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

The Court of Civil Appeals had earlier affirmed the denial of the father’s post-judgment motion under Rule 60(b) as untimely. See Hobbs v. Heisey, No. 2070085 (Ala. Civ. App. July 3, 2008). On application for rehearing, the father argued that, though “based on grounds more appropriately addressed under Rule 60(b)(1),” his motion was due to be granted for “exceptional circumstances” under Rule 60(b)(6). He contended “that he could not have filed a Rule 60(b)(1) motion in the trial court within the four-month deadline set out in Rule 60(b) because” the parties “had divested that court of jurisdiction by filing notices of appeal during that period.”

The appellate court rejected this argument. “Had the father filed a Rule 60(b)(1) motion before the appeals had been filed,” the court observed, “the trial court would have had jurisdiction to rule on that motion.” “Further, even after the notices of appeal had been filed, the father could have sought leave from this court to file a Rule 60(b)(1) motion.” The motion would have been deemed filed in the trial court on the day the motion for leave was filed with the appellate court. Therefore, there were no “exceptional circumstances that would justify treating his motion as a Rule 60(b)(6) motion.” The father’s application for rehearing was accordingly overruled.

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.”