Five Notable 2017 Appellate Procedural Rulings
December 14, 2017
Through the course of any given year, Minnesota appellate courts issue decisions in more than 2,000 cases. Most are noteworthy only to the litigants. A number of them, particularly those from the Supreme Court, announce new or developing rules of substantive law. At the same time, buried in those merits decisions, there are occasionally important points of appellate procedure and practice that might be missed by those who are focused only on the holding of the court on significant points of law.
This column has regularly taken one of those procedural gems, and discussed it in some detail to help practitioners avoid pitfalls they might not otherwise see. As this year comes to a close, we thought it would be good to take this opportunity to review a few of the procedural developments in Minnesota appellate practice of the past year.
Appealability of injunction(esque) orders
Orders that grant or refuse to grant an injunction, or which dissolve or refuse to dissolve an injunction, are expressly appealable under Minnesota Rule of Civil Appellate Procedure 103.03(b). This includes all orders that have the effect of granting or refusing an injunction. On the surface, that rule seems easy enough to follow. But like many procedural rules, it has some shadowy components that are not so readily apparent.
First, to be appealable, the order does not necessarily need to arise from a motion under Minn. R. Civ. P. 65 relating to injunctions. For example, in State v. Minnesota School of Business, 899 N.W.2d 467 (Minn. 2017), the Minnesota Supreme Court held that an order denying summary judgment in a suit seeking, among other relief, an injunction, was appealable even though there was no order specifically denying the request for an injunction. It is enough, so says the Supreme Court, that the complaint sought injunctive relief and the denial of the summary judgment denied any relief, including an injunction.
But the rule does not reach very far the other way. In Howard v. Svoboda, 890 N.W.2d 111 (Minn. 2017), the court held that Rule 26.03 protective orders do not constitute immediately appealable injunction orders, even if they prohibit actions by a party, which is what an injunction does. The Court of Appeals has reached the opposite conclusion in previous decisions. See Davis v. Danielson, 558 N.W.2d 286 (Minn. Ct. App. 1997) (treating a trial court protective order under Minn. R. Civ. P. 26.03 as an injunction because it restrained the plaintiffs from acting); see also Edina Educ. Ass’n v. Bd. of Educ. of Indep. Sch. Dist. No. 273 (Edina), 562 N.W.2d 306 (Minn. Ct. App. 1997) (order in nature of nonappealable evidentiary ruling in limine is appealable when termed as order enjoining party from using evidence).
Service by mail and electronic filing and the impact on appellate deadlines
Timing is everything in the appellate world. Miss a deadline for filing an appeal, and that’s the end of the story. So appellate lawyers look carefully at deadlines, and pay special attention to when they start to run, and when they end. That includes paying attention to the method of service of an appealable order, since that may add a bit of time to the appeal window. Electronic filing and service is now ubiquitous, and instantaneous. Long gone are the days of messenger service as the only alternative to mail service. But sometimes more is less when you are trying to limit the time for appeal.
In In the Matter of Welfare of Child of R.K., 901 N.W.2d 156 (Minn. 2017), the Minnesota Supreme Court held that an appeal of an order terminating parental rights was timely when it was filed within 23 days of service by mail, notwithstanding the fact that the order had also been served electronically on the day it was filed.
Normally, electronic service does not result in an additional time for appeal. However, here the prevailing party took the added step of mail service, to make sure all the bases were covered. “The Supreme Court concluded that when both methods of service of the District Court’s order are used, at least in juvenile cases, the one that results in a longer time to appeal controls.” Id. at 160. The court justified its decision in part on its view “that procedural rules should be construed to preserve the right to appeal.” Id. at 161.
It remains to be seen if this ruling will be extended to other statutory or common law proceedings, but the lesson here is that sometime belt and suspenders are not the best approach.
Scope of review of issues raised – and not raised – in petitions for review
The Rules of Civil Appellate Procedure require a petitioner to include a “statement of the legal issues sought to be reviewed” in a petition for review by the Supreme Court. Minn. R. Civ. App. P. 117, subd. 3(a). This requirement facilitates effective appellate review, provides notice to the respondent of the issues on which review may be granted, and provides the court with notice of the scope of the review requested, which, in turn, provides the court the opportunity to limit issues if appropriate. See Tatro v. Univ. of Minn., 816 N.W.2d 509, 515 (Minn. 2012).
