PROTECTING THE RIGHT TO APPEAL: Post-Trial Motions In Minnesota

Eric J. Magnuson Diane B. Bratvold Jonathan P. Schmidt Briggs and Morgan, P.A. 2200 IDS Center 80 South 8th Street

TABLE OF CONTENTS I. POST-DECISION MOTIONS, AND THE NEED TO PRESERVE ERROR.............. 1 II. MOTIONS AFTER TRIAL ........................................................................................... 2 A. New Trial .................................................................................................................. 2 1. NECESSITY ....................................................................................................... 2 2. GROUNDS ......................................................................................................... 4 3. PROCEDURE ..................................................................................................... 6 B. Amended Findings.................................................................................................... 8 1. NECESSITY ....................................................................................................... 8 2. GROUNDS ......................................................................................................... 9 3. PROCEDURE ..................................................................................................... 9 C. Judgment As A Matter Of Law (JAML) .............................................................. 9 1. NECESSITY ....................................................................................................... 9 2. GROUNDS ....................................................................................................... 10 3. PROCEDURE ................................................................................................... 10 III. RELIEF FROM JUDGMENT OR ORDER RULE 60 .......................................... 11 A. Necessity................................................................................................................. 11 B. Grounds .................................................................................................................. 12 C. Procedure ................................................................................................................ 15 IV. MOTIONS FOR RECONSIDERATION .................................................................... 15 A. Necessity................................................................................................................. 15 B. Grounds .................................................................................................................. 16 C. Procedure ................................................................................................................ 16 V. RULE 62 STAY OF ENFORCEMENT ...................................................................... 17 i

VI. MOTIONS FOR ATTORNEY FEES .......................................................................... 18 VII. TIME TO APPEAL AND IMPACT OF POST DECISION MOTIONS ON TIME TO APPEAL ................................................................................................................ 20

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I.

POST-DECISION MOTIONS, AND THE NEED TO PRESERVE ERROR

The phrase post-trial motions is often used to refer to motions for new trial, judgment as a matter of law, or amended findings. In fact, there are a number of additional motions that may be brought after a trial or other proceeding has resulted in a decision adverse to a party, including motions for relief from judgment, reconsideration, stay of enforcement, and attorney fees. Post-decision motions can be one of the most important aspects of civil litigation practice. As the following materials will demonstrate, post-decision motions can afford relief where other procedural rules cannot and are often either extremely important or essential to preservation of claims of error for appellate review. On the other hand, an illconceived post-decision motion, or one that is not properly or timely brought, can scuttle further proceedings, including a subsequent appeal. One of the primary purposes served by post-decision motions is to preserve claims of error for appellate review. They can provide an opportunity for the future appellant clearly and unequivocally to put before the trial court (and in the record) the bases for relief on appeal. The most basic rule of appellate practice is this: If it was not presented to the trial court, then you will not be able to present it to the appellate court. This generic it refers to most anything, including evidence, objections, legal theories, etc. The collective it is the appellate record. Appeals are considered only on the record before the district court, because [i]t is unfair to reverse the district court upon evidence which it had no opportunity to consider. Marshall Houts & Walter Rogosheske, Art of Advocacy- Appeals, 1.05[2][a][I] (Eric J. Magnuson & Diane B. Bratvold, ed., 2005) (quoting Minnesota Fedn of Teachers v. Randall, 891 F.2d 1354, 1359 n.9 (8th Cir. 1989)). This general rule applies to more than just post-decision motions. Objections to proffered evidence must be made in a timely and specific manner, and be clearly contained in the record, in order to preserve claims of error for later appeal. See Johnson v. Southern Minn. Mach. Sales Inc., 460 N.W.2d 68, 72 (Minn. Ct. App. 1990) (failure to object to evidence at trial precludes raising the issue for the first time on appeal); Estate of Hartz v. Nelson, 437 N.W.2d 749, 752 (Minn. Ct. App. 1989) (admissibility of evidence cannot be challenged for the first time on appeal);Minn. R. Evid. 103(a)(1) (error may not be predicated upon evidentiary ruling unless a timely and proper objection appears of record). In certain contexts, post-decision motions are prerequisites for appellate review. In other cases, they serve as a useful second chance to make the record. In all cases, the

proper role of the post-decision motion should be clearly understood and carefully executed. These materials discuss key procedural rules and case law for post-trial motions in Minnesota. There is no substitute, however, for a thorough and thoughtful review of the governing rules and case law. The discussion here is not intended to be exhaustive, although it should cover most of the significant features of post-decision motion practice.
II.

MOTIONS AFTER TRIAL

At the conclusion of a trial, when the decision has been rendered, the stage is set for true post-trial motions. These include motions for new trial, motions for amended findings, and motions for judgment as a matter of law (previously known as motions for judgment notwithstanding the verdict).
A.

NEW TRIAL
1.

NECESSITY

In Sauter v. Wasemiller, 389 N.W.2d 200 (Minn. 1986), the Minnesota Supreme Court carefully re-examined the rule limiting appellate review in the absence of post-trial motions and re-affirmed the rule and the principles behind it. The Minnesota Supreme Court recently clarified the Sauter rule in Alpha Real Estate Co. v. Delta Dental Plan, 664 N.W.2d 303 (Minn. 2003), and held that the Sauter rule does not apply to substantive questions of law properly raised during trial. The court specifically held that [w]hile permissive, motions for a new trial . . . are not a prerequisite for appellate review of substantive questions of law when a genuine issue of law is properly raised and considered at the district court level. Id. at 310. The court reasoned that [o]ne purpose for requiring post-trial motions is to flesh out the reasoning behind a district courts ruling. Where the parties raised an issue multiple times, the court had ample time to consider its reasoning on an issue and where a new trial would not alter the courts conclusions of law; there is no evidence to exclude, no erroneous jury instructions to correct, and no trial procedures to alter. Another opportunity to expand on reasoning is not needed. The court concluded that, while permissive, motions for a new trial pursuant to Minn. R. Civ. P. 59.01 are not a prerequisite for appellate review of substantive questions of law when a genuine issue of law is properly raised and considered at the district court level. Id. at 311. The court explained the difference between substantive and procedural law in a footnote, stating that substantive law is the part of the law that creates, defines, and regulates the rights, duties and powers of parties. Id. at n.5. In contrast, procedural law is defined as the rules that prescribe the steps for having a right or duty judicially enforced, as opposed to the law that defines the specific rights or duties themselves. Id. Thus, the court differentiated between procedural matters within the district courts

