April/May 1999
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April/May 1999 |
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Classifieds
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New Steps to Climb: Amendments to By David F. Herr & Eric J. Magnuson
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On January 1, 1999, new appellate rules went into effect for Minnesota. The changes are significant. Attorneys handling appeals, as well as lawyers and judges involved in certain post-trial motions in district court, must keep the new rules well in mind. Many of the amendments serve to clarify or codify existing practice and judicial construction of the rules. Other amendments result in substantial changes that impact procedure and substance. The amended rules are summarized in a summary guide from Minnesota CLE, including a timeline of the required appellate deadlines. This article addresses most of the changes, at least in passing; the more significant changes are given detailed analysis. The rules amendments were guided by a committee devoted to eliminating "traps for the unwary," but as is true with all rule changes, new traps may arise from the very changes designed to eliminate other problems. The court's order adopting the amendments attempts to obviate some problems by permitting parties, during the relatively short period after adoption, to invoke the provisions of either the old rules or the new rules, depending on which rule will allow a larger period of time in which to act.
The most significant and pervasive changes of the new rules relate to the commencement and timing of appeals. The time to appeal is changed by the 1998 amendments. The rule is intended to simplify practice by establishing a 60-day period to effect appeals from both final judgments and appealable orders. This "uniform" 60-day period will not necessarily result in an identical period to appeal from both an order and judgment, however, because the event that begins the running of the respective 60-day appeal periods usually will differ. Entry of judgment begins the time for appeal, for instance, while service of notice of entry of an order begins the time for appeal from an order. Post-trial motions in the trial court also created difficulty in determining what could be -- or needed to be -- appealed, and when.1 The new rules expressly provide that specifically enumerated post-decision motions toll the time to appeal, and permit an appeal from a judgment and order on the motions to be taken after they are decided. The post-trial motions specifically enumerated in the rule are motions:
These motions postpone the time to appeal only if they are both properly and timely made. An untimely new trial motion will not halt the time to appeal. The omission of "motion for reconsideration" is intentional; these motions are never required by the rules and are considered only if the trial court permits the motion to be filed.2 The other clear exception in the rule is that post-decision motions stay the appeal only in those cases where they are permitted; in statutory or "special" proceedings, they may not stay the running of the appeal period nor result in an appealable order.3 The amendments do not directly alter in any way the starting date for the time for an appeal from a judgment; as a general proposition, it remains the entry of judgment. The amendments can, however, significantly modify that general rule. If any party properly and timely serves and files one of the motions listed in the rule, the time for appeal of the judgment that is the subject of such motion runs for all parties from the service by any party of notice of filing of the order disposing of the last such motion outstanding. In other words, if a judgment is entered and one of the listed motions is timely and properly brought, the time for appeal of the judgment does not begin to run until after the motion is decided, and notice of filing the order deciding the motion is served. At that point, a new 60-day period begins in which to perfect the appeal. The amended rule imposes the same requirement of service of notice of filing that existed under the prior rule. The amended rule, therefore, creates the possibility that the time for appeal of a judgment may not run for far more than 60 days after the judgment is entered. While under the former rule the time to appeal a judgment would expire after 90 days regardless of whether or not notice was provided to the potential appellant, under the revised rule, when one of the listed motions has been decided, the 60-day period does not automatically begin. If no notice of filing of the order is served, the judgment remains subject to appeal even though 60 days has passed from entry. On the other hand, if no motion listed in the rule is brought, then at the end of the 60-day period, the judgment is final and no longer appealable. The amended rule also contains a new provision regarding premature appeals. A notice of appeal filed before the disposition of one of the listed motions is of no effect, and does not divest the trial court of jurisdiction to hear the motion and decide it. This is a significant change from prior law, which provided that an appeal prevented the trial court from ruling on timely made but undecided post-trial motions.4 Under the new rule, even if the appeal is otherwise properly taken, the timely and proper filing of one of the tolling motions listed in Rule 104.01, subd. 2, will nullify the appeal, and a new notice of appeal must be filed once the tolling motion has been decided. In those circumstances, the rules allow the previously appealing party to file without paying an additional filing fee. |
David Herr is partner and head of the appellate practice group at Maslon Edelman Borman & Brand, LLP, in Minneapolis. He is a fellow in the American Academy of Appellate Lawyers and member of the American Law Institute.
