Friday, January 21, 2011

An Appeal Filed Before Trial Court's Intended Ruling is Untimely.

Late filing of a notice of appeal is always a fatal error, and sometimes filing too soon can also be fatal. The recent case of Silver v. American Fish Co., Inc. (2010) 198 Cal. App.4th 688, illustrates this point. Silver filed a notice of appeal after rendition of judgment and after the defendant filed a motion for attorney's fees and costs, but well before the trial court heard and ruled on the attorney's fees motion. By court rule, a notice of appeal filed after rendition of judgment or statement of intended ruling but before entry of judgment may be treated as being filed immediately after entry of judgment. (Cal. Rules of Court, rule 8.104(e)(1) and (2)). Such appeals are referred to as "premature" appeals, meaning they are timely though early.

Silver's appeal, however, did not come within the rule because his appeal was filed before the trial court announced its intended decision on the motion for attorney's fees. (Silver, supra at 691).

If the issue of entitlement to attorney's fees has been adjudicated prior to judgment, such that a judgment includes an award of attorney's fees and leaves only the amount to be determined later, then an appeal from the judgment would include the subsequent award of the amount of attorney's fees. (Silver, supra, citing Grant v. List & Lathrop (1992) 2 Cal.App.4th 993, 998). But Silver could not bring himself within this rule because the trial court had not adjudicated the issue of entitlement until after Silver's notice of appeal was filed. As a result, Silver's attempted appeal from the award of attorney's fees was untimely, and since an appellate court lacks jurisdiction to hear an untimely appeal, Silver's appeal had to be dismissed.

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