Tuesday, October 30, 2007

When to file a notice of Appeal

With the Supreme Court’s recent decision of CPA v. Tinian Shipping Company, Inc. 2007 MP 22, I thought it would be a good idea to discuss notices of appeal. Filing a notice of appeal on time is crucial. The rule is that you have to file within 30 days after judgment from Superior Court. Our Supreme Court has made it clear that it will not assert jurisdiction over untimely filings. The law has been a bit confusing lately because the Supreme Court has recently changed the format of what constitutes a final appealable judgment.

"In Kumagai, we noted that '[w]hile our rules do not explicitly state the obvious, we find that an entry of judgment or order issued as a separate document is a necessary adjunct that must be filed with the Superior Court clerk.' Id. at ¶ 22 (footnote omitted). We went on to state that “[a] thorough evaluation and collective reading of our Rules of Appellate Procedure, Rules of Civil Procedure and Rules of Practice make evident that without such an entry of judgment or order, this Court has no jurisdiction.” Id. Furthermore, we took explicit note that “Rule 54(a) . . . state[s]: ‘A judgment shall not contain a recital of pleadings, the report of a master, or the record of prior proceedings.’” Id. at ¶ 19 (quoting Com. R. Civ. P. 54(a))." CPA v. Tinian Shipping Company, Inc. 2007 MP 22 at ¶ 12

I think the Court is attempting to clarify the new rule now. In CPA, there were two judgments issued: one was issued initially as part of a “findings of fact and conclusions of law,” and then another judgment was issued subsequently containing essentially the same final judgment. The Supreme Court held that the correct judgment from which to start counting was the second judgment, or the “entry of judgment.” Essentially, the trial court writes out what it has found and what it has held, and, usually, the judgment amount, if any. Then, the clerk makes a separate piece of paper, approved and signed by the trial court, which it calls the final “judgment.” This is the official piece of paper that counts. The clerk enters that judgment, serves the parties, and then we start counting.

As the Kumagai Court put it, “[f]rom these rules, it is apparent that an “entry of judgment or order” is different from the announcement of a decision, sentence or order. An entry of judgment or order has been singled and differentiated from announced orders, decisions and sentences in the rules and must therefore itself be in a different form. It is further clear that an entry of judgment or order, filed with the clerk of the Superior Court is required before an appeal is permitted.” Commonwealth v. Kumagai, 2006 MP 20 at ¶ 18.

Now here is the potential problem I see. First of all, entry of judgment is left to the clerk. Time does not start running to appeal until entry of judgment. In many US courts, the clerk prepares the judgments to be signed the same day the decisions are made, and the judge just signs both the decision and the judgment concurrently. But what if the clerk doesn’t enter the judgment immediately after the decision is made by the trial court? In CPA, the first decision/judgment was made on May 21, 2004, and the second “entry of judgment” was issued June 18, 2004. How long do you have to wait for entry? Can you be sure, if you want to appeal, that it is okay to wait months or years for entry without foregoing your right to appeal? Can you be sure if you want to be able to depend on the finality of the judgment that the opposing party won't swoop down six months later with an appeal from a newly entered judgment? I would consider calendaring post judgment time for entry if you do not receive the entry of judgment with the initial decision and order. My recommendation would be that if the Court has not entered judgment within a month, to prompt the court to enter the judgment, if necessary by motion. Although it is not specifically laid out in the rule, I would be wary of trying to appeal very late in the game, even without an entry of judgment. Also keep in mind that under Rule 4(a)(2) of the Appellate Rules, a notice of appeal filed after the order but before the entry of judgment is treated as filed on the date of entry. So if you are not sure, it can't hurt to file your notice early.


Mike said...

My limited experience in another jurisdiction mirrors the new process. In theory, you are correct; there could be a delay with the clerk failing to enter the "real" judgment.

In practice, the winning side always makes sure it gets done within a week or so. Ethically, its part of the winning attorney's job. Obviously, it's more bilable time. Practically, we couldn't get our costs until the judgment was filed, and I took a fair amount of satisfaction recording the judgment, filing for costs and immediately getting a lien on all the loser's real property in the county.

In other words, I don't see any real problems with the new system; if there are any problems, a few months of practice should sort things out.

GREAT BLOG, by the way.

Mike said...

Land laws being waaaaaay different here, I'm not sure the winner can count on an automatic lien on real property in the CNMI. But they still have incentive to make sure the judgment is properly recorded.