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discretion that require post-trial motions for appellate review, and substantive conclusions of law reached by the district court to which appellate courts need not give deference. Id. at 310. Appellate courts review substantive questions of law de novo; they review discretionary rulings for abuse of discretion. An appeal from a judgment where the appellant has not moved for a new trial presents to the appellate courts only the questions of whether the evidence sustains the findings of fact, and whether such findings sustain the conclusions of law and the judgment. Gruenhagen v. Larson, 310 Minn. 454, 246 N.W.2d 565 (1976); Meiners v. Kennedy, 221 Minn. 6, 20 N.W.2d 539 (1945); Potvin v. Potvin, 177 Minn. 53, 224 N.W. 461 (1929). This rule applies whether trial is to the court or a jury. Exceptions to this rule are rare, and generally involve some error in the trial proceedings that is so fundamental it effectively destroys the fairness of the proceedings. Lindstrom v. Yellow Taxi Co., 298 Minn. 224, 214 N.W.2d 672 (1974). Cautious counsel should assume that unless a new trial motion is made, the scope of review is limited to whether the evidence sustains the findings of fact, and whether the findings support the conclusions of law and judgment. While some exception to the general rule requiring such a motion might apply, when all is said and done, practitioners should not count on being able to raise any issue relating to the trial of a case without having brought a new trial motion. The motion for new trial must in fact follow an actual trial in the lower court. If no trial ever took place (i.e., dismissal prior to trial, summary judgment, etc.), a motion for a new trial is a misnomer, and an order denying such a motion has no effect, and, more importantly, is not appealable. Frontier Lumber & Hardware, Inc. v. Dickey, 289 Minn. 162, 183 N.W.2d 788 (1971); Samuels v. Samuels, 174 Minn. 133, 218 N.W. 546 (1928); Parson v. Argue, 344 N.W.2d 431 (Minn. Ct. App. 1984). Another restriction is the requirement that a new trial motion be actually authorized in the proceeding from which the appeal is taken. A motion for a new trial may be appropriate in some civil proceedings other than traditional trials; on the other hand, such a motion may be inappropriate in other proceedings. In Schiltz v. City of Duluth, 449 N.W.2d 439 (Minn. 1990), on remand, 1990 WL 48530 (Minn. Ct. App. 1990) (unpublished opinion), the Minnesota Supreme Court emphasized that there must be some statutory authority for proceedings like new trial motions, such as a provision for further proceedings in the same manner as in a civil action. In the absence of such a provision, a new trial motion, even if considered by the trial court on the merits and denied, may not result in an appealable order. Compare Schiltz and In re Jost, 449 N.W.2d 719 (Minn. 1990) (new trial motion properly made in civil commitment proceeding under Minn. Stat. 253B.23, subd. 7, and appeal properly taken from denial of such motion) with Steeves v. Campbell, 508 N.W.2d 817 (Minn. Ct. App. 1993) (new trial motion in domestic abuse proceedings not authorized, and order denying such motion is not appealable); Huso v. Huso, 465 N.W.2d 719 (Minn. Ct. App. 1991) (new -3-

trial not authorized in post-dissolution decree modification proceedings, and order denying such motion not appealable; proper appeal is from the order granting or denying requested relief); Park & Recreation Board v. Carl Bolander & Sons Property, 436 N.W.2d 481 (Minn. Ct. App. 1989) (motion for a new trial not appropriate in condemnation proceedings, and appeal may be taken only from the order determining public necessity or the final judgment); and Tonkaway Ltd. Partnership v. McLain, 433 N.W.2d 443 (Minn. Ct. App. 1988) (order denying a new trial in an unlawful detainer action not appealable). The new trial rule does not generally apply to special proceedings (proceedings which are created and governed by statute) unless there is some specific authorization for the motion in the statute. Knutson v. Commissioner of Pub. Safety, 406 N.W.2d 560, 562 (Minn. Ct. App. 1987). While this is generally true, there are exceptions. Pahlen v. Commissioner of Pub. Safety, 482 N.W.2d 493 (Minn. Ct. App. 1992), impliedly overruled Knutson to the extent that, after Knutson, appeals were allowed to be taken from an order denying a motion for a new trial in special proceedings intended to proceed as other civil cases. Nonetheless, Pahlen did not go so far as to require that a motion for a new trial be brought in special proceedings in order to preserve issues for review. See Schiltz v. City of Duluth, 449 N.W.2d 439, 441 (Minn. 1990); In re Jost, 449 N.W.2d 719, 721 (Minn. 1990); Pahlen, 482 N.W.2d at 495. Even if a new trial motion is authorized, it may not be effective to raise issues on appeal, since it may not be specifically appealable in a particular proceeding. For example, in probate matters, while the Rules of Civil Procedure govern contested will proceedings, Minn. Stat. 525.71 (which governs appeals in probate matters) does not authorize an appeal from an order denying a new trial. See In re Estate of Opsahl, 440 N.W.2d 185, 186 (Minn. Ct. App. 1989) (In probate matters, only those orders enumerated in Minn. Stat. 525.71 (1988) are appealable. . . . Minn. Stat. 525.71 does not allow an appeal from an order denying a motion for a new trial.) (Citations omitted.) The only way to obtain review of new trial motion issues is to make the motion and obtain a decision prior to an appeal authorized under the statute.
2.

GROUNDS

The grounds for a new trial under Minnesota state law are listed in Minn. R. Civ. P. 59.01. The grounds included (along with some of the significant cases discussing those principles) are: Irregularity in Proceedings Rule 59.01(a). See In re Begleys Estate, 178 Minn. 141, 226 N.W. 404 (1929) (an irregularity is a failure to adhere to a prescribed rule or method of procedure that does not amount to an error in a ruling in a matter of law or misconduct); Sabraski v. Northern States Power Co., 304 N.W.2d 635 (Minn. 1981) (irregularity); Gersdorf v. R. D. Werner Co., 316 N.W.2d 517 (Minn. 1982) (judges reinstruction of jury

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without informing litigants counsel and without the presence of a court reporter constituted irregularity). Misconduct Rule 59.01(b). See Schwartz v. Minneapolis Suburban Bus Co., 258 Minn. 325, 104 N.W.2d 301 (1960) (established procedure to determine whether jury misconduct has occurred); Zimmerman v. Witte Transp. Co., 259 N.W.2d 260 (Minn. 1977) (court summoned the jurors and allowed examination regarding jury misconduct); Bianchi v. Nordby, 409 N.W.2d 835, 838 (Minn. 1987) (Schwartz hearing is appropriate procedure to determine whether a clerical error has occurred); Johnson v. Moberg, 334 N.W.2d 411 (Minn. 1983) (misconduct of attorney in failing to disclose settlement). See also Minn. R. Evid. 606(b) (regarding inquiry into validity of verdict or indictment). Accident or Surprise Rule 59.01(c). See Gunderson v. Olson, 399 N.W.2d 166 (Minn. Ct. App. 1987) (to preserve motion, must object claiming surprise at the time the evidence is offered and request continuance); Dorn v. Home Farmers Mut. Ins. Assn, 300 Minn. 414, 220 N.W.2d 503 (1974) (moving party must establish prejudice); Kozak v. Weis, 348 N.W.2d 798 (Minn. Ct. App. 1984) (knowledge of what testimony will or will not be precludes claim of surprise). Newly Disclosed Evidence Rule 59.01(d). See Gruenhagen v. Larson, 310 Minn. 454, 246 N.W.2d 565 (1976) (evidence must be more than merely cumulative, contradictory, or impeaching); Vikse v. Flaby, 316 N.W.2d 276 (Minn. 1982) (new trial not allowed where evidence not discovered because of a lack of due diligence); State ex rel. Pula v. Beehler, 364 N.W.2d 860 (Minn. Ct. App. 1985) (moving party has burden of showing that evidence could not have been found and produced at trial and that evidence would have a material effect on outcome of case). Excessive/Insufficient Damages Rule 59.01(e). See Busch v. Busch Constr., Inc., 262 N.W.2d 377 (Minn. 1977) (appellate court reluctant to substitute its judgment on remittitur where reasons exist which independently support trial courts exercise of discretion); Seim v. Garavalia, 306 N.W.2d 806 (Minn. 1981) (verdict must be rendered under the influence of passion and prejudice; excessive or insufficient damages alone insufficient). Errors of Law Rule 59.01(f). See Gilbert v. Brindle, 306 Minn. 569, 237 N.W.2d 83 (1975) (new trial required where evidentiary support is lacking as to any one of theories submitted to jury); Bilotta v. Kelley Co., 346 N.W.2d 616 (Minn. 1984) (new trial granted because of erroneous instruction on design-defect claim); Becker v. Alloy Hardfacing & Engg -5-

