You have heard courts say that a timely notice of appeal is a prerequisite. As in, non-negotiable. As in, the court doesn’t even have jurisdiction to consider your appeal, so don’t even ask, ok?
But do the courts really mean it when they say that a timely notice of appeal is a jurisdictional prerequisite? This week, two cases give reason for doubt.
In one case, an appellate court held a belated appeal from a judgment may be resurrected by appealing from a subsequent cost award in an amended judgment.
And in another case, the court held an appeal filed after the 60-day deadline after a notice of entry is timely if the notice of entry does not attach the judgment.
The Upshot: Before these recent cases, I would have uniformly advised against taking an untimely appeal. Filing an untimely appeal and asserting off-the-wall theories that the appeal was timely filed after an amended judgment for costs, or that the notice of entry was invalid for not including attachments, might have been frivolous and subject to sanctions. Now, I am not so sure. Arguments supporting untimely appeals may be “on the wall.” Watch this space.