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

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The circuit court ordered the father to pay post-minority educational support. Ten months later, the father moved under Rule 60(b) to set aside that order, arguing that his attorney had not notified him of the support hearing. The trial court granted that motion. Eventually, months later again, the trial court entered a final judgment, again ordering the father to contribute to his adult child’s education. The father appealed.

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The Court of Civil Appeals raised the issue of appellate jurisdiction on its own motion. The court first explained that the father’s motion to set aside, made generally under Rule 60(b), could be construed only as a motion for relief due to “mistake, inadvertence, surprise, or excusable neglect” — in other words, a motion specifically under Rule 60(b)(1). But such motions must be filed within four months of entry of the order or judgment they challenge. Here, the father’s motion came ten months after the relevant order.

The appellate court then considered whether the father’s motion could have been treated as coming under Rule 60(b)(6). This is the catchall provision that permits an order to be unwound for “any other reason justifying relief.” “There is no strict time limitation for filing” a Rule 60(b)(6) motion; “it only has to be brought within a ‘reasonable time.’”

As a rule, the court explained, Alabama does not permit Rule 60(b)(6) to be used like this. Rule 60(b)(6) is meant to operate “exclusively” of the “specific grounds listed in” other parts of Rule 60(b). Thus, “a party may not escape the time limits of Rule 60(b)(1) merely by characterizing his motion as a Rule 60(b)(6) motion.”

There is a limited exception. In some cases,

in the interest of justice, aggravating circumstances may be considered sufficient to allow the trial court to treat what would otherwise be a Rule 60(b)(1) motion as within Rule 60(b)(6). Alabama courts have found that sufficient aggravating circumstances existed when an attorney had intentionally misled his client or when the attorney had suffered from psychological disorders or other personal problems.

(Quotation and citation omitted). Here, the father’s Rule 60(b) motion had alleged no such thing. His motion was therefore late.

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The trial court had no jurisdiction to rule on the late Rule 60(b) motion. Its order doing so was void. Void, too, was its ultimate judgment insofar as it rested on the null 60(b) order. In the circumstances of this case, undoing the Rule 60(b) order meant that other issues had been left unresolved. The trial court’s purported final judgment thus had not disposed of all matters before it, and was not “final” so as to support an appeal. The Court of Civil Appeals dismissed the appeal and remanded the case with instructions.
 

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Plaintiff Barnes appealed from the district court to the circuit court, but did not include an appellate filing fee, or apply to have the fee waived. “According to Barnes, the clerk failed to inform her that she needed to pay a filing fee or to apply for a hardship waiver.” Three months after the district court judgment, Barnes filed for a waiver, and the clerk filed her notice of appeal. The circuit court dismissed the appeal as untimely.

Then, on November 10, 2008, Barnes moved the circuit court under Rule 60(b) to vacate its dismissal. She argued that the trial court should have treated her appeal as timely even without a fee or waiver application. The circuit court denied this motion.

On March 9, 2009, after retaining a lawyer, Barnes filed another Rule 60(b) motion to set aside the dismissal. She advanced the same arguments that she had made in her November 2008 motion. This time, however, the circuit court granted her motion and set aside its dismissal of her appeal.

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Defendant ACS now filed its own motion. Under Rule 60(b)(4), ACS argued that the circuit court had lost jurisdiction to reinstate the appeal. The circuit court agreed. Reverting to its first disposition, the court vacated its reinstatement, and dismissed the case. Barnes then timely appealed to the Alabama Supreme Court.

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The state’s high court affirmed the 60(b)(4) decision. First, the appellate court explained that it could not address Barnes’s underlying argument that her appeal should not have been dismissed in the first place; i.e., that the circuit court should have accepted her appeal without a fee or hardship waiver. That issue was not before the appellate court. Appellate review was confined to the last decision under Rule 60(b)(4). The only issue, then, was whether the circuit court had correctly granted the 60(b)(4) motion; that is, whether it had rightly determined that it lacked jurisdiction to hear Barnes’s second Rule 60(b) motion.

On this question the circuit court was correct. The supreme court explained:

[A]fter a trial court has denied a postjudgment motion pursuant to Rule 60(b), that court does not have jurisdiction to entertain a successive postjudgment motion to “reconsider” or otherwise review its order denying the Rule 60(b) motion. In other words, a party who has previously filed an unsuccessful motion seeking relief under Rule 60(b) may not properly file a second motion in the trial court that, in effect, requests the trial court to revisit its denial of the first motion, such as by reasserting the grounds relied upon in the first motion.