Co., 401 N.W.2d 655 (Minn. 1987) (new trial for failure to instruct jury on clear and convincing standard for proving punitive damages). Verdict Contrary to Evidence or Law Rule 59.01(g). See Koenig v. Ludowese, 308 Minn. 380, 243 N.W.2d 29 (1976) (trial judge must exercise caution in setting aside a jury verdict on the grounds of insufficient evidence); M.L. v. Magnuson, 531 N.W.2d 849 (Minn. Ct. App. 1995) (motion not granted unless verdict so contrary to preponderance of evidence as to imply that jury acted without considering all evidence or from improper motive). For a more in depth analysis of each ground, and extensive annotations to cases interpreting each rule section, See David F. Herr and Roger R. Haydock, 2A Minnesota Practice: Civil Rules Annotated 59.3, et seq. (West 1985, 2005 Supp.).
3.

PROCEDURE

Rule 59.03 requires that written notice of motion for new trial be served within 30 days after a general verdict or service of notice by a party of filing of decision or order. The 30-day time limit for filing the motion is an absolute deadline. Failure to meet the 30-day time limit deprives the trial court of jurisdiction to hear and decide the motion. Rieman v. Joubert, 376 N.W.2d 681 (Minn. 1985). There is no provision in the Minnesota Rules of Civil Procedure for extending the 30-day limit. A timely and proper motion for new trial tolls the 60-day deadline for filing a notice of appeal from judgment. Minn. R. Civ. App. P. 104.01, subd. 2. See VII, infra, discussing the tolling of the time to appeal. The rule also requires the motion to be heard within 60 days, and failure to either obtain the hearing within that period, or secure an extension for good cause shown, renders the motion untimely. United States Leasing Corp. v. Biba Information Processing Services, Inc., 489 N.W.2d 231 (Minn. 1992). In United States Leasing, the court made it clear that the extension of time must be approved by the trial court, and must be obtained within the 60-day window. Cf. Woodrow v. Tobler, 269 N.W.2d 910 (Minn. 1978). In addition, prudent counsel will obtain a written confirmation of any extension for good cause issued by the court within the 60-day limitation period. United States Leasing Corp., 489 N.W.2d at 232. Previously, some conflicting case law discussed whether an untimely hearing on new trial motions would divest a district court of jurisdiction to hear the motion. The Minnesota Supreme Court recently held that failure to obtain a timely hearing for a motion for new trial is not a jurisdictional defect. In Rubey v. Vannett, 2006 WL 1171857 (Minn. 2006), the Minnesota Supreme Court granted review after the court of appeals dismissed as untimely an ex-husbands appeal from an order denying a motion for new trial and amended findings relating to child custody. Although he filed timely

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motion papers, an ex-husbands post-trial motion was heard after the 60-day period without an order of the court granting an extension for good cause. Id. at *2. The exhusband contended that when he attempted to schedule the motion within the 60-day period, he was informed by the clerks office that the only date available was after the 60day period. Id. There was conflicting evidence regarding whether counsel had asked for an order. Id. at *2-3. The district court dismissed the motion because it lacked jurisdiction, and, alternatively, because the hearing was untimely. Id. at *3. The court of appeals held the appeal from the dismissal and the judgment was untimely. Id. The supreme court reversed and remanded, holding that the Rule 59.03 requirement that a motion for a new trial be heard within 60 days after the notice of filing of the decision or order is a procedural tool and not a jurisdictional requirement. Id. at *4. The ex-husbands failure to obtain a hearing within the 60-day period did not divest the district court of jurisdiction. Id. With regard to the district courts alternative decision to dismiss the ex-husbands motion because the hearing was untimely, however, the supreme court affirmed, holding that the district courts findings were not clearly erroneous and it did not abuse its discretion in dismissing the motion. Id. at *5-6. The court concluded that the district court was not clearly erroneous in finding that the exhusband did not reasonably rely on any alleged statements by the clerk. Id. at *6. The supreme court, however, reversed the court of appeals decision to dismiss the appeal because the ex-husbands timely motion had tolled the time to appeal. See VII, infra, discussing the tolling of the time to appeal. Rule 59.04 requires affidavits in support of a motion for new trial to be served with the motion for new trial, and provides for responsive and reply affidavits. The rule does not address the date by which any supporting memoranda must be served. Rule 115.01(c) of the General Rules of Practice provides that the timing provisions of sections 115.03 (non-dispositive motions) and 115.04 (dispositive motions) do not apply to posttrial motions. Consequently, Rule 6.04 of the Rules of Civil Procedure, which requires at least 5 days notice of a motion, governs the minimum notice time for the motions. In practice, it is often difficult to coordinate the schedules of the lawyers and the court for new trial motions, particularly in light of the limited time frame of Rule 59. Therefore, it is wise to notice the motion promptly, for a date and time to be determined by order of the court. The party moving for new trial should also submit a request to the court to set a date and briefing schedule (or order the general rules provisions to be followed) as well as specifically extend the time for hearing for good cause, for example, the unavailability of the court and parties at a time and date within the 60 days. A new trial motion must specifically identify the grounds upon which it is made. It is not enough to merely parrot the provisions of the rule without argument or other authority. See Waldner v. Peterson, 447 N.W.2d 217, 219 (Minn. Ct. App. 1989) (motion for new trial that only alleged that errors of fact and law had occurred and that the decision was not justified by the evidence and was contrary to law failed to identify -7-

any specific grounds which would justify a new trial and thus preserved no issues for appeal).
B.

AMENDED FINDINGS
1.

