Timely Appeals and Frankenstein Motions

Does a motion to reconsider extend the time to appeal? Not if you’re Dr. Frankenstein (more on that later). And only if the motion is “valid.”

According to today’s Branner case, a valid reconsideration motion (1) is filed before the final judgment is signed, (2) is “brought on a recognized ground,” and (3) “‘complies with all procedural requirements.’”

The motion in Branner was not valid — and did not extend the time to appeal — because it lacked an affidavit describing the procedural posture and identifying new facts or law.

Note that the appellant eventually filed the missing affidavit with the trial court’s permission. But Branner disapproves of piecemeal motions “assembled from constituent parts like some Frankenstein monster.” And such motions threaten to blur clean jurisdictional deadlines.

Branner also reminds us to be careful what we ask for. Respondents’ motion to dismiss was granted, but also required dismissal of their own cross-appeal. They timed their cross-appeal in reliance on the reconsideration extension, leaving them hoisted by their own petard. (Hat tip to Ben Shatz).