This is another of the parade of cases indicating that lawyers are still prone to file postjudgment motions without fully understanding the operation of Alabama Rule of Civil Procedure 59.1. Robbins v. Robbins, Caso No. 2050316 (Ala. Civ. App. June 9, 2006). It’s all about the denial of a postjudgment motion by operation of law.
Here’s what Rule 59.1 says:
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.
Let’s look at the calendar. The husband filed a postjudgment Petition to Modify and Rule Nisi with the trial court, and the trial court dismissed it on August 11, 2005. the Husband filed a “Motion to Vacate Judgment” (the postjudgment motion that is at issue) on September 1, 2005, and the wife filed her response on September 13. The trial court set a hearing on the husband’s motion for November 15, but on November 8, the trial court ordered the case continued until December 20. Someone must have thought about Rule 59.1 at that point, because the trial court noted on December 20 that the Motion to Vacate Judgment was denied “by operation of law.”
The husband appealed, but he did not file his notice of appeal until January 13, 2006. Neither party raised the issue of the timeliness of the husband’s appeal, but the appeals court raised it on its own initative, because it goes to the appeals court’s jurisdiction. The appeals court said that the motion was denied by operation of law on November 30, 2005 and that the husband had 42 days from the date of denial (or until January 11, 2006) to file a notice of appeal. He missed the deadline by two days.
The appeals court dismissed the appeal as untimely filed.
Lee’s Note: The husband’s attorney appears to have made two mistakes. The first was in allowing the trial court to continue the case to December 20, 2005, past the 90-day window. The second was in permitting too many days to pass after the end of the 90-day window before filing the notice of appeal. And you can see easily how this could happen.
Our normal tendency is to think of the trial court’s actions (like the notation on the record on December 20) as “orders” from which we can appeal. Clearly the hulband’s appeal was filed within 42 days of the notation on the record, but that date was not relevant. The relevant date was the one dictated by Rule 59.1, November 30, 2005.
The lesson is clear, isn’t it? When we file a postjudgment motion of any kind, we mark the calendar. Unless all the parties agree on the record to extend the time limit, the motion is deemed denied (and the trial court loses its jurisdiction) at the end of 90 days. Motions to continue are not relevant for the 90-day limit.