NECESSITY

A losing party in a court trial has three alternatives after a court has issued findings, conclusions, and a judgment order. The losing party may: (1) move to amend, (2) move for a new trial, or (3) appeal. The common practice is to bring a motion for amended findings and conclusions combined with a motion for a new trial before appealing. Just because they are commonly brought together, however, does not mean that new trial motions and motions for amended findings are similar in either their purpose or effect. Minn. R. Civ. P. 52.02 permits a party to request a court to clarify, correct, or amend findings, conclusions, and orders for judgment and allows the court to make such amendments. Rule 52.02 allows the question of sufficiency of the evidence to support a trial courts findings to be raised on appeal regardless of whether a motion has been made in the district court objecting to such findings, or whether that party has made a motion to amend the findings. Review on appeal is limited, however, to the sufficiency of the evidence to support the findings. Findings of fact made by the trial court will not be set aside unless clearly erroneous. In re Appeal from Probate Court, 302 Minn. 512, 225 N.W.2d 539 (1975). This is true regardless of whether the evidence presented to the trial court is oral testimony or written documents. Motions for amended findings are not necessary to preserve issues; however, if the court fails to make a finding on a particular issue of fact, a motion for amended findings is necessary to preserve that issue for appeal. Antonson v. Ekvall, 289 Minn. 536, 186 N.W.2d 187 (1971). Likewise, a defect concerning the trial courts findings that is not brought to the attention of the trial court cannot be raised for the first time on appeal. Berquam v. Berkner, 374 N.W.2d 802 (Minn. Ct. App. 1985). The denial of a motion for amended findings of fact or conclusions of law is not by itself an appealable order. Lehman v. Hansord Pontiac Co., 246 Minn. 1, 6, 74 N.W.2d 305, 309 (1955). This is true even if the order denying the motion also denies a motion for a new trial. Only the portion of the order denying the new trial request is appealable. Schaedler v. New York Life Ins. Co., 201 Minn. 327, 276 N.W. 235 (1937). The denial of the motion for amended findings may be reviewed on appeal from the judgment subsequently entered. Rathbun v. W. T. Grant Co., 300 Minn. 223, 219 N.W.2d 641 (1974).

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2.

GROUNDS

A motion to amend findings of fact is appropriate to have the trial court correct errors that it has made. It is not intended to permit a wholesale re-trial of the case. A motion to amend permits the trial court to review all the evidence, not just those findings claimed by the losing party to be inaccurate. McCauley v. Michael, 256 N.W.2d 491 (Minn. 1977). The trial court may not, however, accept new evidence in considering a motion for amended findings, unless accompanied by motion for new trial. Chin v. Zoet, 418 N.W.2d 191 (Minn. Ct. App. 1988).
3.

PROCEDURE

Rule 52 applies only to a bench trial and is often brought with a Rule 59 new trial motion. A motion must be made within 30 days after service of notice by a party of the filing of the decision or order and heard within 60 days. Minn. R. Civ. P. 52.02; see discussion above with respect to new trials. The trial court no longer loses jurisdiction to amend the findings where an appeal is filed before the trial court renders a decision on the motion for amended findings. See, e.g., Amatuzio v. Amatuzio, 431 N.W.2d 588, 589 (Minn. Ct. App. 1988) (holding jurisdiction lost under prior rules). A proper and timely motion to amend or make findings of fact under Rule 52.02 tolls the 60-day deadline for time to appeal whether or not granting the motion would alter the judgment. Minn. R. Civ. App. P. 104.01, subd. 2. See VII, infra, discussing the tolling of the time to appeal.
C.

JUDGMENT AS A MATTER OF LAW (JAML)

1.

NECESSITY

There is no general requirement in state court for Rule 50 motions to be made at trial in order to preserve issues for appeal. Parties are, however, required to object to improper evidence, questioning or procedures, and, as noted above, to preserve issues relating to instructions and verdict forms. Recently, Minnesota revised the rules of civil procedure relating to Rule 50 and renamed motions for directed verdict and for judgment notwithstanding the verdict, in accordance with the federal practice, as judgment as a matter of law. These materials will refer to prior case law on motions for directed verdict and judgment NOV since the Minnesota Supreme Court has indicated that the recent change was in nomenclature only and not to alter Minnesota practice. See Advisory Committee Comment 2006 Amendment (stating amendment was made to remove archaic language and the change is not intended to change substantive practice relating to these motions). In prior cases, the appellate courts have held that an appeal from a judgment in a jury case does not allow consideration of the issue of sufficiency of the evidence to create

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a jury question or to support the judgment unless a proper motion for judgment as a matter of law (JAML) or for a new trial has been made. See In re Ydsties Estate, 195 Minn. 501, 263 N.W. 447 (1935). This rule appears to be applicable only when review is sought of the sufficiency of the evidence to support a judgment on a particular legal theory presented at trial. Where a specific legal theory and its application to the evidence presented is put before the trial court by a motion for JAML, the issue of the sufficiency of the evidence is reviewable on appeal in that context. In other words, the appellate court may consider whether the evidence supports the law pleaded and advanced to the trial court. See Phelan v. Carey, 222 Minn. 1, 23 N.W.2d 10 (1946); Ciresi v. Globe & Rutgers Fire Ins. Co., 187 Minn. 145, 244 N.W. 688 (1932). When no motion is made, however, an appeal from the judgment in a jury case results in a review that is limited to whether the evidence sustains the verdict under any applicable rule of law. Wright v. M. B. Hagen Realty Co., 269 N.W.2d 62 (Minn. 1978); Kilty v. Mutual of Omaha Ins. Co., 287 Minn. 403, 178 N.W.2d 734 (1970); Johnsrud v. Tri-State Sales, Inc., 353 N.W.2d 255 (Minn. Ct. App. 1984). Where a party has presented evidence to support one of her theories, but the trial court failed to give a jury instruction, a motion for JAML that addresses the trial courts failure to give jury instructions preserves the instruction issue for appeal. Stelter v. Chiquita Processed Foods, L.L.C., 658 N.W.2d 242, 246 (Minn. Ct. App. 2003).
2.

GROUNDS

After trial, motions for JAML or for a new trial are commonly brought as alternative or blended motions. Each motion presents a different question for the trial court. A motion for JAML is granted only if the evidence is so overwhelming that reasonable minds could not differ as to the conclusion to be drawn, or if the party would be entitled to a directed verdict. Bisher v. Homart Dev. Co., 328 N.W.2d 731 (Minn. 1983). A motion for JAML raises a purely legal question for the trial court have the elements of the cause of action been proven? A motion for a new trial, on the other hand, may be sought on any of the grounds set forth in Minn. R. Civ. P. 59. When sufficiency of the evidence is the ground for seeking a new trial, however, relief will be granted only where the verdict is so contrary to the preponderance of the evidence as to imply that the jury failed to consider all of the evidence, or acted under the influence of mistake or bias. La Valle v. Aqualand Pool Co., 257 N.W.2d 324 (Minn. 1977). Because the standards for granting the two motions are different, it is possible under certain circumstances, for the court to rule one way on the motion for JAML, and differently on the motion for a new trial. See Lamb v. Jordan, 333 N.W.2d 852 (Minn. 1983).
3.

