A physician missed administrative and judicial deadlines for appealing a decision of the Alabama State Board of Medical Examiners. On its own motion, the Court of Civil Appeals dismissed his appeal. Brunson v. Ala. State Bd. of Med. Examiners, No. 2090751 (Ala. Civ. App. Mar. 25, 2011).
Continue Reading...The Alabama Supreme Court rejected the appellees' contention that an appeal from a default judgment in Progress Industries, Inc. v. Wilson, No. 1080578 (June 30, 2010), was untimely. The plaintiffs argued that the 42 day period for appeal under ARAP 4 started following the date on which the trial court entered an order assessing damages for the default judgment. The Court disagreed: "[a] judgment by default, rendered in advance against one of several defendants, is interlocutory until final disposition is made as to all the defendants. Ford Motor Credit Company v. Carmichael, Ala., 383 So.2d 539 (1980). Interlocutory orders and judgments are, therefore, not brought within the restrictive provisions of Rule 60(b), Alabama Rules of Civil Procedure, which provides for relief from final judgments. Instead, such orders are left within the plenary power of the court that rendered them to afford relief from them as justice requires." Progress Industries (quoting Hallman v. Marion Corp., 411 So.2d 130, 132 (Ala. 1982)). The Court held that the time for filing an appeal began to run from the date that the trial court certified the default judgment under ARCP 54(b), and the ARCP 55(c) motion to set aside the default that the defendant filed within 30 days of the 54(b) certifiation tolled the time for appeal until the the defendant's 55(c) motion was denied by operation of law 90 days later pursuant to ARCP 59.1
Because a second-filed postjudgment motion does not toll the time for filing a notice of appeal, the Alabama Court of Civil Appeals dismissed the appeal in C & D Logging v. Willie Mobley, No. 2080659, released November 20th.
Continue Reading...In RJG v. SSW, [Ms. 2080509] (Ala. Civ. App. Aug. 21, 2009), the Court of Civil Appeals dismissed a portion of a father's appeal in a parental rights action as untimely. On November 6, 2009, the Court of Civil Appeals issued a new opinion of rehearing again dismissing the appeal, explaining that the appeal was not made timely by the fact that the underlying case was part of an action that had been consolidated. RJG v. SSW, [Ms. 2080509] (Ala. Civ. App. Nov. 6, 2009).
Continue Reading...In R.J.G. v. S.S.W., [Ms. 2080509] (Ala. Civ. App. Aug. 21, 2009), a portion of a father's appeal was dismissed as untimely as a result of the short deadlines for appeals from a juvenile court. Unlike in Circuit Court, post-judgment motions in a juvenile court must be filed within 14 days of the entry of the order. Ala. R. Juv. P. 1(B). And, a post-judgment motion in a juvenile court will be denied by operation of law after 14 days, Ala. R. Juv. P. 1(B), as opposed to 90 days under Ala. R. Civ. P. 59.1. Finally, appeals from a juvenile court must be made within 14 days of the entry of judgment or denial of the post-judgment motions. Ala. R. App. P. 4(a)(3). The father did not appeal within 14 days after the post-judgment motion was denied by operation of law, so, the appeal in one of the two cases at issue in the opinion was denied as untimely.
The defendant filed his notice of appeal more than a year after the filing deadline. His appeal was dismissed for want of appellate jurisdiction. Bedgood v. McConico, No. 2080060 (Ala. Civ. App. July 10, 2009).
Continue Reading...Following the entry of final judgment in a wrongful death action, the defendant filed two post-judgment motions, neither of which suspended the 42 day period for filing a notice of appeal. ARAP 4(a). The Rule 62 motion to stay in which the defendant requested time to consider filing a Rule 59 motion did not satisfy the requirements of ARAP 4(a)(3). Although the Court, “looks to the essence of a motion, not necessarily to its title, to determine how the motion is to be considered under the Alabama Rules of Civil Procedure . . ., [c]onsistent with Rule 4(a)(3), Ala. R. App. P., the Committee Comments on 1973 Adoption of Rule 62 plainly state that the stay provided for in the rule ‘does not affect appealability of the judgment nor prevent the time for appeal from running.’” Graves v. Golthy, No. 1070422 (Ala. April 17, 2009).
Continue Reading...In Dulaney v. Dulaney, released last week by the Court of Civil Appeals, the court held that the mother's notice of appeal was untimely filed even though the trial court failed to enter the order into SJIS and she did not otherwise have notice of it.
Continue Reading...A homeowner filed a notice of appeal that was not on the Form 1 contained in the Alabama Rules of Appellate Procedure. Moreover, she mistakenly filed her notice in the county’s district rather than circuit court. However, her notice contained all the information required by law, and the district and circuit courts shared the same clerk. Her notice thus effected a timely appeal. Whorton v. Bruce, No. 2070501 (Ala. Civ. App. Feb. 20, 2009).
Continue Reading...The Court of Civil Appeals dismissed the bulk of the appellant's appeal in Watson v. Whittington Real Estate, LLC as untimely filed.
