Extension of Time for Appeal

If you don’t like the ruling of a trial court, you have 42 days to appeal. The Alabama Court of Civil Appeals says the trial court does not have the authority to extend this time. The trial court in Smith v. Smith, Case No. 2031122 (Ala. Civ. App. July 8, 2005) had rendered an order in a divorce modification proceeding on July 20, 2004, and the order was stamped “Received and Filed” in the circuit clerk’s office on July 26, 2004. Thus the order was “entered” on that date.

The husband filed a notice of appeal on September 8, 2004, 44 days after the entry of the July 26, 2004 order. The husband’s attorney filed a motion to extend the time for filing, describing an error by members of the attorney’s staff in entering the date of the judgment on the attorney’s calendar. The staff person who had entered the date signed an affidavit saying she had entered the date of the entry of judgment as July 28, 2004, because it was faded and she had trouble reading it.

The wife opposed the husband’s motion. After a hearing, the trial court granted the husband’s motion, saying that the husband’s delay was due to excusable neglect as described in ARCP Rule 77(d). The wife appealed.

Here’s the portion of Rule 77(d) at issue in this case:

Lack of notice of the entry by the clerk does not affect the time to appeal or relieve or authorize the court to relieve a party for failure to appeal within the time allowed, except that upon a showing of excusable neglect based on a failure of the party to learn of the entry of the judgment or order the circuit court in any action may extend the time for appeal not exceeding thirty (30) days from the expiration of the original time now provided for appeals in civil actions.

The Court of Appeals dismissed the husband’s appeal. Citing Greystone Close v. Fidelity & Guar. Ins. Co., 664 So. 2d 900 (Ala. 1995). It ruled that the trial court had no authority to extend the deadline under Rule 77(d), because Rule 77(d) is limited to those cases in which a litigant failed to learn of the entry of a judgment.

The Court of Appeals quoted from Greystone: “a litigant’s miscalculation of the last day for filing a notice of appeal, no matter how innocent or understandable, is not the kind of neglect excused under Rule 77(d).” 664 So. 2d at 902. The Court of Appeals dismissed the husband’s appeal. Because it had dismissed the husband’s appeal, it also dismissed the wife’s appeal as moot.

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