appeal dismissal - late filing

[jenanderson]

What is the name of your state (only U.S. law)? Arkansas
We were appealing a denial for relocation with minor children; went through the process as far as submitting the brief at which point the counter-party submitted a motion to have the case dismissed based on late filing (2 days after deadline). We were not made aware that any deadline had been missed. When we received this notification, our lawyer said that there was little risk of this happening, but within 2 weeks, we received notification from him that the case had been dismissed, and that the Court of Appeals would not hear our case.
We have invested approximately $10K in this, and it is difficult for me to believe that we are not due some restitution from the attorney for continuing with our case (and costs), when it was really a moot point. Any thoughts/advice? If the attorney refuses to refund some portion of our money, do we have any recourse, and if so, what?
Sincerely appreciate any good advice.

 

[KmanStuck]

The time limits are not flexible .. you miss your appeal time & its dismissed, every time.

Its impossible from this end to give any advice really as all the information needed to look at is not here.

If your attny told you 1 day after the deadline that he could work on an appeal then you may have a claim against the attny, maybe.

 

[tranquility]

Blowing a deadline by an attorney is almost per se malpractice.

 

[Tex78704]

I agree that blowing an appellate filing deadline would most often rise to the level of malpractice. But this seems to be one of those errors that is not overly blatant or obvious. The devil is in the details in appellate practice.

Looks like the appeals court dropped the ball on this too, since they normally verify appeals are timely filed, to avoid wasting time on an appeal they lack jurisidiction over.

In your case, the court of appeals dismissed for reasons other than what your ex argued. Which is why your attorney felt you had a good chance of your ex's motion not being granted. But after reviewing the filing, the appeals court apparently found a different reason to dismiss, and had no choice but to dismiss it.

After reviewing the Opinion, it appears your attorney erred by counting 30 days from the day the judge overruled the last post-judgment motion, which is generally how that is done.

But since the court filed its denial of the motion 35 days after you filed your motion, it gave a false illusion that you had 30 days after that. This is because the motion was automatically overruled by operation of law at 30 days, and for what reason the judge would file a moot denial 5 days after it was already denied is unclear. But that does not change the rule.

But as to why you waited just a little more than two months to file an appeal, and how much time you gave your attorney to file it, only you know. The sticker shock of the cost of an appeal causes most folks to take awhile to think about it. Then when they do decide at the last minute and fork over the retainer, it's rush rush rush, and mistakes get made.

Nevertheless, that's not your fault. Since this was a mistake your attorney should have caught, he should bite the bullet and not charge for his time in pursuing this appeal. He would probably lose if you push this issue, so he should be willing to concede this point. If he does not, consider talking to another attorney to discuss your options.

Beyond this, if the appeal was not dismissed, it would have cost you more by the time it was all said and done. Hopefully your attorney gave you a reality check that the odds of having a trial court's denial of a relocation overturned by a state court of appeals is pretty darn close to nil.

So not having to wait another six months to get a ruling that only affirms the lower court ruling, and actually getting back any part of the money already spent on that appeal, may actually be a blessing. If you do get any money back, take the kids to Disney World or a nice road trip this summer.

 

[Ohiogal]

What is the name of your state (only U.S. law)? Arkansas
We were appealing a denial for relocation with minor children; went through the process as far as submitting the brief at which point the counter-party submitted a motion to have the case dismissed based on late filing (2 days after deadline). We were not made aware that any deadline had been missed. When we received this notification, our lawyer said that there was little risk of this happening, but within 2 weeks, we received notification from him that the case had been dismissed, and that the Court of Appeals would not hear our case.
We have invested approximately $10K in this, and it is difficult for me to believe that we are not due some restitution from the attorney for continuing with our case (and costs), when it was really a moot point. Any thoughts/advice? If the attorney refuses to refund some portion of our money, do we have any recourse, and if so, what?
Sincerely appreciate any good advice.

Are you the parent or stepparent?