PROCEDURE

Motions for JAML may be brought either during trial, under Rule 50.01, or after trial, under Rule 50.02. Rule 50.01 states that the standard for obtaining JAML during - 10 -

trial is that a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue because the partys claim or defense cannot under the controlling law be maintained or defeated without a favorable finding on that issue. Minn. R. Civ. P. 50.01(a). These motions may be made at any time before the case is submitted to the jury. Minn. R. Civ. P. 50.01(b). In direct contrast to federal practice, it is not necessary to bring a motion for JAML during trial in order to bring a motion for JAML after trial. Minn. R. Civ. P. 50.02. See Advisory Committee Comment 2006 Amendment (noting difference between federal and Minnesota practice on this point). Post-trial motions for JAML or a new trial must be served within 30 days after a general verdict or service by a party of notice of filing of decision or order. Rules 50.02 & 59.03. Failure to serve and file the motions in a timely fashion is jurisdictional, and the district court cannot consider untimely motions. Differt v. Rendahl, 306 N.W.2d 813 (Minn. 1981); Bowman v. Pamida, Inc., 261 N.W.2d 594 (Minn. 1977). A timely and proper post-trial motion for JAML tolls the 60-day deadline for the time to appeal. Minn. R. Civ. App. P. 104.01, subd. 2. See VII, infra, discussing the tolling of the time to appeal. Minn. R. Civ. P. 50.03 protects the rights of both parties to seek a new trial following a motion for JAML. If JAML is granted, the party opposing the Rule 50 motion may move for a new trial by serving a Rule 59 new trial motion within thirty days after notice of the trial courts order granting judgment as a matter of law. In the appellate context, Rule 50.03 specifically provides that the party who prevailed on the motion for JAML may, as respondent in an appeal, assert grounds supporting a new trial in the event the appellate court concludes that the trial court erred in denying the motion for JAML. See, e.g., Conover v. Northern States Power Co., 313 N.W.2d 397 (Minn. 1981). Rule 50.04 further provides that if the appellate court reverses the judgment, it may either determine that the respondent is entitled to a new trial or direct the trial court to determine whether a new trial should be granted. The effect of these rules is that in an appeal from a judgment, the appellate court may determine that the respondent is entitled to a new trial even though no new trial motion was made in the trial court.
III.

RELIEF FROM JUDGMENT OR ORDER RULE 60

A.

NECESSITY

Motions for relief from a judgment or decision under Rule 60 are not strictly necessary post-trial motions, in the sense that in the ordinary case they do not add to an appeal, and are not required to preserve issues. As discussed below, Rule 60 motions are appropriate means to establish matters outside the existing record upon which relief can be granted. Their function is, however, quite narrow, and when resorted to in the wrong circumstances, Rule 60 motions can create significant dangers.

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In Minnesota, post-judgment motions to vacate the trial court decision are potentially problematic, in that they often do not have the effect that parties hope they might. A Rule 60 motion may have no effect on the time for appeal, and an order denying such a motion may not be appealable itself. Only a Rule 60 motion that is filed within the time for a motion for new trial will toll the 60-day deadline for the time to appeal. Minn. R. Civ. App. P. 104.01, subd. 2. See VII, infra, discussing the tolling of the time to appeal. In Kottkes Bus Co. v. Hippie, 286 Minn. 526, 176 N.W.2d 752 (1970), the supreme court held that the denial of a motion to vacate a default judgment is not appealable when the party appealing the default judgment appeared and participated in the underlying action. The proper appeal lies from the judgment or order itself. Pederson v. Rose Coop. Creamery Assn, 326 N.W.2d 657, 661 (Minn. 1982). The reasoning behind this rule is that where judicial error could have been remedied by an appeal from the judgment, review should not be permitted by some alternative means. Nordeen v. Commissioner of Pub. Safety, 382 N.W.2d 256 (Minn. Ct. App. 1986). The general rule is not without exceptions. In Spicer v. Carefree Vacations, Inc., 370 N.W.2d 424 (Minn. 1985), the supreme court held that the denial of a Rule 60 motion was appealable; the general rule only applied where there was a true default judgment one rendered ex parte against a party who has made no appearance. Under those circumstances, an appeal is largely ineffective to raise any issues other than whether there was a timely answer. On the other hand, a judgment by default entered against a defendant who has appeared in an action and actively opposed the request for judgment does not present the same problems. The Spicer exception only applies to true default judgments, and not, for example, to proceedings which result in judgment by default for failure to comply with discovery orders, etc. See Carlson v. Panuska, 555 N.W.2d 745 (Minn. 1996). The proper appeal from a final judgment is from the underlying judgment itself.
B.

GROUNDS

In State ex rel. Wendland v. Probate Court of St. Louis County, 221 Minn. 333, 22 N.W.2d 448 (1946), the Minnesota Supreme Court explained the nature of motions under Rule 60, and in particular the fact that they are not a vehicle to re-argue the merits of a judicial decision, or add new arguments to those previously made. * * * The power to vacate judgments, on motion, is confined to cases in which the ground alleged is something extraneous to the action of the court or goes only to the question of the regularity of its proceedings. It is not intended to be used as a means for the court to review or revise its own final judgments, or to correct any errors of law into which it might have fallen. That a judgment is erroneous as a matter of law is ground for an

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appeal, writ of error, or certiorari, according to the case, but it is no ground for setting aside the judgment on motion. Id. at 337, 22 N.W.2d at 450 (quoting 3 Dunnell, Dig. 5120). The propriety of a Rule 60 motion may depend on the circumstances surrounding the decision or judgment that is the subject of the motion. In Minnesota, this distinction is frequently addressed in the context of the propriety of an appeal from an order denying Rule 60 relief. In Kottkes Bus Co. v. Hippie, 286 Minn. 526, 176 N.W.2d 752 (1970), the court noted that [t]he general rule is that orders refusing to vacate authorized judgments are not appealable. Id. at 527, 176 N.W.2d at 753. The court also noted that an exception to that general rule existed where a default judgment was granted ex parte. The Court said the reason for the rule is well articulated in Note, 51 Minn. L. Rev. 115, 129 (1966), which it quoted: A default judgment entered against a party who has made no appearance in the action may escape the attention of that party until the time for appeal has expired. Since it is made ex parte, probably no appeal can be taken directly from such a default judgment. Thus, only by allowing an appeal from an order ruling on a motion to vacate or modify that judgment will the party adversely affected be given any right to appellate review. On the other hand, a judgment by default entered against a defendant who has appeared in the action does not present the same problems. He has actual notice of the proceeding against him. Since it is not ex parte, an appeal is available directly from the judgment. In such case, the appeal from an order refusing to vacate serves no useful purpose. Id. at 527, 176 N.W.2d at 753. Spicer v. Carefree Vacations, Inc., 370 N.W.2d 424 (Minn. 1985), is an example of the ex parte default judgment exception that Kottkes Bus Co. noted would be treated differently. Acknowledging the holding in Kottkes Bus Co., the Court in Spicer permitted the appeal of the denial of the motion to vacate because judgment had been granted ex parte, saying, The critical factor [in deciding the appealability of an order refusing to vacate a default judgment] is whether defendant participated in the original action so that an appeal from the judgment would also raise the propriety of its vacation. Id. at 425. Thus, only when a judgment is granted without a hearing can the losing party move to vacate and then appeal the denial of the motion to vacate. This is a limited exception to the general rule, not available in every case. See also State of Ga. ex rel. Brooks v. Braswell, 474 N.W.2d 346, 349 n. 3 (Minn. 1991); Pederson v. Rose Coop. Creamery Assn, 326 N.W.2d 657, 661 (Minn. 1982).

