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We were the defendants in a civil suit (financial institution) in Ohio and
filed a counterclaim. Here's a condensed timeline:
October, 2003: We eventually reached a settlement in October, 2003, where
the Plaintiff was to pay us a sum of money. The Court ordered the Plaintiff
to draft a Judgment Entry.
February, 2004: After months of prodding, the Plaintiff didn't draft a
Judgment Entry so our attorney drafted a Proposed Entry and sent it to
Plaintiff's counsel and the Court. The Court, after waiting 14 days to hear
objections from the Plaintiff, signed the Order giving Plaintiff 30 days to
cut us a check.
March, 2004: 45 days after the Order was signed by the Court (15 days past
the deadline), Plaintiff objected to the PROPOSED Entry, never mentioned
Court Order
April, 2004: We filed Motion for Contempt
July, 2004: Court found Plaintiff in Contempt of Court and ordered payment
of the original sum within 10 days, ordered a $500 per day penalty if not
paid within ten days, ordered a $500 penalty be placed in escrow, and
ordered payment of a second sum of money for additional damages. This Order
was stamped "Final Appealable Order"
August, 2004: Plaintiff filed an appeal on the last day of the 30-day
window.
My questions:
1 - Can the original award be appealed since it's well over 30 days since
the Court Order was signed?
2 - If the appeal trial is in December, for example, is it remotely possible
that the Plaintiff will be required to pay the $500/day fine back to July?
(The total damages are only about $13,000 - the penalty is already over
$15,000 and they just filed an appeal on Friday, August 27)
3 - The Notice of Appeal didn't include ANY grounds for appeal. Isn't that
required?
4 - How quickly does the Appellate Court normally take to make a decision?
Is there even a "normal" period?
5 - I assume the Appellate Court will either quickly decide if the appeal
has merit or not. If they feel it has some merit, they'll set a trial date
to hear evidence. Is that correct?
6 - If the Plaintiff loses the appeal, is it likely that I will be able to
recover my additional legal expenses from the appeals process?
7 - Does the Appellate Court have guidelines on stuff like this?
I searched and searched and read and read and can't seem to find any answers
whatsoever. Any information you can provide would be most helpful. If I
need to provide more details, I can do so.
Thank you!
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condensed timeline:
October, 2003: We eventually reached a settlement in October, 2003, where
the Plaintiff was to pay us a sum of money. The Court ordered the
Plaintiff
to draft a Judgment Entry.
February, 2004: After months of prodding, the Plaintiff didn't draft a
Judgment Entry so our attorney drafted a Proposed Entry and sent it to
Plaintiff's counsel and the Court. The Court, after waiting 14 days to
hear
objections from the Plaintiff, signed the Order giving Plaintiff 30 days
to
cut us a check.
March, 2004: 45 days after the Order was signed by the Court (15 days
past
the deadline), Plaintiff objected to the PROPOSED Entry, never mentioned
Court Order
April, 2004: We filed Motion for Contempt
July, 2004: Court found Plaintiff in Contempt of Court and ordered
payment
of the original sum within 10 days, ordered a $500 per day penalty if not
paid within ten days, ordered a $500 penalty be placed in escrow, and
ordered payment of a second sum of money for additional damages. This
Order
was stamped "Final Appealable Order"
August, 2004: Plaintiff filed an appeal on the last day of the 30-day
window.
My questions:
1 - Can the original award be appealed since it's well over 30 days since
the Court Order was signed?
This is impossible to tell from your fact scenario. It also depends on
the law of the state where the appeal was taken, i.e., the definition of a
final judgment.
2 - If the appeal trial is in December
There is no trial on an appeal.
3 - The Notice of Appeal didn't include ANY grounds for appeal. Isn't
that
required?
In most, if not all, states, No.
4 - How quickly does the Appellate Court normally take to make a decision?
Is there even a "normal" period?
In most states, an ordinary civil appeal can take from as little
as six months to 2 years or more. It all depends on the workload of the
Court of Appeals.
5 - I assume the Appellate Court will either quickly decide if the appeal
has merit or not. If they feel it has some merit, they'll set a trial
date
to hear evidence. Is that correct?
No. An appeal is generally done completely on briefs and no evidence
is taken at all. An appeal is about issues of law, not issues of fact.
6 - If the Plaintiff loses the appeal, is it likely that I will be able to
recover my additional legal expenses from the appeals process?
It's possible if that is allowed under the law of the state where the
appeal is taking place. No one can say whether its likely or not. But the
expenses we are talking about are not legal fees, only the costs of the
appeal.
7 - Does the Appellate Court have guidelines on stuff like this?
Yes and No. Every appellate court has rules but they only tell
you the procedures used and the deadlines, if any, for them. There are no
"guidelines" for making decisions. For that, the court uses past
precedents.
Yours,
Tim Provis
Appellate Counsel
http://welcome.to/dealsonappeals
Cal. Bar No. 104800
Wis. Bar No. 1020123
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n 31 Aug 2004, "Jack Rogers" <JackRogers@Cinci.rr.com> said/asked in
substance:
We were counterclaiming defendants in an Ohio state
court lawsuit which we and plaintiff settled in Oct. 2003
by plaintiff agreeing to pay us a stated dollar sum.
