Alabama Supreme Court clarifies procedure for appealing decisions of an arbitrator

In Horton Homes, Inc. v. Shaner, Ms. 1061659, 1061741 (Ala. June 20, 2008), the Alabama Supreme Court attempted to clarify the procedure for appealing an arbitrator’s decision.  Specifically, in its Per Curiam opinion, the Court "address[ed] two aspects of that procedure, namely: (1) the time period for filing an appeal of an arbitration award, and (2) the role of the circuit court in reviewing that arbitration award."  Slip Op. p. 2-3.

In short, a party has 42 days from the date of receipt of notice to file an appeal of the arbitrator’s award in the circuit court.  Further, a party challenging an award is required to file a motion to vacate the award, and that motion is subject to the procedures of Ala. R. Civ. P. 59 and 59.1.

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Failure to create record leads to affirmance of dismissal for lack of prosecution

In this new case from the Alabama Court of Civil Appeals, Rogers v. Gann, case No. 2060166, released June 15, 2007, the court shows the importance of properly creating a record for your appeal.  In Rogers, the petitioner’s action to recover overpayment for child support was dismissed for lack of prosecution.  The action was filed in April, 2005, and trial was continued on a couple of occasions.  The case was again continued from April 2006 trial setting.  Then, on September 18, 2006, the trial court dismissed the case, with prejudice, for lack of prosecution, noting that there had been no action in the case "since April 18, 2006 and the letter of this Court dated May 17, 2006 to the attorneys."  The petitioner appealed, claiming that the trial court abused its discretion.  The Court of Civil Appeals affirmed, noting that the record did not state why the action was not tried in April 2006, did not contain the May 17 letter from the trial court, and did not contain anything about what happened between April 2006 and the dismissal.  The Court of Civil appeals held that "since the burden is, indeed, on the appellant to ensure that the record affirmatively establishes that he is entitled to a reversal, we have no choice but to affirm the trial court’s judgment in this case."

Also of note is the court’s discussion of the timeliness of the appeal.  After his petition to recover overpayment was dismissed, the petitioner filed a "Motion to Reinstate."  The court treated this motion as a Rule 59(e) motion, and therefore the motion tolled the appeal time.  After the trial court denied the motion to reinstate, the petioner filed a "Motion to Amend."  This was treated as an improper motion to reconsider the denial of the first postjudgment motion, and was therefore a nullity.  However, because the appeal was filed within 42 days of the denial of the first postjudgment motion, the appeal was timely.

Agreeing to extend time for “hearing” does not satisfy Rule 59.1

The dangers and pitfalls of a Rule 59.1 extension are on display in this case from the Alabama Court of Civil Appeals.  In Traylor v. Traylor, Case No. 2060156, released June 15, 2007, the mother filed postjudgment motions relating to a custody dispute.  Before the 90 day deadline to rule on postjudgment motions established by Rule 59.1 had expired, the parties filed a motion to extend time pursuant to Rule 59.1.  Rule 59.1 allows the parties to extend the time in which a trial court can rule on postjudgment motions by an on the record consent of all parties. The Motion generally tracked the language of Rule 59.1, however, the motion stated that the parties agreed to extend time for the "hearing" on the motion.  Although no party addressed jurisdiction, the Court of Civil Appeals dismissed the appeal ex moru motu for lack of jurisdiction.  The Court of Civil Appeals quoted the Alabama Supreme Court case Ex parte Bodenhamer, 904 So. 2d 294 (Ala. 2004), in which the Court stated "consent to extend time for a hearing on a postjudgment motion does not equate to consent to extend the pendency of the postjudgment motion beyond the 90-day period prescribed by Rule 59.1, Ala. R. Civ. P."   Because the Rule 59.1 extension was ineffective, the time to appeal was not tolled, and the appeal was dismissed.

So, be forewarned.  A Rule 59.1 extensioon which only agrees to extend the "hearing" is ineffective.  Rather, you must agree to extend the time for the pendency of the motion.

Untimely Appeal Dismissed by Court of Civil Appeals

On April 6, 2007, the Court of Civil Appeals dismissed as untimely the City of Hartselle’s appeal from a judgment awarding workers’ compensation benefits in City of Hartselle v. Wilbanks.  In the proceedings below, the trial court entered a judgment awarding the employee workers’ compensation benefits on November 4, 2005. On January 10, 2006, the employee filed a motion seeking to correct the judgment insofar as it had used an incorrect date for the termination of the temporary benefits paid by the employer and had therefore incorrectly computed the benefits due the employee. The motion was granted. On January 17, 2006, the trial court entered an amended judgment reflecting the appropriate date and adjusting the computations figuring the amount of compensation due the employee. The city filed a notice of appeal on February 28, 2006, seeking review of only the propriety of the trial court’s conclusion that the employee was permanently and totally disabled.   

          The court dismissed the appeal as untimely. First, the court noted that the initial Rule 59 motion filed by the employee was filed more than thirty days after the entry of the November 4, 2005 judgment. As a result, it did not toll the time for taking an appeal and the employer’s 42 days began to run on November 4, 2005. The appeal, filed February 28, 2006 was therefore untimely and the appeal was dismissed.