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Friday
Nov232007

Appellant loses appeal due to a defect in his notice of appeal

Failing to timely file a notice of appeal delivers a death blow to your appeal.  There is generally no relief from a late notice of appeal; the exceptions are so rare as to be nonexistent.

In Morton v. Wagner, 2007 WL 3277026, the Sixth District concluded Walter Wagner had missed the appellate boat. Considering the facts of the case, it is hard to feel sorry for Wagner, a lawyer, who harassed the respondent, Gail Morton, starting from their law school days in the 1970's!   In 2005, the trial court issued an injunction, requiring Wagner to stay at least 100 yards away from Morton. Wagner moved for reconsideration. Four months later, the trial court denied the motion and found Wagner was a vexatious litigant.

Wagner filed a notice of appeal "from the decision and order . . . denying reconsideration . . ." and the order finding him to be a vexatious litigant. Wagner failed to identify the judgment in his notice of appeal!

The court concluded Wagner failed to appeal the judgment granting the petition for an injunction. The court explained that while a notice of appeal should be liberally construed, "[c]are must be taken in drafting the notice of appeal to identify the order or judgment being appealed so as not to mislead or prejudice the respondent." (Slip Opn., pg. 3.) The court also noted a split of authority as to whether an order denying a motion for reconsideration is separately appealable, with the majority holding it is not.

So, a simple error in failing to properly describe the judgment cost Wagner his appeal. Wagner could have saved his appeal by identifying the order or judgment being appealed, as required by California Rules of Court, Rule 8.100(a)(2), and appealing in a timely manner from the judgment, rather than from a nonappealable motion.

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