Designating the Order On Appeal

A friend recently asked whether a Notice of Appeal that only designates an order denying reconsideration also appeals the underlying order. I got queasy without knowing why. Then I remembered my personal experience with this from the early 1990s.

My old law firm once had a nationwide practice representing property owners  whose buildings contain asbestos. We filed suit for one of them in Mississippi. The district court dismissed the action, ruling that the statute of repose had run.

Head in HandsThen the wrinkle. When I drafted the Notice of Appeal, I only designated the order refusing to reconsider the underlying dismissal. I did not designate the underlying dismissal. Opposing counsel immediately jumped on it, arguing that the order denying reconsideration was the only order on appeal. From there, counsel argued that the only issue on appeal was whether denying reconsideration was an abuse of discretion. If he was right, we could not get the Court to review the underlying order on its merits.

Sleepless nights ensued until I found Foman v. Davis, 371 U.S. 178 (1962). In Foman, the Court held that a Notice of Appeal which designated an order denying a motion to vacate a dismissal also appealed the underlying dismissal. The Court reasoned that the intent to appeal both orders was manifest, and the party defending the appeal was not prejudiced.

Thankfully, the Fifth Circuit agreed with me that Foman applied and held that our Notice of Appeal appealed the entire case. Trust Co. Bank v. United States Gypsum Co.950 F.2d 1144, 1147-1148 (5th Cir. 1992).

South Carolina law is the same. In Weatherford v. Price, 340 S.C. 572, 532 S.E.2d 310 (Ct.App. 2000), a Notice of Appeal on its face only appealed the denial of a motion to reconsider without appealing the underlying order. But both orders were attached to the Notice as orders being appealed. The Court held that the failure to designate the underlying order was a forgivable, nonprejudicial clerical error.

The Supreme Court later agreed. It reinstated an appeal where the Notice only appealed the denial of a Rule 59(e) motion to reconsider without appealing the underlying order. The Court remanded for the Court of Appeals to consider both orders. Woods v. Breakfield, No. 2011-MO-039 (S.C. Sup.Ct. filed Dec. 19, 2011).

Has anyone else run across a Notice of Appeal with incomplete designations?

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