Appeal Of Circuit Court’s Order Affirming Probate Court Dismissed Because Appeal to Circuit Court Was Untimely

In Williams v. Lollar, [Ms. 2070282] (Ala. Civ. App. Nov. 7, 2008), the probate court entered a judgment on a will contest.  The appellant filed a post-judgment motion, whcih was denied by operation of law.  After the motion was denied by operation of law pursuant to Rule 59.1, the probate court ruled on the post-judgment motion.  The appellant then appealed the ruling on the post-judgment ruling to the Circuit Court, which affirmed the probate court.  The appellant then appealed the Circuit Court’s ruling.  The Court of Civil Appeals held that the probate court lost jurisdiction to act after the post-judgment motions were denied by operation of law, and the appeal to the Circuit Court was untimely because it was not filed within 42 days of the denial by operation of law.  Because the appeal to the Circuit Court was untimely, the Circuit Court did not have jurisdiction and, therefore, the order affirming the probate court was void.  And, because a void judgment will not support an appeal, the appeal of the Circuit Court’s order was dismissed. 

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.