Playing Around with Rule 59.1

Alabama Rule of Civil Procedure 59.1 says that when one or both parties file a post-judgment motion, the motion will be deemed denied if the trial court makes no ruling on it for 90 days. The case of Schiesz v. Schiesz, Case No. 2041024 (February 24, 2006) reminds us that the rule means what it says.

The Lauderdale Circuit Court divorced the husband and wife on January 14, 2005. On February 11, 2005. the wife filed a postjudgment motion pursuant to Rule 59(e). On June 14, 2005 (123 days after the filing of the wife’s postjudgment motion), the parties filed with the court a document in which they purported to agree to extend the time the wife’s postjudgment motion could remain pending. The court purported to rule on the wife’s motion on July 12, 2005 and then purported to modify its ruling (apparently) a few days later. The husband filed notice of appeal on August 23, 2005.

Neither party raised the issue on appeal whether the appeals court had jurisdiction, but the appeals court raised it ex mero motu (on its own initiative). The appeals court pointed out that if the trial court fails to rule on a Rule 59.1 postjudgment motion within 90 days, the motion is deemed denied by operation of law (and parenthetically, the deemed denial date starts the clock running on a notice of appeal).

There in an exception in Rule 59.1 that allows the parties to consent on the record to extend the 90-day period, but that consent must be placed on the record before the expiration of the 90 days. Any attempt to extend the time after it expires is a “nullity.” Moore v. Moore, 910 So. 2d 137, 140 (Ala. Civ. App. 2004) (quoting Ex parte Caterpillar, Inc., 708 So. 2d 142, 143 (Ala. 1997)).

Because the agreement between the parties didn’t occur until after the 90 days had run, the trial court lost jurisdiction of the case. The trial court’s orders purporting to modify the decree are void. The clock began running for an appeal on the 91st day after the wife filed her postjudgment motion, and neither party filed notice of appeal within 42 days of that date. Therefore the appeal was dismissed.

The lesson is clear, isn’t it? If you have filed a postjudgment motion, watch the calendar like a hawk. If you don’t have a ruling within 90 days, and if you and the other party have not consented on the record beforehand to an extension, it’s time to consider an appeal.

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