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Beware of Rule 59.1., Ala. R. Civ. P.
By: Samuel H. Franklin
Mr. Franklin is a shareholder in Lightfoot, Franklin & White, LLC
(Birmingham, Alabama). He received his B.S. degree at Auburn University in
1969, his J.D. degree from the University of Alabama School of Law in 1972
and has an LL.M. from Harvard University in 1973. He is President of the
Alabama Defense Lawyers Association. He is a fellow of the American
College of Trial Lawyers. Mr. Franklin has an extensive trial and
appellate practice. He is a frequent CLE lecturer. The following article
is an edited version of Mr. Franklin's 2002 AIM CLE lecture on this subject.
The clock for the 42 days to file the notice of appeal starts
to run from the entry of the trial court's
order on the post-judgment motions. Rule 4, Alabama Rules of Appellate
Procedure. But, what happens if the trial court doesn't
rule? Rule 59.1, Alabama Rules Civil Procedure, states that where a
post-judgment motion (of a type specified in Rule 59.1) remains pending and not
ruled upon for ninety days, the motion is denied by operation of law and the
trial court loses jurisdiction to rule on that motion:
No post-judgment motion filed pursuant to Rules 50, 52, 55, or 59
shall remain pending in the trial court for more than ninety (90) days,
unless with the express consent of all the parties, which consent shall
appear of record, or unless extended by the appellate court to which an
appeal of the judgment would lie, and such time may be further extended
for good cause shown. A failure by the trial court to dispose of any
pending post-judgment motion within the time permitted hereunder, or any
extension thereof, shall constitute a denial of such motion as of the
date of the expiration of the period.
See, e.g., Hayes v. Apperson, 826 So. 2d
798, 802 (Ala. 2002); Doe v. Markham, 776 So. 2d 757, 760 (Ala. 2002); Ex parte Hornsby,
663 So. 2d 966, 967 (Ala. 1995).
Because of the jurisdictional divestiture, any attempt by the circuit court
to rule on a post-judgment motion after the Rule 59.1 period has expired is
void. Hayes v. Apperson, 826 So. 2d at 802; Greco v. Thyssen Mining
Construction, Inc., 500 So. 2d 1143 (Ala. Civ. App. 1986). Void, too, is any
attempt by the parties to extend the ninety-day period after it has run. Ex
parte Caterpillar, Inc., 708 So. 2d 142 (Ala. 1997). The same holds true for
the appellate court. Although an appellate court can extend the ninety-day
period, Doe v. Markham, 776 So. 2d at 760, it can do so only if the
motion for extension is filed before the period ends. Crowder v. Zoning Bd.
of Adjustment, 409 So. 2d 837 (Ala. Civ. App. 1981).
It is important to note that the circuit court must rule on the merits
of the post-judgment motion within the ninety-day period. The period is not
extended by an order agreeing to A
reconsider@ the judgment or to
entertain the arguments made in the post-judgment motion. If such an order is
the only order entered within the ninety-day period, the post-judgment motion
will be deemed denied by operation of law at the end of ninety days. Ex parte
Davidson, 782 So. 2d 237, 241 (Ala. 2000); Farmer v. Jackson, 553 So.
2d 550, 552 (Ala. 1989).
What Happens If The Clerk Forgets
To Send the Order?
So, there you are. Sitting back and waiting for the court's order. It has been a while, and, if the order was entered shortly after the
hearing, it would be getting close to the appeal time. So, you call the clerk's office, and are told that no order has been entered yet. So, you wait some
more. On your next visit to the courthouse, you check again and, this time, much
to your surprise, you find that an order has already been entered - more than 42
days ago. The time to appeal started running from the date of the entry of the
order and, according to that date, your time to appeal has already lapsed! If
the clerk's office had given you
correct information when you called, you could have timely filed an appeal, but,
now, you seem to be out of luck.
Rule 77(d), Ala. R. Civ. P., provides a very narrow
window opportunity to get some relief. Rule 77(d) provides that, in the event a
party is not notified of an order, the trial court can, upon the showing of
excusable neglect, extend the time to appeal an additional 30 days from the
original deadline - making the deadline 72 days after the order. If you wait
more than 72 days, Rule 77(d) cannot provide any relief.
The Alabama Supreme Court has consistently held that merely
relying upon the trial court's
notification process is not A
excusable neglect.@ To show
A excusable neglect,@
a party must diligently check with the court for the status of the order, and go
beyond simple reliance of the notification process. See Turner v. Barnes,
687 So. 2d 197 (Ala. 1997) (finding A
excusable neglect@ where attorney
called court to inquire, but was told no judgment was entered because it was not
yet entered into computer system); Sparks v. Alabama Power Co., 679 So.
2d 678 (Ala. 1996) (finding excusable neglect where attorney relied on clerk's
computer records, which showed that no order had been entered).
Merely sitting back and waiting to receive the notification from
the trial court, however, will not entitle you to a Rule 77(d) extension.
See Miller v. Amerada Hess Corp., 786 So. 2d 1106 (Ala. 2000) (reversing
granting of 77(d) motion and dismissing appeal where attorney merely relied on
notification process); Bacon v. Winn-Dixie Montgomery, Inc., 730 So. 2d
600 (Ala. 1998) (reversing the trial court's granting of a 77(d) motion to extend time where attorney took no steps other
than relying on court's notification
process).
So, the lesson to be learned is to check with the trial court
early and often. Every 20 days or so. That will, hopefully, ensure that you are
notified of any order, or can at least show some excusable neglect.
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