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

The homeowner hired a worker to install carpet and tile in her home. When she did not pay the balance due, the worker sued her in district court. The homeowner counterclaimed for an amount over the district court’s jurisdictional ceiling, and the case was transferred to circuit court. The circuit judge ruled for the worker on all claims.

The homeowner then filed an appeal. In fact, she filed two notices of appeal. On the day her notice was due, February 19, she filed a self-drafted “notice of appeal” in the district court. This notice was not on the Form ARAP-1 that appears in Appendix I to the Alabama Rules of Appellate Procedure.

One week later — on February 26, and thus after the time for appealing had passed — the homeowner filed a notice of appeal that “resemble[d]” Form ARAP -1. This document she filed in the circuit court.

The Court of Civil Appeals held that the homeowner had effected a timely appeal. Though not on Form ARAP-1, her initial notice contained all the information that the law requires in such a notice. Rule 3(c) of the appellate rules provides that a notice of appeal “shall specify the party or parties taking the appeal; shall designate the judgment, order or part thereof appealed from; and shall name the court to which the appeal is taken.” The February 19 notice included all of these items. Nor was that notice hobbled by being filed in the district court, “because the clerk of the circuit court with whom the notice . . . should have been filed is also the clerk of the district court.”

The court concluded that the homeowner had filed a timely appeal, and went on to address the merits of the case.

The default judgment was entered in this divorce proceeding after the husband's counsel withdrew and the husband missed the final hearing.  However, the husband moved to set aside the default on the basis that he missed the hearing due to his hospitalization for observation due to suicidal impulses and threats.  The trial court denied the motion to set aside, and the Court of Civil Appeals reversed.  The court noted that cases should be heard on the merits whenever practicable, and this is especially true domestic relations cases.

Also, it is worth noting that the motion to set aside was styled as a Rule 55(c) motion.  The motion was filed 31 days after the entry of default.  This is untimely, as Rule 55 motions must be filed within 30 days.  However, Rule 60(b)(1) allows relief in some instances more than 30 days after the entry.  It is not clear from the opinion when the motion was converted to a Rule 60 motion, or if the court did so sua sponte.  But, the court considered the motion even though it was a Rule 55 motion filed more than 30 days after the entry of default. 

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.