Time To Appeal Runs From Date of Order Which Indicated Issues Were Resolved Against A Party

Although the date of a Rule 60(a) order correcting a scrivener’s error generally relates back to the date of the original order, in Brown v. Brown, [Ms. 2050935] (Ala. Civ. App.  Jan. 25, 2008) , the Alabama Court of Civil Appeals held that an appeal was timely where it was filed within 42 days of the Rule 60(a) order where that order was the first time the party knew the trial court had ruled against it.

In Brown v. Brown, the trial court issued an order in a child custody suit purporting to award custody to the Plaintiff/Mother on April 18, 2006.  The order, however, incorrectly identified the name of the child.  More than 30 days after that order, the Defendant/Father moved to amend the judgment.  The trial court amended the order on June 29, 1996.  In that order, the trial court corrected the name of the child and awarded custody to the Defendant, rather than the Plaintiff as indicated in the original order. 

The Mother filed a petition for writ of mandamus seeking  to vacate the June 29 order because the Father’s motion to alter, amend, or vacate was untimely in that it was filed more than 30 days after the order.  After seeing the mandamus petition, the trial court issued another order on July 19, 2006.  In that order, the trial court clarified the June 29 order by stating that the order was intended to be a Rule 60(a) order correcting a scrivener’s error.  The trial court stated that he had intended to award custody to the Defendant, but the April 18 order was incorrectly prepared, as evidenced by the fact that the April 18 order incorrectly identified the child.

Ultimately, in the mandamus proceedings, the Alabama Supreme Court determined that the trial court had jurisdiction to issue the Rule 60(a) order.  The Court found that the 30 day limit for filing post-judgment motions did not apply to Rule 60(a) motions and, therefore, the trial court had jurisdiction.  See Ex parte Brown, 963 So, 2d 604 (Ala. 2007).

In the meantime, the Mother filed a notice of appeal within 42 days of the June 29 Rule 60(a) order.  The Father argued that the notice of appeal was untimely because the notice of appeal should have been filed within 42 days of the original, April 18 order.  The Court of Civil Appeals. however, held that the notice of appeal was timely.  Although an order correcting a prior order pursuant to Rule 60(a) does not extend the time in which to appeal the prior order, "that rule presupposes that the original judgment accurately indicates which party the trial court intended to rule against because a party cannot appeal a ruling that is not, on its face, adverse to that party."  The Court of Civil Appeals held that "the mother could not appeal the trial court’s rulings . . . until the trial court entered the June 29 amendment in which the trial court indicated for the first time that it was ruling against the mother on thise issues."  Thefeore, the appeal was timely.  Ultimately, the June 29 order was affirmed.

Judge Thomas wrote a dissent, in which Judge Pittman joined, stating that appeal should have been dismissed as untinmely.  Judge Thomas wrote that the Rule 60(a) relation back cases are not, in fact, based onthe presupposing that the order correctly identified the prevailing party.  Judge Thomas that, in this situation, the mother would not have been without a remedy, as Rule 77(d) could have been used to extend the time to appeal.