Amended complaint filed pursuant to Ala. R. Civ. P. 78 defeats finality of judgment
In Parris, the trial court granted the defendant's motion to dismiss the plaintiff's complaint for failure to state a claim without a hearing. The order was silent on the plaintiff's ability to file an amended complaint. Ala. R. Civ. P. 78 provides that "[u]nless the court orders otherwisem, an order granting a motion to dismiss shall be deemed to permit an automatic right of amendment of the pleading to which the motion is directed within ten (10) days from service of the order." Pursuant to Rule 78, plaintiff filed an amended complaint 7 days after the dismissal.
The plaintiff then moved the trial court to reconsider and set aside the order dismissing the case. The trial court denied the motion. In the order denying the motion to set aside, however, the trial court neither denied leave to file the amended complaint nor dismiss the amended complaint.
The plaintiff appealed. Although neither party raised the issue, the Court of Civil Appeals dismissed the appeal. Because the plaintiff had the automatic right to file an amended complaint, and the amended complaint was not dismissed, it was still pending. Thus, the judgment was not final, and the appellate court lacked jurisdiction to hear the appeal.