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Rule 60.01 allows for correction of a decision or judgment to correct a clerical mistake. A clerical mistake is just that, a mistake made by the court administratively, and not substantively. See Wilson v. Fergus Falls, 181 Minn. 329, 232 N.W. 322 (1930) (court may correct its clerical errors and mistakes at any time in order to make judgments and records conform to what was intended); Bauer v. Kummer, 244 Minn. 488, 70 N.W.2d 273 (1955) (affidavits of jurors may be received to show that, due to clerical error, the verdict returned was not the verdict unanimously agreed upon by them); Knappen v. Freeman, 47 Minn. 491, 50 N.W. 533 (1891) (mistake in computing interest should be called to courts attention by motion); Casper v. Klippen, 61 Minn. 353, 63 N.W. 737 (1895) (where pleadings and judgment incorrectly named the defendant, mistake did not result in a void judgment but could be amended based upon proper averments); Clements v. Utley, 91 Minn. 352, 98 N.W. 188 (1904) (mistake in failing to add interest to damages did not result in prejudice or injustice). Rule 60.02 addresses the substantive grounds for seeking relief from a judgment or order. Like Rule 59, the grounds for relief are spelled out in the text of the rule. These are the grounds, and some significant cases discussing them: Mistake or Excusable Neglect Rule 60.02(a). Simons v. Schieks, Inc., 275 Minn. 132, 145 N.W.2d 548 (1966) (motion for relief must be timely made in order to qualify for relief under this section); Kosloski v. Jones, 295 Minn. 177, 203 N.W.2d 401 (1973) (in order to be entitled to relief under this section, moving party must show: reasonable defense on the merits; reasonable excuse for failure to act; due diligence in seeking relief; and no substantial prejudice to other parties). See also cases cited at 29 Dunnell Minn. Digest, 4th ed. Judgments 15.04(f) (1995). Newly Discovered Evidence Rule 60.02(b). See Brown v. Bertrand, 254 Minn. 175, 94 N.W.2d 543 (1959) (newly discovered evidence must be relevant to the issues and admissible in the trial); Gruenhagen v. Larson, 310 Minn. 454, 246 N.W.2d 565 (1976) (evidence must not be merely collateral, impeaching or cumulative, but rather must have a probable effect on the result of a new trial). Compare Rule 60.02(b) with Minn. R. Civ. P. 59.01(d). The main differences are in the amount of time in which the motions may be brought, and in the nature of the evidence that may be considered by the court in connection with the motion. Fraud Rule 60.02(c). See Halloran v. Blue & White Liberty Cab Co., 253 Minn. 436, 92 N.W.2d 794 (1958) (where court is misled as to material circumstances, or where process is abused, court can exercise its inherent power to vacate or modify the resulting judgment); In re Engers Will, 225 Minn. 229, 30 N.W.2d 694 (1948) (failure to disclose self-dealing constituted extrinsic fraud). Compare Rule 60.02(c) with Minn. Stat.

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 548.14 (providing for judgments to be set aside where procured by fraud where action is filed within three years of discovery of fraud). Void Judgment Rule 60.02(d). See Lange v. Johnson, 295 Minn. 320, 204 N.W.2d 205 (1973) (court entered judgment without authority or jurisdiction); Bode v. Minnesota Department of Natural Resources, 612 N.W.2d 862 (Minn. 2000) rehg denied (Rule 60.02(d) is a procedural mechanism to directly rather than collaterally attack a void judgment; and declining to follow Lange rule that imposed no time limitation in which motion must be brought to vacate judgment for lack of subject matter jurisdiction). Judgment Satisfied, Released or Discharged Rule 60.02(e). Other Grounds Rule 60.02(f). See Simons v. Schieks, Inc., 275 Minn. 132, 145 N.W.2d 548 (1966) (a party had not learned of additional injuries suffered until over one year after the time a judgment on a stipulation had been entered); Anderson v. Anderson, 288 Minn. 514, 179 N.W.2d 718 (1970) (this residual catch-all clause provides relief in extraordinary situations not covered by other clauses)
C.

PROCEDURE

Clerical mistakes may be corrected pursuant to Rule 60.01 at any time, by motion of a party or by the court on its own. Rule 60.02(a)-(c) requires that a motion must be filed within a reasonable time, not to exceed one year. Motions pursuant to Rules 60.02(d)-(f) must be filed in a reasonable time. See Simons v. Schieks, Inc., 275 Minn. 132, 145 N.W.2d 548 (1966) (reasonable time will depend upon all of the facts and circumstances of the case). Rule 60.02 specifically exempts judgments and decrees of marriage dissolution from this rule.
IV.

MOTIONS FOR RECONSIDERATION

A.

NECESSITY

Unsuccessful litigants will frequently seek to have the trial court reconsider a previous decision before they seek appellate review. Courts (both on the trial and the appellate levels) are not particularly receptive to such efforts. Moreover, there are a number of serious pitfalls associated with asking the trial judge to reconsider her or his actions. On the other hand, numerous instances can be found where reconsideration motions were not only heard, but, in some cases, successfully pursued. When it comes to reconsideration requests, what can be done, and what should be done, are two questions that are often difficult to answer. And, while motions for reconsideration are hardly ever - 15 -

necessary, such motions do have a limited value in preventing the occasional miscarriage of justice. Simply stated, courts can and do, on rare occasion, change their minds. One final word of caution. Reconsideration requests are addressed to the inherent discretion of the court. Courts do not have to hear them, and appellate courts do not have to consider issues raised in such motions. It is nearly always preferable to raise all issues clearly and fully in the first instance, and never wise to try to raise new issues or bolster weak ones with new arguments or evidence through reconsideration requests.
B.

GROUNDS

Like its federal counter-part, Minn. R. Civ. P. 54.02 specifically provides that in the absence of an express determination that a judgment or decision should be final, a decision as to fewer than all claims or the claims against fewer than all parties is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties. By definition, a nonfinal or interlocutory decision is subject to revision by the trial court under appropriate circumstances that is what prevents the order from being final and appealable. It is for this very reason that an order for judgment is not appealable. See Minnesota Power & Light Co. v. Carlton County, 275 Minn. 101, 145 N.W.2d 68 (1966); Fladland v. Northway Constr., Inc., 343 N.W.2d 687 (Minn. Ct. App. 1984). Because interlocutory orders are subject to change, it necessarily follows that a party desiring that change has the right to ask for it. The Minnesota rules of civil procedure, prior to 1998, did not authorize a motion to reconsider. Sullivan v. Spot Weld, Inc., 560 N.W.2d 712, 715 (Minn. Ct. App.1997), rev. denied (Minn. Apr. 24, 1997); Welch v. Commissioner of Pub. Safety, 545 N.W.2d 692, 694 (Minn. Ct. App. 1996). However, after those cases were decided, the Minnesota Supreme Court adopted Minn. R. Gen. Prac. 115.11 (effective January 1, 1998), which created a procedure for bringing a motion to reconsider when compelling circumstances are shown. Baker v. Amtrak, 588 N.W.2d 749, 754 (Minn. Ct. App. 1999). Minn. R. Gen. Prac. 115.11 provides: Motions to reconsider are prohibited except by express permission of the court, which will be granted only upon a showing of compelling circumstances.
C.