     Having originally denied Barnes’s first Rule 60(b) motion . . . , the [circuit] court lost jurisdiction to rule on any successive Rule 60(b) motions based on the same grounds.

(Citations and quotations omitted) (emphasis in original). The circuit court was therefore affirmed.

The trial court granted summary judgment for the defendants in a case involving the alleged failure to abide by a consent agreement in a workers' compensation case.  Even though Ala. R. Civ. P. 54(d) states that costs ordinarily should be award to the prevailing party, the trial court's order granting summary judgment provided that costs should be taxed as paid.

More than four months after the order, the defendants filed a Rule 60(b) motion seeking relief from the costs portion of the order, saying that they were entitled to over $57,000 in costs.  Nine days after the order was entered, the trial court granted the motion and awarded the defendants over $19,000 in costs.

The plaintiff moved to vacate the costs award, but the motion was denied by operation of law.  After the order was denied by operation of law pursuant to Rule 59.1, the trial court purported to vacate its costs award.  Plaintiff timely appealed the denial of her motion, and defendants timely sought a mandamus directing the trial court to vacate its order reversing the costs award.

First, the Court of Civil Appeals held that the defendants were entitled to a writ of mandamus directing the trial court to vacate its order reversing its costs award.The trial court issued the writ, holding that the trial court was without jurisdiction to enter its order after the motion had been denied by operation of law.

But the Court of Civil Appeals also revered the order granting the Rule 60(b) relief.  The court noted that there were conflicting cases on whether it is proper to seek review of a costs award by way of a Rule 60(b) motion.  In City of Birmingham v. City of Fairfield, 396 So. 2d 692 (Ala. 1981), the Alabama Supreme Court held that a Rule 60(b) motion could not be used as a substitute for appeal and, therefore, because the costs award could have been challenged within 30 days by a post-judgment Rule 59 motion and appeal, review four months later by a Rule 60 motion was not allowed.  However, in Rebel Oil Co. v. Pike, 473 So. 2d 529 (Ala. Civ. App. 1985), the Court of Civil Appeals reviewed an award of attorney's fees, which is an element of costs, by way of a Rule 60 motion.

The Court of Civil Appeals proceeded under the assumption that the costs award could be review by a Rule 60(b) motion.  The court then found that the defendants had not proved any of the grounds which would entitled them to Rule 60(b) relief, and therefore reversed the order modifying the original judgment and awarding the defendants costs.

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 trial court granted the defendant summary judgment in this account-stated action. The defendant had sought attorney fees but the trial court’s judgment did not address that issue. Neither party filed a post-judgment motion, nor did the plaintiff appeal.

Then, “well after the 30-day deadline period for filing a motion to alter, amend or vacate the judgment [under Rule 59(e)] had passed,” the defendant filed a new motion for expenses under the Alabama Litigation Accountability Act (ALAA). The trial court granted this motion on December 6, 2007, and awarded the defendant attorney fees.

The plaintiff moved to vacate this order. It argued, among other things, that the circuit court lacked jurisdiction to enter the order. The lower court denied this motion and the plaintiff appealed.

On review, the Court of Civil Appeals agreed with the plaintiff. The trial court lacked jurisdiction to rule upon the defendant’s late ALAA motion. Referring to that motion as a request for sanctions under the ALAA, the appellate court explained:

Decisions of both this court and the Alabama Supreme Court have interpreted ... the ALAA as requiring either that an award of sanctions under the ALAA be included in the trial court’s final judgment or that jurisdiction to decide the matter of ALAA sanctions be expressly reserved by the trial court in the judgment or a proper postjudgment amendment thereto.

Here, the trial court had done neither. It did not address the fee request in its initial summary judgment, and it did not reserve jurisdiction on the question. Consequently, once the post-judgment deadline had passed on its initial judgment, it lost jurisdiction to entertain a request for attorney fees. Its December 6 order was therefore void. On the plaintiff’s motion, the trial court should have vacated that award under Rule 60(b)(4). That rule allows a trial court to relieve a party from a “void” judgment or order. The denial of a Rule 60(b) motion is appealable, but

an appeal from such a denial presents for review only the propriety of that denial; thus, when motion for relief, such as that filed [by the plaintiff] in this case, attacks an order as being void, the controlling inquiry may be stated as follows: “If the judgment is void, it is to be set aside; if it is valid, it must stand.”

