stating that if party fails to file notice of related appeal, “the issue is not preserved for appeal and a reviewing court cannot address it”
How later courts described this case
- stating that if party fails to file notice of related appeal, “the issue is not preserved for appeal and a reviewing court cannot address it”
- stating that an issue decided adversely to respondent is not properly before this court if no notice of review is filed
- noting that respondent's failure to file a notice of review limits issues to those raised in appellant's notice of review
- declining to address an issue without a notice of review
Written by the judges who cited it.
The opinion
DAVIES, Judge
(dissenting).
I respectfully dissent.
In prior litigation it was determined that the City of Ramsey ordinance was neither facially unconstitutional nor unconstitutional as applied to Amusement Center, Inc. Holmberg v. City of Ramsey, 12 F.3d 140 (8th Cir.1993), cert. denied, — U.S. -, 115 S.Ct. 59 , 130 L.Ed.2d 17 (1994) (Holmberg I). Holmberg now contends, however, that Amusement Center’s operation is significantly different from its prior business. Holmberg seeks again to challenge — on constitutional grounds — the application of the ordinance to Amusement Center.
In my view, Amusement Center’s current off-sale operation is so significantly different from its prior on-sale business that Holm-berg should have the opportunity to again challenge the ordinance on constitutional grounds; not facially, of course, but as applied to his current operation.
The on-sale/off-sale distinction is fundamental. Amusement Center now confronts the court with an issue regarding the underpinnings of the ordinance distinct from the question faced in Holmberg I. The finding of constitutionality in Holmberg I would not be controlling as to a third party with an off-sale business; it also should not be controlling as to Holmberg in his current conduct of this significantly different off-sale business.
ILQ Investments v. City of Rochester, 25 F.3d 1413 (8th Cir.), cert. denied, - U.S. -, 115 S.Ct. 578 , 130 L.Ed.2d 493 (1994), likewise, falls short of conclusiveness on the absence of an on-sale/off-sale distinction that might be applicable to Holmberg.