Alabama Litigation Lawyer & Attorney : Lightfoot Franklin & White : Appellate, Alabama Supreme Court (Supreme Court of Alabama)

A father filed a postjudgment motion challenging an award of child support. Five days later, the trial court entered an order that “granted [the motion] in part.” In fact, this order only set the motion for a hearing. That hearing was held, but the trial court still “did not expressly rule on” the motion. Ninety days after its filing, the motion was thus denied by operation of law under Rule 59.1. The next day, the trial court entered an order purporting to deny the father’s postjudgment motion.

Forty-two days after that last order the father filed an appeal. This, of course, was 43 days after the motion had been automatically denied.

The Court of Civil Appeals dismissed the appeal as late, raising on its own motion the issue of timeliness. The court also “noted” that the trial court’s earlier order —which had nominally “granted” the father’s postjudgment motion “in part,” but had only set it for a hearing — “was not a ruling on the merits.” It therefore was not a “ruling” within the meaning of Rule 59.1.

In Carroll, the trial court entered a default judgment against Carroll in favor of Williams on a cross-claim.  Carroll filed a Rule 55 motion seeking to have the default judgment set aside, arguing only that he had a meritorious legal defense.  Carroll, however, provided no evidence other than a copy of a release from a related claim and argument.  The trial court failed to rule on the motion within 90 days, and it was denied by operation of law.

Carroll argued on appeal that the trial court erred by failing to apply the analysis required by Kirtland v. Fort Morgan Authority Sewer Service, Inc,, 524 So. 2d 600 (Ala. 1988).  Under Kirtland, a trial court has broad discretion whether to set aside a default judgment, and must consider (1) whether the defendant has a meritorious defense, (2) whether the plaintiff will be unfairly prejudiced if the default is set aside, and (3) whether the default was the result of the defendant's own culpable conduct.  Slip Op. p. 8.

The Court noted that the default party has the initial burden of demonstrating the Kirtland factors.  Here, the only Kirtland factor addressed by the defaulting party was the meritorious defense element.  Carroll did not argue that the plaintiff would not be prejudiced or that the default was not the result of its own culpable conduct.  Thus, the only relevant factor was whether Carroll had a meritorious defense.

With regard to the meritorious defense, the defaulting party must show that the "allegations in an answer or in a motion to set aside the default judgment and its supporting affidavits, if proven at trial, would constitute a complete defense to the action, or when sufficient evidence has been adduced either by way of affidavit or by some other means to warrant submission of the case to the jury." Slip. Op. p. 9, quoting Kirtland, 524 So. 2d at 606 (emphasis added by Court).  Further, the allegations "in the answer and in the motion must be more than mere bare legal conclusions without factual support." Slip. Op. p. 9, quoting Kirtland, 524 So. 2d at 606 (emphasis added by Court).

The Court found that the submission filed by Carroll failed to meet its initial burden under Kirtland.  Thus, because Carroll had not met its initial burden, the Court declined to hold the trial court in error for failing to engage in a Kirtland analysis.

In Scott, the appellant timely filed his post-judgment motions, but the trial court did not rule within 90 days.   The trial court purported to rule on the motions after the 90 day deadline of Ala. R. Civ. P. 59.1, and the appellant filed his notice of appeal within 42 days of the ruling.  The Court of Civil Appeals dismissed the appeal as untimely.  The parties did not agree to an extension of time for the trial court to rule as required by Rule 59.1, so the motions were denied by operation of law after 90 days.  The time to appeal began to run as of the date the motions were denied by operation of law and not from the date the trial court purported to rule.  Thus, the appeal was dismissed as untimely.

Much of this case finds the Court of Civil Appeals visiting familiar ground, tracing a small tangle of post-judgment dates through Rule 59.1 to an appeal that was ultimately late. This time, though, this heavily worn path took an unusual turn: The trial court revised its judgment, after the appeal was dismissed, in order to cure the late appeal. The Court of Civil Appeals found this to be beyond the lower court’s authority; and, on rehearing, again dismissed the appeal.

The husband had moved to alter, amend or vacate the trial court’s judgment of divorce. The parties twice moved, and the trial court agreed, to extend the time for ruling on this motion so it would not be denied by operation of law under Rule 59.1. The last extension gave the trial court until July 12, 2007, to rule. The court held a hearing on the motion before that date, but did not enter an order until July 30. On September 8, the husband appealed. 

The Court of Civil Appeals dismissed this appeal as untimely. “At the very latest,” the court reasoned, the husband’s motion had been denied by operation of law on July 12, 2007. The husband’s appeal on September 8 was well outside the 42-day deadline established by appellate Rule 4(a)(1). The court thus lacked jurisdiction to entertain the appeal.

Now the unusual part: Following this dismissal, the circuit court entered a nunc pro tunc order amending the challenged judgment. The court wrote in this order that the parties had agreed to extend the post-judgment deadline for ruling one more time, until July 30, 2007. (This, of course, would have made the husband’s appeal timely.) Inadvertence or clerical error had kept this last extension out of the record, the nunc pro tunc order said. The husband supplemented the record on appeal with this new order, and applied for a rehearing.

The Court of Civil Appeals granted the rehearing — and again dismissed the appeal. The nunc pro tunc order was without effect, the court explained. Using the order in this way was, in fact, beyond the circuit court’s power:

The trial court’s authority to enter a Rule 60(a) . . . order [to correct clerical errors] or a judgment nunc pro tunc is not unbridled.  It cannot be used to . . . make a judgment say something other than what was originally said.