your way to a final judgment, be aware of the following:

  • A voluntary dismissal of all remaining claims with prejudice clears the way to entry of an appealable judgment, because it finally resolves all issues in the case.
  • A voluntary dismissal of all remaining claims without prejudice, accompanied by an agreement for defendants to waive or toll statute of limitations, or some other provision for reviving claims post-appeal, will not work.  Any judgment the trial court enters on these terms will not be sufficiently final to permit an appeal.
  • A voluntary dismissal of all remaining claims without prejudice and a stipulation to entry of judgment can clear the way for an appeal, but only if the parties do not attempt to toll the statute of limitations, or otherwise provide for revival of the dismissed claims after an appeal.

►  The practical message:  When faced with dismissal of most of your case, you can arrange to hasten your appeal or you can preserve and pursue the remaining claims—but you cannot do both.