Continue Reading...In Eldridge v. Eldridge, the Alabama Court of Civil Appeals dismissed an appeal in a case originating in the probate court as from a void judgment because postjudgment motions in the probate court were not timely filed.
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On January 16, 2009, the Alabama Court of Civil Appeals dismissed Rhodes v. Fulmer, Case No. 2070664, as untimely filed.
In Williamson v. Foutrth Avenue Supermarket, Inc., [Ms. 1070771] (Ala. Jan. 9, 2009), the Alabama Supreme Court dismissed an appeal as untimely, and clarified that a post-judgment motion is denied by operation of law on the 90th day after filing, not the 91st.
Continue Reading...In Ex parte CJA [Ms. 2070994] (Ala. Civ. App. Jan. 9. 2009), the Court of Civil Appeals denied a petition for writ of mandamus because it was filed after the presumptively reasonable time to appeal, and did not state good cause for failing to file it within the reasonable time. Further, the fiing of a "motion to set aside" the original order did not toll the time in which a mandamus may be filed. The court, however, also went on to discuss the merits of the petition, and said it was due to be denied on that basis as well. Judges Moore and Thomas dissented, saying that because the petition was untimely, it should be "dismissed" instead of "denied," and there was no needto discuss the merits of the petition.
In Williams v. Lollar, [Ms. 2070282] (Ala. Civ. App. Nov. 7, 2008), the probate court entered a judgment on a will contest. The appellant filed a post-judgment motion, whcih was denied by operation of law. After the motion was denied by operation of law pursuant to Rule 59.1, the probate court ruled on the post-judgment motion. The appellant then appealed the ruling on the post-judgment ruling to the Circuit Court, which affirmed the probate court. The appellant then appealed the Circuit Court's ruling. The Court of Civil Appeals held that the probate court lost jurisdiction to act after the post-judgment motions were denied by operation of law, and the appeal to the Circuit Court was untimely because it was not filed within 42 days of the denial by operation of law. Because the appeal to the Circuit Court was untimely, the Circuit Court did not have jurisdiction and, therefore, the order affirming the probate court was void. And, because a void judgment will not support an appeal, the appeal of the Circuit Court's order was dismissed.
A defendant found no relief from judgment under Rule 60(b)(6) where he had obtained the document supporting his plea for relief six years before he filed his motion. Price v. Clayton, Nos. 2070728, 2070755 (Ala. Civ. App. Oct. 31, 2008). The trial court’s denial of the recusal-based 60(b)(6) motion was affirmed.
Continue Reading...The trial court held a hearing but “did not expressly rule” on a father’s postjudgment motion. Under Rule 59.1, that motion was consequently denied by operation of law 90 days after its filing. An appeal lodged 43 days after the automatic denial was late. Smith v. Smith, No. 2070435 (Ala. Civ. App. Sept. 26, 2008). An earlier order which had “granted the motion in part” — but had really only set it for hearing — was not a “ruling” within the meaning of Rule 59.1.
Continue Reading...When a party is not notified of an appealable order, the only way to extend the time to appeal is by a Rule 77(d) extension, not a Rule 60(b) motion. In Gullett v. Gullett, [Ms. 2070007] (Ala. Civ. App. Sept. 12, 2008), the Court of Civil Appeals dismissed an appeal as untimely where the appellant incorrectly filed a Rule 60(b) motion for relief from judgment instead of seeking a Rule 77(d) extension.
Continue Reading...The pitfalls of Rule 59.1 are on display in Scott v. Lenoir, [Ms. 2040891] (Ala. Civ. App. Sept, 12, 2008), and an appeal was dimsissed as untimely.
Continue Reading...A father’s error in appealing from a void judgment in a custody dispute did not raise “exceptional circumstances” that would warrant granting his motion under Rule 60(b)(6). Nor did the parties’ cross-appeals prevent the father from filing a timely Rule 60(b)(1) motion. The Court of Civil Appeals denied the father’s application for rehearing, thus affirming the denial of his post-judgment motion. Hobbs v. Heisey, No. 2070085 (Ala. Civ. App. Aug. 29, 2008).
Continue Reading...The Court of Civil Appeals rejected an employer’s bid to reverse a workers’ compensation award in two consolidated proceedings. The employer’s petition for mandamus was denied as late — the employer having not shown “good cause” for its delay in filing the petition. The employer’s appeal was dismissed as being from a non-final judgment. Ex parte C & D Logging, Nos. 2070159, 2070198 (Ala. Civ. App. Aug. 29, 2008).
Continue Reading...In Djibrine v. State Farm Mut. Auto. Ins. Co., [Ms. 2070518] (Ala. Civ. App. Aug, 22, 2008), the Court of Civil Appeals reversed the Circuit Court's dismissal of an appeal from the district court as untimely.
Continue Reading...In Horton Homes, Inc. v. Shaner, Ms. 1061659, 1061741 (Ala. June 20, 2008), the Alabama Supreme Court attempted to clarify the procedure for appealing an arbitrator's decision. Specifically, in its Per Curiam opinion, the Court "address[ed] two aspects of that procedure, namely: (1) the time period for filing an appeal of an arbitration award, and (2) the role of the circuit court in reviewing that arbitration award." Slip Op. p. 2-3.
