Friday, January 21, 2011

Beware of Separately Appealable Post-Judgment Orders

Most litigators and trial attorneys know that an appeal from the final judgment includes an appellate court's review of all the non-appealable orders and rulings the trial court made before the final judgment. However, many attorneys mistakenly assume the appeal from the judgment also includes trial court orders made after the judgment. This assumption is a trap for the unwary because some post-judgment orders are separately appealable, meaning that another notice of appeal must be filed in order to secure appeallate review of the post-judgment order.

If a second, separate notice of appeal is not filed, then the appellate court has no jurisdiction to review the post-judgment order. Failure to timely secure appellate review means the separately-appealable order will become final and enforceable, i.e., collectible.

In most instances, post-judgment orders awarding attorney's fees are separately appealable, yet attorneys repeatedly fail to file a separate notice of appeal from the post-judgment award of attorney's fees, thinking that the notice of appeal from the final judgment includes the subsequent award of attorneys fees. (See for example: Silver v. American Fish Co., Inc., (2010) 190 Cal.App.4th 688, 690-694).

The term "separately appealable" means that an order may be appealable independently, and apart from, the appeal taken from the final judgment. In practical procedural terms, this means that one notice of appeal would be filed from the final judgment, and later, another notice of appeal would be filed from the "separately appealable" order. Most often, when two or more separate appeals are filed in the same case, the appellate court consolidates all the appeals.

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