Most people are surprised to learn that on appeal, the court is rarely interested in the truth about what actually happened in a case. This is because, for the most part, the facts are for the jury or the trial court to sort out. If an appellate court starts reweighing the evidence, it runs the risk of depriving a person of a fair trial or a jury trial. Instead, appellate courts focus on the law. In fact, most appellate opinions will tell you explicitly that the court is intentionally making huge assumptions about the facts.
Faucheaux v. Provo City, 2015 UT App 3, is a good example of what I’m talking about. It’s a case about a man who called the police because he was worried that his wife was suicidal. According to the husband, the police arrived, ignored several obvious signs of overdose, and then tucked the wife into bed. According to the husband, the police told him to stay away, refused to call for EMTs, and told him not to call the police again. The wife died that night. ¶¶ 2–9. The husband argued that because the police took control of the situation, they owed a duty to make sure the wife was not overdosing.
Of course, Provo City had a different account of the facts. It didn’t matter, though, because as the Court of Appeals explained, “On an appeal from a summary judgment, we recite the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party.” n.3. Provo City moved for summary judgment, so the court assumed that the husband’s story was true and interpreted the law from there. An appellate court isn’t in the business of determining if an assertion of fact is true. And it’s not equipped to decide if an inference is unfair. The appellate court just wants to settle the facts so it can get to its real work—interpreting the law.
This is important for clients, journalists, and legal observers to remember. The background section of an appellate opinion does not reflect reality, and it is not intended to. It’s also important for lawyers to remember that the facts are almost never in dispute during oral argument. For example, during the oral arguments for Faucheaux v. Provo City, there was the following exchange:
Attorney: That’s [the husband’s] representation. That’s certainly not what the police officer’s affidavit says.
Judge: Right. But aren’t we here on summary judgment?
Attorney: We are, your honor.
Judge: So don’t we have to accept those facts and all the inferences in favor of them?
Attorney: No. I don’t think so.
The judge’s question, of course, was rhetorical, and the attorney’s answer was incorrect.
It’s a strange concept that even judges forget sometimes. For example, in McPherson v. McPherson, 2011 UT App 382, the Utah Court of Appeals considered whether the trial court erred by not using the ex-husband’s net income to calculate his alimony payments. ¶ 13. To settle the facts, the Court of Appeals picked a number it found in the record, $3,074.57 a month, and used that to analyze the relevant legal issues. ¶ 15. The Court of Appeals made it clear in a footnote that it was just using the number for the purposes of its decision, not as a factual determination. ¶ 15 n.4. On remand, however, the trial court felt it was bound to the $3,074.57 figure because “the appellate court seemingly found within the record sufficient evidence to find husband’s net income . . . .” McPherson v. McPherson, 2013 UT App 302, ¶ 4.
On appeal for the second time, the Court of Appeals explained that it “in no way meant to tie the trial court’s hands in considering the best evidence available to it (or the effect of a lack of evidence, for that matter) in calculating an appropriate alimony award.” ¶ 7.
So, it may seem strange, but appellate courts are rarely concerned with the truth. Instead, they are focused on the law. If a question of fact does arise on appeal, the appeals court will often remand to the trial court for fact finding. The appellate courts follow the ancient rule: Da mihi factum, dabo tibi ius—Give me the facts, I’ll give you the law. Keeping this in mind throughout the appellate process will save you a lot of frustration.
In Faucheaux v. Provo, the Court of Appeals determined that, based on the assumed facts, the police officers did have a duty to take care of the wife. The case was then remanded to the trial court for further proceedings. ¶ 37.