Rule 59.1 Extensions Squandered
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).
This divorce case involves two familiar rules: Rule 59.1 of the civil procedural rules, and Rule 4(a)(1) of the appellate rules. Rule 59.1 denies by operation of law any post-judgment motion made under Rules 50, 52, 55 or 59, that is not ruled upon and remains pending for more than 90 days. Rule 59.1 also allows the parties to extend this 90-day deadline to avoid an automatic denial. Rule 4(a)(1) of the appellate rules sets the basic 42-day deadline for filing an appeal.
The Court of Civil Appeals dismissed the case as untimely. “At the very latest,” the appellate court explained, “the husband’s postjudgment motion was denied by operation of law, pursuant to Rule 59.1 and the parties’ agreement, on July 12, 2007. The husband had 42 days from that date — i.e., until August 23, 2007 — to appeal. The husband appealed on September 8, 2007, after the time allowed by Rule 4(a)(1).” (Citation omitted.) The husband’s late appeal did not invoke the jurisdiction of the appellate court, which was compelled to dismiss his case.