Whenever I’m asked why it’s important to have an appellate lawyer on your case, I give two reasons: (1) your appellate brief can make or break your case and you want someone who knows how to write to appellate judges, and (2) if you don’t know the Rules of Appellate Procedure well, you can ruin your client’s chance at appeal. The second reason is the subject of this post.
Let’s say you get an order from a Washington Superior Court, and you think the ruling is wrong. You have a couple of options: (1) you can go to the Court of Appeals, either by right if the court’s decision disposes of all the issues in the case, and if not, then by asking for discretionary review, or (2) ask the Superior Court to reconsider its order.
Under Washington Superior Court Civil Rule 59(a), there are nine reasons why an aggrieved party can ask for reconsideration of any order or decision. CR 59(b) also provides that the motion for reconsideration must be filed “not later than 10 days after the entry of the judgment, order, or other decision.”
There are good reasons why filing a motion for reconsideration might be a good idea. The biggest reason is if you can get the judge to correct a decision without having to go to the Court of Appeals, you’ve just saved your client a lot of money and time. But filing the motion for reconsideration also tolls the time you have to file with the Court of Appeals.
Ordinarily, a party has 30 days after entry of the order/decision to file their Notice of Appeal/Notice for Discretionary Review. And while that time limit is not necessarily jurisdictional, it’s almost always fatal to the appeal if you miss it. The appellate courts rarely allow extensions of time to file the Notice and only under “extraordinary circumstances.”
Under the Rules of Appellate Procedure, that 30-day time limit is extended to 30 days after the decision on a motion for reconsideration. But—and here’s the kicker—only if the motion for reconsideration is timely. Why does this matter? Because an appeal from a timely motion for reconsideration also brings up the underlying order or judgment. But an appeal from an untimely motion for reconsideration means that the 30-day time limit to file the Notice of Appeal would’ve expired and not been tolled during the pendency of the motion for reconsideration.
An illustration, from an unpublished Court of Appeals, Division II, case that came out this week. That case involved a final parenting plan entered on October 24. The father moved for reconsideration on November 19, which was denied on November 22 for lack of timeliness. The father appealed on December 19.
What did the father do wrong? (I think you can see where this is going.) Right, his motion for reconsideration was filed more than 10 days after the final parenting plan was entered (October 24-November 19). Gold star for you!
The untimely motion for reconsideration meant that while his appeal from the decision denying reconsideration was timely, it did NOT bring up for review the original parenting plan. As a result the Court of Appeals held the final parenting plan was not properly before the court, and all that had been properly appealed was the decision denying the motion for reconsideration. And because the motion for reconsideration was plainly untimely by about two weeks, the trial court did not abuse its discretion in denying the motion for reconsideration.
And now the father is left without the ability to have a court review the final parenting plan. It’s a harsh result. But it shows the appellate courts take the Rules of Appellate Procedure, and the policies that underlie them, seriously. This is a great example of why you should at least first consult an appellate attorney if you’ve got an order or decision that you think is wrong. And I just might know someone who fits the bill. (It’s me, if that’s not clear.)