Perfecting an Appeal: Intent Matters
But so do deadlines
May 15, 2014
You know the saying. The road to heck is paved with good intentions. Sometimes, it appears, the road to perfecting an appeal can be as well. A recent decision by the Minnesota Court of Appeals, which the Minnesota Supreme Court declined to review, demonstrates the potential for some equitable relief from a technical rule violation if the party’s imperfect actions clearly indicate an intention to perfect a timely appeal.
In re Custody of the Minor Child of Fenton v. Carlson, A14-0138 (Minn. Ct. App. Mar. 4, 2014) involved a child custody and support dispute. After the district court rendered a decision, the child’s mother decided to appeal. The respondent-father moved to dismiss the appeal, arguing that the appellant had failed to timely and properly serve the notice of appeal. Both parties were represented by counsel. The appellant’s lawyer had filed the notice of appeal with the clerk of the appellate courts within the appeal period, but had served the notice of appeal on opposing counsel by fax without obtaining prior consent from opposing counsel to be served in that manner. In March of last year, my column focused on dotting the I’s and crossing the T’s, and I discussed the problems that fax service create. In Gliszinski v. Davisco Foods, Int’l, Inc., A11-2230 (Minn. Ct. App. filed Feb. 8, 2012), the Court of Appeals dismissed an otherwise proper appeal because the notice of appeal was served by fax nearly end of the appeal time, and mail service was not accomplished before the time expired.
In Carlson, the respondent filed a motion to dismiss correctly arguing that the rules of appellate procedure require service of the notice of appeal by personal service or U.S. mail. Service by fax or other electronic means is proper only with the consent of the party to be served. Minn. R. Civ. App. P. 125.03. Because both timely filing and service of the notice of appeal are necessary to vest jurisdiction with the Court of Appeals, see 1983 and 1998 Comments to Minn. R. Civ. App. P. 103.01, the respondent argued that appellant had failed to meet the jurisdictional requirements within the appeal period and the appeal should be dismissed.
But as is so often the case with appeals, some minor differences in the facts resulted in a different decision than you might have expected. The Court of Appeals declined to dismiss the appeal.
The court agreed that since the respondent’s counsel had not consented to the service of the notice of appeal by fax, service had not been accomplished by that action. The court reached this conclusion despite the fact that the respondent’s counsel hadn’t objected to the fax service, and in fact had, in correspondence with her adversary a short time later, described her client as having been served with the notice of appeal that had arrived only by fax.
While the factual basis for a waiver argument about the service requirements was present, the Court of Appeals chose not to take this approach. Instead, the court looked to the statement of the case, which the lawyer for the appellant had served on respondent’s counsel by U.S. mail within the appeal period.
Relying on Kelly v. Kelly, 371 N.W.2d 193, 195 (Minn. 1985) for the proposition that notices of appeal should be liberally construed in favor of their sufficiency, the court decided to treat the appellant’s statement of the case as the notice of appeal for the purpose of serving the opposing party. The court held, “[w]e will construe the statement of the case as a notice of appeal, because the statement showed an intent to appeal and advised respondent of the issues to be raised on appeal. Appellant’s timely and proper service of the statement of the case invoked this court’s jurisdiction.” In re Custody of the Minor Child of Fenton v. Carlson, Slip. Op. at 3. The respondent tried to get the Supreme Court to review the Court of Appeals’ ruling, but without success. Thus, the appeal stayed alive.
Can intent be inferred?
In some ways, the results should not be too surprising. The outcome is consistent with federal precedent that often looks to whether the party has adequately evidenced its intent regarding its appeal to overlook technical deficiencies in the content of a notice of appeal. For instance, while a notice of appeal should specifically detail the judgment or order being appealed from, as long as a party’s intent to appeal from a specific ruling can fairly be inferred and the appellee is not misled or prejudiced, failure to provide such detail may not be fatal in federal court. See Sanabria v. United States, 437 U.S. 54, 67 n.21 (1978).
As in the Minnesota appellate courts, the formal requirements of Federal Rule of Appellate Procedure 3 governing notices of appeal are liberally construed by the federal appellate courts. See Smith v. Barry, 502 U.S. 244 (1992); Torres v. Oakland Scavenger Co., 487 U.S. 312 (1988). And in many instances, federal courts will find that a document filed by a party is the “functional equivalent” of what FRAP 3 requires. A plethora of documents has been treated as the “functional equivalent” of a notice of appeal, including a brief, a motion to appeal, a petition for leave to appeal in forma pauperis, an Appellant’s Form A, and a petition for mandamus, among many others. See Herr, D., Magnuson, E., Vasaly, M., and Gans, M., eds., Eighth Circuit Appellate Practice Manual sec.5.3 (Minnesota CLE 6th ed. 2013).
You still must make the deadline
Sometimes it’s better to be lucky than good. However, it is always better to follow the rules than it is to figure out a good argument as to why close was good enough.
A few take-aways. First, good and clear intentions will probably get you nowhere if you miss the deadline to appeal. Note that all of the “good enough” actions of the appellant in this case happened within the appeal period. Carefully calculate your deadlines and meet them. Second, determine what the rules require regarding the content of a notice of appeal and all other requirements to perfect an appeal. And meet them. Putting your client in a position where you have to rely upon an appellate court to divine your intentions from imperfect pleadings is not a comfortable, let alone a professionally responsible, place to be.
And don’t put too much stock in the fact the Court of Appeals reached a particular result based on a particular set of facts in a particular case. It may not do it again. And, even though the Supreme Court declined to review, that doesn’t mean the justices agreed with the Court of Appeals, or that the decision of the Court of Appeals created an inviolate and eternal rule of appellate procedure.
In Marzitelli v. City of Little Canada, 582 N.W.2d 904 (Minn. 1998), the appellant’s lawyer followed a rule of procedure adopted by the Court of Appeals concerning appealable orders that contained the direction to “let judgment be entered accordingly.” The Court of Appeals had declared that such orders lost their status as appealable orders, and the only proper appeal was from the ensuing judgment. See Saric v. Stover, 451 N.W.2d 65 (Minn. Ct. App. 1990). That was the apparent rule for nearly a decade before the Supreme Court addressed the issue. The lawyer did not appeal from the order, but waited until judgment was entered, only to have the Supreme Court reverse and find that the order was not rendered non-appealable by the direction of entry of judgment and was untimely.
Like beauty, intent is often in the eye of the beholder. And subject to the relatively subjective perceptions of the particular court personnel or judicial panel tasked with reviewing any technically imperfect appellate paperwork.
But, should unavoidable circumstances arise that even the most careful and diligent attorney could not have avoided, if the stuff is about to hit the fan, focus on substance and not the form of a notice of appeal. Make certain that your intentions to appeal and the substance of what you are appealing are clear, and get that document filed and served. The right way.
This article first appeared in the May 19, 2014 issue of Minnesota Lawyer.
Reprinted with permission of Minnesota Lawyer ©2014
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Katherine Barrett Wiik
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