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Utah Code 78-12-40

Utah Code 78-12-40

Effect Of Failure Of Action Not On Merits

If any action is commenced within due time and a judgment thereon for the plaintiff is reversed, or if the plaintiff fails in such action or upon a cause of action otherwise than upon the merits, and the time limited either by law or contract for commencing the same shall have expired, the plaintiff, or if he dies and the cause of action survives, his representatives, may commence a new action within one year after the reversal or failure.
Most civil and criminal decisions of a state or federal trial court (as well as administrative decisions by agencies) are subject to review by an appeals court. Whether the appeal concerns a judge’s order or a jury’s verdict, an appeals court reviews what happened in prior proceedings for any errors of law. This means losing parties can’t appeal a case just because they’re unhappy with the outcome; they may only challenge decisions that may have resulted from errors, such as a misinterpretation of legal precedent or reliance on evidence that should have been excluded. If you’re appealing a court decision or judgment, you’ll want to get a handle on how the process works. The following is an overview of court appeals. If the court finds an error that contributed to the trial court’s decision, the appeals court will reverse that decision. The lawyers for the parties submit briefs to the court and may be granted oral argument. Once an appeals court has made its decision, the opportunity for further appeals is limited. As the number of parties filing appeals has risen substantially, the state and federal court systems have implemented changes in an effort to keep up.

Trials vs. Appeals

A trial and an appeal have a few similarities, but also many important differences.

At trial, the parties present their cases, calling witnesses for testimony and presenting other pieces of evidence, such as documents, photographs, reports, surveys, diaries, blueprints, etc. The jury weighs this evidence and determines the facts of the case, that is, what they believe actually happened. A jury is therefore sometimes referred to as the “finder of fact.” The judge controls the activities in the courtroom and makes all the legal decisions, such as ruling on motions and on objections raised by the attorneys. The judge is often called the “finder of law.” If the parties have chosen a bench trial, rather than a jury trial, the judge will make both findings of fact and findings of law. An appeal is a review of the trial court’s application of the law. There is no jury in an appeal, nor do the lawyers present witnesses or, typically, other forms of evidence. The court will accept the facts as they were revealed in the trial court, unless a factual finding is clearly against the weight of the evidence. Another difference between a trial and an appeal is the number of judges involved. A single judge presides over a trial. An appeal, however, is heard by several judges at once. How many depends on the jurisdiction. At the initial appeals court level, courts may have from three to a few dozen judges. Yet on the larger courts, the full number of judges seldom hears claims together. Instead, appeals are typically heard by panels, often comprised of three judges. In rare instances, the full court may decide to grant a motion for rehearing “en banc,” when all the judges on the appeals court hear the case together and issue a new decision. Supreme Courts, at the state and federal level, have from five to nine judges, referred to as justices. The main form of persuasion on appeal is the written appellate brief, filed by counsel for each party. With this brief, the party that lost in the trial court will argue that the trial judge incorrectly applied the law. The party that won below will argue that the trial court’s decision was correct. Both parties will support their positions with reference to applicable case law and statutes.

An appeal is a more scholarly proceeding than a trial. Whereas the litigator must be an active strategist in the courtroom, calling witnesses, cross-examining, and making motions or objections, the appellate lawyer builds his or her case in the brief, before the appeal is heard. Appeals often include a short period for oral argument, but the judges often consume this period with questions for the attorney, prompted by the briefs.
Appeals court decisions turn on the record, which documents what happened in the trial court. The record contains the pleadings (plaintiff’s complaint and defendant’s answer), pre-trial motions, a transcript of what occurred during trial, the exhibits put into evidence, post-trial motions, and any discussion with the judge that did not take place off the record. The success of an appeal therefore depends on what occurred at trial. If an attorney failed to get critical, available evidence into the record, or to object to something prejudicial, the opportunity to do so is lost.

After Appealing a Court Decision

The party that loses in a state or federal appeals court may appeal to the state Supreme Court or the U.S. Supreme Court. (Most states call their highest court “Supreme Court,” though Maryland and New York call theirs the “Court of Appeals.”) Review in these courts, however, is discretionary with the court. Because these courts receive many more requests for review than they can handle, they typically grant review only to cases involving unsettled questions of law. Also, the U.S. Supreme Court can only review cases that raise some federal or constitutional issue; cases that concern state law exclusively are beyond its jurisdiction. At this point, the parties have already had the case reviewed once, reducing their tendency to see the decisions as biased or contrary to law.


Reverse and Remand

Some cases will result in a reversal and remand. This means that the Court of Appeals found an error and the case is remanded, or sent back, to the same trial judge to re-decide the case. Many times issues can only result in a remand back to the same trial judge. So it must be factored in whether a successful appeal means the case is going to the same judge who committed error in the first place. Many times a trial judge may simply follow what the Court of Appeal stated and reach the same decision as before if there is some flexibility given by the Court of Appeals. However other times the remand language from the Court of Appeals is so specific that the judge must decide the case differently. It is all dependent on the direction of the Court of Appeals in its opinion.

Reverse and Render

Perhaps the best result is a reverse and render. In this case the trial court really is ordered to take only one action as directed by the Court of Appeals. So essentially there is not much left for the trial judge to do other than enter the Court of Appeals’ judgment. For the person appealing, this is the best and most desirable result. It is very good to evaluate the appeal issues and determine if they might result in a reverse and remand, and require new hearings or new trial in front of the same trial judge that made the error (and more spending on litigation), or might they result in a reverse and render which means that the case will just be simply sent back to the trial judge to enter the new judgment directed by the Court of Appeals.