Eric Magnuson is partner and head of the appellate practice group at Rider Bennett Egan & Arundel, LLP, in Minneapolis. He is president of the American Academy of Appellate Lawyers and immediate past president of the Appellate Practice Committee of the ABA Litigation Section. Copyright © 1999 by David F. Herr & Eric J. Magnuson. |
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"The most significant and pervasive changes of the new rules relate to the commencement and timing of appeals." |
Initiation of Appeals Rule 103.01 was amended to make it clearer what steps are necessary to invoke appellate jurisdiction. Timely filing the notice of appeal with the clerk of the appellate courts and timely service on the adverse party are the only jurisdictional steps required to perfect an appeal, and failure of an appellant to take any other steps does not affect appellate jurisdiction. The rule no longer makes service of the notice of appeal on the trial court administrator a jurisdictional requirement, effectively overruling a 1998 Court of Appeals decision.5 This does not mean, however, that the other requirements of the rule may be ignored, since the appellate courts have the authority to impose appropriate sanctions for any failure to comply with the rules. Rule 103.03 was amended to clarify that appeals are allowed from only final judgments, and to add a new subsection (I) which recognizes that certain orders or decisions not listed elsewhere in the rule may be appealable by statute or under the decisions of the Minnesota appellate courts. The purpose of the amendment was to highlight the judicial construction that has attached to the rule, and to remind parties that their actions or inactions in the trial court may limit the scope of appellate review. Rule 103.03 contains a new provision, 103.03(I), which recognizes appeals from such other orders or decisions as may be appealable by statute or under the decisions of the Minnesota appellate courts. This change was made to address any confusion that has arisen from having either statutory or case law bases for appeal that are independent of the appellate rules, and are not identified in the appellate rules. The advisory committee comments include these examples of orders that are appealable even though they are not specifically enumerated in the appellate rules:
In addition, certain statutes provide for appeals as a matter of right, even though Rule 103.03 does not expressly so provide.6 The new rule is not intended to expand the universe of appealable decisions, but was instead intended to alert litigants of the need to consider grounds for appellate jurisdiction other than the rule alone. Probably the most frequently encountered barrier to effective appellate review is the failure to bring a post-trial motion to permit broader review.7 Rule 103.04 now includes an express admonition that "[t]he scope of review afforded may be affected by whether proper steps have been taken to preserve issues for review on appeal, including the existence of timely and proper post-trial motions." The amendment highlights the judicial construction that has long been attached to the rule, and may make it less likely that counsel will omit this often-crucial step. |
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Other Important Changes New Form for the Statement of the Case. The form for the Statement of the Case (Form 133) was also amended to reflect the changes in the rule. While the Statement of the Case is not a jurisdictional document, it is important that counsel submit the Statement of the Case in the new and proper format. This allows the appellate courts to process the appeal efficiently. The most significant changes are in the jurisdiction statement where questions about post-trial motions and other important matters appear. This new form is intended to help practitioners identify potential jurisdictional problems with their appeals. Appeals in Special Proceedings and Marital Dissolution Proceedings. The 1998 amendments to Rule 104 eliminate former Rule 104.03, relating to appeals in special proceedings. Appeals in special proceedings under the amended rules will be governed by the general provisions of Rule 104.01, or any controlling statute. The 1998 amendments also eliminate former Rule 104.04, which applied to post-trial and modification motions in marital dissolution cases. Appeals in those cases are now governed by subdivision 2 of Rule 104.01. While most of the provisions of former Rule 104.04 are included in Rule 104.01, subd. 2, under the amended Rule, modification motions no longer extend the time in which to appeal. Petitions for Discretionary Review. Rule 105.02 was amended to change the phrasing of the timing requirements and to expressly permit a reply memorandum. Neither change is significant, because by shortening the nominal period for a responsive memorandum from seven to five days, the period itself is not shortened as intervening weekend days and holidays are not included in the five-day period.8 Similarly, while the existing rule does not provide for reply memoranda, they are allowed in practice, so the amended rule serves only to notify parties seeking discretionary review that a reply is possible. Preparation of Transcript. The amended rules contain two new forms to be used to verify transcript order and transcript delivery (Forms 110A and 110B), which include the court reporter's address and telephone number. This requirement is designed to facilitate communication with the court reporter by the appellate courts. The amendments require the court reporter to file a certificate (Form 110B) upon filing and delivering the transcript to the appellate court and specify the method of delivery. This is important because the appellant's brief is due 30 days after delivery of the transcript. The amendments also have changes dealing with how the transcript is prepared. Transcripts must now be consecutively paginated "[t]o the extent possible." The purpose of this change is to obviate citation forms like "Tr. Feb. 27, 1997, morning at 28" or "Tr. Vol. XVIII, a.m. at 28" and replace them with the uniform "T.319." In complex cases where daily copy is prepared by teams of reporters and typists, the purpose of the rule may be satisfied by allowing transcripts to be prepared using blocks of numbers, with the possibility or even certainty that some numbers would be unused. This procedure would still allow each transcript page to be identified by a single numeral, progressing in increasing