Minnesota Rules of Civil Appellate Procedure
With amendments effective January 1, 2006Provided by the Minnesota Supreme Court Commissioner’s Office TITLE I. APPLICABILITY OF RULES Rule 101. Scope of Rules; Definitions101.01 Scope101.02 DefinitionsRule 102. Suspension of Rules TITLE II. APPEALS FROM JUDGMENTS AND ORDERS Rule 103. Appeal - How Taken103.01 Manner of Making Appeal103.02 Joint Appeals103.03 Appealable Judgments and Orders103.04 Scope of ReviewRule 104. Time for Filing and Service of Notice of Appeal104.01 Time for Filing and Service104.02 Effect of Entry of Judgment and Insertion of Costs into the JudgmentRule 105. Discretionary Review105.01 Petition for Permission to Appeal; Time105.02 Content of Petition; Response105.03 Grant of Permission - ProcedureRule 106. Respondent's Right to Obtain ReviewRule 107. Bond or Deposit for Costs107.01 When Bond Required107.02 When Bond Not RequiredRule 108. Supersedeas Bond; Stays108.01 Supersedeas Bond108.02 Judgments Directing Conveyances108.03 Extent of Stay108.04 Respondent's Bond to Enforce Judgment108.05 Joinder of Bond Provisions; Service on Adverse Party108.06 Perishable Property108.07 Effect of Proceedings in Supreme CourtRule 109. Leave to Proceed In Forma Pauperis109.01 Authorized Relief109.02 Motion for Leave to Proceed In Forma Pauperis in the Court of Appeals109.03 Civil Commitment and Juvenile Proceedings109.04 Motion for Leave to Proceed In Forma Pauperis in the Supreme Court109.05 Suspension of Time PeriodsRule 110. The Record on Appeal110.01 Composition of the Record on Appeal110.02 The Transcript of Proceedings; Duty of Appellant to Order; Notice to Respondent if Partial Transcript is Ordered; Duty of Reporter; Form of Transcript110.03 Statement of the Proceedings When No Report Was Made or When the Transcript is Unavailable110.04 Agreed Statement as the Record110.05 Correction or Modification of the RecordRule 111. Transmission of the Record111.01 Transmission of Record; Time111.02 Exhibits and Models111.03 Record for Preliminary Hearing in Appellate Courts111.04 Disposition of Record After AppealRule 112. (Reserved for Future Use.)Rule 113. (Reserved for Future Use.)Rule 114. Court of Appeals Review of Administrative Rules114.01 How Obtained114.02 Contents of Petition for Declaratory Judgment114.03 Record on Review of Petition for Declaratory Judgment; Transmission of Record114.04 Briefing114.05 Participants TITLE III. DECISIONS REVIEWABLE BY CERTIORARI TO THE COURT OF APPEALS OR THE SUPREME COURT
Rule 115. Court of Appeals Review of Decisions of the Commissioner of Jobs and Training Economic Security and Other Decisions Reviewable by Certiorari and Review of Decisions Appealable Pursuant to the Administrative Procedure Act115.01 How Obtained; Time for Securing Writ115.02 Petition for Writ; How Secured115.03 Contents of the Petition and Writ; Filing and Service115.04 The Record on Review by Certiorari; Transmission of the Record115.05 Costs and Disbursements115.06 Dismissal CostsRule 116. Supreme Court Review of Decisions of the Workers’ Compensation Court of Appeals, Decisions of the Tax Court, and of Other Decisions Reviewable by Certiorari116.01 How Obtained; Time for Securing Writ116.02 Petition for Writ; How Secured116.03 Contents of the Petition and Writ; Filing and Service116.04 The Record on Review by Certiorari; Transmission of the Record116.05 Costs and Disbursements116.06 Dismissal CostsRule 117. Petition in Supreme Court for Review of Decisions of the Court of AppealsRule 118. Accelerated Review by the Supreme Court Prior to a Decision by the Court of AppealsRule 119. (Reserved for Future Use.) TITLE V. EXTRAORDINARY WRITS Rule 120. Writs of Mandamus and Prohibition Directed to a Judge or Judges and Other Writs120.01 Petition for Writ120.02 Submission of Petition; Response to the Petition120.03 Procedure Following Submission120.04 Filing; Form of Papers; Number of Copies120.05 Review in Supreme CourtRule 