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

In Rhodes, the husband appealed from the trial court's division of marital property.  While the case was pending on appeal, the Court of Civil Appeals issued an opinion which the husband argued impacted the propriety of the trial court's ruling.  The Court of Civil Appeal granted the husband's motion for leave to file am Ala. R. Civ. P. 60(b) motion for relief from judgment.  The trial court did not rule on the Rule 60(b) motion, and sought review in the Court of Civil Appeals after the motion had been pending for 90 days.

First, the trial court refused to consider the argument regarding how the intervening new case impacted the trial court's decision as a part of the initial appeal because the new decision was not before the trial court when it ruled, and the Court of Civil Appeals would not consider an argument not made to the trial court.

The Court of Civil Appeals then dismissed the appeal from the Rule 60(b) motion.  Although certain post-judgment motions are deemed denied by operation of law after 90 days in accordance with Ala. R. Civ. P 59.1, Rule 60 motions are not among the motions covered.  By its very terms, "the 90-day period for ruling on postjudgment motions announced in Rule 59.1, Ala. R. Civ. P., applied only to motions filed under Rules 50, 52, 55, and 59., and not those filed under Rule 60(b)."  Slip Op. p. 26.  Thus, the husband's Rule 60 motion was still pending.  Because there was no final order on the Rule 60 motion, the portion of the appeal relating to the Rule 60 motion was dismissed.  

The ex-wife instituted an action against the ex-husband for contempt for failure to pay child support.  The trial court rendered a default judgment after the ex-husband failed to appear for a hearing.   After the trial court rendered the default judgment, but before the default was entered, the ex-husband appeared and filed a Rule 55(c) motion to set aside the default and filed a counterclaim.  The trial court never ruled on the Rule 55(c) motion, but rather tried the case.  The ex-wife appealed from the ultimate ruling of the trial court.

The Court of Civil Appeals dismissed the appeal as being from a void judgment.  First, because the Rule 55(c) motion was filed before the default was entered, it was held in abeyance and considered filed on the date the default was entered.  Pursuant to Rule 59.1, the trial court had 90 days to rule on the motion to set aside default or else it would be denied by operation of law.  The trial court never ruled on the motion.  After the Rule 55(c) motion was denied by operation of law, the trial court lost jurisdiction to act on the case and, therefore, its orders and judgment made after that date were void.

The counterclaim filed by the ex-husband did not prevent the default judgment from becoming final.  "After an entry of default, the defaulting party 'loses his standing in court, cannot appear in any way, cannot adduce evidence and cannot be heard at the final hearing.'"  Slip Op. p. 5, quoting Dorcal, Inc. v. Xerox Corp., 398 So. 2d 665, 670 (Ala. 1981).  Thus, because the default was never set aside, the counterclaim was never properly in the case.

Williamson  timely filed post-judgment motions on Sunday, October 14, 2007.  Because it was a Sunday, the motions were deemed filed on Monday, October 15, 2007.  Pursuant to Rule 59.1, the motions were denied by operation of law.   On February 26, 2008, Williams filed a notice of appeal.

The appellee filed a motion to dismiss the appeal, saying that the motions were denied by operation of law on Monday, January 15 (after the 90th day fell on a weekend).  Because the notice of appeal was filed 43 days after that date, it was untimely.

Williamson, however, argued that the denial did not become effective until Tuesday, January 16, the 91st day, and counting from that date, the appeal was timely. Williamson reasoned that the trial court had until midnight of the 90th day to rule and that, therefore, the motions could not be deemed denied until the 91st day.

The Supreme Court agreed with the appellee and dismissed the appeal.  Acknowledging that some language in prior cases may have caused some confusion, the Supreme Court clarified the issue:

To eliminate any confusion caused by contrary of imprecise language in previous caselaw, we now reiterate that, consistent with the express language of Rule 59.1, Ala. R. Civ. P., a failure by the trial court to dispose of any postjudgment motion during the period specified in Rule 59.1 constitutes a denial of the motion "as of the date of the expiration of the period." Rule 59.1, Ala. R. Civ. P. That is, a postjudgment motion not otherwise ruled upon is denied as a matter of law on the 90th day after the motion is filed, or, where applicable, on the last day of any extension of the 90-day period. . . . Thus, the time for filing a notice of appeal begins to run on the 90th day following the filing of a postjudgment motion, absent a ruling on the motion by the trial court or a valid extension of the 90-day period.

Slip Op. pp. 7-8 (emphasis added by Court).

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.