Late Administrative Appeal Dismissed — ARAP 4(a) Could Not Save Appeal

A physician missed administrative and judicial deadlines for appealing a decision of the Alabama State Board of Medical Examiners. On its own motion, the Court of Civil Appeals dismissed his appeal. Brunson v. Ala. State Bd. of Med. Examiners, No. 2090751 (Ala. Civ. App. Mar. 25, 2011).

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In Action Against Multiple Defendants, Default Judgment Against One of Them Is Not Final For Purposes Of Appeal

The Alabama Supreme Court rejected the appellees’ contention that an appeal from a default judgment in Progress Industries, Inc. v. Wilson, No. 1080578 (June 30, 2010), was untimely.  The plaintiffs argued that the 42 day period for appeal under ARAP 4 started following the date on which the trial court entered an order assessing damages for the default judgment.  The Court disagreed:  "[a] judgment by default, rendered in advance against one of several defendants, is interlocutory until final disposition is made as to all the defendants. Ford Motor Credit Company v. Carmichael, Ala., 383 So.2d 539 (1980). Interlocutory orders and judgments are, therefore, not brought within the restrictive provisions of Rule 60(b), Alabama Rules of Civil Procedure, which provides for relief from final judgments. Instead, such orders are left within the plenary power of the court that rendered them to afford relief from them as justice requires."  Progress Industries (quoting Hallman v. Marion Corp., 411 So.2d 130, 132 (Ala. 1982)).  The Court held that the time for filing an appeal began to run from the date that the trial court certified the default judgment under ARCP 54(b), and the ARCP 55(c) motion to set aside the default that the defendant filed within 30 days of the 54(b) certifiation tolled the time for appeal until the the defendant’s 55(c) motion was denied by operation of law 90 days later pursuant to ARCP 59.1 

Consolidated Actions Maintain Separate Identities For Determining Finality of Judgment and Time to Appeal

In RJG v. SSW, [Ms. 2080509] (Ala. Civ. App. Aug. 21, 2009), the Court of Civil Appeals dismissed a portion of a father’s appeal in a parental rights action as untimely.  On November 6, 2009, the Court of Civil Appeals issued a new opinion of rehearing again dismissing the appeal, explaining that the appeal was not made timely by the fact that the underlying case was part of an action that had been consolidated.  RJG v. SSW, [Ms. 2080509] (Ala. Civ. App. Nov. 6, 2009).

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Appeals From Juvenile Court Subject To Shorter Deadlines; Appeal Dismissed As Untimely

In R.J.G. v. S.S.W., [Ms. 2080509] (Ala. Civ. App. Aug. 21, 2009), a portion of a father’s appeal was dismissed as untimely as a result of the short deadlines for appeals from a juvenile court.  Unlike in Circuit Court, post-judgment motions in a juvenile court must be filed within 14 days of the entry of the order.  Ala. R. Juv. P. 1(B).  And, a post-judgment motion in a juvenile court will be denied by operation of law after 14 days, Ala. R. Juv. P. 1(B), as opposed to 90 days under Ala. R. Civ. P. 59.1.  Finally, appeals from a juvenile court must be made within 14 days of the entry of judgment or denial of the post-judgment motions.  Ala. R. App. P. 4(a)(3).  The father did not appeal within 14 days after the post-judgment motion was denied by operation of law, so, the appeal in one of the two cases at issue in the opinion was denied as untimely. 

Rule 62 Motion to Stay Does Not Suspend Time for Appeal

Following the entry of final judgment in a wrongful death action, the defendant filed two post-judgment motions, neither of which suspended the 42 day period for filing a notice of appeal. ARAP 4(a). The Rule 62 motion to stay in which the defendant requested time to consider filing a Rule 59 motion did not satisfy the requirements of ARAP 4(a)(3). Although the Court, “looks to the essence of a motion, not necessarily to its title, to determine how the motion is to be considered under the Alabama Rules of Civil Procedure . . ., [c]onsistent with Rule 4(a)(3), Ala. R. App. P., the Committee Comments on 1973 Adoption of Rule 62 plainly state that the stay provided for in the rule ‘does not affect appealability of the judgment nor prevent the time for appeal from running.’” Graves v. Golthy, No. 1070422 (Ala. April 17, 2009).

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Notice Filed in Wrong Court, And Not on Form ARAP-1, Nonetheless Secured Appeal

A homeowner filed a notice of appeal that was not on the Form 1 contained in the Alabama Rules of Appellate Procedure. Moreover, she mistakenly filed her notice in the county’s district rather than circuit court. However, her notice contained all the information required by law, and the district and circuit courts shared the same clerk. Her notice thus effected a timely appeal. Whorton v. Bruce, No. 2070501 (Ala. Civ. App. Feb. 20, 2009).

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