121. Mandamus and Prohibition - Emergency Situations121.01 Communication to the Court121.02 Procedure121.03 Filing FeeRule 122. (Reserved for Future Use.)Rule 123. (Reserved for Future Use.)Rule 124. (Reserved for Future Use.) TITLE VII. GENERAL PROVISIONS Rule 125. Filing and Service125.01 Filing125.02 Service and Filing of All Papers Required125.03 Manner of Service125.04 Proof of ServiceRule 126. Computation and Extension or Limitation of Time126.01 Computation126.02 Extension or Limitation of TimeRule 127. MotionsRule 128. Briefs128.01 Informal Briefs and Letter Briefs128.02 Formal Brief128.03 References in Briefs to Record128.04 Reproduction of Statutes, Ordinances; Rules, Regulations, Etc.128.05 Citation of Supplemental Authorities Rule 129. Brief of an Amicus Curiae129.01 Request for Leave to Participate129.02 Time for Filing and Service129.03 Certification in Brief129.04 Oral ArgumentRule 130. The Appendix to the Briefs; Supplemental Record130.01 Record Not to be Printed; Appellant to File Appendix130.02 Respondents May File Appendix130.03 Party May File Supplemental Record; Not Taxable CostRule 131. Filing and Service of Briefs, the Appendix, and the Supplemental Record131.01 Time for Filing and Service131.02 Application for Extension of Time131.03 Number of Copies to be Filed and ServedRule 132. Form of Briefs, Appendices, Supplemental Records, Motions, and Other Papers132.01 Form of Briefs, Appendices, and Supplemental Records132.02 Form of Motions and Other PapersRule 133. Prehearing Conference; Calendar133.01 Prehearing Conference133.02 Calendar133.03 Statement of the CaseRule 134. Oral Argument134.01 Allowance of Oral Argument134.02 Notice of Hearing; Postponement134.03 Time Allowed for Argument134.04 Order and Content of Argument134.05 Nonappearance of Counsel134.06 Submission on Briefs134.07 Exhibits; Plats134.08 Submission When Member of Appellate Court Not Present134.09 Oral Argument - Place of ArgumentRule 135. En Banc and Nonoral Consideration by the Supreme CourtRule 136. Notice of Decision; Judgment; Remittitur136.01 Decision136.02 Entry of Judgment; Stay136.03 RemittiturRule 137. Enforcement of Money JudgmentsRule 138. Damages for DelayRule 139. Costs and Disbursements139.01 Costs139.02 Disbursements139.03 Taxation of Costs and Disbursements; Time139.04 Objections139.05 Disallowance of Costs and Disbursements139.06 Attorneys' Fees on Appeal - ProcedureRule 140. Petition for Rehearing in Supreme Court140.01 Petition for Rehearing140.02 Service; Filing140.03 Stay of JudgmentRule 141. (Reserved for Future Use.)Rule 142. Dismissal; Default142.01 Voluntary Dismissal142.02 Default of Appellant142.03 Default of RespondentRule 143. Parties; Substitution; Attorneys143.01 Parties143.02 Death of a Party143.03 Substitution for Other Causes143.04 Public Officers143.05 AttorneysRule 144. Cases Involving Constitutional Questions Where State is Not a PartyRule 145. Appendix of FormsRule 146. TitleRule 147. Effective Date APPENDIX OF FORMS (not available online)
TITLE I. APPLICABILITY OF RULES
These rules govern procedure in the Supreme Court and the Court of Appeals of Minnesota in civil appeals; in criminal appeals insofar as the rules are not inconsistent with the Rules of Criminal Procedure; in proceedings for review of orders of administrative agencies, boards or commissions; and on applications for writs or other relief in civil proceedings which the Supreme Court, the Court of Appeals or a justice or judge thereof is competent to give.
Subdivision 1. When used in these rules, the words listed below have the meanings given them.
Subd. 2. "Appellate court" means the Supreme Court pursuant to Minnesota Statutes, chapter 480, or the Court of Appeals pursuant to Minnesota Statutes, chapter 480A.
Subd. 3. "Judge" means a justice of the Supreme Court or a judge of the Court of Appeals.
Subd. 4. "Trial court" means the court or agency whose decision is sought to be reviewed.
