Legal

Ask a Lawyer and Get Answers to Your Legal Questions

Ask a Lawyer,
Get an Answer ASAP!

Legal
This answer was rated:

Hello, I have another set of questions out to Lawtalk about

an the timeframe for an...
Hello, I have another set of questions out to Lawtalk about an the timeframe for an appeal. Can you please look at the question trail? I'm not doubting what he is saying whatsoever but he keeps telling me mine is not an appealable order and I don't fully understand what he is saying by this or where to go from there. Please advise.
Show More
Show Less
Ask Your Own Legal Question
Answered in 13 minutes by:
6/19/2013
socrateaser
socrateaser, Lawyer
Category: Legal
Satisfied Customers: 39,381
Experience: Retired (mostly)
Verified
I would prefer not to have to try to dissect the previous contributors' Q&A sessions. They're far from what a court record transcript looks like and so it's very difficult to follow the thought process. I will be happy to answer your question definitively -- or, if no definitive answer exists, to explain what I believe to be the correct answer and why.

But, you'll have to ask your question again from scratch.

Thanks in advance for your understanding and cooperation.
Ask Your Own Legal Question
Customer reply replied 4 years ago

ok.


I had a hearing on 3/28/13 that resulted in a change of custody/visitation. After the hearing I was handed the minute order which is stamped "Received in the Drop Box" and dated March 28, 2013. The Findings and Order after Hearing was sent to me by Petitioner's lawyer with a court date "Filed" stamp of 5/16/13.


 


I never received service by the clerk or any party a document entitled "Notice of Entry of Judgment" or of a file-stamped copy of the judgment, showing the date of mailing.


 


 


Am I trying to see if I can file an appeal or not?

Sorry for the delay -- it's a tricky question, and I don't have enough information.

Exactly who handed you the yellow minute order copy?
Ask Your Own Legal Question
Customer reply replied 4 years ago

My ex's lawyer. Someone in the courtroom handed them to him and he handed it to me and said "This is your copy."

Interesting.

Cal. R. Ct. 8.104(a)(1) requires an notice of appeal must be made no later than:

 

  • (A) 60 days after the superior court clerk serves on the party filing the notice of appeal a document entitled "Notice of Entry" of judgment or a file-stamped copy of the judgment, showing the date either was served;
  • (B) 60 days after the party filing the notice of appeal serves or is served by a party with a document entitled "Notice of Entry" of judgment or a file-stamped copy of the judgment, accompanied by proof of service;

 

Now, had the judge's clerk personally handed you that yellow order, you would have been served on 3/28/2013, according to the Code of Civil Procedure, because "personal service" can be accomplished by handing the document to the party or witness.

 

But, if opposing counsel handed you the document, then you weren't served because the document was not entitled "Notice of Entry," nor was the copy of the judgment/order accompanied by proof of service.

 

Now, if the minute order expressly requires that opposing counsel prepare and serve a formal Order after Hearing, then you would not have been served until 5/16/2013 -- which would give you 60 days from that date to appeal. Cal. R. Ct. 8.104(c)(2) ("The entry date of an appealable order that is entered in the minutes is the date it is entered in the permanent minutes. But if the minute order directs that a written order be prepared, the entry date is the date the signed order is filed; a written order prepared under rule 3.1312 or similar local rule is not such an order prepared by direction of a minute order")

 

But, if the minute order does not expressly require that opposing counsel prepare and serve a formal Order after Hearing, then you would have 180 days after 5/16/2013 to appeal. Cal. R. Ct. 8.104(a)(1)(C).

 

Hope this helps.

Ask Your Own Legal Question
Customer reply replied 4 years ago

It's getting clearer but I'm still trying to piece this together. I sent you the verbiage from the minute order. Did you get that?

Nope.
Ask Your Own Legal Question
Customer reply replied 4 years ago

Here's what it says:


 


Counsel for Pet. shall prepare a formal order and submit to apposing counsel for approval as to form within 10 days and opposing counsel shall review and apporve within 10 days, plus 5 if by mail; shall prepare a judgement and submit to opposing counsel for apporval as to form within 30 days and opposing counsel shall review and approve with 20 days, plus 5 days if by mail. Sanctions may be imposed for failure to comply.


 


His lawyer sent me something to approve but his letter sounded like if I didn't he would just file it. He sent it to the judge asking him to approve it. I then received the File Endorced copy (dated May 16) of the Findings and Order after Hearing.

Okay, we know that you weren't served by the clerk, because the clerk gave the minute order to opposing counsel. So, that removes option (a)(1)(A). And, we know you weren't given a proof of service by opposing counsel, so that removes option (a)(1)(B).

