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

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.

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.”