Subd. 5. "Clerk of the appellate courts" means the clerk of the Supreme Court and the Court of Appeals.
Subd. 6. "Appellant" means the party seeking review including relators and petitioners.
(Amended effective for appeals taken on or after January 1, 1992.)
In the interest of expediting decision upon any matter before it, or for other good cause shown, the Supreme Court or the Court of Appeals, except as otherwise provided in Rule 126.02, may suspend the requirements or provisions of these rules on application of a party or on its own motion and may order proceedings in accordance with its direction.
103.01 Manner of Making Appeal
Subdivision 1. Notice of Appeal and Filings. An appeal shall be made by filing a notice of appeal with the clerk of the appellate courts and serving the notice on the adverse party or parties within the appeal period. The notice shall contain:
(a) a statement specifying the judgment or order from which the appeal is taken; and
(b) the names, addresses, and telephone numbers of opposing counsel, indicating the parties they represent.
The notice shall be accompanied by:
(c) proof of service on the adverse party or parties; and
(d) proof of filing with the administrator of the trial court in which the judgment or order appealed from is entered or filed.
The appellant shall simultaneously file the following with the clerk of the appellate courts:
(1) two copies of the notice of appeal,
(2) a certified copy of the judgment or order from which the appeal is taken,
(3) two copies of the statement of the case required by Rule 133.03, and
(4) a filing fee of $500.
The appellant shall file the following simultaneously with the trial court administrator:
(1) a copy of the notice of appeal, and
(2) the cost bond required by Rule 107, or written waiver of it.
Subd. 2. Relief. When a party in good faith files and serves a notice of appeal from a judgment or an order, and omits, through inadvertence or mistake, to proceed further with the appeal, or to stay proceedings, the appellate court may grant relief on such terms as may be just.
Subd. 3. When Filing Fee Not Required. The filing fees set out in Rule 103.01, subdivision 1, shall not be required when:
(a) the appellant has been authorized to proceed without payment of the filing fee pursuant to Rule 109; or
(b) the appellant is represented by a public defender's office or a legal aid society; or
(c) the appellant is a party to a proceeding pursuant to Minnesota Statutes, chapter 253B; or
(d) the appellant is the state or a governmental subdivision of the state or an officer, employee or agency thereof; or
(e) the appeal has been remanded to the trial court or agency for further proceedings and, upon completion of those proceedings, the appeal is renewed; or
(f) the appellant is a party to a public assistance appeal pursuant to Minnesota Statutes, chapter 256; or
(g) the appeal is taken by a claimant for unemployment compensation benefits pursuant to Minnesota Statutes, chapter 268.
(Amended effective March 1, 2001.)
Comment - 1983
Filing the notice of appeal with the clerk of the appellate courts, in addition to service on the adverse party, is required to initiate an appeal.
A substantial change has been made in Rule 103.01. Under the new rule service alone no longer initiates an appeal. The notice of appeal served on both the adverse party and the clerk of the trial court and filed with the clerk of the appellate courts is required in order to vest jurisdiction in the Court of Appeals.
Proof of service, a certified copy of the judgment or order from which the appeal is taken, and the statement of the case (described at Rule 133.03) must accompany the notice of appeal when it is filed. For purposes of these rules, filing is timely if the notice of appeal is deposited in the mail within the time fixed for filing. See Rule 125.01.
A change has been made in the amount of the filing fee and to which courts it is paid.
Since prehearing conferences will be held only if the court so directs, within 10 days after filing the notice of appeal the appellant must send to the clerk of the appellate courts a written order for the transcript or a notice of intent to proceed on a statement of the proceedings. See Rule 110.02.
See Appendix for form of notice of appeal (Forms 103A and 103B) and statement of the case (Form 133).
Advisory Committee Comment - 1998 Amendments
The additional language in the first paragraph of the rule is intended to clarify the steps that must be taken to invoke appellate jurisdiction. Timely filing the notice of appeal with the clerk of the appellate courts and timely service on the adverse party are the jurisdictional steps required to initiate an appeal. Failure of an appellant to take any step other than the timely filing and service of the notice of appeal does not affect appellate jurisdiction, but is ground only for such action as the appellate court deems appropriate, which may include dismissal of the appeal. The reference to supersedeas bonds previously contained in the rule has been deleted, in light of the concurrent revisions made to Rule 108, which clarify the timing and procedure regarding filing supersedeas bonds.
