Preview:

STATE OF MINNESOTA IN COURT OF APPEALS A07-2300

In re the Marriage of: John Allen Clifford, petitioner, Respondent, vs. Shelley Lynn Bundy, Appellant. Filed April 8, 2008 Appeal dismissed Toussaint, Chief Judge Hennepin County District Court File No. 27-FA-06-6020 Paul A. Banker, Christine M. Middleton, Jessica L. Meyer, Lindquist & Vennum, P.L.L.P., 4200 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402 (for respondent) Brian L. Sobol, Susan A. Daudelin, Katz, Manka, Teplinsky, Due & Sobol, Ltd., 225 South Sixth Street, Suite 4150, Minneapolis, MN 55402 (for appellant) Considered and decided by Toussaint, Chief Judge; Minge, Judge; and Connolly, Judge . SYLLABUS 1. A proper postdecision motion must be both timely served and filed to

extend the appeal period under Minn. R. Civ. App. P. 104.01, subd. 2. 2. Providing courtesy copies of a postdecision motion to the district court

judge does not constitute filing with the court, unless the judge expressly authorizes filing in this manner.

3.

A postdecision motion that is filed with the court after the time to appeal

the underlying order or judgment expired is untimely, and the motion neither tolls the appeal time nor results in an independently appealable order. SPECIAL TERM OPINION TOUSSAINT, Chief Judge FACTS This appeal was filed by mail on December 6, 2007. Appellant Shelley Lynn Bundy seeks review of a judgment and decree of dissolution entered on June 25, 2007, and of an order filed on October 29, 2007, denying her motion for amended findings or for a new trial. The district court's memorandum to the October 29, 2007 order states that appellant's motion is "procedurally flawed" because the motion was not filed with the court by "the deadline set forth." The memorandum states that the motion still ha d not been filed with the court at that time. The memorandum indicates that a courtesy copy of the motion was received in chambers and that the court considered the motion on its merits. Respondent John Allen Clifford moves to dismiss the appeal on the ground that because appellant's motion was not timely filed, the district court lacked jurisdiction to consider the motion, and the motion did not extend the time to appeal the underlying June 25, 2007 judgment under Minn. R. Civ. App. P. 104.01, subd. 2. Appellant opposes the motion to dismiss.

2

DECISION "Unless a different time is provided by statute, an appeal may be taken from a judgment within 60 days after its entry, and from an appealable order within 60 days after service by any party of written notice of its filing." Minn. R. Civ. App. P. 104.01, subd. 1. Unless otherwise provided by law, if any party "serves and files" a proper and timely postdecision motion of a type specified in the rule, the time for appeal of the order or judgment that is the subject of the 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. Id., subd. 2. Motions to amend or make findings of fact under Minn. R. Civ. P. 52.02 or for a new trial under Minn. R. Civ. P. 59 are included in the list of tolling motions. Id., subd. 2(b), (c), (d). A motion for amended findings must be "served and heard not later than the times allowed for a motion for new trial pursuant to Rule 59.03." Minn. R. Civ. P. 52.02. A notice of motion for a new trial "shall be served within 30 days after a general verdict or service of notice by a party of the filing of the decision or order." Minn. R. Civ. P. 59.03 (emphasis added). The motion shall be heard within 60 days after such general verdict or notice of filing, unless the time for hearing is extended by the court within the 60-day period for good cause shown. Id. Respondent served notice of filing of the June 25, 2007 judgment on July 17, 2007. On August 10, 2007, appellant served a motion for amended findings or a new trial on respondent's counsel by facsimile transmission. The rules of civil procedure allow for service by facsimile transmission. Minn. R. Civ. P. 5.02. The parties agree that

3

appellant's motion for amended findings or a new trial was timely served. Appellant's counsel states that on August 10, 2007, counsel mailed the motion for amended findings or a new trial directly to the district court judge. Appellant did not file the motion with the district court administrator at this time. On August 24, 2007, respondent filed with the district court administrator a responsive motion to strike appellant's affidavit in support of her motion for amended findings or a new trial. On September 4, 2007, appellant filed with the district court administrator a reply memorandum of law and a responsive notice of motion and motion to respondent's motion to strike. Appellant's counsel states that on September 4, 2007, counsel provided to the district court judge courtesy copies of the motion for amended findings or a new trial and appellant's reply memorandum and responsive notice of motion and motion to respondent's motion to strike. On October 29, 2007, the district court issued its order stating that appellant's postdecision motion had not been filed but denying the motion on the merits. On or about November 5, 2007, appellant filed the motion for amended findings or a new trial with the district court administrator and paid the $55 motion fee. See Minn. Stat.

Download A07-2300,In re the Marriage of: John Allen Clifford, petitioner, Respondent, vs.

Minnesota Law