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

The husband in this divorce suit suffered a default judgment. This judgment was entered on February 26, 2008. Two days later, the husband moved to set it aside. The trial court denied this motion on May 27. The husband then (on May 28) filed a Rule 59(e) motion to alter, amend or vacate the judgment. The appellate court does not record whether the lower court acted on this motion. On July 3, 2008, the husband appealed.

The Court of Civil Appeals made two initial points of post-judgment procedure. First, it explained that the Rule 59(e) motion of May 28 was ineffective. If that motion was aimed at the default judgment of February 26, 2008, it came well outside the 30-day deadline of Rule 59(e), and was untimely. If it was directed at the May 27 denial of the husband’s motion to set aside the default judgment, then it breached the rule against successive post-judgment motions. The court explained: “Successive post-judgment motions by the same party, seeking essentially the same relief, are not allowed.” “[I]n either case, the husband’s motion to alter, amend, or vacate was of no effect.”

Second, the husband’s appeal was timely. That appeal was not from the Rule 59(e) motion, which the circuit court lacked jurisdiction to consider. (Though, again, the opinion does not say whether the lower court even addressed that motion.) The only order that would support an appeal was the May 27 denial of the husband’s motion to set aside the default judgment. The appeal from this order was timely. Motions to set aside a default judgment toll the running of the deadline for appeal; “time for filing begins to run again only when the trial court enters an order granting or denying the motion.”

The Court of Civil Appeals went on to reverse the denial of the husband’s motion to set aside the default judgment.

This divorce case involves two familiar rules: Rule 59.1 of the civil procedural rules, and Rule 4(a)(1) of the appellate rules.  Rule 59.1 denies by operation of law any post-judgment motion made under Rules 50, 52, 55 or 59, that is not ruled upon and remains pending for more than 90 days.  Rule 59.1 also allows the parties to extend this 90-day deadline to avoid an automatic denial.  Rule 4(a)(1) of the appellate rules sets the basic 42-day deadline for filing an appeal.

The parties in Smith effectively used Rule 59.1 twice to extend the post-judgment decision period.  After the circuit court divorced the parties, the husband timely moved under Rule 59(e) to alter, amend, or vacate the judgment.  The parties then twice moved jointly under Rule 59.1 to give the court more time to decide the husband’s motion, so that it would not be denied by operation of law.  The circuit court granted both extensions.  The last extension gave the court until July 12, 2007 to rule upon the pending motion.  The court entered an order purporting to deny that motion on July 30.  Forty days later, on September 8, the husband appealed.

The Court of Civil Appeals dismissed the case as untimely. “At the very latest,” the appellate court explained, “the husband’s postjudgment motion was denied by operation of law, pursuant to Rule 59.1 and the parties’ agreement, on July 12, 2007. The husband had 42 days from that date — i.e., until August 23, 2007 — to appeal. The husband appealed on September 8, 2007, after the time allowed by Rule 4(a)(1).” (Citation omitted.)  The husband’s late appeal did not invoke the jurisdiction of the appellate court, which was compelled to dismiss his case.