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Filing an Eviction Appeal
This document will help parties without an attorney to appeal an eviction judgment.
It is important that you read the entire document carefully before you try to appeal and that you fill out the required forms completely. There is a checklist for your convenience:
In an eviction proceeding, the only decision that can be appealed is the eviction judgment entered by the court administrator, after the judge has ruled on the case.
No appeal can be taken from the judge’s order. No appeal can be taken from the writ of recovery of the premises and order to vacate issued to the sheriff. The appeal must be from the judgment entered by the court administrator.
For further information about eviction appeals, please review Minn. Stat. § 504B.371 and the Minnesota Rules of Civil Appellate Procedure (abbreviated “Minn. R. Civ. App. P.”).
Eviction Appeals Process
To appeal an eviction judgment, you must:
- file a notice of appeal with the Clerk of the Appellate Courts within 15 days of the date that the district court administrator entered a judgment on the eviction order
Notice of Appeal form- PDF format
- serve the notice of appeal on the attorneys for the respondents (or on the respondents themselves, if the respondents do not have an attorney) within that 15-day period.
If you do not file a notice of appeal with the Clerk of the Appellate Courts regarding the eviction judgment within 15 days of the date that the court administrator in the district entered judgment in the case, your appeal will be dismissed. If you do not serve the notice of appeal on the attorneys for each of the respondents (or on the respondents themselves, if the respondents do not have an attorney) within 15 days after the court administrator entered the judgment, your appeal will be dismissed.
The 15-day appeal period starts to run when the district court enters the eviction judgment whether or not you are notified of the judgment. The court of appeals cannot extend the time to serve and file an eviction appeal, no matter how good the reasons for doing so.
Calculating the Time to Appeal
When you count the 15 days, do not count the day that the court administrator in the district entered the judgment, but start counting the next day. For example, if the court administrator entered the judgment on a Friday, Saturday would be the first day of the 15-day appeal period.
Continue counting calendar days. Do not skip weekends or legal holidays; if the last day of the 15-day appeal period falls on a Saturday, Sunday, or legal holiday, the deadline is the next business day. For example, if the fifteenth day is a Saturday and the following Monday is a legal holiday, an appeal served and filed on the following Tuesday will be timely.
New Year’s Day (January 1)*
Martin Luther King, Jr.’s birthday (the third Monday in January)
Presidents’ Day (the third Monday in February)
Memorial Day (the last Monday in May)
Independence Day (July 4)*
Labor Day (the first Monday in September)
Veterans Day (November 11)*
Thanksgiving Day (the fourth Thursday in November)
The Friday after Thanksgiving
Christmas Day (December 25)*
* When New Year’s Day (January 1), or Independence Day (July 4), or Veterans Day (November 11), or Christmas Day (December 25) falls on Sunday, the following day shall be a holiday. When any of these four holidays falls on a Saturday, the corresponding holiday shall be the preceding day.
The appellate courts are open on Columbus Day (the second Monday in October), but it is treated as a legal holiday when calculating appeal deadlines, because there is no U.S. Mail service on that day.
The party who files an eviction appeal is called the “appellant.” The party or parties who won in the district court are called the “respondent” or “respondents.”
Terms and Definitions
For definitions of other terms related to eviction proceedings, consult Minn. Stat. § 504B.001.
Proof of Service
Every document submitted to the Clerk of the Appellate Courts for filing must be accompanied by proof that the document was served on the other parties to the appeal. Usually, proof of service is (1) a notarized affidavit of service or (2) a certificate of service. A less frequently used third option for showing proof of service is a written admission by the person who was served that the document was received. See Minn. R. Civ. App. P. 125.04.
The person who served the document in person or by mail must complete the affidavit or certificate of service, which must include a description of the documents that were served, the date of service, the method of service (by mail or in person), the name of the person who was served, and the address to which any documents served by mail were sent. The affidavit or certificate of service must be signed by the person who served the documents.
Affidavit of Service. An affidavit of service must be signed in front of a notary by the person who served the document(s). The notary must also sign and date the affidavit. Notary services are available at many financial institutions for a small fee. The Office of the Clerk of the Appellate Courts will notarize an affidavit of service at no charge.
Certificate of Service. A certificate of service does not need to be notarized. A certificate of service must contain a statement by the person who signs the certificate that the person declares under the penalty of perjury that everything stated in the document is true and correct. The certificate must show the date of signing and the county and state where the certificate was signed.
