Chicago-Kent College of Law Professor Joan Steinman contends that post-judgment appeals of summary judgment denials should be permitted when the denials were based on rulings of law. Following circuit splits and U.S. Supreme Court dicta, the question of whether such denials may be appealed post judgment remains unsettled. in Ortiz v. Jordan (2011), the Court stated, “Once the case proceeds to trial, the full record developed in court supersedes the record existing at the time of the summary judgment motion.” Accordingly, a post-judgment appeal should be based on that full record rather than the abbreviated record available when summary judgment was denied, and, in the Court’s view, reviews of summary judgment denials should not be permitted after final judgment.
Steinman calls the Court’s Ortiz dicta “seriously misguided,” arguing that even after trial, an appeal of a summary judgment denial should be permitted and based on the record existing when the motion was denied if the denial was based on a ruling of law rather than the existence of genuine issues of material fact. She explains that litigants lack adequate alternative remedies and dismisses the fear of wasted trials and arguments of unfair surprise to the trial winners as insufficient reasons to disallow post-judgment appeals of summary judgment denials.