number through the trial, but some gaps would exist between batches of transcript. The amendment also requires that if testimony is offered by audiotape, or other electronic means, it must be transcribed at trial or the reporter must verify on a previously-prepared transcript what portions are played at trial. The rule is intended to end the practice of playing of videotape deposition or other testimony with the court reporter not present to record the proceeding, or present but not reporting them. The rule applies only to audiotape, videotape, or other electronic material presented as testimony. It does not purport to require transcription of any other exhibits that may be played in the court as exhibits, demonstrative evidence, or for other purposes. In most instances of playback of recorded evidence, the reporter need not transcribe what is played in court because the party will be required to submit a transcript of what will be used as testimony. In that case, the reporter can attach that existing transcript and make it part of the transcript, with annotations showing specifically what portions were played in court and that the transcription appears to the reporter as listener to be accurate. New Rule for Appellate Review of Administrative Rulemaking. The amendments include a new Rule 114 to govern appellate procedures for review of rulemaking by administrative agencies. Minn. Stat. §14.44 establishes the right to that review, but does not create specific procedures. The procedures in Rule 114 incorporate many of the practices the court of appeals has historically used in handling these matters, pursuant to its Special Rules of Practice, Rule 10. The new rule applies only to declaratory judgments for review of the validity of rulemaking proceedings, not challenges of application of a rule to a party or particular situation. Only pre-enforcement challenges to the rulemaking process and the rulemaking authority are reviewed by the declaratory judgment procedure.9 Reasonableness of a rule as applied must be challenged in contested case proceedings.10 Similarly, rules cannot be reviewed by declaratory judgment until they are formally promulgated, and the contention that an administrative determination is a rule that has not been promulgated is decided properly in contested case proceedings. The drafting goal of the advisory committee was to create procedures for these specialized appeals that are as similar as feasible to the procedures generally used. Accordingly, the rule specifies that the record in declaratory judgment proceedings is the record before the agency, confirming the role of the appellate court as a court of review, not a court to hear new evidence. The provisions of Rule 110 governing transcripts apply where possible. If compliance with the appellate rules is not possible, the appellate court should be advised of this fact by motion. Briefing is undertaken on the same schedule as other appeals; the 30-day/30-day/10-day sequence for the appellant's, respondent's, and reply briefs is used. Certiorari. Rule 115, governing certiorari appeals, was amended to conform to the requirements of the Minnesota Administrative Procedure Act, Minn. Stat. §§14.63-.64, and other statutes governing particular administrative matters that may be reviewed by certiorari, and the rule specifically defers to the statutes on details of what is required to perfect the proceeding and the time within which they must be done. Both the rule and the forms now make it clear that a party seeking certiorari review is a petitioner unless and until the court issues a writ of certiorari. After a writ has been issued, the party seeking review is called the relator. The adverse party or parties and the agency or body whose decision is to be reviewed are the respondents The 1998 amendments to Rule 115 incorporate Rule 107 on questions relating to cost bonds and adopts the procedure of Rule 108 requiring that any question of approval of a stay or supersedeas bond be directed to the agency in the first instance. The court of appeals can review the agency decision upon motion, just as it does in appeals from trial courts. As amended, the rule requires production of a transcript of the proceedings before the agency if the proceedings were recorded by audiotape and if the transcript is necessary for the appeal. The relator must make adequate arrangements to pay for the transcription, and the rule specifies that the agency should designate the reporter to do the transcription. The rule then adopts the transcript handling procedures of Rule 110, and requires the original and first copy of the transcript to be filed with the agency. The transcript is then transmitted to the appellate courts with the rest of the record. Further Review in Supreme Court. The amendments replace the conditional petition for review to the Supreme Court with a procedure that allows a responding party to file a combined response and cross-petition. Many practitioners found the process of requiring a conditional petition for review to be cumbersome and awkward in practice, and the new procedure should resolve those concerns. The new procedure allows a party who is willing to accept the decision of the court of appeals, even if not completely favorable, to wait and see if a petition is served and filed by an opposing party. If a petition for further review is served, the responding party can include in its response additional issues for review in the event review is granted. No reply is allowed to the cross-petition. Amicus Curiae. The procedure for participation of amicus curiae on further review was changed by postponing the deadline for seeking leave to participate as amicus until seven days after appellate review is granted. The former rule required potential amici to petition by the deadline for a response to the petition for further review, which presented a dilemma to potential amici who believed the case not worthy of further review but were interested in the issues if review were granted. Such amici were in the awkward position of having to tell the court why the case is unimportant or not worthy of review, while simultaneously asking for leave to participate because of the importance of the case or their ability to help the court resolve the issues. Under the amended rule, an amicus can wait to see if review is granted and then weigh in on the issues, without being concerned about whether its position on the merits will affect the court's decision on whether to take the case. Rule 129 was amended to modify the procedures for participation of an amicus curiae in any appeal. Under the new rule, an amicus may seek leave to participate up to 15 days after the court of appeals acquires jurisdiction or the Supreme Court accepts further review. The new rule also clarifies the timing for submission of an amicus brief, allowing it to be filed shortly after the brief of the party the amicus supports, instead of requiring the briefs to be filed simultaneously. Miscellaneous Amendments. In addition to the amendments described above, various rules were amended in either less significant or less sweeping ways, and those changes are listed here:
