SOME RULE 59 PITFALLS
June 3, 2013 § Leave a comment
Here’s the scenario … You are unhappy with the judge’s ruling in the divorce, and so is your client. The judgment was entered 7 days ago, and you and your client agree that neither a post-trial motion nor an appeal were included in the fee you charged to this point. Your client promised to bring you another few hundred dollars to file an appropriate post-trial motion. She understands that a R59 motion will toll the time for appeal, giving her additional time to marshal her assets for an appeal, if necessary. She also understands that the R59 motion must be filed within ten days of the date of the judgment. But time is running out and you haven’t heard back from her. You call opposing counsel, who is quite accommodating and suggests you just send an agreed order extending the time to file. You want 30 days? No problem. He’ll sign.
Pondering your impending dilemma, you arrive at several options:
- You could send that agreed judgment extending the time to file a R59 motion. You could get it to the judge at least by the tenth day, getting you in under the wire.
- Or, you could go ahead without your client’s participation, and without compensation, and file that R59 motion anyway.
- Or, you could just let the ten days go by, and file a R60 motion after then, if you get paid.
- Or, you could just not file a post-trial motion, and let the client pay for an appeal only.
- Or you could do nothing, and let the sorry so and so just rot in the sun because you weren’t paid.
Let’s look at these one by one:
- The agreed order. Before you do this read R59. I’ll wait. [Humming Tom Petty’s You Don’t Know What It’s Like to be Me to myself]. Done? What did you find? Is there any provision to enlarge the time? Not specifically, you say, but it’s not precluded by the language of R59. True, but read on in the Comment, where it says, “The ten-day period may not be enlarged. MRCP 6(b)(2).” R6(b)(2) states that the court, ” … may not extend the time for taking any action under Rules 50(b), 52(b), 59(b), 59(d), 59(e), 60(b), and 60(c) except to the extent and under the conditions therein stated.” So that accommodating counsel opposite may really be a Br’er Fox luring you to your doom.
- Go ahead on your own. This is the option I would elect. Filing the motion gives your client maximum protection. All R59 relief is on the table, and the time for appeal is extended. If your client changes her mind, you can always dismiss the motion. What about the fact that the filing was not explicitly authorized by your client? You should have no culpability if your action is in your client’s best interest. And as for pay, you can settle that later. Your client’s best interest comes first.
- R60 motion instead of R59. Not the best option. R60 does not stop the 30-day appeal clock from running. The scope of R60 is quite different from R59.
- No post-trial motion. At first blush, not an entirely unacceptable choice. A post-trial motion is not a prerequisite to an appeal in chancery. One drawback, though, is that if no R59 motion is filed the appeal deadline continues to run unabated. Another drawback is that a R59 motion may alert the judge to some flaw in his or her decision that she could correct, saving your client the considerable expense of an appeal. And, a more subtle consideration is that R59 allows you to bring something to the attention of the trial judge that you may not have objected to or made your record on at trial, and which would thereby be barred on appeal if you did not give the trial judge a chance to rule on it before your appeal.
- Rot in the sun. Are you serious?
The confluence of entry of a judgment, deadlines for post-trial motions, and deadline for appeal create a perilous passage fraught with shoals and cross-currents that can cause you and your client great damage. Watch the clock and chart a course that will ensure both of you the greatest possible protection.