In Rhodes v. Rhodes, [Ms. 2070972] (Ala. Civ. App. July 24, 2009), the Court of Civil Appeals dismissed an appeal in part because the trial court never ruled on the Rule 60 motion from which review was sought. Rule 60 motions are not denied by operation of law after 90 days pursuant to Rule 59.1. Therefore, the motion was still pending and there was not a final order for purposes of appeal.
In Rhodes, the husband appealed from the trial court’s division of marital property. While the case was pending on appeal, the Court of Civil Appeals issued an opinion which the husband argued impacted the propriety of the trial court’s ruling. The Court of Civil Appeal granted the husband’s motion for leave to file am Ala. R. Civ. P. 60(b) motion for relief from judgment. The trial court did not rule on the Rule 60(b) motion, and sought review in the Court of Civil Appeals after the motion had been pending for 90 days.
First, the trial court refused to consider the argument regarding how the intervening new case impacted the trial court’s decision as a part of the initial appeal because the new decision was not before the trial court when it ruled, and the Court of Civil Appeals would not consider an argument not made to the trial court.
The Court of Civil Appeals then dismissed the appeal from the Rule 60(b) motion. Although certain post-judgment motions are deemed denied by operation of law after 90 days in accordance with Ala. R. Civ. P 59.1, Rule 60 motions are not among the motions covered. By its very terms, "the 90-day period for ruling on postjudgment motions announced in Rule 59.1, Ala. R. Civ. P., applied only to motions filed under Rules 50, 52, 55, and 59., and not those filed under Rule 60(b)." Slip Op. p. 26. Thus, the husband’s Rule 60 motion was still pending. Because there was no final order on the Rule 60 motion, the portion of the appeal relating to the Rule 60 motion was dismissed.