M E M O
TO: Joint Procedure Committee
FROM: Gerhard Raedeke
RE: Commencement of Time for Appeal
The Supreme Court has asked for Committee review of the procedures governing commencement of the time for filing a post-judgment motion or an appeal in a civil case. The Court is concerned, the rules of procedure governing the time for filing may be misleading due to the case law exception it has developed.
Currently, under the Rules of Civil Procedure, the time for filing a post-judgment motion starts to run after notice of entry of judgment. See Rules 50, 52, 54, 59, 60, 62 and 77, N.D.R.Civ.P. Likewise, Rule 4, N.D.R.App.P., provides:
"In a civil case the notice of appeal required by Rule 3 shall be filed with the clerk of the trial court within 60 days of the date of service of notice of entry of the judgment or order appealed from...." (Underscoring added)
Under Rule 77(d), N.D.R.Civ.P., counsel for the prevailing party is responsible for serving notice of entry of judgment. The Explanatory Note to Rule 77(d) provides: "The 60-day time period for appeal by the adverse party does not start until notice of entry of judgment is served [see Rule 4(a), N.D.R.App.P.]" Thus, from the rules, it appears the time for appeal does not start to run until service of notice of entry of the judgment.
The intent of the rules is to prevent the lapse of a party's right to file a post-judgment motion or an appeal, by tolling the period within which a post-judgment motion or appeal can be filed until notice of entry of judgment is served. See Dobler v. Malloy, 190 N.W.2d 46, 49 (N.D.1971). The requirement for notice of entry of judgment provides a clear definitive time for determining when the time starts to run for filing a post-judgment motion or an appeal.
The rules, however, do not indicate a case law exception exists, which starts the time running for filing a post-judgment motion or an appeal without service of notice of entry of judgment. Under the case law exception, if the prevailing party fails to serve notice of entry of judgment, the time for filing a post-judgment motion or an appeal may not be extended indefinitely.
Under case law, actual knowledge of entry of a judgment or order, when clearly evidenced by the record, commences the running of the time for filing a post-judgment motion or an appeal. See Morley v. Morley, 440 N.W.2d 493,495 (N.D. 1989); Lang v. Bank of North Dakota, 377 N.W.2d 575,577-78 (N.D. 1985). The rationale for the exception is if there is actual knowledge of entry of judgment, the purpose of the rule is fulfilled. Service of notice of entry of judgment in those cases is a meaningless formality. See Klaudt v.Klaudt, 156 N.W.2d 72,76 (N.D. 1968).
The Court has qualified the requirement for actual knowledge by stating, actual knowledge of entry of the judgment requires action evident on the record on the part of the moving or appealing party. See Thorson v. Thorson, 541 N.W.2d 692, 695 (N.D. 1996). For instance, in both Thorson, and Austin v, Towne, 1997 ND 59, ¶12, 560 N.W.2d 895,898, the requirement for actual knowledge was not satisfied because there was not action on the part of the appealing party indicating they received notice of entry of judgment even though an affidavit of mailing indicated they had been served with a copy of the order or judgment.
At its September 1998 meeting, the Committee rejected an amendment which would have recognized service of a judgment as notice of entry of judgment. The Committee reasoned notice of entry is needed to avoid confusion and to have a clear definitive starting time for filing a post-judgment motion or an appeal.
The concern of the Supreme Court is someone relying on the rules may not be aware of the case law exception. Should the rules of procedure be amended to achieve consistency with the case law exception, or should the case law exception be eliminated.
In the following material, Rule 4, N.D.R.App.P., and the explanatory notes to Rules 50, 52, 54, 59, 60, 62, and 77, N.D.R.Civ.P., have been amended to alert people actual knowledge of entry of a judgment or an order may start the time running for filing a post-judgment motion or an appeal. As an alternative proposal, Rule 77 is amended to provide: The time for filing a post-judgment motion or an appeal does not begin to run until notice of entry is served, regardless whether the adverse party has actual knowledge judgment has been entered."