Appellate Law

Nunc Pro Tunc Order Could Not Revise Judgment to Cure Late Appeal

A circuit court could not revise a judgment nunc pro tunc, so that the dates would retroactively cure a husband’s late appeal. Smith v. Smith, No. 2061150 (Ala. Civ. App. Apr. 11, 2008).

Much of this case finds the Court of Civil Appeals visiting familiar ground, tracing a small tangle of post-judgment dates through Rule 59.1 to an appeal that was ultimately late. This time, though, this heavily worn path took an unusual turn: The trial court revised its judgment, after the appeal was dismissed, in order to cure the late appeal. The Court of Civil Appeals found this to be beyond the lower court’s authority; and, on rehearing, again dismissed the appeal.

The husband had moved to alter, amend or vacate the trial court’s judgment of divorce. The parties twice moved, and the trial court agreed, to extend the time for ruling on this motion so it would not be denied by operation of law under Rule 59.1. The last extension gave the trial court until July 12, 2007, to rule. The court held a hearing on the motion before that date, but did not enter an order until July 30. On September 8, the husband appealed. 

The Court of Civil Appeals dismissed this appeal as untimely. “At the very latest,” the court reasoned, the husband’s motion had been denied by operation of law on July 12, 2007. The husband’s appeal on September 8 was well outside the 42-day deadline established by appellate Rule 4(a)(1). The court thus lacked jurisdiction to entertain the appeal.

Now the unusual part: Following this dismissal, the circuit court entered a nunc pro tunc order amending the challenged judgment. The court wrote in this order that the parties had agreed to extend the post-judgment deadline for ruling one more time, until July 30, 2007. (This, of course, would have made the husband’s appeal timely.) Inadvertence or clerical error had kept this last extension out of the record, the nunc pro tunc order said. The husband supplemented the record on appeal with this new order, and applied for a rehearing.

The Court of Civil Appeals granted the rehearing — and again dismissed the appeal. The nunc pro tunc order was without effect, the court explained. Using the order in this way was, in fact, beyond the circuit court’s power:

The trial court’s authority to enter a Rule 60(a) . . . order [to correct clerical errors] or a judgment nunc pro tunc is not unbridled.  It cannot be used to . . . make a judgment say something other than what was originally said. 

(Citation and quotation omitted). Rule 59.1 moreover requires that a post-judgment extension of time to rule must “be express and appear of record.” The original record here showed that the last extension was to July 12, 2007. The circuit court’s nunc pro tunc order impermissibly tried to change that. The husband’s appeal remained untimely and was again dismissed.

Full post as published by Alabama Appellate Watch on April 16, 2008 (boomark / email).