Another Appeal Dismissed Pursuant to Rule 59's "Denied By Operation of Law" Language
Eight Mile Auto Sales, Inc. v. Fair, discussed below, is yet another appeal dismissed pursuant to Rule 59’s denied by operation of law language.
Eight Mile appealed from a judgment of the circuit court denying its motion to alter, amend, or vacate an order of the district court granting a motion to stay a writ of garnishment that Eight Mile brought against Fair. After the district court stayed the writ of garnishment, Eight Mile filed a “motion to reconsider and to allow oral argument.” The same day, the district court entered an order that stated that the motion to reconsider and allow oral argument filed by Eight Mile was granted in part and set for hearing on June 1, 2007. On June 11, 2007, the district court entered an order “reinstating” the writ of garnishment, but on April 23, 2008 entered an order stating that the garnishment was dismissed and ordering that the money collected on the garnishment be returned to Fair.
Eight Mile filed a notice of appeal to the Mobile Circuit Court on April 30, 2008. On December 5, 2008, that court entered an other stating “By order of court, [Eight Mile’s] motion to vacate, alter, or amend the order issued April 21, 2008 granting motion [for] stay of garnishment denied. Case dismissed. Costs taxed as paid.” Eight Mile filed a notice of appeal to the Court of Civil Appeals on December 17, 2008.
Though not raised by either party, the Court of Civil Appeals considered whether it had jurisdiction over the appeal and concluded that it did not. Citing Rule 59.1(dc), which is identical to Rule 59.1, except that the period of 90 days is reduced to 14 days, the court noted that the district court had 14 days to rule on Eight Mile’s May 2, 2007 “motion to reconsider and to allow oral argument.” On May 7, 2007, the district court entered an order stating that that motion was “granted in part” and setting the motion for a hearing on June 7, 2007. However, the district court’s order merely set Eight Mile’s motion for a hearing; it did not grant any substantive relief or rule on the merits of the motion. Thus, that motion was denied by operation of law on May 16, 2007 and the district court was without jurisdiction to issue the June 11, 2007 order purporting to “reinstate” the writ of garnishment. The district court’s April 30, 2007 order staying the garnishment was the final judgment in the case. In order to be timely, Eight Mile’s notice of appeal to the circuit court would have had to have been filed on or before May 30, 2007, i.e., 14 days after its postjudgment motion had been deemed denied by operation of law. It was not and the appeal was therefore to be dismissed.