Affidavit of Service by U.S. Mail Delivery (PDF)
Affidavit of Service by Personal Delivery (PDF)
Certificate of Service by U.S. Mail Delivery (PDF)
Certificate of Service by Personal Delivery (PDF)
You may file one affidavit or certificate listing multiple documents if you serve those documents on the same date and on the same parties.
Because every document submitted to the Clerk of the Appellate Courts for filing must be accompanied by proof that the document was served on the other parties to the appeal, make extra copies of the form(s) so you can submit one showing service every time you submit documents for filing.
Entry of Judgment
After the district judge issues an order deciding the eviction case, the court administrator will enter a judgment.
The court administrator may prepare a separate document titled “judgment” or “judgment roll,” or the court administrator may add a sentence to the order, after the judge’s signature, that says something like: “The above conclusions of law and order constitute the judgment of the court.” The court administrator will sign and date this statement (or the separate judgment document) and will record this action. It is this action which constitutes entry of the judgment.
The order from the judge is not appealable; once the court administrator enters judgment, that judgment is appealable.
Once judgment is entered, the next step in the district court proceedings is usually the issuance of a writ of recovery of the premises and order to vacate (often referred to as “the writ of recovery” or just “the writ”). This writ authorizes the sheriff or other officials to remove the occupant(s) from the property. The writ of recovery is not appealable. The appeal must be taken from the judgment entered by the court administrator, not the writ of recovery.
“Filing” means giving documents to the Clerk of the Appellate Courts. You may file documents by hand-delivering them to the clerk (8:00 a.m. to 4:30 p.m. weekdays) or by mailing the documents to the clerk.
For filing by mail, the document will be considered timely if it is deposited in the U. S. mail by the deadline with correct postage and the correct address, even though the clerk’s office will not receive a document on the day you deposit it in the mail.
The clerk does not accept filings by facsimile transmission (faxes).
Notice of Appeal
The notice of appeal is the document that an appellant files with the Clerk of the Appellate Courts and the court administrator in the district court, and also serves on each respondent, to start the appeal process.
Notice of Appeal form- PDF format
Order for Judgment
An order for judgment is the judge’s written decision telling the court administrator to enter a judgment. The order for judgment is not appealable, but the court of appeals will review the order for judgment if you serve and file a timely appeal from the judgment once it has been entered.
Each document that you submit for filing to the clerk must be provided to the attorneys for the respondents (or to the respondents themselves, if the respondents do not have attorneys) at or before the time of filing.
Service can be accomplished in person or by mail, but if a party has an attorney, you must serve the attorney rather than the party.
A party to the action cannot serve documents in person on another party to the action. If another party to the case does not have an attorney, the appellant can serve the documents by mail or have someone else (the sheriff or a person who is 18 years or older and not a party to the appeal) serve the documents personally on the other party.
Service by mail is accomplished by depositing the documents, correctly addressed, in the U.S. Mail, first-class postage prepaid.
A transcript is a typed record of what the witnesses, the parties, and the judge said at a hearing or trial.
Writ of Recovery of the Premises
A writ of recovery of the premises and order to vacate tells the sheriff to remove the occupant(s) from the property.
The writ cannot be issued until the judge issues an order and the court administrator enters a judgment.
The appeal must be taken from the judgment; not from the writ of recovery, and not from the judge’s order.
The appellant in an eviction matter must either:
- pay a $550 filing fee to the Clerk of the Appellate Courts; or
- obtain an order from the district court waiving the filing fee. An order waiving the filing fee is sometimes referred to as an order granting the appellant permission to proceed on appeal “in forma pauperis,” or as an order granting permission to proceed “IFP.”
See Minn. R. Civ. App. P. 103.01, subd. 1; 109 (filing fee, in forma pauperis motions).
If you make a motion and qualify, the judge whose decision you are appealing can waive the filing fee.
For more information about obtaining an order to proceed in forma pauperis on appeal, review Minn. R. Civ. App. P. 109 and What if I Can’t Afford an Appeal.
The record that the court of appeals will consider on appeal includes the documents filed in the district court, the exhibits, and the transcript of the proceedings, if there is one.
If you want a transcript prepared for your appeal, you must order the transcript from the court reporter. For more information, review Minn. R. Civ. App. P. 110 and Overview of the Civil Appellate Process. If you make a motion in the district court to proceed in forma pauperis on appeal, and if you qualify, the court can order the state to pay for the cost of preparing and copying all or part of the transcript. If not, you must pay these costs.