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"if a judgment is entered and one of the listed motions is timely and properly brought, the time for appeal of the judgment does not begin to run until after the motion is decided, and notice of filing the order deciding the motion is served." |
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"Timely filing the notice of appeal with the clerk of the appellate courts and timely service on the adverse party are the only jurisdictional steps required to perfect an appeal, and failure of an appellant to take any other steps does not affect appellate jurisdiction." |
Attorneys and Attorneys Fees Attorneys Fees on Appeal. The new rules establish a uniform procedure for requesting attorneys fees on appeal. The new rule is intended to clarify the procedures for seeking attorneys fees, but does not create any new substantive rights to appellate fees. The rule creates two important requirements: requests for attorneys fees must be brought by motion and that motion must be brought no later than the deadline for taxation of costs. A party opposing a motion for attorneys fees is allowed ten days to respond to the motion. This period will generally be sufficient to address any questions regarding the legal entitlement to fees. If the showing on the motion is especially complex or voluminous, the responding party may seek additional time to respond, and does so by filing a motion to extend the time. The rule permits, but does not require, the appellate court to remand the question of entitlement to fees as well as the amount of any fee to the trial court for hearing. The appellate courts have required the trial court to hear fees matters in some instances, and have heard them in the appellate courts in others.12 The rule requires motions for fees to be accompanied by sufficient information to permit the determination of the appropriate amount of fees, but does not establish any particular requirements. This flexibility recognizes the various types of requests for fees, and that different requests require different evidentiary support. A request for sanctions may require only an affidavit describing the misconduct and its impact. In a case where a party is entitled to recover a reasonable attorneys fee for the cost of the appellate proceedings, affidavits that establish the fee arrangement with the client, a description of the services rendered, and the specific time expended on the appeal and the rates charged may be necessary. This type of application is similar to what is required in the trial courts by Minn. Gen. R. Prac. 119.13 Attorneys. The rule includes new provisions relating to pro hac vice admission and withdrawal of attorneys and practice of student attorneys under the rules of the Supreme Court. These rules clarify or codify existing practice, and are not dramatic. Out-of-state lawyers are admitted pro hac vice upon motion in the appellate court by a Minnesota lawyer.14 Attorneys seeking to argue orally or to sign a pleading or brief must be admitted under the rule; the rule permits but does not require others appearing on the brief to seek admission. An admitted lawyer must sign the pleadings, but non-admitted lawyers may be listed on the pleading. The rule permits withdrawal upon notice to the court, counsel, and client. This procedure is consistent with the procedure under Minn. R. Gen. Prac. 108. The rule recognizes that counsel may withdraw from the representation of a party on appeal, provided two very important conditions are satisfied. First, the withdrawing lawyer must provide notice to the court and all parties of the fact of withdrawal, providing notice of how future notices and communications can be served on the party. Second, the right to withdraw is limited by any ethical restrictions that may exist on withdrawal. In many appeals, this constraint will make withdrawal difficult given the significant prejudice that will likely occur to the party if abrupt withdrawal takes place. Although the appellate court must accept the withdrawal of the attorney, there is no requirement that withdrawal result in the postponement of any of the important deadlines affecting the appeal, and Rule 143.05, subd. 2(b) recites this fact. In the context of an appellate process that may take only a few weeks from the perfection of an appeal to briefing, withdrawal may simply not be possible within the ethical constraints lawyers must observe. Minnesota has had a student practice rule for decades.15 New Rule 143.05, subd. 3, creates an explicit requirement that in order for a student practitioner to present oral argument in the appellate courts, leave of court must be obtained. If allowed, the student attorney may then appear at the argument only with an admitted attorney of record. |
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Amendments Not Made and Summary The prohibition against rehearing in the Court of Appeals was considered by the Advisory Committee on Civil Appellate Procedure in 1998. The committee recognized the potential interest in some revision to this rule, but also concluded that any change to the rule would require use of significant resources by the Court of Appeals, and deferred any recommendation until those resource issues could be addressed. No rehearing is allowed in the Court of Appeals, although the court may accept motions seeking to correct a misstatement in the opinion issued by the Court of Appeals. The rules amendments were largely intended to eliminate traps for the
unwary. In many instances, the new rules simply codify existing law and
practice. But as is true with all rule changes, new traps may arise from
the very changes designed to eliminate other problems. Counsel should
familiarize themselves with the new rules, as they will dramatically affect
both appellate and trial practice in numerous situations.