This year, in Montemayor v. Sebright Products, Inc., 898 N.W. 2d 623 (Minn. 2017), the Supreme Court reviewed the grant of summary judgment by the trial court on the issue of foreseeability. The District Court had also ruled that plaintiff’s claims were barred for two other legal reasons. The plaintiff appealed and raised all three issues in the Court of Appeals, but that court only decided the foreseeability issue. It affirmed, making consideration of the alternative grounds unnecessary. On further review to the Supreme Court, the plaintiff did not include those issues in the petition, but sought to raise them in court. The court declined to consider the issues, reasoning that “[a]lthough we retain the discretion to consider issues not raised in the petition in certain circumstances, . . . we decline to do so here.” Id. at 629 n.3. The point – be careful what you ask for, and ask for everything you want.
Also keep in mind that sometimes the sauce is different for the goose and the gander. Rule 117 allows a responding party to conditionally request review of additional issues should the court grant a petition for further review. But you may not need to ask for review of additional issues that would achieve the same result. Issues raised in the lower courts need not be included in a petition for cross review to the Supreme Court in order for the responding party to urge those issues as a ground for affirmance. See Stand Up Multipositional Advantage MRI, P.A. vs. Am. Family Ins., 889 N.W. 2d 543, 546 n.4 (Minn. 2017) (stating that respondents need not file a notice of appeal to preserve an argument if that argument was presented below and was an alternative ground on which to affirm a judgment in respondent’s favor, but declining to address the issue since respondent did not raise argument below).
On the other hand, if the responding party does raise additional issues in a cross petition, and review is denied as to those issues, they may not be asserted in the Supreme Court as alternative grounds for affirmance. Leiendecker v. Asian Women United of Minnesota, 895 N.W. 2d 623, 630 n.2 (Minn. 2017). Further, the petition for review need only raise issues that are ripe for adjudication. Issues that become ripe in subsequent proceedings are not waived by failure to raise them in a prior petition for review. Id.
Who hasn’t come across a case, old or new, that would have been helpful if cited in an appellate brief, but it was not found in time? The appellate rules give you a way to add it to your brief. If a party learns of additional “pertinent and significant” authority after a brief has been filed, but before the court’s decision, you may submit the authority to the court by letter, with a copy to the other parties. See Minn. R. Civ. App. P. 128.05. This includes supplemental authorities following oral argument “to the extent that they address the specific issues raised at oral argument.” Doe v. Empire Entm’t, A16-1283, 2017 WL 1832414, at *2 n.2 (Minn. Ct. App. May 8, 2017).
The purpose of the rule is to permit a party to provide the court with additional help to address the issues, but not to allow additional argument. Indeed, the rule specifically states that the submission “must state without argument the reasons for the supplemental citations.” Minn. R. Civ. App. P. 128.05. Interestingly, the federal rules used to have a similar restriction, but the rule was amended in 2002 to remove that limitation, allowing the parties “to decide for themselves what they wish to say about supplemental authorities.” See Fed. R. App. P. 28(j) Advisory Committee Comment to 2002 Amendment.
In Scheffler vs. City of Anoka, 890 N.W. 2d 437, 452 (Minn. Ct. App. 2017), the court struck a supplemental citation where it contained selective highlighting of case language, pleadings from another case, and argument. The appellate court accepted only the citation to an additional case.
The rule permits a response from other parties to the appeal, but subjects them to the same limitations, i.e., that they not contain argument. The court may strike supplementary authority if the letter includes arguments. In re Medtronic Shareholder Litig., *** N.W.2d ***, *** n.7 (Minn. 2017) (striking argumentative response to supplemental submission).
Sometimes it’s OK to wait for review
Even though the Court of Appeals will not reconsider the decision of a special term panel, the Supreme Court has held that the failure to immediately seek further review of a special term order does not render untimely a petition for review challenging that special term order that is filed after the merits decision.
In In re the Marriage of Crowley 897 N.W.2d 288, 292-93 (Minn. 2017), the Supreme Court held that the appellant did not forfeit her right to seek review of a special term jurisdictional order by waiting to file a Rule 117 request after the appeal was decided on the merits. Acknowledging the strong judicial policy against piecemeal appeals, and observing that the jurisdictional order did not reach the merits, the court concluded that only after the Court of Appeals issued the merits opinion “did the full set of issues appealed by [the appellant] become fully ripe for review.” Id. at 293.
It is hard enough to keep up with the law in a particular subject area. It is sometimes even harder to dig out procedural gems buried in footnotes or asides. The rules remain the same, but as they are interpreted by the courts, they often mean something a little different that a casual reading reveals. We hope the cases that we discuss in this column now and in the future will help us be all the better appellate lawyers.
Reprinted with permission of Minnesota Lawyer ©2017
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