The Case of the Lawyer Who Filed Too Soon

2 Preview of Supreme Court Cases 34 (October 1990)

U of Texas Law, Public Law Research Paper No. 375

4 Pages Posted: 23 Feb 2013

Date Written: October 7, 1990

Abstract

This article previews the issues and arguments in FirsTier Mortgage Co. v. Investors Mortgage Insurance Co., on the Supreme Court’s 1990-91 appellate docket. The issue presented In FirsTier Mortgage Co. is whether a judge's oral announcement of his decision on a dispositive summary judgment motion constituted a final judgment permitting the filing of an appeal, or whether that appeal was premature in light of the court's subsequently docketed final order.

Litigators tend to file their papers at the twenty-fourth hour, so it is a refreshing surprise to find the Supreme Court leading off this term with the case of a lawyer who allegedly filed his papers too early. In a procedural warm-up exercise, the Court will help federal practitioners resolve the dilemma of properly counting the time for filing an appeal. The Court has the opportunity to provide some bearings on what it previously has dubbed the "twilight zone" of finality.

FirsTier Mortgage is distinguished chiefly by the crispness of its facts. The Supreme Court really is being asked whether FirsTier's lawyers were justified in filing an appeal when the judge announced his adverse summary judgment from the bench, or whether they forfeited the right of appeal because of a technical docket-entry requirement. The case squarely raises the issue whether anyone was prejudiced by the technically premature notice. Although Investors Mortgage would have it so, the case appears muddied by post-trial motions that would implicate complicated tolling issues. Perhaps the best the Supreme Court can do is provide a clear and simple statutory construction on the question of bench announcements, final judgments, and appellate notice filing.

Keywords: Appellate review, time for filing appeal, ruling from bench, summary judgment, final orders, twilight of appealability, FirsTier Mortgage Co. v. Investors Mortgage Insurance Company

Suggested Citation

Mullenix, Linda S., The Case of the Lawyer Who Filed Too Soon (October 7, 1990). 2 Preview of Supreme Court Cases 34 (October 1990); U of Texas Law, Public Law Research Paper No. 375. Available at SSRN: https://ssrn.com/abstract=2222140

Linda S. Mullenix (Contact Author)

University of Texas School of Law ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States
512-232-1375 (Phone)

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