Appeal Late Where Filed After Granted and Maximum Allowable Rule 77(d) Extension; Procedural Aspects of Unopposed 77(d) Motions Are Reviewable

The Court of Civil Appeals dismissed as untimely a juvenile appeal where the appellants filed a post-judgment motion before, but their notice of appeal after, both the extended deadline the juvenile court had granted under Rule 77(d), and the maximum thirty-day extension that Rule 77(d) would have allowed. F.G. v. State Dept. of Human Resources, No. 2060613 (Ala. Civ. App. Nov. 16, 2007). The appellate court also overruled its previous decisions and held that the procedural aspects of an unopposed Rule 77(d) motion can be reviewed on appeal.

F.G. is a date-intensive foray in post-judgment procedure. The juvenile court terminated the parents’ rights in their child. The termination order was entered on February 6, 2007.  Under the juvenile rules, the parents were required to appeal within 14 days, that is, by February 20. Three days after this deadline, on February 23, the parents informed the court that they had received notice of the termination order only on the previous day. The parents asked the court for 14 additional days to file a “postjudgment motion and/or notice of appeal.” The juvenile court granted that motion, giving the parents their requested deadline of March 8. On that day, the parents filed a postjudgment motion, which the juvenile court denied. On April 4 — 27 days after the juvenile court’s extension ended, and 43 days after the termination order was entered — the parents appealed.

The Court of Civil Appeals ruled the appeal untimely. Procedural Rule 77(d), in conjunction with juvenile Rule 1(A), authorizes a juvenile court to extend by up to 30 days the deadline for filing an appeal when, by “excusable neglect,” a party does not learn of an adverse order. Rule 77(d) cannot extend deadlines for post-judgment motions. The parents’ post-judgment motion was itself late, having been filed more than 14 days after the termination order was entered. See Ala. R. Juv. P. 1(B) (post-judgment motions in juvenile court must be filed within 14 days).  The motion thus had not suspended the time for filing an appeal, as timely post-judgment motions ordinarily do. See Ala. R. App. P. 4(a)(3).

The parents’ notice of appeal was itself also late. It was filed on April 4 — 27 days after the trial court’s Rule 77(d) extension to March 8; and 13 days after the largest extension the juvenile court could have granted under Rule 77(d) — to February 22, which was 30 days after entry of the termination order.

The Court of Civil Appeals distinguished two cases in which the Supreme Court of Alabama had reversed it and found appeals timely under Rule 77(d). In both these cases, the Court of Civil Appeals reasoned, the notices of appeal were filed within the extension granted by the trial court. That was not the case here.

The intermediate court also revisited its own precedent under Rule 77(d). It had previously read the state supreme court to have held that, “when a Rule 77(d) motion is unopposed before the trial court, any jurisdictional issue as to the timeliness of the appeal is waived and cannot be considered on appeal.” The Court of Civil Appeals now determined that this broad proscription could not be correct. What the Supreme Court had barred was revisiting the “merits” of an unopposed Rule 77(d) motion; i.e., the trial court’s determination whether a party had failed to learn of an adverse order by “excusable neglect.” The procedural correctness of an unopposed Rule 77(d) motion remained open to appellate review. In this case, again, the procedural requirements of Rule 77(d) were not met. The parents’ appeal was filed after the actual extension the juvenile court granted, and after the maximum extension it could have granted. The appeal was thus judged untimely and dismissed.