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There are some significant differences between the rules governing appeals in federal court and those that govern in Connecticut state court. This column is about the dramatically different way in which the federal and state rules treat “premature appeals,” that is, appeals that are filed before a final judgment has entered in a case. What happens to a prematurely filed notice of appeal once final judgment actually enters? For appeals in federal court, F.R.A.P. 4(a)(2) supplies the answer. It provides that “a notice of appeal filed after the court announces a decision or order — but before the entry of judgment or order — is treated as filed on the date of and after the entry.” In effect, the prematurely filed notice of appeal “ripens” upon entry of the final judgment. This does not mean that a party can file a notice of appeal at the outset of the case to protect himself against the possibility that he might forget to file a timely appeal at the end of the case. The test, set forth by the U.S. Supreme Court in FirsTier Mortgage Co. v. Investors Mortgage Insurance Co., is that the party must “reasonably believe” that a final judgment has entered. Put another way, the district court must announce a decision “that would be appealable if immediately followed by the entry of judgment.” The rule is quite different under Connecticut law. In American Factors, Inc. v. Foreign Intrigue, Inc., the Appellate Court held that an appeal filed from a non-final order or judgment — a premature appeal — is void ab initio and uncorrectable. It is a meaningless piece of paper. Thus, once the court enters a final judgment, the party must file an entirely new appeal. And I mean it when I say “entirely new appeal.” If the party merely amends its original appeal, the party may very well find itself tossed out of court, which is what happened to the appellant in the American Factors case. Said the Appellate Court, the “power to permit an amendment to an appeal presupposes jurisdiction of the original appeal. Since jurisdiction is lacking in this case, the amended appeal is legally ineffective to grant the required jurisdiction necessary for a proper appeal.” For better or for worse, American Factors remains alive and well. The Appellate Court recently applied the holding in a case ( Evans v. General Motors Corp.) in which the trial court had resolved all liability and damages issues except the amount of an award of sanctions, which was to be measured by attorneys’ fees. The plaintiff filed an appeal before the sanctions issue had been resolved. When that issue was resolved, the plaintiff filed an amended appeal. The Appellate Court dismissed the appeal as untimely. Why? As I explained in a previous column, a decision resolving all issues in a case except the amount of an award of attorneys’ fees is final and must be appealed in a timely manner. Once the attorneys’ fees issue is resolved, the appellant can file a separate appeal from the judgment awarding attorneys’ fees, or it can amend its original appeal to include the attorneys’ fee issue. Unfortunately, in Evans v. General Motors, the Appellate Court decided that using attorneys’ fees as the measure of sanctions was not the same thing as awarding attorneys’ fees. Thus, the trial court’s decision did not become final until the court actually resolved the sanctions issue. Thus, the original notice of appeal was premature and void ab initio. Thus, the amended appeal was ineffective, and so on. In short, an attorney’s nightmare. Under F.R.A.P. 4(a)(2), the result would probably have been quite different. The original appeal would have been deemed filed under a reasonable, albeit mistaken, belief that a final judgment had entered, and it would have become effective once the trial court had resolved the sanctions issue. The amended appeal, therefore, would have been effective as well and the appeal would not have been dismissed. The harshness of the American Factors rule may be softened somewhat, because the failure to file a timely appeal does not deprive the Connecticut Appellate or Supreme Court of jurisdiction to hear the appeal. Therefore, a party whose appeal has been dismissed due to a defective appeal can always file a motion for permission to file a late appeal. But, there is no guarantee that the motion will be granted. Obviously, it is better to avoid having to file such a motion at all. I don’t always agree that the Federal Rules of Appellate Procedure are preferable to their Connecticut counterparts. But, when it comes to prematurely filed appeals, I cast my vote in favor of F.R.A.P. 4(a)(2). Daniel J. Klau is an appellate attorney at Pepe & Hazard. He can be reached at [email protected] .

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