M E M O
TO: Joint Procedure Committee
FROM: Gerhard Raedeke
RE: Rule 4, N.D.R.App.P.; Appeal-When Taken
At the last meeting, the Committee postponed further consideration of N.D.R.App.P. 4 until this meeting. The Committee wanted to further study the changes involved in the proposal to follow the December 1, 1998, revision of Fed.R.App.P. 4.
I. Appeal in a Civil Case
A. Special Proceeding
Subdivision (a) currently addresses the time for appeal in civil cases. The Committee questioned whether subdivision (a) should also specify the time for appeal in a special proceeding. Under the federal rule, the term "civil cases" has been broadly construed to cover all cases that are not criminal prosecutions. 20 Moore's Federal Practice § 304.10 (3d ed. 1999).
A special proceeding is any remedy other than an action. N.D.C.C. § 32-01-04. An action is either civil or criminal. N.D.C.C. § 32-01-03. Special proceedings include writs of certiorari, mandamus and prohibition. N.D.C.C. § 32-32-01.
"Section 28-27-01, N.D.C.C., authorizes appeals from judgments or orders in civil actions or in special proceedings." Olson v. Koppy, 1999 ND 87, ¶ 9, 593 N.W.2d 762. Formerly, N.D.C.C. § 28-27-04 provided the time for appeal in a special proceeding. The statute, however, was superseded by N.D.R.App.P. 4, which was adopted in 1973. Should Rule 4 be amended to expressly provide 60 days to appeal in a special proceeding as in a civil case? Otherwise, it may not be apparent what the time is for appeal in a special proceeding.
B. Filing Before Entry of Judgment
Subdivision (a)(2) is new. It provides: "A notice of appeal filed after the court announces a decision or order -- but before the entry of the judgment or order -- is treated as filed on the date of and after the entry." The provision is consistent with existing case law. In Zueger v. Carlson, 542 N.W.2d 92, 94 n.2 (N.D. 1996), the court said, "an attempted appeal from an order or memorandum decision will be treated as an appeal from a subsequently entered consistent judgment, if one exists."
C. Post-judgment Motions
1. Full Time for Appeal
Subdivision (a)(4)(A) addresses the effect of a post-judgment motion on a notice of appeal. The language is taken from the revised federal rule. Except, on line 19 the word "full" is added to emphasize a party gets the full time for appeal from the entry of the order disposing of the post-judgment motion. North Dakota's current rule uses the word "full."
2. Effect of Post-Judgment Motion on Notice of Appeal
Subdivision (a)(4)(C)(i) is new. It addresses the validity of a notice of appeal filed before a timely post-judgment motion is disposed. If a notice of appeal is filed, and a post-judgment motion is also timely filed, the notice of appeal is temporarily suspended and becomes effective when the trial court disposes of the motion. 1 Moore's Federal Rules Pamphlet, 723 (1999-2000).
Currently, North Dakota's rule does not address the validity of a notice of appeal filed before a timely post-judgment motion is disposed. North Dakota practice is the jurisdiction of the Supreme Court attaches and the trial court ordinarily loses jurisdiction when a notice of appeal is filed. E.g., United Accounts v. Teladvantage, Inc., 499 N.W.2d 115, 118 (N.D. 1993). A trial court may only consider a post-judgment motion after a notice of appeal is filed, if a party moves the supreme court for remand and the case is remanded. However, once the post-judgment motion is decided, an amended notice of appeal does not need to be filed. Should Rule 4 be amended, like the federal rule, to provide the notice of appeal becomes effective to appeal a judgment or order when the post-judgment motion is disposed? Should Rule 4 be amended to explain the procedure for remand when a notice of appeal is filed before disposal of a post-judgment motion?
3. Appeal From an Altered or Amended Judgment or an Order Disposing of Motion
Proposed subdivision (a)(4)(C)(ii) explains a notice of appeal or an amended notice of appeal must be filed to challenge an order disposing of a post-judgment motion or to appeal an amended or altered judgment. This is consistent with current North Dakota practice, although not expressly stated in Rule 4.
At the last meeting, the Committee questioned whether a party could avoid being limited to the grounds presented in the motion for a new trial by only appealing from the judgment itself. Case law provides that when a motion for a new trial is made in the lower court, the moving party is limited on appeal to a review of the grounds presented to the trial court, even if the appeal is also from the judgment itself. Larson v. Kubisiak, 1997 ND 22, ¶ 5, 558 N.W.2d 852; Andrews v. O'Hearn, 387 N.W.2d 716, 728 (N.D. 1986).
D. Extension of Time
1. Good Cause
Subdivision (a)(5) provides the trial court may extend the time to file a notice of appeal for "good cause" as well as "excusable neglect." Currently, North Dakota's rule does not allow an extension of time for good cause. Hagert v. Hatton Commodities, Inc., 421 N.W.2d 473, 475 (N.D. 1988). In order to establish excusable neglect, a party must show unique or extraordinary circumstances. Nastrom v. Nastrom, 1998 ND 75, ¶ 8, 576 N.W.2d 215.
Rule 4(a), Fed.R.App.P., was amended in 1979 to allow extensions for "good cause" because "excusable neglect" does not fit the situation in which an appellant seeks an extension before expiration of the initial time. See 1979 Advisory Committee Notes. It is generally supposed "good cause" is a more forgiving test than "excusable neglect;" however, no court has undertaken to define what "good cause" means in the context of Rule 4(a)(5). 16A Wright, Miller, § Cooper, Federal Practice and Procedure, § 3950.3 (1999).
2. Ex Parte
The amendment also provides a motion for an extension of time may be made ex parte if the motion is filed before the time prescribed for appeal. Currently, North Dakota's rule is somewhat ambiguous. The rule provides if a request is made for an extension after the time for appeal has expired, "it must be made by motion with such notice as the trial court deems appropriate." N.D.R.App.P. 4(a).
3. Length of Extension
The federal amendment provides the extension may not exceed 30 days after the prescribed time for appeal, or 10 days after the date when the order granting the motion is entered, whichever is later.
North Dakota's current rule only provides for an extension of 30 days from the expiration of the time otherwise prescribed for appeal. It does not acknowledge the motion for an extension may take sometime to process by allowing a 10 day extension after the order granting the motion is entered.
II. Appeal in a Criminal Case
A. Effect of Motion on Notice of Appeal
Subdivision (b)(3)(B) is new. It addresses the effect of a post-judgment motion on a notice of appeal. The amendment provides the notice of appeal becomes effective upon entry of the order disposing of the post-judgment motion. A valid notice of appeal is effective without amendment.
B. Extension of Time for Appeal
Proposed subdivision (b)(4) provides for an extension of time to appeal for "good cause" in addition to "excusable neglect." The amendment also provides for an extension to be granted upon a "finding" instead of a "showing." The rule authorizes the court to provide an extension without a motion.
C. Jurisdiction to Correct Sentence
New subdivision (b)(5) provides the filing of a notice of appeal does not divest a trial court of jurisdiction to correct a sentence under N.D.R.Crim.P. 35(a). Currently, a trial court loses jurisdiction to correct a sentence after a notice of appeal is filed. State v. Meier, 422 N.W.2d 381, 386 (N.D. 1988).
III. Appeal in a Contempt Case
For consistency with a criminal appeal, subdivision (c) is amended to provide an extension of time for "good cause" as well as for "excusable neglect." The amendment also provides for an extension to be granted upon a "finding" instead of a "showing."