Call the Clerk Every Day: Counsel Who Was Unaware of Entry of Final Order Not Prejudiced by Clerk's Failure
In Francis v. Protective Life Insurance Company, the appellant made an argument that makes some common sense (especially to non-lawyers). Again, the timeline:
November 3, 2005: An amended and substituted order fax-filed by the Court.Moreover, the clerk failed to send this order to the appellant.
November 10, 2005: Hard copies of an order marked "Replaces fax filed 11-3-05", and correcting a minor error in the November 3 order, filed by the Court.
December 9, 2005: Appellant files notice of appeal.
The rule (for our non-lawyer readers) is that you have to file a "notice of appeal" in the trial court within thirty (30) days of the final order entered in the case. The final order is essentially one that leaves no undecided issues behind for the trial court to consider, and conversely, makes all of the issues ready for the appellate court's consideration. If you miss the thirty-day deadline, the appellate court won't hear your case--because it lacks "appellate jurisdiction." In this case, December 9 was timely if November 3 was the final order date, but too late if November 10 is the final order date.
Appellant's counsel claimed prejudice because the Clerk failed to copy counsel on the November 3 order. His argument was common-sense, especially for non-lawyers: how could I appeal from an order that I didn't know existed?
However, attorneys are held to a stringent standard (and so are non-lawyers, if they represent themselves):
According to her counsel, Elizabeth’s notice of appeal was filed late through no fault of his own, but because the circuit court failed to keep him informed about the filings in the case. We disagree. We have held that a lawyer and litigant must exercise reasonable diligence in keeping up with the happenings of a case. By the exercise of reasonable diligence so as to keep up with the filings in the case, Elizabeth and her counsel would have known about the order and judgment entered on November 3 and the notation on the November 10 order and judgment. Thus, we must reject Elizabeth’s claim that the notice of appeal was filed late through no fault of her own.
Thus the second lesson of this case is to call the clerk's office every day when you are waiting for a final order to be filed.
