Dead on Arrival: Reviving Unpreserved Issues on Appeal

Picture yourself as an associate who has been tasked with an obscure, or sometimes apparently obvious (but no Utah court has addressed the issue yet), legal research question.  You sit at the computer and stare at the Westlaw screen for an hour or so; you have tried numerous different search terms, trying to find a case that is on point.  And there it is!  You found it!  There are two to three Westlaw headnotes that include almost precisely the language that you need. The thrill rushes over you because you are about to tell a shareholder that you were able to… oh, wait.  The phrase you never want to see in that situation: “We do not address Appellants’ argument . . . because that claim is unpreserved and Appellants make no argument for our consideration of the unpreserved claim.”[1]

Stumped, yet again.  Now you are off to find case law from other jurisdictions that the opposing party is easily going to attack.  And you have an uphill battle persuading the court to do something for the first time in Utah, based on only persuasive cases.

Here is how we as a legal community can help fix this all-too-common problem:

First, preserve your argument.  To preserve an argument for appeal, an attorney must present that argument, issue, or claim before the district court in a manner that the district court has an opportunity to rule on it.[2]  Appellate courts are reviewing courts; not courts to address issues for the first time that could have and should have been made before a district court judge.  If an attorney anticipates making an argument on appeal, make sure the district court judge addressed it first.  If not, you are risking the opportunity for that argument to be addressed on the merits on appeal.

Second, if you have not preserved your argument, remember to argue an exception to the preservation rule to persuade the appellate court to reach that argument.  The following are the three exceptions to Utah’s preservation rule: (1) plain error, (2) ineffective assistance of counsel,[3] and (3) exceptional circumstances.[4]  Though the appellate court may not always agree with your preservation exception argument, it is worth the try.

Plain error.  To demonstrate plain error, the appellate must establish that “(i) an error exists, (ii) the error should have been obvious, and (iii) the error is harmful.”  Frugal Flamingo Quick Stop v. Farm Bureau Mutual Insurance Company, 2018 UT App 41, ¶ 10, 420 P.3d 57.  This can be a difficult burden for the appellant to meet,[5] and after searching Westlaw for more than one hour, I was able to find only one case in which a Utah appellate court determined that the court had committed plain error.[6]  This underlines the importance of preserving the argument in the district court.

Ineffective assistance of counsel.  This exception to the preservation rule is most often raised in the criminal context, but it has had its day in at least one civil case.  To establish ineffective assistance of counsel, the appellant must establish that “trial counsel’s performance was deficient, in that it fell below an objective standard of reasonable professional judgment,” and “that counsel’s deficient performance was prejudicial.”[7]  Failure to establish either prong is fatal to an ineffective assistance of counsel claim.  It is crucial, but often overlooked, to argue both prongs of this claim.

Exceptional circumstances.  The exceptional circumstances exception is applied sparingly and in situations “where a rare procedural anomaly has either prevented an appellant from preserving an issue or excuses for failure to do so.”[8]  The court in State v. Johnson, 2017 UT 76, 416 P.3d 443, articulated a few instances in which an exceptional circumstance occurred to allow the court to review the unpreserved argument.  These exceptional circumstances that warranted the review of the unpreserved argument and subsequent reversal occurred most commonly criminal cases.[9]  In the civil context, the Utah Supreme Court held a rare procedural anomaly occurred in an adoption case in which the district court appointed counsel to an indigent party, and the county attorney intervened arguing that the statute the court relied upon did not provide the right to counsel.  The appointed counsel did not oppose the motion and it was granted.  On appeal, the supreme court held that the failure to oppose the intervention constituted a rare procedural anomaly under those circumstances to allow a party to raise “constitutional arguments for the right to counsel in parental-rights termination proceedings, even though they were raised for the first time on appeal.”[10]

All of these exceptions are rarely applied in Utah.  But in too many cases, exceptions to preservation are not argued at all.  If more attorneys are aware of and argue these exceptions on appeal, we are likely to have more cases in which the appellate courts are able to apply an exception and create a body of case law that reaches the merits of more arguments on appeal.  Much to the relief of all associates and district court judges.

Written by Kendra M. Brown


[1] Phillips v. Skabelund, 2021 UT App 2, ¶ 70, ___ P.3d ___.

[2] See 438 Main Street v. Easy Heat, Inc., 2004 UT 72, ¶ 51, 99 P.3d 801; True v. Utah Dep’t of Transp., 2018 UT App 86, ¶ 26, 427 P.3d 338.

[3] I note that Justice Durham has articulated that “ineffective assistance of counsel” is characterized as an exception to preservation, but is actually “a stand-alone constitutional claim attacking the performance of a criminal defendant’s counsel” and appellate courts review the substance of the issue “through the lens of counsel’s performance.”  See State v. Johnson, 2017 UT 76, ¶ 22, 416 P.3d 443.  Either way, be sure to argue ineffective assistance of counsel (when appropriate) for unpreserved arguments, especially in criminal appeals.

[4] See, e.g., Johnson, 2017 UT 76, ¶ 19.

[5] This is especially true, given that there is an exception to this exception.  If the attorney invited the error that he or she later attempts to challenge on appeal, the appellate courts will not reach an argument under the plain error exception to preservation.  See Pratt v. Nelson, 2007 UT 41, ¶ 18, 164 P.3d 366.

[6] See State v. Portillo, 914 P.2d 724 (Utah Ct. App. 1996).

[7] State v. Wall, 2020 UT App 36, ¶ 81, 460 P.3d 1058 (cleaned up).

[8] Johnson, 2017 UT 76, ¶ 29 (cleaned up).

[9] Id. ¶¶ 31-35.

[10] Adoption of K.A.S., 2016 UT 55, ¶¶ 19-21, 390 P.3d 278.