Thursday, February 11, 2010

Appealing From New Trial Denial: Service Matters

New from the 4/3, Anderson v. Chikovani:   

"[W]here a party files a valid motion for new trial, and the trial court issues a timely order denying that motion, but no one serves the order or notice of entry of that order, then the applicable deadline for filing the notice of appeal from the judgment is 180 days after entry of judgment."

More specifically . . . a minute order which is filed in the 60-day period that the trial court has jurisdiction to consider the new trial motion, but which is not served during that window, is not denied "by operation of law."  It's denied by the determination of the court.  And so the appeal deadline is 180 days from judgment, not 60 days from denial by operation of law:

"[E]ntry of a minute order denying the new trial motion, as occurred here, is a 'determination' that obviates denial by operation of law.  Because appellants’ new trial motion was not denied by operation of law but rather by a minute order that was timely entered but never served, it triggered the latest possible deadline for filing a notice of appeal under rule 8.108(b):  Appellants had 180 days from entry of judgment to file their notice of appeal. (Rule 8.108(b)(1)(C).)"

(h/t Ben Shatz)