Appeal Triggers Can Be Traps: Not All Are The Same
Numerous appeal periods are controlled not by rule but by statute, and you need to always be on the lookout for those instances where the time to appeal is started in some way other than that provided for in Minnesota Rule of Civil Appellate Procedure 104.01.
April 14, 2016
Perhaps you took on that case a bit outside your main practice area, or agreed to help that family member or friend. And after an unfortunate loss, the client wants to go to the appellate courts.
You remember the basic deadline for filing a civil appeal: 60 days. You may even be able to distinguish by memory that if it was a judgment, the 60-day trigger runs from entry of judgment, whereas if it was an order, the 60-days run from service — by any party — of notice of the filing the order.
But even if you can’t remember the exact details beyond a 60-day deadline, you know to look in the Rules of Civil Appellate Procedure and can find the rule in the table of contents, and can find the specifics in the rule. That is not a problem.
Your client, through you, can get trapped, however, by the lurking and not-always-consistent triggers for the time to appeal found in places other than the rules. Numerous appeal periods are controlled not by rule but by statute, and you need to always be on the lookout for those instances where the time to appeal is started in some way other than that provided for in Minnesota Rule of Civil Appellate Procedure 104.01.
One landmark that you should always keep in mind is the nature of the case in which you are involved. If the rights or remedies you are pursuing are created or governed by a specific statute, then there is a decent chance that there are special provisions in the statute, or perhaps even court rules other than the Rules of Civil Appellate Procedure, that may impact any appeal. “Special proceedings” are good examples.
Generally a “special proceeding” is one that does not involve a common law claim, such as breach of contract or negligence, but rather is created by a specific statute that prescribes a particular right or remedy, and provides a procedure that must be followed to enforce that right or remedy. Any special proceeding can be a potential trap when it comes to appeals, one that you can avoid by identifying early on not only the trigger for your appeal period, but whether there is a different time for appeal than the ones found in the appellate rules.
The appellate rules do not specify which types of proceedings are covered by the general rules. See Minn. R. Civ. App. P. 104.01, subd. 1 (setting forth when appeal can be taken “unless a different time is provided by statute”). For example, some proceedings which have separate triggers set forth in statutes include probate, eviction and unemployment benefits appeals. See Minn. Stat. § 525.712, § 268.105, subd. 7; § 504B.371. And some proceedings have appeal triggers found in court rules other than the appellate rules, including juvenile protection, juvenile delinquency, and adoption matters. Minn. R. Juv. Prot. P. 47.02, subd. 2; Minn. R. Juv. Del. P. 21.03, subd. 2(B) & 21.04, subd. 3(C)(1); Minn. R. Adopt. P. 48.02, subd. 2.
As you maneuver the path of an appeal, another way to get caught in the trap is to wait too long to find that applicable trigger rule (or statute, or even case law). Sixty days seems like plenty of time to file an appeal, but there are a number of proceedings that have shorter deadlines. If you don’t identify that deadline soon enough, and file that notice of appeal on time, the client’s time to appeal may run out.
Here are shorter-than-60-day deadlines to file an appeal in several types of proceedings:
- 15 days in evictions, § 504B.371.
- 30 days in real estate partitions, § 558.215.
- 30 days in criminal misdemeanor convictions, Minn. R. Crim. P. 28.02, subd. 4(3)(b).
- 30 days in unemployment benefits cases, § 268.105, subd. 7.
But even finding these numbers may not be straightforward. Consider juvenile protection proceedings. While the relevant statute provides for 30 days to file the notice of appeal, the applicable rule provides for only 20; case law holds that the shorter 20-day deadline in the rule supersedes the statute. See In Re Child of T.L.M., 804 N.W.2d 374, 376 (Minn. App. 2011) (interpreting Minn. R. Juv. Prot. P. 47.02, subd. 2 and Minn. Stat. § 260C.415, subd. 1).
But the trickiest trap may be the trigger itself. The “trigger” refers to the “triggering” event that starts the counting of the days. And more often than not, the trigger has two parts: (1) official court action, and (2) notice.
Let’s look back at the general rules. When a civil case becomes final through issuance of a judgment, the trigger is entry of the judgment by the court administrator. When a judge issues an appealable order in a civil case, the trigger is service by a party of the notice of filing of that order by the court. See Minn. R. Civ. App. P. 104.01, subd. 1.
But don’t count on other judgments having the same trigger. For probate judgments, the trigger is “service by any party of written notice of the filing,” or, in the alternative, “if no written notice is served, within six months after the filing of” it. Minn. Stat. § 525.712. Pursuant to case law, that trigger also applies to guardianship cases. See In Re Guardianship of Autio, 747 N.W.2d 600, 602 (Minn. App. 2008).
Whether in guardianship and probate cases, or matters with appealable orders, the purpose of the notice element is not to give notice of the court action but rather to limit the time within which an appeal may be taken. It may be important to your client to start the other side’s time for appeal by serving notice. And by the same token, since the time for appeal of a judgment where there have been post-decision motions does not start to run until a party serves notice of filing of the order deciding the last such motion, failure to serve notice or serving an ineffective notice may result in the time to appeal never starting to run.
Curtis v. Curtis is one example of a party failing to serve notice. 442 N.W.2d 173 (Minn. App. 1989). The case involved appeal of post-judgment child support issues, which appeal was permitted four years after entry of one of the orders because nothing in the record showed any service of written notice of filing of any of the orders being appealed. Id. at 176.
First Minn. Bank v. Overby Dev., Inc. is an example of a party serving ineffective “notice.” 783 N.W.2d 405 (Minn. App. 2010). One party mailed to the other party a letter with a copy of the notice of filing order and order. The letter did not indicate it was being served to limit the time for appeal but instead referred to an attempt to settle pursuant to Minn. R. Gen. Pract. 115.10. The court of appeals held the letter did not have sufficient specificity to provide a notice of filing under Minn. R. Civ. App. P. 104.01 and did not start the running of the time limit to appeal. Id. at 409.
Avoid the rush
A recurrent theme in this column over the years has been the importance of not waiting to the last minute to file an appeal. Mistakes happen, and filing an appeal early will give you a cushion. If there is a problem with your appeal, the court will likely call it you your attention, and if you have filed early, you may have time to repair any defect. But appellate traps are best handled by not falling into them in the first place. An ounce of prevention is, indeed, worth a pound of cure.
Reprinted with permission of Minnesota Lawyer ©2016
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