LaRocque v. LaRocque

North Dakota Supreme Court · Family Law

Family LawAppellate ProcedureJurisdictionTimeliness of Appealnotice of appealjurisdictiontimelinessthree-day mailing rule

Facts

After a divorce trial, the district court granted Rosa LaRocque a divorce, awarded spousal support, and divided the marital property. The court instructed Rosa's attorney to prepare the final papers, and her attorney served notice of entry of judgment on Sam's attorney on November 20, 1997. Rosa filed her notice of appeal on January 22, 1998, 63 days after that service. She argued she was entitled to an additional three days because service had been made by mail and also argued she was not the prevailing party.

Issue

Whether Rosa LaRocque's notice of appeal was timely when filed 63 days after her attorney served notice of entry of judgment by mail on Sam's attorney. Also, whether the three-day mailing extension, her claimed non-prevailing-party status, or equitable estoppel prevented dismissal for lack of jurisdiction.

Rule

In a civil case, a notice of appeal must be filed within 60 days after service of notice of entry of the judgment. That filing period is jurisdictional. The three-day extension for service by mail applies only when a party must act within a prescribed period after service of a paper upon that party, and service for these purposes is made upon a party's attorney.

🔒

See the holding & full analysis

Create a free KwikCourt account to unlock the rest of this brief — and practice the case.

The court's holding and reasoning
Doctrine tests, pitfalls & exam hypotheticals
10 practice questions + 4 AI-graded essays on this case

Free sample · practice this case

Test yourself

One of 10 multiple-choice questions for this case. Pick an answer to see why.

In a divorce action in Fargo, the trial court awarded Dana Mercer a divorce, temporary support, and part of the marital estate. At the court's direction, Dana's lawyer prepared the judgment papers and mailed notice of entry of judgment to Owen Mercer's lawyer on March 1; Dana filed her notice of appeal on May 2, 62 days later.

Is Dana's appeal timely?

Explanation. The majority states that in a civil case the notice of appeal must be filed within 60 days of service of notice of entry of judgment, and that this deadline is jurisdictional. Because Dana filed 62 days after her lawyer served notice, the appeal is untimely and the appellate court lacks jurisdiction. (Derived from LaRocque v. LaRocque (n.d.).)