Often, an appellate practitioner must contend with a motion for reargument made in the lower court and its effects on the appellate process. Such a motion can complicate an otherwise straightforward appeal. Fortunately, however, most complexities can be resolved comfortably by keeping several key principles in mind.
No appeal lies from the denial of reargument
If the court’s order denies reargument and adheres to the prior, underlying order, with no discussion, the order on reargument cannot be appealed. It is, therefore, a mistake to rely solely on the reargument procedure to change an unfavorable outcome, and an appeal from the prior order should be timely noticed. Further, even if an appeal from the prior order was timely taken, one still must be careful about timing. The time for the trial court to decide a reargument motion may outstrip the time permitted to perfect an appeal from the underlying order. If it does, and the practitioner wants to wait and see whether reargument may moot an appeal, he or she must secure a timely enlargement of the time to perfect the appeal from the underlying order.
An appeal may lie from an order that grants reargument but adheres to the underlying order
In these situations, the savvy practioner will often appeal the order granting reargument and affirming the prior decision, along with the appeal from the prior order. In effect, so doing expands the record on appeal to include the reargument motion documents, some of which may not be part of the underlying motion. The party must be careful to extend the deadline to perfect the appeal from the underlying order, because the outcome of a reargument motion often will not be known until after the original deadline to perfect the underlying appeal passes. It can be important to preserve both appeals, because sometimes a practitioner overlooks including all papers of the underlying motion. In that event, the record may lack important documents from the underlying motion.
When the order purports to deny reargument but provides rationale in support of the original order.
Strictly speaking, such an order is not appealable. However, some authority suggests that a party may have an appeal under these circumstances. The safest way forward for a party with an order that is ambiguously appealable is to appeal from it and to let the appellate court decide if there is a permissible appeal. To the extent the reargument motion documents contain important information, an appeal from such an order can benefit the overall appeal. If the appellate court dismisses the appeal from such an order, it probably was worth the attempt.
An order on a mixed motion for renewal and reargument may be appealed
Such an order may be appealed as to all issues related to renewal and insofar as it grants reargument but adheres to the underlying order. The principle stated here simply reinforces and supplements the immediately preceding principle, acknowledging that an appeal may be taken from certain orders on reargument, and adding that an appeal may be taken from any part of an order that concerns renewal. As with orders granting reargument but adhering to the prior order, preserve the appeal from the original order to ensure the record on appeal may include all documents that may be important for the appeal.
The impact of a motion for reargument on a non-moving party should be noted
When the court grants reargument or renewal and reverses or modifies the original order, the non-moving party may suddenly become aggrieved. That party may then appeal the renewal or reargument order. As for the moving party, such an order may moot its appeal from the underlying order, but if it does so only in part, the moving party may maintain the original appeal and add to it an appeal from the reargument order.
The non-moving party should also take care when receiving a motion for reargument. Counsel must scrutinize the motion to ensure it contains all papers from the underlying motion. If it does not, the opposition papers should add any excluded items to cover the possibility that the non-movant will have to appeal the reargument order. An incomplete record on reargument is something that is often recognized only after the fact, but a careful review of the papers filed on reargument can help to avoid this pitfall.
Author’s final thought…
A motion for reargument no doubt can complicate an otherwise straightforward appeal. However, the principles outlined above can help an appellate practitioner anticipate and avoid potential problems and work around those that arise. For more specific issues concerning your appeal and motions for reargument, it helps to have one of the experienced Appellate Counsel at Counsel Press on your side. Please contact me with any questions regarding preparing and filing any appeal.
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