1 See e.g. Marzitelli v. City of Little Canada, 582 N.W.2d 904 (Minn. 1988). (Back to text) 2 See Minn. Gen. R. Prac. 115.11; Baker v. Amtrak Nat'l. R.R. Passenger Corp., CX98509, 588 N.W.2d 749, 1999 WL 41862 (Minn. App. 1999) (denial of a motion to reconsider is not appealable). (Back) 3 See Schiltz v. City of Duluth, 449 N.W.2d 439 (Minn. 1990) (in special proceedings there must be statutory authority for new trial motions, and in the absence of such a provision, a "new trial" motion, even if considered by the trial court on the merits and denied, may not result in an appealable order) and Steeves v. Campbell, 508 N.W.2d 817 (Minn. App. 1993) (new trial motion in order for protection proceedings not authorized, and order denying such motion is not appealable). (Back) 4 See Spaeth v. Plymouth, 344 N.W.2d 815, 824 (Minn.1984) (the filing of an appeal suspends the authority of the trial court to modify or make any order necessarily affecting the order or judgment appealed from). (Back) 5 See Sorrels v. Hoffman, 578 N.W.2d 22 (Minn. App.1998) (holding under prior rule that failure to serve notice of appeal on trial court administrator required dismissal of appeal). (Back) 6 See e.g. Minn. Stat. ¤ 572.26, subd. 1 (listing appealable orders in arbitration proceedings, which are not "special" proceedings under Rule 103.03), Pulju v. Metropolitan Property & Cas., 535 N.W.2d 608 (Minn. 1995). (Back) 7 See generally Sauter v. Wasemiller, 389 N.W.2d 200 (Minn. 1986), and Northwestern State Bank v. Foss, 177 N.W.2d 292, 294 (Minn. 1970). (Back) 8 See Minn. R. Civ. App. P. 126.01. (Back) 9 See e.g. Rocco Altobelli, Inc. v. State, Dep't of Commerce, 524 N.W.2d 30 (Minn. App. 1994). (Back) 10 See e.g. Minnesota Chamber of Commerce v. Minnesota Pollution Control Agency, 469 N.W.2d 100 (Minn. App.1991); Minnesota Ass'n of Homes for the Aging v. Department of Human Services, 385 N.W.2d 65 (Minn. App.1986). (Back) 11 See 8th Cir. R. 28A(I)(4). (Back) 12 Compare Richards v. Richards, 472 N.W.2d 162, 166 (Minn. App. 1991) (fees to be determined in trial court); Katz v. Katz, 380 N.W.2d 527, 531 (Minn. App. 1986), aff'd., 408 N.W.2d 835, 840 (Minn. 1987) (same) with State Bank v. Ziehwein, 510 N.W.2d 268, 270 (Minn. App. 1994)(appellate fees determined in appellate court, not trial court); Norwest Bank Midland v. Shinnick, 402 N.W.2d 818 (Minn. App. 1987) (same). (Back) 13 The provisions of that rule are described and analyzed in 3A David F. Herr & Laurie A. Kindel, Minnesota Practice: General Rules Annotated §§119.1-.2 (1998 ed.), which should provide guidance to appellate practitioners. (Back) 14 This rule is generally consistent with the rules used in the trial courts. See Minn. Gen. R. Prac. 5. (Back) 15 The procedure for appearing as an authorized student practitioner, including appearance on appeal, is governed by the Student Practice Rules, reprinted in Minn. Rules of Court at 991 (West 1999 ed.). (Back)
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"The procedure for participation of amicus curiae on further review was changed by postponing the deadline for seeking leave to participate as amicus until seven days after appellate review is granted." |