Subdivision 1. Joint Appeals. If two or more parties are entitled to appeal from a judgment or order or to petition for certiorari in the same action and their interests are such as to make joinder practicable, they may file a joint notice of appeal or petition, or may join in the appeal after filing separate timely notices of appeal or petitions for certiorari, and they may then proceed on appeal as a single appellant.
Subd. 2. Consolidated Appeals. Appeals in separate actions may be consolidated by order of the appellate court on its own motion or upon motion of a party.
103.03 Appealable Judgments and Orders
An appeal may be taken to the Court of Appeals:
(a) from a final judgment, or from a partial judgment entered pursuant to Minn. R. Civ. P. 54.02;
(b) from an order which grants, refuses, dissolves or refuses to dissolve, an injunction;
(c) from an order vacating or sustaining an attachment;
(d) from an order denying a new trial, or from an order granting a new trial if the trial court expressly states therein, or in a memorandum attached thereto, that the order is based exclusively upon errors of law occurring at the trial, and upon no other ground; and the trial court shall specify such errors in its order or memorandum, but upon appeal, such order granting a new trial may be sustained for errors of law prejudicial to respondent other than those specified by the trial court;
(e) from an order which, in effect, determines the action and prevents a judgment from which an appeal might be taken;
(f) from a final order or judgment made or rendered in proceedings supplementary to execution;
(g) except as otherwise provided by statute, from a final order, decision or judgment affecting a substantial right made in an administrative or other special proceeding;
(h) from an order that grants or denies modification of custody, visitation, maintenance, or child support provisions in an existing judgment or decree;
(i) if the trial court certifies that the question presented is important and doubtful, from an order which denies a motion to dismiss for failure to state a claim upon which relief can be granted or from an order which denies a motion for summary judgment; and
(j) from such other orders or decisions as may be appealable by statute or under the decisions of the Minnesota appellate courts.
(Amended effective March 1, 2001.)
Comment - 1983
An order for judgment is not an appealable order. There is a right of appeal only from a judgment or an order enumerated in Rule 103.03. An appeal from any order not specifically included in Rule 103.03 is discretionary, and permission must be sought by petition as provided in Rule 105.
Two substantial changes have been made in Rule 103.03. The deletion from clause (a) of "order for judgment" marks a return to former practice: a judgment is appealable; an order for judgment is not appealable. Because of the uncertainties resulting from its broad, unspecific language, former clause (d) "From an order involving the merits of the action or some part thereof" has also been deleted. Review of any order not specifically enumerated in Rule 103.03 is discretionary only, and permission to appeal must be sought pursuant to Rule 105.
Advisory Committee Comment - 1998 Amendments
While Rule 103.03 contains a nearly exhaustive list of appealable orders and judgments, it is not the exclusive basis for appellate jurisdiction. See In re State & Regents Bldg. Asbestos Cases, 435 N.W.2d 521 (Minn. 1989); Anderson v. City of Hopkins, 393 N.W.2d 363 (Minn. 1986). In these and other cases, the Minnesota Supreme Court has recognized that there are certain instances in which an appeal may be allowed as a matter of right even though the ground for that appeal is not found expressly in the provisions of Rule 103.03. Such instances include:
Orders granting or denying motions to dismiss or for summary judgment when the motions are based on the trial court's alleged lack of personal or subject matter jurisdiction, regardless of whether the motion seeks dismissal of the entire action. See McGowan v. Our Savior's Lutheran Church, 527 N.W.2d 830, 833 (Minn. 1995)(order denying summary judgment is appealable when motion is based on district court's lack of subject matter jurisdiction); Hunt v. Nevada State Bank, 285 Minn. 77, 88-89, 172 N.W.2d 292, 298 (1996) (order denying motion to dismiss for lack of personal jurisdiction immediately appealable of right).