And, we know that the minute order instructs opposing counsel to prepare an order after hearing and serve it so that makes entry of the order 5/16/2013, which takes it back to option (a)(1)(B), but to the "notice of entry" clause which is how you were served.

Therefore, you have 60 days from 5/16/2013, to file the notice of appeal: Monday, July 15, 2013.

Hope this helps.
Ask Your Own Legal Question
Customer reply replied 4 years ago

I was thinking about this and for the hearing before the trial, we received a continuance, and at that time "I am certain" his lawyer handed me my copy. After the actual trial, I was in such a state of shock that I can't recall exactly who gave me the minute order. Given that the minute order instructs opposing counsel to prepare an order after hearing, does this change my July 15th appeal date?


 

If the clerk handed you the minute order, then the clock started to run on that date. If opposing counsel or anyone else other than the clerk handed you the document, then you weren't served notice until 5/16/2013. The reason is simple: the clerk has no idea whether or not opposing counsel handed you the document. In fact, I doubt that opposing counsel knows, either. I certainly wouldn't remember that sort of trivial issue, if I'm handling a dozen different hearings during the same week.

The only provable notice of entry is the order after hearing served by opposing counsel, because not even you recall when you were served with the minute order.

Hope this helps.
Ask Your Own Legal Question
Customer reply replied 4 years ago

I hear you saying that based on "provable" notice of entry, I am within my allowable time frame for appeal.


 


I feel I should adopt and stick to the idea that opposing counsel handed me the minute order and simply go forth with the appeal. Do you agree? Is there any other information you feel may be helpful to me in this process?


 


Thank you for your help, and for always presenting info in a logical way I can understand.

Customer reply replied 4 years ago

FYI...even my ex does not know who handed me the minute order. See his email below.


 


Melissa,


The only things I am aware of is the Judgement Order which you received the day of the trial (Don't know if Matt or if the Clerk handed it to you, but I think it was the clerk but not 100% sure), the findings and order after hearing which you were sent a couple copies of it (1 prior to it being filed for you to review and then 1 after it was filed, but not sure if another was sent to you or not), but other then that I am not sure. Are you missing something?
I feel I should adopt and stick to the idea that opposing counsel handed me the minute order and simply go forth with the appeal. Do you agree? Is there any other information you feel may be helpful to me in this process?

A: If it were me, I would take the position that the 5/16/2013 notice of entry is the effective date, and not even mention the issue surrounding the minute order, unless opposing counsel attempts to obtain a dismissal based upon a claim that you were properly served the minute order on an earlier date.

This entire exercise could turn what ought to be a straight forward appeal, into a question of what Rule 8.104 actually means. I would want to try to avoid that argument, and at this point, you don't know if opposing counsel will even consider your appeal as untimely.

The only proof that you were served the minute order by anyone is what each person recalls, and no one is certain -- though I can practically guarantee that opposing counsel will suddenly find that he has a precise recollection just as soon as he realizes there is an advantage to that recollection.

Like I said, the chance that I would remember handing you a minute order as part of a trial of one of my clients on a specific date and time is ridiculous. It would be like asking me what I color underwear I had on that day. I wouldn't have a clue -- unless there was some advantage in knowing.

Anyway, you have to make your own decisions about how you will proceed, but I think you may be opening up a big ol' can of worms with the who served what to whom issue, when there is already an order after hearing which everyone knows was served on a specific date, and from which an appeal time frame can be calculated.

Hope this helps.
Ask Your Own Legal Question
Hello,

I notice that this question is still open. Do you have any further questions on this issue, or are we "all good?"
Ask Your Own Legal Question
Customer reply replied 4 years ago

Hi, yes, we are "all good." I had some PC issues that kept me off of here. Like you said, I'm not going to open up the can of worms on the whom served whom & when scenario. I'm just going to file the appeal. I will be back another time to ask some questions on that.


One good thing about apposing conseling recalling or not / or getting in the mix is that he is no longer representing my ex. Ex may be able to dig up a retainer again, but possibly not as the last trial cost him well over 10K. Regardless, I am going to file the appeal it and hopefully I can afford an attorney if we get a new trial.


 


I do have one last question. For my last hearing date that I want to appeal, is there a way to get a copy of the transcript that was taken during the trial proceedings? I'm pretty sure there was a court reporter present.

When you file an appeal, you will have to "designate" the portion of the trial court record that you wish to use on appeal. At the same time, you will deposit fees with the court necessary to cover the production of a court reporter's transcript.

If you need a copy of a court hearing before you file the appeal and designate the record, then you can contact the court reporters office at the courthouse and request a transcript. It is not free.

