Posted on October 16, 2007 by Nikaa Jordan

A Motion to Alter or Vacate a Discovery Order Does Not Extend the Presumptively Reasonable Time Within With to File a Mandamus Petition

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.  

The parties below were embroiled in the discovery stages of a workers' compensation action.  During the course of discovery, the petitioner requested that the respondent produce a certain videotape.  The respondent objected. At a status conference, the trial court ordered that the respondent would be allowed to take the petitioner's deposition before it was required to produce the videotape.  Subsequently, the petitioner filed a "motion to vacate or modify" the trial court's order.  The trial court denied the motion on May 15, 2007. The petitioner filed her petition for a writ of mandamus on June 20, 2007. 

The court held that it had no appellate jurisdiction.  The petition was filed 68 days after the trial court entered the order allowing the respondent to depose the petitioner. The motion to alter or vacate did not work to extend the presumptively reasonable time within which the petitioner could have filed her petition for writ of mandamus.  The court pointed out that "unlike a postjudgment motion following a final judgment, a motion to reconsider an interlocutory order does not toll the presumptively reasonable time period that a party has to petition an appellate court for a writ of mandamus."

Although a mandamus petition not filed within the presumptively reasonable time period may be considered if accompanied by a statement of the circumstances constituting good cause for the untimeliness, the petitioner did not include such a statement.  Accordingly, it was dismissed.

 
Tags: , , , , ,
Posted on October 16, 2007 by Nikaa Jordan

Denial of a Motion to Reconsider a Stay is Interlocutory

The Court of Civil Appeals dismissed the wife's appeal from a divorce decree in Norman v. Norman, No. 2060587, released October 12, 2007.   In that case, the trial court entered a judgment of divorce awarding custody of the parties' children and ordering the father to make child support payments.  The mother filed a motion to modify the child support obligations and for contempt.  The father answered and filed a motion to stay pursuant to the Servicemembers Civil Relief Act, claiming that he was engaged in active military service.  The trial court granted the motion to stay.  The mother filed a motion to reconsider the trial court's order granting a stay.  The trial court denied that motion on February 22, 2007 and the mother appealed on March 29, 2007. 

  

In determining whether it had appellate jurisiction, the court noted that an order denying a motion to reconsider a motion to stay is not a final, appealable order and is therefore an interlocutory order.  Accordingly, the court lacked jurisdiction to hear the appeal. 

Although the court noted that it may elect to interpret an appeal from an interlocutory order as a petition for a writ of mandamus, it declined to do so. The mother's appeal was filed outside the presumptively reasonable time period of 42 days and the motion to reconsider did not extend the presumptively reasonable time within which the mother could have petitioned for a writ of mandamus.  Therefore, even if the court did elect to treat the interlocutory order as a petition for a writ of mandamus, it could not hear the matter because it was not timely filed.

The appeal was dismissed.

Tags: , ,
Posted on July 3, 2007 by Craig N. Rosler

Remand to Juvenile Court Not A Final Judgment: Supported Neither Appeal Nor Mandamus

By remanding a custody dispute to juvenile court, the circuit court did not enter a final judgment that would support an appeal.  The juvenile court's assertion of jurisdiction, which did not adjudicate custody, moreover would not justify a writ of mandamus.   E.E.K. v. Jefferson County Dept. of Human Resources, No. 2050733 (Ala. Civ. App. June 29, 2007). The juvenile court entered an order asserting "temporary emergency jurisdiction" over a custody dispute. The order directed a study of the children’s home but did not adjudicate custody. The juvenile court wrote that either party could appeal the decision to the Court of Civil Appeals.

The mother appealed to the circuit court.  That court ruled that the temporary jurisdiction order was nonfinal, and remanded the case to juvenile court.  The mother then sought review in the Court of Civil Appeals.

The Court of Civil Appeals first determined that it lacked appellate jurisdiction. The court wrote: “A ruling by a circuit court that it does not have jurisdiction to conduct a trial de novo remanding the case to the juvenile court is not a final judgment . . . .”

The Court of Civil Appeals then discretionarily treated the appeal from an interlocutory order as a petition for a writ of mandamus. Under a mandamus analysis, though, the mother failed to show she had a “clear legal right to appeal to the circuit court.”  Rule 28 of the Alabama Rules of Juvenile Procedure authorizes appeals from “final judgment[s]” of the juvenile court.  The order in question only asserted the juvenile court’s jurisdiction over the case; it “did not establish custody [of the children] in either party.”  It therefore was not final.  This conclusion was not affected by the juvenile court’s statement that the parties could appeal its decision.  “[W]hether a judgment is final, and thus appealable, does not depend on the trial court’s characterization of the order; rather, it depends on whether the judgment sufficiently ascertains and declares the rights of the parties.”  The order in question did not do so.  The Court of Civil Appeals thus denied the petition.

(A second appeal was dismissed as moot in this consolidated disposition.  That other case, in this author’s view, reflected no appellate principle of sufficient general interest to warrant summarizing here.)
Tags: , , ,