Orders denying motions to dismiss or for summary judgment based on governmental immunity from suit, provided that the denial is not based on the existence of a question of fact. See Anderson, 393 N.W.2d at 364 (order denying defendant's motion for summary judgment is appealable when motion is based on governmental immunity from suit); Carter v. Cole, 526 N.W.2d 209 (Minn. App. 1995), aff'd, 539 N.W.2d 241 (Minn. 1995) (affirming dismissal of appeal from order denying government official's motion for summary judgment based solely on the finding that there is a genuine issue of material fact whether the official committed the acts alleged; reserving question of appealability of an order denying summary judgment where the genuine issues of material fact identified by the trial court are related to the issue of immunity, and not to the merits of the claim); see also Johnson v. Jones, 515 U.S. 304, 115 S. Ct. 2151, 132 L.Ed.2d 238 (1995) (order denying summary judgment on immunity grounds not appealable where motion is denied because of genuine issue of material fact).
Orders vacating final orders or judgments, when the orders are issued after the time to appeal the underlying orders or judgments has expired, or from orders refusing to vacate default judgments. See State & Regents, 435 N.W.2d at 522 (order vacating final judgment is appealable); Spicer v. Carefree Vacations, Inc., 370 N.W.2d 424 (Minn. 1985)(denial of a Rule 60 motion is appealable if the judgment is rendered ex parte against a party who has made no appearance). But see Carlson v. Panuska, 555 N.W.2d 745 (Minn. 1996) (Spicer exception applies only to true default judgments and not to "default" judgments entered after contested hearings for failure to comply with discovery orders).
In addition, certain statutes provide for appeals as a matter of right, even though Rule 103.03 does not expressly provide. See, e.g., Minnesota Statutes, section 572,26, subdivision 1 (listing appealable orders in arbitration proceedings, which are not "special" proceedings under Rule 103.03), Pulju v. Metropolitan Property & Cas., 535 N.W.2d 608 (Minn. 1995).
These examples are not intended to be exhaustive, but rather to emphasize that there are limited grounds for appeal other than those set forth in Rule 103.03. See generally Scott W. Johnson, Common Law Appellate Jurisdiction, BENCH & BAR OF MINN., Sept. 1997, at 31.
Rule 103.03 is amended to add a new subdivision (h) and renumber existing paragraphs (h) and (i) to become (i) and (j). The purpose of this amendment is to clarify that orders that grant or deny modification of custody, visitation, maintenance, and support provisions are appealable in accordance with Angelos v. Angelos, 367 N.W.2d 518 (Minn. 1985). These orders are appealable under paragraph (g) (final order in a special proceeding), but because of the volume of such orders, as well as the frequent involvement of pro se litigants, the Committee believes an explicit provision will minimize confusion. This change is not intended to expand appealability of otherwise unappealable orders, but rather, is meant to have the rule correctly identify these orders as appealable.
The appellate courts may reverse, affirm or modify the judgment or order appealed from or take any other action as the interest of justice may require.
On appeal from or review of an order the appellate courts may review any order affecting the order from which the appeal is taken and on appeal from a judgment may review any order involving the merits or affecting the judgment. They may review any other matter as the interest of justice may require. The scope of review afforded may be affected by whether proper steps
have been taken to preserve issues for review on appeal, including the existence of timely and proper post-trial motions.
(Amended effective January 1, 1999.)
Advisory Committee Comment - 1998 Amendments
The rule has been changed to make clear that the scope of review can and often does depend upon the scope of the trial proceedings. As a general proposition, appellate review is limited to review of the facts and legal arguments that are contained in the trial record. The conduct of the trial proceedings will affect the scope of review on appeal. See Sauter v. Wasemiller, 389 N.W.2d 200 (Minn. 1986); Northwestern State Bank v. Foss, 287 Minn. 508, 511, 177 N.W.2d 292, 294 (1970). This is true notwithstanding the broad statement of the appellate courts' scope of review contained in Rule 103.04. See Minnesota Constitution, article 6, section 2.
Litigants often fail to recognize the importance of post-trial motions, and the sometimes dramatic failure to bring them. Though commentators have alerted lawyers to this issue, see 3 ERIC J. MAGNUSON & DAVID F. HERR, MINNESOTA PRACTICE: APPELLATE RULES ANNOTATED, section 103.17 (3d ed. 1996), problems associated with failure to file appropriate post-trial motions continues to be a significant, recurring problem. This rule amendment is intended to ameliorate the problem.
Rule 104. Time for Filing and Service of Notice of Appeal
104.01 Time for Filing and Service
Subdivision 1. Time for Appeal. Unless a different time is provided by statute, 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.