See the court website for contact info.

Hope this helps.
Ask Your Own Legal Question
Customer reply replied 4 years ago

If you need a copy of a court hearing before you file the appeal and designate the record, then you can contact the court reporters office at the courthouse and request a transcript. It is not free.

See the court website for contact info.


 


Yes, I need it bfore the hearing. I have a fee waiver on file with the court, do you have any idea if it covers a transcript? If not, I will pay for it, if I have to...hopefully it's not an outrageous fee.

I do not believe that any fee waiver for court transcripts is available to a pro per litigant at this time. See this link and ask the court reporters office.
socrateaser
socrateaser, Lawyer
Category: Legal
Satisfied Customers: 39,381
Experience: Retired (mostly)
Verified
socrateaser and 87 other Legal Specialists are ready to help you
Ask your own question now
Ask socrateaser Your Own Question
socrateaser
socrateaser
socrateaser, Lawyer
Category: Legal
Satisfied Customers: 39,381
39,381 Satisfied Customers
Experience: Retired (mostly)

socrateaser is online now

A new question is answered every 9 seconds

How JustAnswer works:

  • Ask an ExpertExperts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional AnswerVia email, text message, or notification as you wait on our site. Ask follow up questions if you need to.
  • 100% Satisfaction GuaranteeRate the answer you receive.

JustAnswer in the News:

Ask-a-doc Web sites: If you've got a quick question, you can try to get an answer from sites that say they have various specialists on hand to give quick answers... Justanswer.com.
JustAnswer.com...has seen a spike since October in legal questions from readers about layoffs, unemployment and severance.
Web sites like justanswer.com/legal
...leave nothing to chance.
Traffic on JustAnswer rose 14 percent...and had nearly 400,000 page views in 30 days...inquiries related to stress, high blood pressure, drinking and heart pain jumped 33 percent.
Tory Johnson, GMA Workplace Contributor, discusses work-from-home jobs, such as JustAnswer in which verified Experts answer people’s questions.
I will tell you that...the things you have to go through to be an Expert are quite rigorous.

What Customers are Saying:

Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises!

Gary B.Edmond, OK

My Expert was fast and seemed to have the answer to my taser question at the tips of her fingers. Communication was excellent. I left feeling confident in her answer.

EricRedwood City, CA

I am very pleased with JustAnswer as a place to go for divorce or criminal law knowledge and insight.

MichaelWichita, KS

PaulMJD helped me with questions I had regarding an urgent legal matter. His answers were excellent.

Three H.Houston, TX

Anne was extremely helpful. Her information put me in the right direction for action that kept me legal, possible saving me a ton of money in the future. Thank you again, Anne!!

ElaineAtlanta, GA

It worked great. I had the facts and I presented them to my ex-landlord and she folded and returned my deposit. The 50 bucks I spent with you solved my problem.

TonyApopka, FL

Not only did he answer my Michigan divorce question but was also able to help me out with it, too. I have since won my legal case on this matter and thank you so much for it.

LeeMichigan

< Previous | Next >

Meet the Experts:

Tina

Tina

Lawyer

8,775 satisfied customers

JD, BBA Over 25 years legal and business experience.

Ely

Ely

Counselor at Law

24,218 satisfied customers

Private practice with focus on family, criminal, PI, consumer protection, and business consultation.

INFOLAWYER

INFOLAWYER

Attorney

20,218 satisfied customers

Licensed attorney helping individuals and businesses

JPEsq

JPEsq

Attorney

2,132 satisfied customers

Experience as general attorney, in house counsel, SSDI, Family Law attorney, and law professor

Law Educator, Esq.

Law Educator, Esq.

Attorney

41,455 satisfied customers

JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law

Ellen

Ellen

Lawyer, Consultant

8,238 satisfied customers

25 years of experience helping people like you.

Guillermo J. Senmartin, Esq.

Guillermo J. Senmartin, Esq.

Attorney

287 satisfied customers

7+ years of experience handling various legal matters.

