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Remand: When What Goes Up, Comes Back Down

If you are an appellant, your goal on appeal is usually to obtain “remand.”  Remand occurs when the appellate court reverses the order you complained about and sends the case back to the lower court for proceedings consistent with the appellate court’s decision.

How does it work?  Here’s what you need to know

ONCE YOU APPEAL, THE LOWER COURT CANNOT MAKE ANY FURTHER DECISIONS ON THE ISSUES YOU HAVE APPEALED

When you appeal an order or decision, the lower court loses “jurisdiction” (i.e., the ability to make decisions) over the issues contained in that order or ruling.  The appellate court is now the only court which can decide those issues.  You then go through the appellate process, and the appellate court renders its decision.  Once the appellate court has rendered its final decision, it still has jurisdiction over the matter until “remittitur” issues.  “Remittitur” is a fancy word for a piece of paper that is sent back to the lower court which states “We’re done.”

If the appellate court affirms the lower court’s findings, remittitur usually means “We are ALL done.”  But, if the appellate court reverses, remittitur becomes “remand,” and “remand” means “We’re done.  You can have it back now.”

ON REMAND, THE LOWER COURT HAS TO FOLLOW THE DECISION OF THE APPELLATE COURT. 

On remand, the appellate court will usually give the lower court a mandate on what needs to be done to fix the error the appellate court found.  This will vary depending on what the issues are, and what the appellate court ruled.  For example, an appeal regarding trial error may be remanded for an entirely new trial.  But, an appeal regarding a legal issue may only be remanded for the lower court to issue a new order consistent with the appellate court’s findings.

On remand, the lower court must proceed as directed by the appellate court.  State Eng’r v. Eureka Cnty., 133 Nev., Adv. Op. 71, 402 P.3d 1249, 1251 (Nev. 2017).  If the appellate court makes a finding as to what the law is, or how the law should be applied, the lower court must apply it that way.  Id.  This is called the “law of the case” doctrine.  Id.

Law of the case only applies if the appellate court actually addressed and decided the legal issue.  Estate of Adams v. Fallini, 132 Nev., Adv. Op. 81, 386 P.3d 621, 624 (2016).  If the appellate court did not address the issue and the matter is remanded, the issue is fair game for the lower court.   Sometimes, this is an easy determination.  The Nevada Supreme Court frequently remands matters with orders or opinions in which the Court expressly states that it is deciding one particular issue and is not reaching or rendering a decision on another issue or argument.  When that happens, those issues or arguments are fair game in the lower court unless a decision on those would change the appellate court’s decision.  If a decision would affect an appellate court ruling, the issue is determined to be decided by “necessary implication” and may not be considered by the lower court.  Estate of Adams, 386 P.3d at 624.

HOW IT REALLY WORKS

On remand, the lower court must do whatever it was directed to do (or not do) by the appellate court.  The procedure following this will vary depending on the circumstances of the case and the issues of the appeal.

Sometimes, remand is black and white.  Most of the time, it is a shade of very confusing gray.  Here’s how to decipher some of the most common orders on remand:

1.    The lower court is reversed on a legal issue.   This means that the lower court must apply the law as the appellate court found it should be applied, interpreted, etc.  No further argument can be made.

2.     The lower court is reversed on a legal issue and remanded for further findings consistent with the appellate court’s order. This commonly happens in areas where the application of the law depends on “factors.”  If the lower court considered the wrong factors, or did not consider any factors at all, the lower court will have to (1) apply whatever factors (or their application/interpretation) it is directed to by the appellate court, and (2) render its own decision on the matter.  This means the litigants might be able to make further argument and/or present additional evidence.

3.    The lower court is reversed on a factual finding. Generally, the lower court must make the finding of fact that the appellate court states is the proper finding.  However, sometimes this means that additional argument or evidence needs to be presented.

4.   The lower court is reversed on one issue, and the appellate court states it need not reach the merits of the remaining arguments or other issues. This is called “leaving a matter open.”  Although the matter (issue) was argued and considered on appeal, the appellate court never addressed it.  These matters are usually fair game.

Remand is the goal when you appeal, but it is not the end of the story.  Pay close attention to what was ordered upon remand.  Because what goes up, only sometimes comes back down.