An appeal may be taken from a judgment entered pursuant to Rule 54.02, Minnesota Rules of Civil Procedure, within 60 days of the entry of the judgment only if the trial court makes an express determination that there is no just reason for delay and expressly directs the entry of a final judgment. The time to appeal from any other judgment entered pursuant to Rule 54.02 shall not begin to run until the entry of a judgment which adjudicates all the claims and rights and liabilities of the remaining parties.
Subd. 2. Effect of Post-Decision Motions. Unless otherwise provided by law, if any party serves and files a proper and timely motion of a type specified immediately below, the time for appeal of the order or judgment that is the subject of such motion runs for all parties from the service by any party of notice of filing of the order disposing of the last such motion outstanding. This provision applies to a proper and timely motion:
(a) for 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).
Subd. 3. Premature Appeal. A notice of appeal filed before the disposition of any of the above motions is premature and of no effect, and does not divest the trial court of jurisdiction to dispose of the motion. A new notice of appeal must be filed within the time prescribed to appeal the underlying order or judgment, measured from the service of notice of filing of the order disposing of the outstanding motion. If a party has already paid a filing fee in connection with a premature appeal, no additional fee shall be required from that party for the filing of a new notice of appeal or notice of review pursuant to Rule 106.
(Amended effective January 1, 2006.)
Comment - 1983
The time for taking an appeal from a final judgment or an order remains unchanged.
The clerk of the appellate courts is authorized to reject the filing of a notice of appeal from a judgment after the expiration of the 90-day period.
The second paragraph follows federal practice with respect to judgments ordered pursuant to Rule 54.02, Minnesota Rules of Civil Procedure. An early right of appeal is provided as to those summary judgments that dispose of less than all claims against all parties if, but only if, the trial court expressly determines that there is no just reason for delay and expressly directs the entry of judgment. If an appeal is not taken within 90 days after entry of such a judgment, it becomes final and is not subject to later review. A judgment disposing of less than all claims against all parties entered pursuant to an order which does not contain the express determination and directions prescribed by Rule 54.02 is not appealable until entry of the final judgment disposing of all remaining claims of all parties.
This limited right of appeal recognizes that the trial court's use of the language prescribed by Rule 54.02 is likely to be confined to two situations: (1) where early review of the applicability of a rule of law may obviate a retrial, or (2) where the party obtaining judgment should not be required to await the conclusion of the case as to other parties and issues before the time for appeal begins to run.
Advisory Committee Comment - 1998 Amendments
The 1998 amendments to this rule will significantly affect appellate practice. The rule is intended to simplify practice by establishing a 60-day period to effect appeals from both final judgments and appealable orders. This 60-day period will not necessarily result in an identical period to appeal from both an order and judgment, as the event that begins the running of the respective 60-day appeal periods usually will differ. However, the amendment will result in less confusion regarding the time period for appeal.
Subdivision 2 is new and enumerates the post-trial motions that will toll the running of the time to appeal. The rule serves two equally important purposes: to make it clear that an appeal is not necessary until the proper motion is decided, and to avoid a party's erroneous assumption that an improper or unauthorized motion would prevent the running of an appeal deadline. The list is intended to be exhaustive for civil actions in the district courts. Rule 104.01, subd. 2(f), provides that the procedural counterparts of these motions will also prevent the running of the time to appeal until the motion is decided. The motions enumerated in this subdivision exclude "motions for reconsideration" because these motions are never required by the rules and are considered only if the trial court permits the motion to be filed. See MINN. GEN. R. PRAC. 115.11, amended in 1997, effective Jan. 1, 1998.
Counsel must carefully determine whether post-trial motions are authorized in certain proceedings. See Schiltz v. City of Duluth, 449 N.W.2d 439 (Minn. 1990) (in special proceedings
there must be statutory authority for new trial motions, and in the absence of such provision, a "new trial" motion, even if considered by the trial court on the merits and denied, may not result in an appealable order) and Steeves v. Campbell, 508 N.W.2d 817 (Minn. App. 1993) (new trial motion in order for protection proceedings not authorized, and order denying such motion is not appealable). Subdivision 2 of Rule 104.01 replaces Rule 104.04 concerning post-trial and modification motions in marital dissolutions. Modification motions no longer extend the time in which to appeal. The affect of post-trial motions is clarified in subdivisions 2 and 3.