< Previous | Next >

Related Legal Questions
What is Mississippi rule of civil procedure 12()(6) I did
what is Mississippi rule of civil procedure 12(b)(6) … read more
RobertJDFL
RobertJDFL
Attorney
Juris Doctorate
5 satisfied customers
In a civil case in regarding rule 59 asking for a new trial
in a civil case in regarding rule 59 asking for a new trial due to new evendience who has jursdication … read more
Damien Bosco
Damien Bosco
2,998 satisfied customers
I need to file a motion pursuant to code of civil procedure
i need to file a motion pursuant to code of civil procedure section 1987.1 … read more
Legal Eagle
Legal Eagle
Attorney
Doctoral Degree
5,967 satisfied customers
I have a question about civil procedure. The case is civil
I have a question about civil procedure. The case is civil unlimited filed in Superior Court, California. I am aware that many cases get dismissed And requests get denied due to procedure issues. Is t… read more
Law Educator, Esq.
Law Educator, Esq.
Attorney
Doctoral Degree
41,455 satisfied customers
1. Code of Civil Procedure-CCP 367 said every action must be
1. Code of Civil Procedure-CCP 367 said every action must be prosecuted in the name of the real party in interest, except as otherwise provided by statute. I would like to read the stipulations that c… read more
socrateaser
socrateaser
Lawyer
39,381 satisfied customers
Can a motion for a new trial allow me to supoena witnesses
Can a motion for a new trial allow me to supoena witnesses that should had been there at trial but I failed to issue a supoena?I was unable to admit audio evidence due to hearsay objection. I was a pa… read more
Legal Eagle
Legal Eagle
Attorney
Doctoral Degree
5,967 satisfied customers
What Ohio rule of civil procedure stats that when answering
What Ohio rule of civil procedure stats that when answering a complaint the party answering must answer all the facts and allegations in the complaint.… read more
Thelawman2
Thelawman2
Doctoral Degree
1,240 satisfied customers
What Ohio law of civil procedure states all pleadings must
what Ohio law of civil procedure states all pleadings must be made truthfully and honestly. Can you Cite me ohio supreme court decision where a case was dismissed because a defendant didn't follow thi… read more
Zoey, JD
Zoey, JD
Doctoral Degree
175 satisfied customers
Is there any law or rule of civil procedure that says a
Is there any law or rule of civil procedure that says a Judge can rule against someone for the mere fact that they don't cite relevant cases that this can cause the judgement to be rendered against th… read more
Ray
Ray
Lawyer
Doctoral Degree
30,259 satisfied customers
Second opinion] I filed a motion for new trial on the 30th
Second opinion] I filed a motion for new trial on the 30th day after the Judge signed the judgment. Client failed to come in to verify the pleading. A few days later I signed an affidavit stating I ha… read more
Law Educator, Esq.
Law Educator, Esq.
Attorney
Doctoral Degree
41,455 satisfied customers
Civil Procedure. MA Attorney fees was awarded to Plaintiff.
Civil Procedure. MA Attorney fees was awarded to Plaintiff. How can this amount be lowered? Is there a motion to lower this?… read more
Law Educator, Esq.
Law Educator, Esq.
Attorney
Doctoral Degree
41,455 satisfied customers
I received an odd phone call from civil procedures saying I
I received an odd phone call from civil procedures saying I was going to be served with papers … read more
LegalGems
LegalGems
Juris Doctorate
10,212 satisfied customers
Federal Rules of Civil Procedure - I filed a motion with a
Federal Rules of Civil Procedure - I filed a motion with a certificate of electronic service on the other parties but failed to actually send it. What steps should I take to correct this error?… read more
Ray
Ray
Lawyer
Doctoral Degree
30,259 satisfied customers
Second opinion] Federal Rules of Civil Procedure - I filed a
Second opinion] Federal Rules of Civil Procedure - I filed a motion with a certificate of electronic service on the other parties but failed to actually send it. What steps should I take to correct th… read more
Ely
Ely
Counselor at Law
Juris Doctor
24,218 satisfied customers
Federal Rules of Civil Procedure question. I would like to
Federal Rules of Civil Procedure question. I would like to amend my complaint. The way I read FRCP Rule 15 I can amend once as a matter of course (without Court or other party approval) within 21 days… read more
AttyHeather
AttyHeather
Attorney
Juris Doctorate
637 satisfied customers
Ill supreme ct 1301 rule of civil procedure. Illinoise. Just
ill supreme ct 1301 rule of civil procedure JA: Because laws vary from place to place, can you tell me what state this is in? Customer: Illinoise JA: Has anything been filed or reported? Customer: no,… read more
Marc
Marc
Attorney at Law
JD
316 satisfied customers
Can a writ of possession "CODE OF CIVIL PROCEDURE SECTION
can a writ of possession "CODE OF CIVIL PROCEDURE SECTION 512.010-512.120 " be issued in california for property that is not located in california? My property was taken from me after entrusted in fal… read more
lucy7368
lucy7368
Juris Doctor
763 satisfied customers
Can a violation of the Rules of Civil Procedure constitute a
can a violation of the Rules of Civil Procedure constitute a separate cause action? … read more
Dwayne B.
Dwayne B.
Juris Doctor
28,500 satisfied customers

DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

Show MoreShow Less

Ask Your Question

x