I Missed the Appeal Period. What Do I Do? Filing a Late Appeal
As an appellate lawyer with considerable experience in both state and federal appellate courts, I often receive calls from colleagues who are either in the midst of trying a case, or who have just received a decision or judgment in a case, looking to bend an ear. If you are one of these lawyers, please – keep calling! I always enjoy our chats and look forward to the next time the phone rings.
But, because I so frequently am asked the same or similar questions, I was inspired to start reaching out with my thoughts on these, and perhaps other, probing questions. These tips are not meant to replace our calls. Rather, take them for precisely what they are: short answers to commonly asked questions. Maybe they’ll help you in a pinch, or maybe they’ll remind you to call me so I can help you in a pinch. Either way, I hope they are of some help.
Keep an eye out for different tips each month. I also take requests, so feel free to reach out and let me know your burning questions. And finally, don’t wait till next month for the help you need today—call me anytime, any day if I can ever be of assistance talking through issues, developing strategy, recommending next steps, pursuing post-judgment action, or even just interpreting the almighty Practice Book.
I Missed the Appeal Period. What Do I Do?
Filing a Late Appeal
Sometimes due to factors out of our control, we are faced with having to file an appeal from a final judgment after the appeal period has already passed. Is this allowed? Sometimes. Is all hope lost? Not necessarily. Here are some things to know when you find yourself in this unenviable situation.
First, unlike the vast majority of federal and sister state precedent, the temporal limitations on the right of appeal in Connecticut are not jurisdictional. See State v. Reid, 277 Conn. 764, 793 n.8 (2006) (Norcott, J., concurring). This means that the court has jurisdiction to consider late-filed appeals, if permission is granted to file one.
To that end, as I discussed in my previous post, the general rule is that you have 20 calendar days to file your appeal. You may move for an extension of time to file your appeal by no more than 20 days. Practice Book § 66-1 (a). If you wish to file an appeal after those 20 (or 40) days have expired, you need to request permission from the Appellate Court in order to do so properly. Practice Book § 60-2 (5) is your first step. It allows the Appellate Court to order that a party may file a late appeal, but it requires that a party seeking to do so must move for permission to file a late appeal under this rule and must show good cause for the late filing. See also Georges v. OB-GYN Services, P.C., 335 Conn. 669, 706 (2020). An appellate court “will customarily allow a late filing if ‘unusual circumstances’ or ‘exceptional cases’ justify granting permission.” Id. (citing Alliance Partners, Inc. v. Voltarc Technologies, Inc., 263 Conn. 204, 212, 213 (2003)).
What constitutes “unusual circumstances” or “exceptional cases” worthy of allowing an untimely appellant to proceed? The following nonexhaustive list of factors is helpful in flushing that out:
- The reason for the late filing;
- The nature of the underlying case;
- Whether the application for permission is opposed;
- The interests of judicial economy; and
- The extent of any prejudice to the objecting party.
See Georges, 335 Conn. at 702 (D’Auria, J., concurring in party and dissenting in part) (citing Janulawicz v. Commissioner of Correction, 310 Conn. 265, 274 (2013), Ramos v. Commissioner of Correction, 248 Conn. 52, 61-62 (1999), and Meribear Productions, Inc. v. Frank, 193 Conn. App. 598, 606 (2019)). The allegation of “widespread confusion” in the trial court as to the date the trial court’s judgment was actually rendered does not amount to good cause where the Appellate Court sees no reasonable basis for any such confusion. Georges, 335 Conn. at 689. Neither does an alleged “good faith belief” that there was no appealable final judgment issued. Id. at 690. While the court has acknowledged that “an objectively reasonable mistake of law may constitute good cause for filing a late appeal,” id., there is not much guidance on what such an objectively reasonable mistake of law might look like.
If your motion for permission to file a late appeal is denied, you may not file or proceed with your appeal. “A ruling denying permission to file a late appeal forecloses entirely a party’s statutory right to appellate review.” Georges, 335 Conn. at 703 (D’Auria, J., concurring in party and dissenting in part). On the other hand, a decision by the Appellate Court denying a motion for permission to file a late appeal is itself a final decision subject to review by the Supreme Court under the abuse of discretion standard. Georges, 335 Conn. at 686.
What does this mean? If you find yourself needing to file a late appeal, you are facing a challenging but not impossible task. I recommend giving me or any of our appellate attorneys a call and we can work through it together!