Alabama Appellate Watch

In this new case from the Alabama Court of Civil Appeals, Rogers v. Gann, case No. 2060166, released June 15, 2007, the court shows the importance of properly creating a record for your appeal.  In Rogers, the petitioner's action to recover overpayment for child support was dismissed for lack of prosecution.  The action was filed in April, 2005, and trial was continued on a couple of occasions.  The case was again continued from April 2006 trial setting.  Then, on September 18, 2006, the trial court dismissed the case, with prejudice, for lack of prosecution, noting that there had been no action in the case "since April 18, 2006 and the letter of this Court dated May 17, 2006 to the attorneys."  The petitioner appealed, claiming that the trial court abused its discretion.  The Court of Civil Appeals affirmed, noting that the record did not state why the action was not tried in April 2006, did not contain the May 17 letter from the trial court, and did not contain anything about what happened between April 2006 and the dismissal.  The Court of Civil appeals held that "since the burden is, indeed, on the appellant to ensure that the record affirmatively establishes that he is entitled to a reversal, we have no choice but to affirm the trial court's judgment in this case."

Also of note is the court's discussion of the timeliness of the appeal.  After his petition to recover overpayment was dismissed, the petitioner filed a "Motion to Reinstate."  The court treated this motion as a Rule 59(e) motion, and therefore the motion tolled the appeal time.  After the trial court denied the motion to reinstate, the petioner filed a "Motion to Amend."  This was treated as an improper motion to reconsider the denial of the first postjudgment motion, and was therefore a nullity.  However, because the appeal was filed within 42 days of the denial of the first postjudgment motion, the appeal was timely.