Lopez v. Food City (CA2 2/25/14)

This is a garden-variety appellate screwup. That there are such things normally reflects badly on the profession – so badly that the court has changed the rules. The new ones went into effect on January 1;  this is the first opinion we’ve seen that mentions them. But they didn’t help this plaintiff – who, fortunately for the profession, was pro per.

Lopez appealed a minute entry. He then filed a second notice of appeal after the judgment was entered – but it was a week late. The Barassi rule didn’t save him because the entry of judgment wasn’t merely ministerial – the trial judge still had a ruling to make, on fees, after the minute entry.

The court (which was addressing jurisdiction sua sponte) then looked at new rule 9(b)(2)(B), which basically says that a boneheadedly-filed notice of appeal will be deemed to have been filed when it should have been. (This will of course end all confusion and error, and we will certainly not see a new line of cases explaining what the new rules mean.) But the new rules apply to cases “pending” on January 1. The court says, citing Black’s, that  “a case that has become final is no longer ‘pending’ . . .” And this case became final when the time to appeal the judgment ran out, in June 2013. Appeal dismissed.

The rules weren’t changed for the benefit of pro pers, though. Experience (and a case like this, of which we’ve blogged several) teaches that quite a number of practicing lawyers don’t know the difference between a minute entry and a judgment – and can’t reliably count or calendar thirty days – any better than poor Mr. Lopez. Dumbing procedure down has for decades been the court’s response to the slender competence of so many of the lawyers it foists on the public. It hasn’t worked.

(link to opinion)