Because the trial court lacked jurisdiction to award attorney fees in this case, its December 6 order was void, and should have been vacated upon the plaintiff’s motion. The Court of Civil Appeals reversed the denial of that motion and directed the trial court to vacate its void order.

A residential association sued a defendant for money owed. The defendant argued that she had not been served with process. The record showed that, indeed, process had been delivered to, and signed in the name of, someone other than the defendant. When the defendant did not answer the complaint, the residential association obtained a default judgment against her, and attempted to execute on that judgment.

The defendant filed a motion under Rule 60(b)(4) to vacate the default judgment. Because she had not been served with process, she argued, the trial court never acquired jurisdiction over her and the default judgment was void. The circuit court denied her motion and the defendant appealed.

The Court of Civil Appeals reversed. The court began by explaining that rulings under Rule 60(b)(4) are reviewed under a de novo standard. Moreover:

The standard of review on appeal from the denial of relief under Rule 60(b)(4) is not whether there has been an abuse of discretion. When the grant or denial of relief turns on the validity of the judgment, as under Rule 60(b)(4), discretion has no place. If the judgment is valid, it must stand; if it is void, it must be set aside.

The default judgment in this case was void, as the defendant argued, because she had not been served with process. When service "is contested as being improper or invalid, the burden of proof is on the plaintiff to prove that service of process was performed correctly and legally." The residential association had not shown this. It had not proved that service had been made in any of the ways prescribed by Rule 4 of the Alabama Rules of Civil Procedure. Consequently, the trial court had not acquired personal jurisdiction over the defendant. The default judgment it entered against her was void, and the lower court erred by failing to vacate that order under Rule 60(b)(4).

The Court of Civil Appeals reversed the lower court's order, and directed that the default judgment be vacated.

The Court of Civil Appeals reviewed several points of post-judgment and appellate practice before reaching the heart of this case. Hoping it will prove useful to readers here, we follow the court’s long approach.

The Court of Civil Appeals upheld a judgment against Robert Price. Acting pro se, Price sought a rehearing and, days later, moved the appellate court to “set aside” the adverse judgment under Rule 60(b). Price argued that “newly discovered evidence” showed that the trial judge should have recused himself. This motion, made on March 12, 2008, pointed to a 1999 affidavit in which the trial judge had recommended the plaintiff as a fit candidate for admission to the Alabama State Bar. The Court of Civil Appeals treated Price’s motion as a request for permission to file a Rule 60(b) motion in the trial court, and granted that permission.

Price filed his 60(b) motion in the circuit court and asked the trial judge to recuse himself. The trial court denied this motion. Price appealed and, days later, filed a separate mandamus petition challenging the trial court’s decision.

The Court of Civil Appeals first noted that the denial of the 60(b) motion was appealable. The mandamus petition, however, was not proper. After the circuit court denied the 60(b) motion, there was nothing left pending for it to do. The 60(b) denial was therefore final, not interlocutory, and could not be reviewed by mandamus. Nonetheless, the appellate court explained that, “in certain circumstances,” it could elect to treat a petition for mandamus as an appeal. Because the recusal issue was at the heart of both Price’s appeal and his mandamus petition, the court elected to treat the petition as an appeal.

The appellate court then analyzed Price’s 60(b) motion. Price had not specified which subsection of Rule 60(b) his motion was brought under. The Court of Civil Appeals “decline[d] to construe” Price’s motion as one under 60(b)(2), seeking relief from judgment based on “newly discovered evidence.” Such a motion, the court explained, comprehends proof “which was not known at time of trial and could not have been discovered by due diligence in time to move for a new trial.” Price had not alleged or argued that he had only recently discovered the 1999 affidavit on which his recusal argument rested; nor had he claimed that he could not have discovered it sooner. His motion therefore was not viable under Rule 60(b)(2).

The court then considered the motion under Rule 60(b)(6). This subsection allows relief from judgment for “any other reason justifying relief” than those listed in previous parts of Rule 60(b). The appellate court set out various criteria governing this rule. “Rule 60(b)(6) is an extreme remedy and relief” thereunder “will be granted only in unique situations where a party can show exceptional circumstances sufficient to entitle him to relief.” (Quotation omitted.) A party moving under this rule must show that he did “everything reasonably within his power to achieve a favorable result” before the challenged judgment became final. Decisions under Rule 60(b)(6) lie in the trial court’s discretion. Indeed, “a strong presumption of correctness” attaches to a trial court’s decision under Rule 60(b)(6). The object of appellate review in such a case is not the underlying judgment, but the decision on the 60(b)(6) motion itself.

