Saturday, April 01, 2006

Court’s memorandum decision, not its subsequent order, was final judgment for purposes of appeal

To appeal a district order, one must file a notice of appeal with thirty days of the final judgment. The thirty-day period is jurisdictional, and appeals are often dismissed for lack of jurisdiction on the ground that the notice of appeal was filed late. Sometimes a notice is late because a party chooses not to appeal and then gets buyer’s remorse. But often, the notice of appeal is late because the attorney misjudges when exactly the final judgment occurred. It’s not hard to screw up, as the following case illustrates.

Code v. Utah Dep’t of Health, 2006 UT App 113

On January 10, 2005, the trial court dismissed Code’s complaint with prejudice in a signed memorandum decision. At the end of the decision, the court stated, “For the reasons stated above, the Court dismisses Plaintiff’s claim.” Sounds final right. The court of appeals thought so. It dismissed Code’s appeal because notice of appeal was not filed until March 8, 2005, almost two months after entry of the memorandum decision.

But the trial court had signed an order of dismissal on Febraury 25, 2005, after the memorandum decision, and Code’s notice of appeal was timely from that order. The court of appeals held, however, that the February 25th order did not restart the time to appeal because it did nothing to alter the substantive rights of the parties. It merely reiterated the dismissal already in effect.

Code claimed that she was merely following rule 7(f)(2), Utah Rules of Civil Procedure, which states:
Unless the court approves the proposed order submitted with an initial memorandum, or unless otherwise directed by the court, the prevailing party shall, within fifteen days after the court’s decision, serve upon the other parties a proposed order in conformity with the court’s decision. Objections to the proposed order shall be filed within five days after service. The party preparing the order shall file the proposed order upon being served with an objection or upon expiration of the time to object.

The court of appeals held that rule 7(f)(2) is merely the default rule in case the trial court order does not specify which party should prepare the final order. In this case, the court explained, the memorandum decision made clear that it was the final judgment.

The court of appeals does not give us enough facts in its decision to guess at whether Code genuinely thought she was following rule 7(f)(2), or if she was just trying to restart the time to appeal because she hadn’t filed her notice on time. I’ve seen both happen. I believe that fairness, however, dictates that our appellate courts construe final judgments and orders in favor of the appealing party. A party should not be denied their appeal merely because their attorney guessed wrong about which act of the district court constituted the final judgment under rule 3, Utah Rules of Appellate Procedure. But until some higher court agrees with me, the best advice is to file your notice of appeal as soon as you have something in writing that looks like a final judgment. If your notice turns out to be premature, it will still be timely under rule 4(c), Utah Rules of Appellate Procedure.


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