Alabama Appellate Watch

Because the filing of a timely notice of appeal is a jurisdictional act, and because the defendants did not file their notice of appeal within 42 days of the trial court's disposition of their postjudgment motion, the Court of Civil Appeals dismissed defendants' appeal ex mero moto. Holmes v. CitiFinancial Corp., L.L.C., No. 2060467 (Ala. Civ. App. August 3, 2007). Defendants appealed from a summary judgment in favor of the plaintiff. Ten days after the trial court granted summary judgment, defendants filed a Rule 59(e) motion to alter, amend or vacate the judgment. Less than two weeks after filing the postjudgment motion, defendants filed a pleading in which they stated that they were withdrawing the Rule 59 motion. The following day, the trial court entered an order granting the defendants' motion to withdraw their Rule 59 motion and a second order stating that defendants’ Rule 59 motion was moot. Defendants filed their notice of appeal 44 days after the trial court entered the orders regarding the Rule 59 motion.

With minor exceptions, an appellant must file a notice of appeal within 42 days of the entry of a final judgment. Ala. R. App. P. 4(a)(1). ARAP 4(a)(3) suspends the time for filing a notice of appeal when the appellant files a postjudgment motion under Rule 50, 52, 55 or 59 of the Alabama Rules of Civil Procedure. When the appellant files a postjudgment motion, the time for filing a notice of appeal begins to run when the trial court rules on the postjudgment motion or when the postjudgment motion is denied by operation of law under ARCP 59.1.

In this case, the 42nd day after the trial court ruled on the defendants’ notice of withdrawal their Rule 59 motion fell on a legal holiday, so the defendants had until the following day to file their notice of appeal. Defendants did not file their notice of appeal until the 44th day, so the court of civil appeals dismissed the appeal; the untimely appeal failed to invoke the jurisdiction of the appellate court.