The appellate court affirmed the denial of Price’s 60(b)(6) motion. Such a motion must be brought “within a reasonable time.” Yet Price had made no allegation or argument showing that his motion was timely under this criterion. The record showed, to the contrary, that Price had not moved within a reasonable time. Price had acquired the 1999 affidavit that supported his motion much earlier in the litigation — fully six years before he filed his Rule 60(b) recusal motion. His motion therefore was not filed “within a reasonable time” and the circuit court did not err in denying it. The judgment of the circuit court was accordingly affirmed.

(The Court of Civil Appeals also upheld the circuit judge’s underlying decision not to recuse himself. This decision, too, came down to a question of timeliness; specifically, Price’s failure not to seek recusal before the court entered judgment.)

In Gullett, a divorce proceeding, the trial court issued its order on May 18, 2007.  On July 17, 2007, the husband filed a Rule 60(b) motion for relief from judgment, stating that the husband's attorney did not receive notice of the judgment.  The trial court purported to amend its judgment on August 20, 2007, and the husband filed his notoce of appeal on September 26, 2007.  Reviewing jurisdiction ex mero motu, the Court of Civil Appeals dismissed the appeal.

The Court held that Rule 77(d), which allows the trial court to grant a party an additional 30 days to file a notice of appeal where the party did not receive notice of the judgment and can show excusable neglect, is the sole method to extend the time to appeal.  A Rule 60(b) motion for relief from judgment cannot be a substitute for a Rule 77(d) extension where lack of notice is alleged.  Slip. Op. pp. 4-5.

Further, even if the Court treated the Rule 60(b) motion as a Rule 77(d) motion, the trial court lost jurisdiction to grant that motion 73 days after the entry of the original judgment.  The motion must be granted, and the appeal filed, within 72 days after the judgment (42 days to appeal, plus 30 day extension).    

The district court entered a default judgment against Djibrine and, several months later, he moved to set aside the default pursuant to Rule 60(b).  The district court denied the Rule 60(b) motion, and Djibrine appealed that denial to the Circuit Court.  The Circuit Court dismissed the appeal as untimely because it was filed more than 14 days from the entry of default.  The Court of Civil Appeals reversed, holding that the appeal was from the denial of the Rule 60(b) motion and not the underlying judgment.  Therefore, the appeal was timely, and the matter was remanded to the Citcuit Court to hear the appeal of the denial of the Rule 60 motion.

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 circuit court awarded an employee workers’ compensation benefits. The employer challenged this decision by post-judgment motion, filing a “Motion for New Trial Pursuant to Rule 50 and/or Relief from Judgment Pursuant to Rule 60.” The circuit court denied these motions on May 24. The next day, the circuit court purported to set aside this order, and scheduled the employer’s motions for a hearing. After that hearing, the circuit court again denied the employer’s motions. This was on June 21; 42 days later, the employer appealed from the June 21 order.

The Court of Civil Appeals, acting on its own motion, dismissed the appeal as untimely. The circuit court lacked authority to reconsider its initial denial of the Rule 59 and 60 motions. Once it denied those motions (on May 24), it lost jurisdiction of the case; the time to appeal then began to run. In the appellate court’s words:

[A] trial court does not have jurisdiction to entertain a motion to reconsider the denial of a Rule 60(b) . . . motion. . . . Similarly, after a trial court denies a Rule 59 post-judgment motion, the trial court no longer has jurisdiction over the case and the aggrieved party’s only remedy is to appeal.

(Quotation omitted).

A timely appeal thus must have come within 42 days of the May 24th denial — that is, by July 5. Because the employer did not appeal until August 2 (which was 42 days after the ineffective second denial), its appeal was late and was consequently dismissed.

(The Court of Civil Appeals made two subsidiary points along the way, which may be of interest. First, the court reminded readers that amended Rule 58(c) — which deems judgments “entered” on the “actual date” on which they are “input” to the State Judicial Information System — applies retroactively. Rule 58(c) was amended effective September 16, 2006, “but has been held to apply retroactively to all cases pending” on that date, “including cases ‘pending’ in an appellate court.”