The court of appeals will request the record from the district court after the parties file their briefs.
You may not submit additional evidence on appeal, and your brief must be based on evidence that was submitted to the district court during its handling of your case.
Briefs - Generally
Your brief is your written argument on appeal. You must file five copies of your brief with the clerk and serve two copies on each respondent. See Minn. R. Civ. App. P. 131.03 (see also the standing order regarding briefing for appeals to the court of appeals: http://mncourts.gov/Documents/0/Public/Clerks_Office/Rule%20Amendments/ORADM108010-031014.pdf). You must also file proof of service for the brief.
If your appeal involves a transcript, you must serve and file your brief within 33 days after the date the transcript was mailed to you (not when it is received, but when it was mailed). If there is no transcript, you must serve and file your brief within 30 days of the date you filed the appeal. See Minn. R. Civ. App. P 131.01, subd. 1.
As the appellant, you must file a brief, or your appeal will be dismissed. See Minn. App. Civ. App. P. 142.02.
You may file a formal brief or ask the court of appeals for permission to file an informal brief. See Minn. R. Civ. App. P. 128.01, subd. 1 (informal brief); 128.02, subd. 1 (formal brief).
Your brief must include an “addendum.” Minn. R. Civ. App. P. 128.02, subd. 1(f). The addendum must contain, among other things, a copy of any order, judgment or ruling by the district court directly relating to the issues in your appeal. See Minn. R. Civ. App. P. 130.02(a) (listing items that must be included in the addendum); see also Minn. R. Civ. App. P. 128.04 (listing other items that, in some cases, also must be included in an addendum or in the brief). The addendum may also contain up to an additional 50 pages of documents from the record or statutes, rules, cases, or other authorities that would be helpful to the court when reading your brief. See Minn. R. Civ. App. P. 130.02 (b). On appeal, you cannot submit new evidence, whether in your addendum or otherwise.
Each respondent will also have the chance to file a brief responding to the appellant’s brief. If a respondent’s brief raises a new topic that was not addressed in the appellant’s brief, you may, but do not have to, file and serve a reply brief. If you choose to file a reply brief, and you were personally served with the respondent's brief, your reply brief is to be filed with the Clerk of the Appellate Courts and served on each respondent within 10 days of the date the respondent's brief was served on you. If the respondent's brief was served on you by mail, any reply brief you choose to file and serve is to be filed with the Clerk of the Appellate Courts and served on each respondent within 13 days of the date the last respondent's brief was mailed to you (not when it is received, but when it was mailed). A reply brief is not required and is not commonly filed in eviction appeals.
A formal brief includes a table of contents, a statement of the legal issues, a statement of the case and the facts, an argument, a conclusion, and an addendum. See Minn. R. Civ. App. P. 128.02.
A formal brief must have a binding that meets the requirements of the court. See Minn. R. Civ. App. P. 132.01.
An informal brief may be stapled (it does not have to be bound by a printer), and it must include a written argument and addendum. See Minn. R. Civ. App. P. 128.01, subd. 1 (addressing informal briefs); 130.02 (addressing addendums).
Memorandum & Short Letter Argument
If written arguments were submitted to the district court (this is uncommon in eviction cases), a party may elect to rely on the written memorandum that was submitted to the district court, plus a short letter argument to the court of appeals.
This form of brief may be stapled (it does not have to be bound by a printer), and it must include an addendum. See Minn. R. Civ. App. P. 128.01, subd. 2 (addressing memorandum and short letter arguments); 130.02 (addressing addendums).
A memorandum and short letter argument may be filed only if you submitted a written memorandum of law to the district court. The short letter argument should not repeat the arguments made in the memorandum filed in the district court. The letter should address the decision that was made by the district court and the reasons that you believe the decision should be reversed on appeal.
Time Extensions or Other Requests (Motions)
If you cannot serve and file your brief or another document on time and you need more time, or if you want other relief from the court of appeals, you must serve and file a written motion. A motion to extend any deadline must be served and filed before that deadline expires. The requirements for a motion are found in Minn. R. Civ. App. P. 127.
In a motion seeking more time to file your brief or seeking other relief, always state the relief you are requesting, your reasons for the request, and any cases, statutes, or rules that support your request.
You must serve the written motion on the respondent(s) and file an affidavit of service. You must file a signed original motion.
NOTE: The court cannot extend the time to serve and file the notice of appeal.
How Your Case Will Be Decided
After the parties have filed their briefs, the court will schedule the appeal to be discussed and decided by a panel of three judges.
