Time for an appeal.

You lost.

Badly. (Bigly?)

It wasn’t even close. You’ll even be paying the other side’s fees.

It’s okay. It happens.

That’s what appeals are for. Courts don’t always get it right. I’m sure your Court got it wrong.

Don’t worry, you’ll get a chance to turn things around with three new judges on appeal. I’m sure they’ll see things your way.

But wait…

Before you rush off to the Court of Appeals, make sure you have a “final” (read: appealable order).

Of course I do. I lost. Stop rubbing it in.

What about those attorney’s fees.  Did the Court “fully determine” the award?  Sure you’re going to pay something, but has the court decided how much? Or is the amount of the award still under advisement until the other side writes up their wish list?

If you don’t yet know just how bad that fee award will be, your appeal may have to wait until you have a “final” order.

When is an order “final?”

By way of background, it’s a basic premise of civil appeals that ordinarily appeals can only be made from “final” orders. (For an overview of appealing non-final orders see appellate guru Eric Magnuson’s Minnesota Lawyer article on extraordinary writs (sub. req.))

A final order includes, orders:

(a) from a final judgment, or from a partial judgment entered pursuant to Minn. R. Civ. P. 54.02

(b)  from an order which grants, refuses, dissolves or refuses to dissolve, an injunction;

(c)  from an order vacating or sustaining an attachment;

(d)  from an order denying a new trial, or from an order granting a new trial if the trial court…;

(e) from an order which, in effect, determines the action and prevents a judgment from which an appeal might be taken;

(f) from a final order or judgment made or rendered in proceedings supplementary to execution;

(g) except as otherwise provided by statute, from a final order, decision or judgment affecting a substantial right made in an administrative or other special proceeding;

(h) from an order that grants or denies modification of custody, visitation, maintenance, or child support provisions in an existing judgment or decree;

(i) if the trial court certifies that the question presented is important and doubtful, from an order which denies a motion to dismiss for failure to state a claim upon which relief can be granted or from an order which denies a motion for summary judgment; and

(j) from such other orders or decisions as may be appealable by statute or under the decisions of the Minnesota appellate courts.

See Minn. R. Civ. P. 103.03.  Particularly important here, to truly be “final” an order needs to completely resolve all the separate, independent claims.

By contrast, ancillary or collateral claims akin to “taxation of costs” or “sanctions” don’t impact an order’s finality. See Kellar v. Von Holtum, 605 N.W.2d 696, 700 (Minn. 2000)T.A. Schifsky & Sons, Inc. v. Bahr Constr., LLC, 773 N.W.2d 783 (Minn.2009). Even though such issues may not yet be resolved, you can appeal anyway confident that your order is still “final.”

Independent v. ancillary

So, at the risk of asking the obvious, is your attorney fee award going to slow the otherwise inexorable momentum of your brilliant appeal?

In a word, yes.

In a recent pair of opinions (albeit decided four years apart) the Court of Appeals held attorney fee awards in family law actions (awards typically governed by Minn. Stat. § 518.14), are separate claims that need to be fully resolved before an order is final and thus appealable.  See In re Marriage of Baertsch v. Baertsch, — N.W.2d –, No. A16-1279 (Minn. Ct. App. 2016) (regarding conduct-based fee awards); Phillips v. LaPlante, 823 N.W.2d 903, 907 (Minn. App. 2012) (regarding need-based fee awards).

In other words, until that need or conduct-based fee award is “fully determined,”–including the amount–your order is not yet final, and thus can’t be appealed.

Why, you may ask. How is fee award under § 518.14 any different from those sanctions and costs that don’t impact finality? The answer is all about how you win.  Need and conduct-based fees under § 518.14 can be awarded whether or not you prevail on other claims, making them “independent” of the other actions.

Sure, you may not have brought the claim for fees but for that divorce, or child support modification, or custody case. But you can win on fees, without winning anything else.  That makes your fee award “independent,” and means it will need to be fully resolved before you get a bite at the appellate apple.


You should be.  Appeals and appellate deadlines aren’t for the weak-of-heart, or the inexperienced.

But if you insist on making this appeal a DIY project, check out this former Chief Justice Magnuson’s field guide on spotting final orders and their doppelgänger.
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