Posted on October 9, 2007 by Ivan B. Cooper

Mandamus relief denied where there are other adequate remedies.

The rule that mandamus relief will be denied where other relief is available was the determining factor in Ex parte Wall, No. 1061381 (Ala. Oct. 5, 2007). In Ex parte Wall, the trial court found the petitioner in contempt for failing to pay to his ex-wife the balance of the marital estate, and ordered the petitioner to be held in custody until the amount was paid.  The petitioner filed a petitioner for writ of mandamus seeking review of the order.  The mandamus petition was denied.  The Court found that the petition did not satisfy the requirement for a mandamus that other adequate relief be unavailable.  Citing to Ala. R. Civ. P. 70A(g)(1), the Court noted that adjudication of a civil contempt order where the person is held in custody is reviewable by appeal or by the writ of habeas corpus.  Thus, because the petitioner had another legal remedy, either by appeal or by  writ of habeas corpus, mandamus relief was unavailable.
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Posted on July 31, 2007 by Craig N. Rosler

There Is Generally No "Motion to Reconsider" Post-Judgment Ruling; Failure to Timely Appeal Initial Post-Judgment Order Bars Review

A husband was turned aside where he appealed, not from the denial of his initial post-judgment motion, but from the denial of his (much later) motion to "reconsider” that initial post-judgment disposition. Rorex v. Rorex, No. 2060232 (Ala. Civ. App.) (July 27, 2007). The trial court’s acts after it denied the first post-judgment motion were “void” and would not support an appeal.

The Court of Civil Appeals trod familiar ground in this case, in which a party unwrapped the well-loved (if ill-treated) motion to “reconsider,” trying to keep its case alive. The trial court granted the plaintiff wife a default judgment. The husband filed a Rule 55(c) post-judgment motion to set that judgment aside. Subsequently, the husband filed a “‘motion to review’ in which he cited facts and circumstances that had arisen after the entry of the trial court’s judgment, but he did not seek to amend” his Rule 55 motion. The trial court denied the Rule 55 motion; but, at the same time, it set the “motion for review” for hearing. No one appealed the Rule 55 denial.

More than three months later, the husband filed a “Motion for Relief from Order.” He claimed that he had never received notice that his Rule 55 motion had been denied, and he asked the court to “reconsider” that denial. The trial court denied this motion. From the last order the husband timely appealed.

The appellate court first noted that it was compelled to address the issue of jurisdiction. “Although neither party has questioned this court’s appellate jurisdiction,” the court wrote, “it is the duty of an appellate court to consider the lack of subject matter jurisdiction ex mero motu.” The appellate court lacked jurisdiction here because “all actions taken [by the trial court] after the denial of the [post-judgment] motion [were] void.” “[T]he Rules of Civil Procedure do not authorize a movant to file a motion to reconsider the trial court’s ruling on his own post-judgment motion.” Using block language from the Alabama Supreme Court, the Rorex court described this proscription and those limited exceptions in which a trial court may revisit a post-judgment disposition.  “[I]n most cases," the court reiminded readers, "the only review of a denial of a post-judgment motion is by [an] appeal.”

The father had not appealed the initial denial of his Rule 55 post-judgment motion. Everything the trial court had done after that denial, including the order appealed from, was “void.” The Court of Civil Appeals lacked jurisdiction and dismissed the case.
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Posted on July 31, 2007 by Craig N. Rosler

Appeal Dismissed Where Judgment Did Not Adjudicate Motion Left Pending in Earlier Suit

A mother appealed from a judgment, trying to address a motion that had been left unresolved in an earlier suit.  The current judgment did not address that unresolved motion.  Nor did any other ruling.  Lacking a final judgment adjudicating that earlier motion, the Court of Civil Appeals lacked jurisdiction to review the case. Fielding v. Fielding, No. 2060243 (Ala. Civ. App.) (July 27, 2007).

Both suits involved a father’s obligation to give his daughter post-minority educational support.  The earlier case had ended with a substantive motion left unresolved.  Following a judgment on the extent of the father’s obligation, the mother filed two motions: a Rule 59 motion to alter, amend, or vacate that judgment; and a “separate motion” to modify the father’s obligation.  (This “separate motion” was based on circumstances that had allegedly arisen after the hearing that yielded the judgment.)  The trial court denied the Rule 59 motion and dismissed the case without ruling on the mother’s “separate” modification motion.

The mother eventually filed a new case.  She again asked the court to modify the father’s support obligation.  The trial court concluded that it lacked jurisdiction over the case and, in a judgment entered August 11, 2006, dismissed the suit.

The mother appealed. More precisely, she filed two notices of appeal.  Both “designated the August 11, 2006, judgment . . . as the judgment appealed from.”  The first notice, however, was filed in, and directed at, the earlier lawsuit. It claimed that the August 2006 order had dismissed her motion to modify which had been left pending in the earlier case.

The Court of Civil Appeals rejected the bid for review.  The August 2006 judgment did not rule on the motion in the earlier case.  (It did not even address the earlier motion, as a reading of Fielding will show, much less purport to resolve it.)  Nor did any other ruling.  “[I]n the absence of a final judgment adjudicating the mother’s [earlier] motion,” the Court of Civil Appeals had “no jurisdiction in that action.”  The appeal referencing the earlier suit was dismissed.
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Posted on June 19, 2007 by Craig N. Rosler

Alabama Court of Civil Appeals Allows Appeal of Order Granting Rule 60(b) Motion

    In Lanier Worldwide, Inc. v. Crum [slip op.], the Alabama Supreme Court allowed an appeal of the trial court’s order granting a Rule 60(b) motion. In this case, released June 15, 2007, Lanier sought to enforce a Georgia judgment directing Crum to pay Lanier $17,045.66 awarded in arbitration. Lanier submitted a certified copy of the judgment, along with an affidavit of one of its attorneys who testified that the judgment of the Georgia court was valid, enforceable, and unsatisfied. In response, Crum filed a motion pursuant to Rule 60(b) of the Alabama Rules of Civil Procedure attacking the judgment of the Georgia court on the basis of personal jurisdiction. Following a hearing, the trial court refused to enforce the Georgia judgment, thereby effectively granting Crum’s Rule 60(b) motion.

    In determining whether it had appellate jurisdiction, the court noted the general proposition that an order granting a Rule 60(b) motion is considered interlocutory and therefore not appealable. However, the trial court’s order at issue amounted to a conclusion that the judgment of the Georgia court was void for lack of jurisdiction and no further proceedings were contemplated with respect to enforcement of the Georgia court’s judgment in the Alabama Court. Under these circumstances, orders granting Rule 60(b) relief may be appealable.
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