Author Topic: Notice of Appeal critique  (Read 9898 times)

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lisser

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Notice of Appeal critique
« on: April 18, 2012 06:55:00 PM »
There is no standard form for a Notice of Appeal to the Circuit Court in my state so I've made my own.

Would anyone care to critique it?

COMMONWEALTH OF KENTUCKY
XXXXX DISTRICT COURT
DIVISION
CIVIL CASE NO. 11-C-XXXX

NOTICE OF APPEAL

April 18, 2012

Notice is given that Me, Defendant in the above mentioned proceeding, hereby appeal to the Circuit Court from the order of the District Court for Summary Judgment entered by this court on April 17, 2012.

The name of the appellee against whom this appeal is taken is Pond Scum JDB, plaintiff.

Respectfully submitted,
Me



____________________________
Me
1234 Overturn Drive
Winning, KY XXXXX

Once I file this and pay my filing fee along with it, I have 30 days to file my Statement of Appeal.

Thanks in advance for any suggestions.

howucantoo

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Re: Notice of Appeal critique
« Reply #1 on: April 18, 2012 07:16:48 PM »
This is how it's titled in my state

                       APPEAL TO THE (STATE)  APPELLATE COURT,
                     FROM THE CIRCUIT COURT OF (         )COUNTY, (STATE)
                                 (XXXXXXX)  DEPARTMENT,

 


JDB LLC                                                              )
                                                                              )           Circuit Court No.
                           Plaintiff-Appellee,                     )
                                                                              )            Order Entered
                        v.                                                   )                April 17th, 2012
                                                                              )
YOU                                                                     )            Honorable -------------------
                                                                              )                Judge Presiding
                           Defendant-Appellant.                )                                 
                                                         
                                          NOTICE OF  (WHATEVER)    APPEAL
   
           Appeal pursuant to (STATE)  Supreme court (       Section xxx                 )
Defendant-Appellant , (NAME), pro se, appeals to the Appellate Court of (STATE) for the
XXX District from the following order entered in this matter in the Circuit Court of XXX  County:

1. The order of April 17, 2012, denying defendantís ----------------------------------

By this appeal, Defendant-Appellant will ask the Appellate Court to reverse the order of
(April 17th, 2012  and remand this cause with directions to (  Vacate or whatever ), or for such other and further relief as the Appellate Court may deem proper.


                                                               _________________________________

                                                                         Defendant-Appellant, pro se


YOUR NAME
ADDRESS
PHONE
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howucantoo

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Re: Notice of Appeal critique
« Reply #2 on: April 18, 2012 07:29:11 PM »
From this moment on whatever is filed must be sent the other side , certificate of mailing must accompany all paperwork/filings in my state.

Just FYI, When filing a brief make sure to send the opponent's copy via CMRR, as they can lie and say it was never sent.
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lisser

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Re: Notice of Appeal critique
« Reply #3 on: April 18, 2012 07:42:45 PM »
From this moment on whatever is filed must be sent the other side , certificate of mailing must accompany all paperwork/filings in my state.

Just FYI, When filing a brief make sure to send the opponent's copy via CMRR, as they can lie and say it was never sent.

Great! Thank you so much for the advice. I will make sure to do that.

Sending it to the JDB lawyer is adequate correct? Or send to JDB as well?

I like your Notice of Appeal. The one I got was from my State's Rules of Civil Procedure though. Do you think I should deviate?

In the small claims handbook it states there are no forms for the Notice of Appeal or Statement of Appeal but I found the example I used in the KY RCP, Rule 73.

In looking at Rule 73, it's not entirely consistent with the handbook for small claims on my state's website. I think I need to be looking over this rule in more detail.

Requirements are listed in Rule 73 that are not listed in the handbook.

howucantoo

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Re: Notice of Appeal critique
« Reply #4 on: April 18, 2012 07:53:13 PM »
In my state, it must be captioned and the name of the judge should be after the case and order date. Next would be the reason for appeal in bold.
I would check and comply with state's rules (there must be a handbook /guide to appeal )

I sent everything to the counsel /law firm who was representing the client in court, I addressed it to LAW OFFICES OF XXXXX
                                                                                                                                           
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lisser

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Re: Notice of Appeal critique
« Reply #5 on: April 18, 2012 07:56:16 PM »
Also, my appeal is going from the District Court to the Circuit Court so the heading would be:

APPEAL TO THE CIRCUIT COURT OF XXXX COUNTY, KY FROM THE DISTRICT COURT OF XXXX COUNTY, STATE

correct?

Also, what is the department? I've not put any department on any of my documents thus far.

Where you have Circuit Court number I need to put my case number right?

howucantoo

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Re: Notice of Appeal critique
« Reply #6 on: April 18, 2012 08:01:18 PM »
Also, my appeal is going from the District Court to the Circuit Court so the heading would be:

APPEAL TO THE CIRCUIT COURT OF XXXX COUNTY, KY FROM THE DISTRICT COURT OF XXXX COUNTY, STATE

correct?