Though the court ordered Plaintiff to draft a proposed
judgment to implement the settlement, when, by Feb.
2004 plaintiff still had not done so despite our repeated
demands, our attorney drafted a proposed judgment
and sent it to opposing counsel and to the court.
After waiting 14 days to hear plaintiff's objections, if
any, but not having recieved any within that period, the
court signed the judgment giving plaintiff 30 days to make
the said payment.
More than one month later, plaintiff purported to object
to the PROPOSED entry of that judgment but mentioning
that that order had by then already been signed and filed.
In July 2004, the court granted our April 2004 motion
to punish for contempt by finding the plaintiff in contempt
of court, ordering payment of the originally directed sum
within 10 days, ordering a $500 penalty to be paid in escrow,
and ordering payment of a second sum of money for additional
damages, and plaintiff appealed from that order on the
last day to do so in Aug. 2004..
Can the original award be appealed since it's well over
30 days since the Court Order was signed?
Isn't this a largely moot question if (as you appear to acknowledge)
the July 2004 order is itself appealable, has been timely appealed,
and (besides imposing contempt sanctions) orders payment of the
originally awarded sum within ten days?
Note, too, that you do not actually say that service of the notice of
the original/underlying judgment and its entry was made as/when
prescribed by the Ohio Rules of Civ. Proc. and so one cannot actually
tell reliably just from what you here say whether your implication
about "30 days since the Court Order was signed" (in terms of its
impact on appealability even if from the original judgment directly)
is actually correct -- although (as you seem at least vaguely also to
imply may be so) if (if it was prudently drafted) the underlying
judgment itself recites that it is made/entered by stipulation and
constitutes a judgment finally determining the lawsuit, on what basis
plaintiff would in good faith contend it would be appeallable at all,
even indirectly as a componnent of the later otherwise appealable
contempt order, would be a puzzlement.
If the appeal trial is in December, for example, is
it remotely possible that the Plaintiff will be
required to pay the $500/day fine back to July?
(The total damages are only about $13,000 - the
penalty is already over $15,000 and they just filed
an appeal on Friday, August 27)
Anything is "remotely possible" although it is not likely that there
will be an "appeal trial" and, instead, just an "argument" of the
appeal if appellant actually ever perfects the appeal if you have not
moved to dismiss it or (perhaps much more importantly) if the appeal
is not mooted altogether (the most puzzling and perhaps only
signficant element of your posting/query - re. which see further
comment/query below).
There meanwhile is no way reliably to estimate whether what you term
the "penalty" element of the contempt order is/isn't an abuse of
discretion, since one can't tell just from what you say whether the
contempt motion was/wasn't itself granted on default, what (if any)
grounds there are for appeal, or whether, if not granted on default,
the nature of appellant's opposition well justifies what the court
found and ordered.
Is it required for the notice of appeal to state
the grounds for appeal?
No. It is suffient if it is otherwise properly captioned and
indentifies the party taking the appeal, designates the judgment or
order (or part thereof) apealed from, and properly names the court to
which the appeal is taken and is timely served/filed.
Is there a "normal" period for decision that is
quick?
This will depend when the appeal is argued or submitted and what
issues the respective parties argue based on the record on appeal.
HOWEVER, for the reason referred to above and commented on briefly
further below, this may (or, anyway, perhaps should be) a moot
question.
Is it correct to assume that the appellate court will
either quickly decide if the appeal has merit and, if it
feels it has some merit, set a trial date to hear
evidence?
Probably not, although one can't tell for sure just from the facts as
you somewhat vaguely state them.
Even if, technically, perhaps an argument can be made that the
pay-the-original-sum provision of the contempt order is (nominally)
appealable (or even if it may still be timely at least in form to
appeal from the underlying judgment), you do not even hint at any
grounds that would justify a "trial" to "hear evidence" about whether
that (you seemed to say: fully/clearly stipulated) sum has been
payable as of whatever are the also agreed/ordered date. P
resumably, too (you don't actually say), the underlying judgment is
drafted in a manner which does not contravene interest accruing
thereon from some definite date and there is not anything in the order
adjudicating the contempt application that creates room for argument
in this respect.
Yet because you also do not fully report the procedural posture of the
contempt motion (again: granted on default? litigated on the
[supposed] merits?), you disable an informed opinion even about
whether three was a willful violation of the underlying judgment
(albeit you certainly at least more than amply suggest such a
violation).
If the Plaintiff loses the appeal, is it likely
that I will be able to recover my additional
legal expenses from the appeals process?
Assuming that there is not a dispute (which the plaintiff probably
will prevail on) about plaintiff having been given proper/timely
notice of the proposed entry of the underlying judgment and also
having been property served with that judgment soon after its
signing/entry, etc., one of the (discretionary) remedies grantable by
way of contempt is reimbursement for the movant's reasonably incurred
attorneys fees and related litigation costs, if the movant had sought
such relief in a timely fashion. However, you do not actually say
clearly whether you've so asked, also do not make suffiently clear the
factual basis as determined by the trial court for the arguably
comparatively heavy (and, you seem to suggest, increasing?) penalty
imposed or whether your reference to the contempt order's award of "a
second sum of money for additional damages" besides the other relief
to which you refer already includes this componnent.
Does the Appellate Court have guidelines
on stuff like this?
What you refer to as "guide
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