Advisory Committee Comment—2006 Amendment
Rule 104.01, subd. 2(a) is amended to reflect the new name for a motion challenging the legal sufficiency of a verdict under Minn. R. Civ. P. 50.02. As a result of the amendment to Minn. R. Civ. P. 50.02, the former “motion for directed verdict” and “motion for judgment notwithstanding the verdict” are both now referred to as motions for “judgment as a matter of law.” Rule 104.01, subd. 2(a) is amended to reflect this nomenclature. During the short transition period during which timely appeals might be taken from cases where either motions for judgment notwithstanding the verdict or motions for judgment as a matter of law may have been filed after the trial court decision, the court should consider the two motions fungible in determining whether an appeal is timely.
104.02 Effect of Entry of Judgment and Insertion of Costs into the Judgment
No order made prior to the entry of judgment shall be appealable after the expiration of time to appeal from the judgment. Time to appeal from the judgment pursuant to this section shall not be extended by the subsequent insertion therein of costs and disbursements.
(Amended effective January 1, 1999.)
104.03 and 104.04 (Deleted effective January 1, 1999.)
Rule 105. Discretionary Review
105.01 Petition for Permission to Appeal; Time
Upon the petition of a party, in the interests of justice the Court of Appeals may allow an appeal from an order not otherwise appealable pursuant to Rule 103.03 except an order made during trial, and the Supreme Court may allow an appeal from an order of the Tax Court or the Workers' Compensation Court of Appeals not otherwise appealable pursuant to Rule 116 or governing statute except an order made during trial. The petition shall be served on the adverse party and filed within 30 days of the filing of the order. The trial court should be notified that the petition has been filed and provided with a copy of the petition and any response. Four copies of the petition shall be filed with the clerk of the appellate courts, but the court may direct that additional copies be provided. A filing fee of $500 paid to the clerk of the appellate courts shall accompany the petition for permission to appeal.
(Amended effective March 1, 2001.)
Comment - 1983
A petition for discretionary review must be filed with the clerk of the appellate courts within 30 days after filing of the order.
Because a request for discretionary review of an interlocutory or other nonappealable order is usually prompted by some exigency and because it is not customary to give notice of making and filing of nonappealable orders, a petition for review must be served and filed with the clerk of the appellate courts within 30 days after the order was filed with the clerk of the trial court.
See Appendix for form of petition for discretionary review (Form 105).
105.02 Content of Petition; Response
The petition shall be entitled as in the trial court, shall not exceed ten typewritten pages, and shall contain:
(a) a statement of facts necessary to an understanding of the questions of law or fact determined by the order of the trial court;
(b) a statement of the issues; and
(c) a statement why an immediate appeal is necessary and desirable.
A copy of the order from which the appeal is sought and any findings of fact, conclusions of law, or memorandum of law relating to it shall be attached to the petition. Any adverse party may, within five days after service of the petition, serve and file with the clerk of the appellate courts four copies of a response to the petition, which shall not exceed ten pages. Any reply shall be served within two days after service of the response and shall not exceed five pages. All papers may be typewritten in the form prescribed in Rule 132.02. No additional memoranda may be filed without leave of the appellate court.
The petition and any response shall be submitted without oral argument unless otherwise ordered.
(Amended effective March 1, 2001.)
Advisory Committee Comment - 1998 Amendments
The rule has been amended to change the responsive time from seven to five days to be consistent with the time to file a response to a petition for an extraordinary writ and to a motion. See MINN. R. CIV. APP. P. 120.02, 127. The two-day period to file a reply is added to be consistent with the provision for a reply in the rule on motions. See MINN. R. CIV. APP. P. 127. Because intervening weekends and holidays are not counted when the time for response is less than seven days, the change will not shorten the time for response, and may actually lengthen it in some cases. See MINN. R. CIV. APP. P. 126.01.
Advisory Committee Comment - 2000 Amendments
Rule 105.01 is changed to authorize petitions to the Supreme Court seeking discretionary review of nonappealable orders of the Tax Court and the Workers' Compensation Court of Appeals. The Court has noted the advisability of such a provision. See Tarutis v. Commissioner of Revenue, 393 N.W.2d 667, 668-69 (Minn. 1986). The amendment to Rule 105.02 clarifies that the petition should not be accompanied by a separate memorandum of law, expands the page limit for the petition to ten pages and specifies page limits for the response and reply.