PROCEDURE

A formal motion requesting permission to make a motion to reconsider is not required. Baker, 588 N.W.2d at 755. Minn. R. Gen. Prac. 115.11 primarily governs the procedure for a motion for reconsideration in the state courts. This rule provides that any request to make a motion for reconsideration and any responses to such requests, be made by letter to the court that does not exceed two pages in length. In addition, a court need not issue a formal order in response to a request for a motion to reconsider. Baker, 588 N.W.2d at 755.

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A denial for a request to bring a motion to reconsider is not appealable. Id. The court in Baker found that the unappealability of a denial for a request to bring a motion to reconsider is consistent with Minn. R. Civ. App. P. 104.01 under which a motion for reconsideration does not toll the running of the time to appeal. Id. The Baker decision also reasoned that the unappealability of a denial for a request to bring a motion to reconsider was consistent with Minn. R. Civ. App. P. 103.03, which only permits appeals from specified judgments and orders. Id. Any claimed errors for which reconsideration is sought can be reviewed in an appeal from a judgment or order. Id. If a trial court committed reversible error, the error can be corrected in the appeal from the judgment or order, and if a trial court makes no reversible error, its refusal to allow a motion for reconsideration or to change its decision upon reconsideration is harmless. Id. Reconsideration motions are inappropriate devices for adding to the record once the court has already made its decision. Minn. R. Gen. Prac. 115.11, Advisory comm. cmt. (1997 amendments); see also Midway Natl Bank of St. Paul v. Bollmeier, 462 N.W.2d 401 (Minn. Ct. App. 1990), affd, 474 N.W.2d 335 (Minn. 1991); Sullivan v. Spot Weld Inc., 560 N.W.2d 712 (Minn. Ct. App. 1997); cf. Dalco Corp. v. Dixon, 338 N.W.2d 437, 440 (Minn. 1983) (holding that new evidence could not be entered between the time of the hearing of a summary judgment motion and the courts decision on the motion; the case did not address a motion for reconsideration.) In Midway National Bank, the appellate court specifically held that the record does not remain open for submission of new evidence after the trial court has granted a summary judgment motion, even if the trial court does not make its judgment final by directing the entry of a final judgment. See Minn. R. Civ. P. 54.02. In Sullivan, the court followed Midway National Bank, and held that new evidence, known to exist at the time of the original summary judgment motion, could not be subsequently considered when it was submitted with a motion for reconsideration. Additionally, if judgment has already been entered on the decision for which reconsideration is sought, the party seeking relief must meet the standards of Minn. R. Civ. P. 60.02 for vacatur of the judgment. Finally, in Minnesota state courts, a motion to reconsider under Minn. R. Gen. Prac. 115.11 does not toll any time periods or deadlines, including the time to appeal, Limongelli v. GAN Nat. Ins. Co., 590 N.W.2d 167,168 (Minn. Ct. App. 1999), and is not a substitute for a timely appeal of the order which is subject to the reconsideration request.
V.

RULE 62 STAY OF ENFORCEMENT

Minnesota Rule 62.01 governs the granting of stays of execution and the enforcement of judgments during the pendency of post-trial motions. After entry of judgment, the prevailing party may immediately seek to enforce the judgment. This enforcement may proceed even though the losing party has brought post-trial motions to - 17 -

reverse the judgment. Rule 62.01 authorizes a stay to avoid enforcement of the judgment during the pendency of the post-trial motions. A stay may be granted under Rule 62.01 to stay the execution of a judgment or to stay proceedings to enforce a judgment pending the disposition of a motion for JAML under Rule 50.02, a motion for amendment to the findings or for additional findings under Rule 52.02, a motion for a new trial under Rule 59, or a motion for relief from a judgment or order under Rule 60. Rule 62.01 provides the trial court with discretion to grant or refuse to stay the execution or enforcement or to condition the stay by providing security to the prevailing party in the event the motions are denied. See Matson v. Matson, 310 N.W.2d 502, 50708 (Minn. 1981), appeal after remand, 333 N.W.2d 862 (Minn. 1983). When an appeal is taken, the appellant must obtain a stay in the manner provided by Rules of Civil Appellate Procedure Rules 107 and 108. Minn. Stat. 550.36 provides a slightly different alternative for a party seeking a stay of execution on a money judgment if that party acts quickly. The statute provides that a money judgment shall be stayed, if, within ten days after the entry thereof, the judgment debtor shall file with the court administrator a bond, running to the judgment creditor, the creditors personal representatives and assigns. The amount of the bond must be in the amount of the judgment, or a lesser amount approved by the court in the interests of justice. Minn. Stat. 550.36(a) (emphasis added). The statute has several provisions that bear careful study, including that it allows for objections by the judgment creditor and immediate enforcement of the judgment if the district court finds the bond is insufficient. Id. The statute also allows other court action to ensure that a judgment creditor is protected from dissipation of assets. Minn. Stat. 550.36(b).
VI.

MOTIONS FOR ATTORNEY FEES

A party does not have the right to an appeal if a judgment is not final. Financial Relations Board Inc. v. Pawnee Co., 308 Minn. 109, 112, 240 N.W.2d 565, 566 (1976). If an original judgment by a trial court reserves the issue of attorney fees under statute or contract and does not make an express determination under Minn. R. Civ. P. 54.02 that it was a final appealable judgment, the 60-day appeal period under Minn. R. App. P. 104.01 does not begin to run until the entry of the amended judgment finally adjudicates the issue of attorney fees. American Family Mut. Ins. Co. v. Peterson, 380 N.W.2d 495, 497 (Minn. 1986). Therefore, if a party wishes to expedite the appeals process they should seek an express determination under Minn. R. Civ. P. 54.02 stating that the judgment is final even if the issue of attorney fees has been reserved. Otherwise, a party will not be able to appeal the merits of their case until the entry of judgment adjudicates the issue of attorney fees. Such a rule advances the general policy against piecemeal appeals. Id. But cf. T.A. Schifsky & Sons, Inc. v. Bahr Const., LLC, 773 N.W.2d 783, 789 (Minn. 2009) (holding district courts certification of order under Rule 54.02 determining validity and fair and reasonable value mechanics liens was unnecessary; also holding