Also, what is the department? I've not put any department on any of my documents thus far. My state has different departments (municipal , law, civil , etc) that's why , go with what your state requires.

Where you have Circuit Court number I need to put my case number right? Yes
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lisser

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Re: Notice of Appeal critique
« Reply #7 on: April 18, 2012 08:01:33 PM »
I think what you put an example of is the actual Statement of Appeal for me in my state. The Notice of Appeal in my state has this in my RCP:

Notice is given that C.D. and E.F., defendants {and third-party plaintiffs} in this proceeding, hereby appeal to the <name of appellate court> <from the order (describing it)>{from the final judgment} entered by this court on
__________, 19___.

The name(s) of the appellee(s) against whom this appeal is taken is (are) A.B., plaintiff <and X.Y., third-party defendant>.

/s/John M. Query

____________________________
John M. Query
2011 St. Clair Street
Frankfort, Kentucky 40601
Attorney for Appellants, C.D.
and E.F.

Here is the Rule:

CR 73.03 NOTICE OF APPEAL

     (1) The notice of appeal shall specify by name all appellants and all appellees ("et al." and "etc." are not proper designation of parties) and shall identify the judgment, order or part thereof appealed from. It shall contain a certificate that a copy of the notice has been served upon all opposing counsel, or parties, if unrepresented, at their last known address.

     (2) When the notice of appeal is filed, the clerk shall serve notice of its filing by mailing a copy showing the date filed to the clerk of the appellate court and to the attorney of record of each party or to the party, if unrepresented. The clerk shall note in the civil docket the names of the parties mailed the copies, with date of mailing. Failure of the clerk to comply with this rule does not affect the validity of the appeal.

I'm not sure why all that stuff I pasted is crossed out? Sorry.
« Last Edit: April 18, 2012 08:25:48 PM by Admin0248 »

howucantoo

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Re: Notice of Appeal critique
« Reply #8 on: April 18, 2012 08:22:15 PM »
I think what you put an example of is the actual Statement of Appeal for me in my state. The Notice of Appeal in my state has this in my RCP:

Notice is given that C.D. and E.F., defendants {and third-party plaintiffs} in this proceeding, hereby appeal to the <name of appellate court> <from the order (describing it)>{from the final judgment} entered by this court on
__________, 19___.

The name(s) of the appellee(s) against whom this appeal is taken is (are) A.B., plaintiff <and X.Y., third-party defendant>.

/s/John M. Query

____________________________
John M. Query
2011 St. Clair Street
Frankfort, Kentucky 40601
Attorney for Appellants, C.D.
and E.F.

Here is the Rule:

CR 73.03 NOTICE OF APPEAL

     (1) The notice of appeal shall specify by name all appellants and all appellees ("et al." and "etc." are not proper designation of parties) and shall identify the judgment, order or part thereof appealed from. It shall contain a certificate that a copy of the notice has been served upon all opposing counsel, or parties, if unrepresented, at their last known address.

     (2) When the notice of appeal is filed, the clerk shall serve notice of its filing by mailing a copy showing the date filed to the clerk of the appellate court and to the attorney of record of each party or to the party, if unrepresented. The clerk shall note in the civil docket the names of the parties mailed the copies, with date of mailing. Failure of the clerk to comply with this rule does not affect the validity of the appeal.

I'm not sure why all that stuff I pasted is crossed out? Sorry.

What you have is NOTICE OF FILING a NOTICE OF APPEAL

Example below is how it is done in my state; See if you can find a appeals handbook that has a timing and samples of filings /notices, etc.

1) file notice of appeal with clerk of the court, take at least a few extra copies to be stamped (one must be sent to the other side)
2) "Notice of filing a notice of appeal" sent to the other side and filed with clerk , get a stamped copies for record.
3) all filing should be filed in appellate court within a short time frame. It all depends on what type of appeal it is, in my state appeal from child custody or other civil judgments have different length of time to be filed than interlocutory appeal (for injunctive relief).

Rules Vary from state to state, but I know formatting / caption/title is almost always the same.
« Last Edit: April 18, 2012 08:30:31 PM by Admin0248 »
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Fighting Irish

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Re: Notice of Appeal critique
« Reply #9 on: April 18, 2012 08:24:11 PM »
Be sure to check the RCPs for the correct titles for your documents.

In my state, the cover letter would be titled: NOTICE OF APPEAL AND APPEAL.
Dang it, Jim! I'm a nurse, not an attorney!

(The rest of you, keep that in mind, too.)

Admin0248

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Re: Notice of Appeal critique
« Reply #10 on: April 18, 2012 08:29:26 PM »
Formatting in original post fixed.

Please note the the square bracket is used by the system software as a tag for a function.  In this case it interpreted the bracket as an underline.  Because it was not followed by a close square bracket sequence [/], the remainder of the post was underlined.