If you are planning to sue another person or entity, or if you have been sued, you should learn about the key steps in the legal process. The specific procedures may vary depending on your state, but civil lawsuits follow a certain basic trajectory from the initial complaint until the trial. The party bringing the case is known as the plaintiff, while the party being sued is known as the defendant. You should be aware that most cases end with a settlement before trial, which is a more efficient, less risky option than entrusting the outcome to a judge or jury. Before you sue, you may want to think about sending a demand letter to the potential defendant. This can help you save the costs of litigation and solve the issue without the stress of a formal dispute. Read more here about how to craft a strong demand letter.

Complaints and Answers

The first step in a lawsuit is filing the complaint and serving it on the defendant. The plaintiff will outline their version of events in the complaint and describe how the defendant’s actions harmed them. They will ask for monetary compensation or another remedy, such as an injunction. The plaintiff will arrange for service of process by an officer of the court, which involves providing the defendant with the complaint and a summons. The summons offers a basic description of the case and informs the defendant of their deadline to respond. The defendant then will have an opportunity to respond to the complaint with an answer. They must file their answer within the required time period, or the court will enter a default judgment against them. The answer will provide the defendant’s version of events, admitting any statements by the plaintiff that is true and denying all of the plaintiff’s statements that are not true. It also can raise any applicable counterclaims against the plaintiff. Read more here about complaints and answers.


The process of gathering evidence in a lawsuit is known as discovery. This allows each side to get a better understanding of their position and develop strategies for the litigation. It also can promote the settlement process by revealing the strengths and weaknesses of the case. Discovery often involves depositions, which are interviews in which a party or a witness answers questions about the case under oath. It also may involve interrogatories, which are written sets of questions provided by one party to the other party or to someone else with knowledge of the facts in the case. Other discovery tools include requests for admissions and requests for production. Each party can send requests for admissions to the other party to narrow the issues in the dispute. If the opponent admits that a fact is true or that a document is genuine, these points no longer need to be litigated. Requests for production allow a party to get access to tangible evidence that is relevant to the case. Read more here about the discovery process.


At any point before a case reaches trial, either party or both parties can try to end the case by filing a motion with the court. Most often, the defendant files this type of motion, and the plaintiff opposes it. If the defendant believes that the plaintiff does not have a valid case, they can bring a motion for judgment on the pleadings at the very outset of the case. Similarly, the defendant can bring a motion to dismiss if they identify a procedural problem with the case, such as an issue involving the court’s jurisdiction or the statute of limitations. A motion for summary judgment can be brought later in the process if either party feels that there are no material facts in dispute, and they are entitled to judgment as a matter of law. Sometimes the losing party in a trial will bring a post-trial motion to correct an apparent error. They might file a motion for a new trial based on a material problem with the proceedings. Or they might file a motion for judgment notwithstanding the verdict if the jury’s verdict was clearly not based on the evidence. However, both types of motions are challenging to win. Read more here about motions before and after trial.


You may have come across many trials in television or literature, but they rarely happen in reality. If the defendant cannot get the case dismissed, the parties usually will settle rather than taking their dispute all the way to trial. Each party has a right to a jury trial in most cases if the plaintiff is seeking monetary compensation, although the parties can agree to waive this right. Jury selection is a complex process that involves asking jurors questions to identify their likely biases. The parties also can exclude a limited number of jurors for reasons other than bias, within the limits provided by the Constitution. A trial begins with opening statements by each side and proceeds through the presentation of evidence, including witness testimony. Each side can cross-examine the other side’s witnesses, and then the party that called the witness can conduct a re-direct examination. The plaintiff presents their case first, and then the defendant may ask for a directed verdict if they believe that the plaintiff has not made an adequate case. If this motion is denied, the defendant will present their case. Finally, each side will make closing arguments and propose jury instructions to the judge. Once the jury instructions have been determined, the judge will provide them to the jury, which will deliberate and return a verdict.

If the losing party in a trial is unsatisfied with the outcome, they can consider appealing it to a higher court. An appeal usually will need to identify a specific legal error and show how it resulted in the outcome. An appellate court will not reverse a jury’s decision unless there was a reversible error. This means that the outcome would have been different if the error had not occurred. An appellate court usually will not reverse the decision of a judge in a lower court unless they abused their discretion. A losing party can appeal not only a trial verdict but also any other final judgment that ends the case. If the court granted a defendant’s motion to dismiss or motion for summary judgment, for example, the plaintiff can appeal that ruling. The appeals court would review the record in its entirety in this situation, including the facts as well as the law. Read more here about the appeals process.

Only final judgments may be appealed. A final judgment disposes completely of the case, leaving no further issues for the court to decide. A judgment does not have to result from a jury verdict to qualify as a final judgment. Cases which are resolved through motions for summary judgment or motions to dismiss are also considered final judgments. A court may allow interlocutory appeals under some circumstances, such as the denial of a preliminary injunction. All losing parties in civil matters and all criminal defendants have a right to appeal a judge or jury’s verdict against them. The prosecution in a criminal matter, however, may not appeal a verdict in favor of the defendant. To appeal a verdict of “not guilty” would violate the Double Jeopardy clause of the United States Constitution.

Which Courts Hear Appeals?

State and federal appeals courts review the decisions of lower trial courts. If a party loses in an appeals court, they may appeal to the state supreme court or to the United States Supreme Court. Review of appeals in these courts is discretionary and is limited to a small percentage of cases. Additionally, the United States Supreme Court is authorized only to hear cases that involve a federal or Constitutional issue. While a single judge presides over a trial, an appeal is typically heard by a panel of three judges. State Supreme Courts generally have panels of more than five justices, while the Supreme Court of the United States seats a total of nine justices.

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It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506
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