Commercial Litigation and Arbitration

Issues That Could Have Been, But Were Not, Raised on First Appeal Are Barred on Subsequent Appeal

Maheca Trans. Co. v. Phila. Indem. Co., 2013 U.S. App. LEXIS 23396 (8th Cir. Nov. 21, 2013):

For over one hundred years, our court has repeatedly barred parties from litigating issues in a second appeal following remand that could have been presented in the first appeal. See Clark v. Brown, 119 F. 130, 132 (8th Cir. 1902) (refusing to allow an appellant to challenge the validity of an order appointing a receiver in a second appeal where the appellant did not challenge the receiver's appointment in his first appeal); Richardson v. Commc'ns Workers of Am., AFL-CIO, 486 F.2d 801, 804 (8th Cir. 1973) ("The earlier judgment of the district court is the law of the case as it reflects upon any possible defenses to liability of the two unions. . . . The  defendants' failure to properly preserve these defenses in their motion for directed verdict in the original trial and their total abandonment of these issues on the original appeal precluded their consideration in the second trial and prevents the unions from belatedly raising these issues on [the second] appeal."); Lupo v. R. Rowland & Co., 857 F.2d 482, 484 (8th Cir. 1988) (concluding two attorneys challenging a district court's jurisdiction to impose Rule 11 sanctions against them "waived any objection they may have had regarding" the proper entry of judgment under Rule 58's separate document requirement in a second appeal because "an [initial] appeal was heard by this court on the merits of the case . . . and this issue was apparently not raised by the parties"); United States v. Russ, 861 F.2d 184, 185 (8th Cir. 1988) (concluding the law-of-the-case doctrine prevented an appellant from contesting, in a second appeal, the amount of a deficiency judgment entered against him because he "should have raised this issue in his appeal from the initial district court order finding him liable for the amount stated in the complaint, and his failure to do so precludes further consideration of this claim"); Kessler v. Nat'l Enters., Inc., 203 F.3d 1058, 1059 (8th Cir. 2000) ("The general rule is that where an argument could have been raised on an initial appeal, it is inappropriate to consider that argument on a second appeal following remand.") (internal quotation marks and citation omitted); Sweat v. City of Fort Smith, Ark., 265 F.3d 692, 696 (8th Cir. 2001) (same); United States v. Castellanos, 608 F.3d 1010, 1019 (8th Cir. 2010) (same); United States v. Bloate, 655 F.3d 750, 754 (8th Cir. 2011) (same).5


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