105.03 Grant of Permission – Procedure
If permission to appeal is granted, the clerk of the appellate courts shall notify the trial court administrator and the appellant shall file the bond as required by these rules, and then proceed as though the appeal had been noticed by filing an appeal. Two copies of a completed statement of the case shall be filed within five days of the order granting the petition. The time fixed by these rules for transmitting the record and for filing the briefs and appendix shall run from the date of the entry of the order granting permission to appeal.
(Amended effective for appeals taken on or after January 1, 1992.)
Comment - 1983
The filing of 2 copies of a completed statement of the case is required within 5 days from the date of the order granting the petition for discretionary review.
Rule 106. Respondent's Right to Obtain Review
A respondent may obtain review of a judgment or order entered in the same action which may adversely affect respondent by filing a notice of review with the clerk of the appellate courts. The notice of review shall specify the judgment or order to be reviewed, shall be served and filed within 15 days after service of the notice of appeal, and shall contain proof of service. A filing fee of $100 shall accompany the notice of review.
(Amended effective January 1, 1999.)
Comment - 1983
A respondent must file a notice of review with the clerk of the appellate courts within 15 days after service on the respondent of the notice of appeal.
See Appendix for form of notice of review (Form 106).
Advisory Committee Comment - 1998 Amendments
This rule is amended to delete gender-specific language. This amendment is not intended to affect the interpretation and meaning of the rule.
Rule 107. Bond or Deposit for Costs
Unless the appellant is exempt by law, a bond shall be executed by, or on behalf of, the appellant. The bond shall be conditioned upon the payment of all costs and disbursements awarded against the appellant on the appeal, not exceeding the penalty of the bond which shall be $500. In lieu of the bond, the appellant may deposit $500 with the trial court administrator as security for the payment.
Prior to filing the notice of appeal, the appellant may move the trial court for an order waiving the bond or setting a lesser amount or deposit. Upon the appellant's filing of the required cost bond or deposit, the respondent may move the trial court for an order requiring a supplemental bond or deposit.
The bond or deposit may be waived by written consent of the respondent, which consent shall be filed with the trial court administrator.
(Amended effective March 1, 2001.)
No cost bond is required:
(a) in a criminal case; or
(b) in a case arising in juvenile court; or
(c) in a proceeding pursuant to Minnesota Statutes, chapter 253B; or
(d) when the appellant has been authorized to proceed without a cost bond pursuant to Rule 109; or
(e) when the appellant is the state or a governmental subdivision of the state or an officer, employee or agency thereof; or
(f) when the appellant is a party to a public assistance appeal pursuant to Minnesota Statutes, chapter 256; or
(g) when the appellant is a reemployment insurance benefits claimant pursuant to Minnesota Statutes, chapter 268.
(Amended effective March 1, 2001.)
Comment—1983
A cost bond in the amount of $500 or a stipulation waiving the bond must be filed with the notice of appeal. See Rule 103.01, subdivision 1(d)(6). Rule 107 provides a mechanism for securing, prior to appeal, an order from the trial court waiving the bond or setting a bond in a lesser amount. It also affords the respondent a mechanism for securing a supplemental bond or deposit. Finally, it enumerates the categories of appeals in which a cost bond is not required.
Advisory Committee Comment - 1998 Amendments
Under this rule as revised, the cost bond requirement is not automatically waived when an appeal is filed after a remand. Unless the cost bond from the first appeal remains on deposit, the respondent in the second appeal still needs the protection of a cost bond. Changes in (g) reflect the current terminology.
Rule 108. Supersedeas Bond; Stays
Subdivision 1. Effect of Appeal; Stay. Except in appeals under Rule 103.03 (b), or as otherwise provided by law, the filing of a proper and timely appeal suspends the authority of the trial court to make any order necessarily affecting the order or judgment appealed from. The trial court retains jurisdiction as to matters independent of, supplemental to, or collateral to the order or judgment appealed from, and to enforce its order or judgment.
Unless otherwise provided by law, a proper and timely appeal does not stay an order or judgment or enforcement proceedings in the trial court, but the appellant may obtain a stay by providing a supersedeas bond or other security in the amount and form which the trial court shall order and approve, in the cases provided in this rule, or as otherwise provided by rule or statute.