If any party does not have a lawyer, none of the parties can make an oral argument to the judges. In that case, the judges will read the briefs and then discuss and decide the appeal at what the court refers to as a "nonoral conference." The parties and their lawyers cannot attend a nonoral conference.
If all of the parties who filed written briefs on appeal have lawyers, and if their lawyers have asked for oral argument, the court may schedule oral arguments before a three-judge panel. All oral arguments are open to the public. The parties, whether or not they filed a brief, are welcome to attend the oral arguments to listen to what their lawyers say, but the parties cannot testify or argue themselves under any circumstances. After an oral argument, the judges will discuss the case in private and decide the appeal.
In most cases, a written decision (called an opinion) will be filed within 90 days after the date of the nonoral conference or the oral arguments, explaining the reasons for the judges' decision on appeal. The court will not reconsider or rehear an appeal after the opinion has been filed. All decisions of the court are public information and are available free of charge. Appellate opinions are accessible on the Minnesota Judicial Branch’s website and other Internet sources. After an opinion is filed, it cannot be removed from the Internet.
After an appeal has been decided, the party who won may be able to ask the court to order the party that lost the appeal to pay the winning party’s costs and disbursements related to the appeal. The party who lost may petition the Minnesota Supreme Court to grant further review in the case, but there are additional fees, criteria for obtaining review, and time limits that apply to a petition for further review. You should look at Rule 117 of the Minnesota Rules of Civil Appellate Procedure for more information on the process for seeking review of an opinion of the court of appeals by the supreme court.
Seeking a Stay of Eviction Pending Appeal
Filing an appeal does not automatically stay enforcement of an eviction judgment, and it does not automatically stay enforcement of the writ of recovery.
If an appellant in an eviction proceeding wants to remain in or at the property while the appeal is being decided, the appellant must make a motion in the district court to stay enforcement of the judgment.
If the appellant makes a motion in the district court for a stay, the district court will decide whether to grant the stay and on what conditions. Often the district court will require the appellant to continue paying rent or other amounts while the appeal is being decided. Note that even when an appellant is granted leave to proceed in forma pauperis on appeal, if that appellant asks to stay on the property while the appeal is pending, the district court can still require that appellant to pay rent or other amounts (usually to the landlord or the district court) while the appeal is pending. If the appellant does not satisfy the conditions set by the district court for the stay, the appellant can be evicted even though an appeal is pending, and even though the appellant has been granted permission to proceed in forma pauperis in that appeal.
If any party thinks that the district court improperly decided the question of whether to grant a stay, or incorrectly set the conditions for a stay, that party may file a motion with the court of appeals (and serve the motion on the other parties to the appeal) seeking relief from the district court’s decision regarding the stay.
The motion should be accompanied by:
- a copy of the district court’s order addressing the stay question;
- a memorandum explaining why the party believes he or she is entitled to a different decision; and
- copies of all documents that the parties submitted to the district court regarding the request for a stay.
If additional facts are necessary for the court of appeals to fully understand the challenge to the district court’s stay decision, those facts should be submitted to the court of appeals in the form of an affidavit, keeping in mind that the court of appeals generally does not consider evidence or arguments that were not first presented to the district court.
A response to a motion challenging a district court decision regarding a stay pending appeal must be served and filed within five days after service of the motion. Any reply in support of the motion must be served and filed by the moving party within three days after service of the response.
The court of appeals usually decides a motion challenging a district court’s decision on a request for a stay pending appeal soon after a response is received.
If an appellant is being evicted soon, and the district court has denied a stay pending appeal (or set conditions for a stay pending appeal that the appellant cannot satisfy), an appellant who has filed a motion in the court of appeals challenging the district court’s stay decision should ask the district court for a temporary stay, so the court of appeals can decide the appellant’s motion for relief. The district court’s ruling on a request for a temporary stay can also be reviewed by the court of appeals.
The parties may be able to reach an agreement for the occupant to remain on the property while the appeal is pending. For example, the parties might agree that the sheriff will not enforce the writ of recovery for several days to allow the parties to make a motion for a stay in the district court and to seek review from the court of appeals, if needed. Be sure to tell the court of appeals about any such agreement if you file a motion for a stay.
Even if a writ of recovery has been issued by the court administrator, the sheriff may have other duties that will delay enforcement of the writ in a particular case. Be sure to give the court of appeals any information you have about when the sheriff is scheduled to enforce the writ if you file a motion for a stay.