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by operation of law judgment became final and appealable upon its entry, before determination of attorneys fees) (distinguishing American Family v. Peterson). However, a party can proceed with an appeal if the trial court has not decided attorney fee sanctions under Minn. R. Civ. P. 11 and Minnesota Statute section 549.211, and/or costs and disbursements. A trial court has continuing jurisdiction to consider a partys motions for attorney fee sanctions and costs and disbursements during an appeal and even after an appeal has been completed. Kellar v. Von Holtum, 605 N.W.2d 696, 700 (Minn. 2000), as amended on denial of rehg; Spaeth v. City of Plymouth, 344 N.W.2d 815, 825 (Minn. 1984). Effective 2010, Minn. R. Civ. App. P. 108.01, subd. 2 states that: [F]iling of a timely and proper appeal suspends the trial courts authority to make any order that affects the order or judgment appealed from, although the trial court retains jurisdiction as to matters independent of, supplemental to, or collateral to the order of judgment appealed from. The 2009 Amendments to Rule 108 were intended to provide greater guidance to parties, attorneys, and the courts on how stays of trial court order and judgments can be obtained. Minn. R. App. P. 108.03, Advisory Committee Comment 2009 Amendment. That said, Rule 108.01 is a new rule but is not intended to create new law. Minn. R. App. P. 108.01, Advisory Committee Comment 2009 Amendment. The provisions are drawn from existing Rule 108.01, subdivision 1, and codify long-standing common law. Id. With respect to trial court jurisdiction while an appeal is pending, the advisory committee sites a 2000 decision of the Minnesota Supreme Court, which stated that: Pending a duly executed appeal, the jurisdiction of a trial court is suspended only to those matters necessarily involved in the appeal, not as to those matters which are independent of, or which are supplemental to, the appeal or collateral to the proceeding in which the appealed order or judgment was rendered. Spaeth, 344 N.W.2d at 823 (quoting State v. Barnes, 249 Minn. 301, 302-303, 81 N.W.2d 864, 866 (1957)). Relying on then-existing Minn. R. Civ. App. P. 108.03 and Barnes, the court in Spaeth held that motions for attorney sanctions and costs are collateral to the merits of an underlying litigation. 344 N.W.2d at 825-26; see also Keller, 605 N.W.2d at 700. Under Minn. R. Civ. App. P. 108.03 a trial court may consider a partys motions for attorney sanctions, and costs and disbursements during or after an appeal. It is important to note, however, that the Minnesota Supreme Court has strenuously urged the district courts to either rule on motions for attorney fees and costs and disbursement as soon as possible after a judgment of the merits or to wait on entering a judgment on the merits until the issue of fees has been finally resolved. Spaeth, 344 N.W.2d at 825.

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VII.

TIME TO APPEAL AND IMPACT OF POST DECISION MOTIONS ON TIME TO APPEAL

The discussion contained in the earlier portions of these materials highlights the need for and effect of post-trial motions in state court. The post-trial motions are significant, both as to the scope of the appeal, and the time in which the appeal must be perfected. Because of the jurisdictional significance of a timely notice of appeal, the state rules on the time to appeal are worth repeating. Before 1998, the filing of any authorized post-trial motions had no impact at all on the time for appeal in state court, except in certain specific family court matters. However, amendments to Minn. R. Civ. App. P. Rule 104.01 in 1998 were made to mirror the federal rules. The amendments in subdivision 1 provided that an appeal may be taken from a judgment within 60 days after its entry, and from an appealable order within 60 days after service by any party of written notice of its filing. This amendment created a uniform time to appeal from both final judgments and appealable orders, resulting in less confusion regarding the time to appeal. Advisory Committee Comment 1998 Amendments. Perhaps more significantly, the addition of subdivision 2 created a tolling of the time to appeal where a party has filed certain proper and timely post-decision motions. The 60-day time limit for post-trial motions does not begin to run until the motion is decided, and notice of filing of the order disposing of the last such motion is served by any party. Minn. R. Civ. App. P. 104.01, subd. 2; see Gross v. Gross, No. C7-00-193 (Minn. Ct. App. May 16, 2000) (finding that a partys time under Minn. R. Civ. App. P. 104.01 to appeal a judgment was extended by the parties post-trial motions); Hovelsen v. Hovelson, No. C6-99-1893 (Minn. Ct. App. Dec. 21 1999). Minn. R. Civ. App. P. 104.01, subdivision 2 provides that the following specified post-decision motions, if proper and timely, will toll the running of time to appeal: (a) judgment as a matter of law under Minn. R. Civ. P. 50.02; (b) to amend or make findings of fact under Minn. R. Civ. P. 52.02, whether or not granting the motion would alter the judgment; (c) to alter or amend the judgment under Minn. R. Civ. P. 52.02; (d) for a new trial under Minn. R. Civ. P. 59; (e) for relief under Minn. R. Civ. P. 60 if the motion is filed within the time for a motion for new trial; or (f) in proceedings not governed by the Rules of Civil Procedure, a proper and timely motion that seeks the same or equivalent relief as those motions listed in (a)-(e). Minn. R. Civ. App. P. 104.01, subd. 2. This list is intended to be exhaustive for civil actions in the district courts. Baker, 588 N.W.2d at 755 (quoting Minn. R. Civ. App. P. 104, Advisory comm. cmt.

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1998 amendments). As specified in the rule language, an improper or untimely motion will not stay the time for and appeal. Minn. R. Civ. App. P. 104.01, subd. 2. A test for a proper motion should not be dependant of the success of a motion. Madson v. Minnesota Min. and Mfg. Co., 612 N.W.2d 168, 171 (Minn. 2000). Instead, a proper post-trial motion is a timely motion that complies with the requirements of the Rules of Civil Procedure and is authorized under Minn. R. Civ. App. P. 104.01, subd. 2. Id. at 171-72; Nelson v. Nelson, No. C0-99-1792, 2000 WL 1051953 at *3 (Minn. Ct. App. Aug. 1, 2000). Furthermore, the filing of a proper post-trial motion under Minn. R. Civ. App. P. 104.01, subd. 2, tolls the time to appeal for all parties. Madson, 612 N.W.2d at 171. In Mingen v. Mingen, 679 N.W.2d 724, 728 (Minn. 2004), the supreme court held that a post-decision motion is not timely if it is made after the expiration of the 60-day period in which to appeal from the judgment. The court reasoned, orders become final with the passing of the judgment appeal period. There is little sense in treating a motion to amend an order as timely when the motion is filed after the order can no longer be appealed. Id. at 727. The court relied, in part, on the language of Rule 104.02, which provides: No order made prior to the entry of judgment shall be appealable after the expiration of time to appeal from the judgment. Id. The court concluded, [w]ithout such a limitation, the appeal period from judgments could be extended forever. Id. The amended rule also contains a new provision regarding premature appeals. A notice of appeal that is filed before the disposition of any of the motions listed in subdivision 2 is of no effect, and does not divest the trial court of jurisdiction to decide the motion. Minn. R. Civ. App. P. 104.01, subd. 3. Therefore, a premature appeal will be terminated and a new notice of appeal must be filed within the time prescribed to appeal the outstanding motion, measured from the service by a party of notice of filing of the order disposing of the outstanding motion. Id.

2303415v3

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