Alabama Court of Civil Appeals Dismisses Appeal; Rule 60 Motion Does Not Toll Time for Filing a Notice of Appeal

On January 16, 2009, the Alabama Court of Civil Appeals dismissed Rhodes v. Fulmer, Case No. 2070664, as untimely filed. 

The circuit court entered a judgment in this brother/sister will contest on October 3, 2007 which ordered the brother to pay his one third share of an amount to his sister, as well as to convey certain real estate contained in the estate.  On October 30, 2007, the sister filed a motion to amend, arguing that the judgment was based on an incorrect amount.  The circuit court granted that motion on November 1, 2007. On December 7, 2007, the brother  filed his own motion to amend, arguing that the real estate he had been ordered to convey was not a part of the estate. 

On December 13, 2007, the sister responded to her brother’s motion, pointing out that it was untimely because it had not been filed within thirty days of the date of the court’s judgment.  On December 18, 2007, the brother responded, arguing that he had not become aware of the circuit court’s judgment and amended judgment until November 26, 2007 because he had not received proper notice of them through the “e-notice” system. 

The brother’s notice of appeal, filed in April of 2008, was untimely because it was outside the 42 day window for filing an appeal.  While this time limit can be tolled by the timely filing of a post-judgment motion, the brother’s Rule 59 motion was filed more than thirty days after the order he sought to appeal and therefore did not toll his time.  Moreover, the court noted that the fact that he filed a Rule 60 motion on December 18, 2007 did not change this result because the filing of a Rule 60 motion does not toll the time for taking an appeal. 

The brother’s appeal was therefore dismissed as untimely.