An appeal is “filed” when the circuit clerk receives the notice of appeal, not when a party mails it. Because the clerk received the notice after the time for filing an appeal had elapsed, the appeal was late and was consequently dismissed D.T. v. State, No. 2070513 (Ala. Civ. App. Jun. 27, 2008).
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...In Yayman v. FIA Card Services, N.A., released May 30, 2008, the Alabama Court of Civil Appeals further clarified the procedure for appeal of arbitration awards.
Continue Reading...The circuit court lost jurisdiction once it denied an employer’s post-judgment motions under Rules 59 and 60. That denial triggered the 42 days in which the employer had to appeal. The circuit court had no power to reopen, reconsider, and again rule on the employer’s motions. An appeal taken 42 days after that second attempted ruling was dismissed as untimely. Attalla Health Care, Inc. v. Kimble, No. 2061007 (Ala. Civ. App. May 9, 2008).
Continue Reading...In Morrison v. Phillips, released May 2, 2008, the Alabama Court of Civil Appeals dismissed an appeal from a probate court judgment as untimely filed by operation of Rule 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).
A mandamus petition’s timeliness is measured from the date the trial court rules on a motion for a protective order — not from the date of its earlier order compelling production of the same material. Ex parte Nationwide Ins. Co., No. 1051502 (Ala. Mar. 7, 2008).
Continue Reading...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...In Ford v. Jefferson County and Jefferson County Juvenile Services, No. 2060169 (Ala. Civ. App. February 2, 2008), the court held that a post-trial request for costs and fees is not a post-judgment motion pursuant to Rule 59. Therefore, it was not subject to the 30-day time requirement set forth in Rule 59(e).
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...Although the date of a Rule 60(a) order correcting a scrivener's error generally relates back to the date of the original order, in Brown v. Brown, [Ms. 2050935] (Ala. Civ. App. Jan. 25, 2008) , the Alabama Court of Civil Appeals held that an appeal was timely where it was filed within 42 days of the Rule 60(a) order where that order was the first time the party knew the trial court had ruled against it.
Continue Reading...The Alabama Supreme Court conducted an unusual review of an appeal in Bright v. Calhoun, No. 1061146 (Ala. January 11, 2008). Although the issue on appeal was moot, the Court agreed to review the appeal because the issue was capable of repetition but evaded review under the circumstances of the appeal.
Continue Reading...The Court of Civil Appeals dismissed as untimely a juvenile appeal where the appellants filed a post-judgment motion before, but their notice of appeal after, both the extended deadline the juvenile court had granted under Rule 77(d), and the maximum thirty-day extension that Rule 77(d) would have allowed. F.G. v. State Dept. of Human Resources, No. 2060613 (Ala. Civ. App. Nov. 16, 2007). The appellate court also overruled its previous decisions and held that the procedural aspects of an unopposed Rule 77(d) motion can be reviewed on appeal.
Continue Reading...In Ex parte Hoyt , No. 2060858, released October 12, 2007, the Court of Civil Appeals dismissed a mandamus petition seeking review of the trial court's discovery order because the petitioner failed to file it within the presumptively reasonable time period or to include a statement of reasons as to why the court should consider the petition notwithstanding its untimeliness.
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.
Answering a question of first impression, the Alabama Supreme Court held that an amendment to the Alabama Rules of Civil Procedure applies retroactively to cases pending when the amendment was adopted. The Court issued a writ of certiorari, requiring the Court of Civil Appeals to reinstate an appeal which was timely under the Court’s recent amendment to ARCP 58(c). Ex parte Luker, No. 1051805 (August 31, 2007).
Continue Reading...A timely “posttrial” motion in the district court was effectively made under Rule 52 or 59, and thus tolled the time for noticing an appeal. An appeal filed fourteen days after disposition of that motion was timely. Larkin v. Am. Western Ins. Co., No. 2060720 (Ala. Civ. App. Aug. 24, 2007).
Continue Reading...In Ex parte Onyx Waste Services of Florida, released August 17, the Court of Civil Appeals dismissed a mandamus petition filed outside the presumptively reasonable 42 days and without a statement of circumstances constituting good cause.
Continue Reading...The Alabama Court of Civil Appeals dismissed an appeal and cross appeal from the trial court's ruling on post-judgment motions because the ruling came more than ninety days after the post-judgment motions were filed. The judgment was void and therefore would not support an appeal. For a full copy of Hobbs v. Heisey, click here.
Continue Reading...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).
Continue Reading...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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