“If You Snooze, You Lose:”
Don’t Miss Important Deadlines that Affect Your Right to Challenge an Adverse Decision
Ben Niehoff, Attorney-at-Law

You’ve been sued. You think you have a good defense, even airtight, but you go to trial and unexpectedly lose. You believe the judge was wrong, and made several erroneous legal conclusions that affected the outcome. What can you do? One thing is perfectly clear: You cannot afford to delay! If you slumber on your rights, you will lose them — forever.

You’ve heard variations of the phrase, “if you snooze, you lose” in many contexts before, but never has that axiom been more true than when it comes to pursuing your legal rights following an adverse decision. No matter how right you are, and no matter how great your legal argument is, you will be forced to pay the Plaintiff’s judgment unless you act, and soon. Your time is short. You need to be aware of, and comply with important deadlines that affect your rights.

You have 30 days from the date of the judgment to file either a Motion to Correct Errors in the trial court, or to initiate an appeal. While the trial rules provide an additional 3 days whenever a pleading has been served by mail, this extension does not apply to the court’s issuance of a judgment. Thus, 30 days means 30 days. This is an absolute requirement. If you miss this deadline, you will likely lose your right to challenge the judgment ever again.

Because appeals are expensive and can take a long time to conclude, you may opt to file a Motion to Correct Errors first. The Motion to Correct Errors alerts the judge to the errors you think he or she made at the trial which would justify a reversal of the prior decision.

After filing the Motion to Correct Errors, however, you cannot simply wait around for the judge to do something. Your clock keeps ticking. If the judge fails to set a hearing on the Motion or fails to rule on the Motion within 45 days after you file your Motion to Correct Errors, or if the judge holds a hearing but then fails to rule for 30 days after the hearing, the Motion to Correct Errors is deemed denied. You must move to the next step: initiating an appeal.

How do you initiate your appeal? You must file a Notice of Appeal with the trial court clerk within 30 days of the entry of judgment or within 30 days after your Motion to Correct Errors has been denied or “deemed denied” under the trial rules. A copy of the Notice of Appeal is filed with the trial court clerk and with the Clerk of the Court of Appeals along with the filing fee of $250. Your Notice of Appeal begins the process. You must file an Appellant’s case summary within 30 days from the Notice of Appeal, which, among other things, sets forth the anticipated issues on appeal. Typically this is filed with the Notice of Appeal.

Since an appeal is decided on a “paper record,” you will need to request that the trial court clerk assemble the Record, which contains the pleadings and exhibits filed in the case. If you want the Court of Appeals to examine testimony from your hearing, you will need to request that the court reporter prepare a transcript. These requests are made as part of your Notice of Appeal. The trial court clerk is to assemble the record within 30 days of the Notice of Appeal and the court reporter is to complete the transcript within 90 days of the Notice of Appeal.

What if the trial court clerk and/or court reporter fail to meet their deadlines? Can you sit around and wait for them to do their job? No, the Appellate process doesn’t give you the luxury of waiting for others. The rules put an affirmative duty on you to get the job done, and they don’t give you a lot of time to do it. If the trial court clerk and/or court reporter fail to meet their deadlines, you have only 15 days to seek an order from the Court of Appeals requiring that the record and transcript be completed and filed. If you fail to do this, the Rules of Appellate Procedure state that your appeal shall be subject to dismissal.

Once the record and transcript are completed, you will need to write your brief. You will also need to prepare and file, along with your brief, an appendix which contains relevant pleadings and portions of the transcript which you will use to support your argument. Your brief is due within 30 days from the Notice of Completion of the Transcript. A failure to file a brief within 30 days may subject your appeal to dismissal. The Appellee must file his or her brief within 30 days after you file your brief. The Court will render a decision following the briefing.

What if the Court of Appeals’ decision upholds the trial court? You may not be finished. You have the opportunity to ask the Court of Appeals to rehear the case or you can request that the Supreme Court accept your case. No matter which of these options you choose, you have only 30 days from the Court of Appeals’ decision to file your pleading.

You have a right to challenge an adverse decision. But remember, time is of the essence, and missing even one of the above deadlines means you could lose your right to challenge the decision forever.

© 2006

If you would like to review your rights in a dispute, do not hesitate to contact the professionals at Andrews, Harrell, Mann, Carmin and Parker.

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This information does not constitute legal advice. Each actual situation requires unique legal needs, so the information may affect one situation differently than another. Further, the law changes regularly and may vary from one jurisdiction to another. Accordingly, AHMCP disclaims any liability for action taken or not taken based on the material on this web site. Simply stated, the specific legal issues affecting a given situation require specific analysis and specific solutions. The information on this site, by its general nature, cannot provide such analysis and solutions.