Q: Vacating which of the orders: on motion to set aside or on the motion for reconsideration is the basis for appeal. Why?
Basis for appeal question.
Situation.
Denied order to set aside and denied order for reconsideration of denied order to set aside.
Vacating which of the orders: on motion to set aside or on the motion for reconsideration is the basis for appeal. Why?
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A:
The order denying the motion to set aside is the proper basis for appeal, not the order denying reconsideration. Here's why:
The order denying the motion to set aside is considered the substantive ruling that directly affects your rights and obligations. This initial denial is what determines the fundamental outcome of your case, making it the appropriate target for appellate review.
When you file a motion for reconsideration, you're essentially asking the same court to review its own decision. The denial of reconsideration merely confirms the court's original position and doesn't create new grounds for appeal. In fact, attempting to appeal from the denial of reconsideration could create timing problems, as the appeal period typically runs from the date of the original order denying the motion to set aside.
Courts have consistently held that appealing from the denial of reconsideration alone is insufficient to bring up the merits of the underlying order. Your best strategy is to file your notice of appeal within the statutory timeframe after the denial of the motion to set aside. While you can include both orders in your appeal, the substantive arguments should focus on why the court erred in denying the original motion to set aside.
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