Be careful using the square bracket.  It can lead to unintended formatting problems.

howucantoo

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Re: Notice of Appeal critique
« Reply #11 on: April 18, 2012 08:40:58 PM »
Be sure to check the RCPs for the correct titles for your documents.

In my state, the cover letter would be titled: NOTICE OF APPEAL AND APPEAL.

OP is advised to check his/her state appellate court procedures.

What is being discussed is the NOTICE of filing and paper work with the clerk of the circuit court for starting the process of appeal before any further action can be taken by the circuit judge.

Cover letter is for when the actual appellant brief is filed with the appellate court, OP has a long way to cover letter.
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lisser

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Re: Notice of Appeal critique
« Reply #12 on: April 19, 2012 12:01:08 AM »
Thanks Admin for fixing, sorry about that.

I'm researching my state's RCP for sure. I'm a tad conflicted though because my state has what's called a "Basic Appellate Practice" handbook on the Court of Justice website.

The book's stated purpose is to address the "very real needs of litigants who are proceeding pro se and to assist attorneys whose practice does not normally encompass work before our appellate courts."

"The handbook is designed to explain the most basic procedures and concepts for the lay litigant as well as to summarize succinctly the numerous rules governing appellate practice for attorneys embarking into what may be a new area of expertise."

Direct quotes from the handbook. It's very easy to read obviously and doesn't have "fancy legal terms" in it. I'm conflicted because what is written in the handbook is not exactly what the Rules of Civil Procedure state.

I'm certain that I must file a Notice of Appeal within 10 days of the judge's ruling which was yesterday.

I'm certain that I must file a Statement of Appeal within 30 days of the filing date of my Notice of Appeal.

I am certain that it is my responsibility to serve the notice upon the opposing party.

I am certain of what needs to be within my Statement of Appeal bc it's listed in the handbook.

The handbook states:

The Notice of Appeal and Statement of Appeal must be filed with the Office of Circuit Court Clerk in the same county where the small claims action was filed and heard. There are no forms for the Notice of Appeal or the Statement of Appeal. You must prepare these documents yourself or you may choose to hire an attorney to prepare them for you.

Rule 72 of KY RCP Appeals from District Courts:

CR 72.01 SCOPE OF RULE

     Rule 72 applies only to appeals from the district court to the circuit court.

CR 72.02 WHEN AND HOW TAKEN

     (1) Appeals from the district court to the circuit court in civil cases shall be taken by filing a notice of appeal in the district court and paying the filing fee required by KRS 23A.210.

CR 73.03 NOTICE OF APPEAL

     (1) The notice of appeal shall specify by name all appellants and all appellees ("et al." and "etc." are not proper designation of parties) and shall identify the judgment, order or part thereof appealed from. It shall contain a certificate that a copy of the notice has been served upon all opposing counsel, or parties, if unrepresented, at their last known address.

     (2) When the notice of appeal is filed, the clerk shall serve notice of its filing by mailing a copy showing the date filed to the clerk of the appellate court and to the attorney of record of each party or to the party, if unrepresented. The clerk shall note in the civil docket the names of the parties mailed the copies, with date of mailing. Failure of the clerk to comply with this rule does not affect the validity of the appeal.

This step I'm at right now is composing my Notice of Appeal.

The form on my state's RCP Appendix of forms that is to be used in accordance with Rule 73.03 is:

KENTUCKY RULES OF CIVIL PROCEDURE
Appendix of Official Forms

FORM 22 NOTICE OF APPEAL UNDER RULE 73.03

Notice is given that C.D. and E.F., defendants [and third-party plaintiffs] in this proceeding, hereby appeal to the [name of appellate court] [from the order (describing it)] [from the final judgment] entered by this court on
__________, 19___.

The name(s) of the appellee(s) against whom this appeal is taken is are A.B., plaintiff and X.Y., third-party defendant]

John M. Query

____________________________
John M. Query
2011 St. Clair Street
Frankfort, Kentucky 40601
Attorney for Appellants, C.D.
and E.F.

So this is how I came up with what I put in my initial post. It seems I should be using this format as my Notice of Appeal according to my state's RCP?

Thoughts given this information?


« Last Edit: April 19, 2012 12:05:25 AM by lisser »

cprems

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lisser

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Re: Notice of Appeal critique
« Reply #14 on: April 19, 2012 01:22:53 AM »
Something I found - https://www.eff.org/files/filenode/ky_v_domainnames/Notice%20of%20Appeal.pdf

http://www.kyed.uscourts.gov/forms/6ca3-noa.pdf

http://forms.justia.com/kentucky/federal/district-court/eastern-district/notice-of-appeal-15946.html

Not sure if it will help or not.

Thank you!

I can't find any appeals on the judge in my case from yesterday.

Certainly someone has appealed his decisions at some point?

I've searched the KY COA and KSC site and google scholar and I can't find anything.
« Last Edit: April 19, 2012 01:39:18 AM by lisser »

 

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