In short, a party has 42 days from the date of receipt of notice to file an appeal of the arbitrator's award in the circuit court. Further, a party challenging an award is required to file a motion to vacate the award, and that motion is subject to the procedures of Ala. R. Civ. P. 59 and 59.1.
Continue Reading...A circuit court could not revise a judgment nunc pro tunc, so that the dates would retroactively cure a husband’s late appeal. Smith v. Smith, No. 2061150 (Ala. Civ. App. Apr. 11, 2008).
Continue Reading...The rule that an untimely appeal must be dismissed required the dismissal of the appeal of a paternity action in J.B.C. v. P.H.R, [Ms. 2061131] (March 21, 2008). In an action to determine paternity, an appeal mustbe filed within 14 days of the order in issue; however, in this case, the putative father filed his appeal 21 days after the order. Thus, the Court of Civil Appeals dismissed the appeal as untimely.
The Alabama Supreme Court reversed an order vacating an arbitration award because the argument that the defendant offered in support of his motion to vacate came too late. To avoid the arbitration award, the defendant submitted that he should not have been compelled to arbitrate because he was not a party to the arbitration agreement. The Court held that the defendant waived the argument; he should have raised it in an ARAP 4(d) appeal from the trial court order that directed the claims against him to arbitration. Jenks v. Harris, No. 1050686 (March 14, 2008).
After obtaining two effective post-judgment extensions under Rule 59.1, a husband failed to appeal within 42 days of the circuit court’s order, and saw his appeal dismissed as untimely. Smith v. Smith, No. 2061150 (Ala. Civ. App. Feb. 15, 2008).
Continue Reading...For yet another example of the dismissal of an appeal based on the untimely filing of a notice of appeal, see J.T. v. A.B., No. 206057.
Continue Reading...In a first decision under Ala. Code § 18-1A-283, the Alabama Supreme Court held that a condemnation order was “made” when signed, and not when it was later “recorded in the probate minutes.” An appeal filed thirty-one days after the order was signed was therefore untimely. Given the confusing language used throughout the state’s Eminent Domain Code, however, and considering the facts of the case, equity would permit the late appeal to proceed. Ex parte State (In re Boutwell v. State), No. 1050299 (Ala. Sept. 21, 2007).
Continue Reading...The Court of Civil Appeals dismissed an inmate’s appeal from various summary judgment orders because the inmate’s post-judgment motions were denied by operation of law, ARCP 59.1, and the inmate did not file his notice of appeal within 42 days of the denial of the motions.
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.
The dangers and pitfalls of a Rule 59.1 extension are on display in this case from the Alabama Court of Civil Appeals. In Traylor v. Traylor, Case No. 2060156, released June 15, 2007, the mother filed postjudgment motions relating to a custody dispute. Before the 90 day deadline to rule on postjudgment motions established by Rule 59.1 had expired, the parties filed a motion to extend time pursuant to Rule 59.1. Rule 59.1 allows the parties to extend the time in which a trial court can rule on postjudgment motions by an on the record consent of all parties. The Motion generally tracked the language of Rule 59.1, however, the motion stated that the parties agreed to extend time for the "hearing" on the motion. Although no party addressed jurisdiction, the Court of Civil Appeals dismissed the appeal ex moru motu for lack of jurisdiction. The Court of Civil Appeals quoted the Alabama Supreme Court case Ex parte Bodenhamer, 904 So. 2d 294 (Ala. 2004), in which the Court stated "consent to extend time for a hearing on a postjudgment motion does not equate to consent to extend the pendency of the postjudgment motion beyond the 90-day period prescribed by Rule 59.1, Ala. R. Civ. P." Because the Rule 59.1 extension was ineffective, the time to appeal was not tolled, and the appeal was dismissed.
So, be forewarned. A Rule 59.1 extensioon which only agrees to extend the "hearing" is ineffective. Rather, you must agree to extend the time for the pendency of the motion.
On April 6, 2007, the Court of Civil Appeals dismissed as untimely the City of Hartselle's appeal from a judgment awarding workers' compensation benefits in City of Hartselle v. Wilbanks. In the proceedings below, the trial court entered a judgment awarding the employee workers' compensation benefits on November 4, 2005. On January 10, 2006, the employee filed a motion seeking to correct the judgment insofar as it had used an incorrect date for the termination of the temporary benefits paid by the employer and had therefore incorrectly computed the benefits due the employee. The motion was granted. On January 17, 2006, the trial court entered an amended judgment reflecting the appropriate date and adjusting the computations figuring the amount of compensation due the employee. The city filed a notice of appeal on February 28, 2006, seeking review of only the propriety of the trial court's conclusion that the employee was permanently and totally disabled.
The court dismissed the appeal as untimely. First, the court noted that the initial Rule 59 motion filed by the employee was filed more than thirty days after the entry of the November 4, 2005 judgment. As a result, it did not toll the time for taking an appeal and the employer's 42 days began to run on November 4, 2005. The appeal, filed February 28, 2006 was therefore untimely and the appeal was dismissed.
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