Rule 60(b) Used to Review a Costs Award

In Fenison v. Birmingham Spring Service, Inc., [Ms. 2080023, 2080036] (Ala. Civ. App. Nov. 6, 2009), the Court of Civil Appeals held that a costs award could be challenged in the trial court by way of a Rule 60(b) motion, but ultimately held that the trial court exceeded its discretion by granting relief.

The trial court granted summary judgment for the defendants in a case involving the alleged failure to abide by a consent agreement in a workers’ compensation case.  Even though Ala. R. Civ. P. 54(d) states that costs ordinarily should be award to the prevailing party, the trial court’s order granting summary judgment provided that costs should be taxed as paid.

More than four months after the order, the defendants filed a Rule 60(b) motion seeking relief from the costs portion of the order, saying that they were entitled to over $57,000 in costs.  Nine days after the order was entered, the trial court granted the motion and awarded the defendants over $19,000 in costs.

The plaintiff moved to vacate the costs award, but the motion was denied by operation of law.  After the order was denied by operation of law pursuant to Rule 59.1, the trial court purported to vacate its costs award.  Plaintiff timely appealed the denial of her motion, and defendants timely sought a mandamus directing the trial court to vacate its order reversing the costs award.

First, the Court of Civil Appeals held that the defendants were entitled to a writ of mandamus directing the trial court to vacate its order reversing its costs award.The trial court issued the writ, holding that the trial court was without jurisdiction to enter its order after the motion had been denied by operation of law.

But the Court of Civil Appeals also revered the order granting the Rule 60(b) relief.  The court noted that there were conflicting cases on whether it is proper to seek review of a costs award by way of a Rule 60(b) motion.  In City of Birmingham v. City of Fairfield, 396 So. 2d 692 (Ala. 1981), the Alabama Supreme Court held that a Rule 60(b) motion could not be used as a substitute for appeal and, therefore, because the costs award could have been challenged within 30 days by a post-judgment Rule 59 motion and appeal, review four months later by a Rule 60 motion was not allowed.  However, in Rebel Oil Co. v. Pike, 473 So. 2d 529 (Ala. Civ. App. 1985), the Court of Civil Appeals reviewed an award of attorney’s fees, which is an element of costs, by way of a Rule 60 motion.

The Court of Civil Appeals proceeded under the assumption that the costs award could be review by a Rule 60(b) motion.  The court then found that the defendants had not proved any of the grounds which would entitled them to Rule 60(b) relief, and therefore reversed the order modifying the original judgment and awarding the defendants costs.