Appellate Law

Rule 60(b) motion is not a substitute for a Rule 77(d) extension

When a party is not notified of an appealable order, the only way to extend the time to appeal is by a Rule 77(d) extension, not a Rule 60(b) motion.   In Gullett v. Gullett, [Ms. 2070007] (Ala. Civ. App. Sept. 12, 2008), the Court of Civil Appeals dismissed an appeal as untimely where the appellant incorrectly filed a Rule 60(b) motion for relief from judgment instead of seeking a Rule 77(d) extension.

In Gullett, a divorce proceeding, the trial court issued its order on May 18, 2007.  On July 17, 2007, the husband filed a Rule 60(b) motion for relief from judgment, stating that the husband's attorney did not receive notice of the judgment.  The trial court purported to amend its judgment on August 20, 2007, and the husband filed his notoce of appeal on September 26, 2007.  Reviewing jurisdiction ex mero motu, the Court of Civil Appeals dismissed the appeal.

The Court held that Rule 77(d), which allows the trial court to grant a party an additional 30 days to file a notice of appeal where the party did not receive notice of the judgment and can show excusable neglect, is the sole method to extend the time to appeal.  A Rule 60(b) motion for relief from judgment cannot be a substitute for a Rule 77(d) extension where lack of notice is alleged.  Slip. Op. pp. 4-5.

Further, even if the Court treated the Rule 60(b) motion as a Rule 77(d) motion, the trial court lost jurisdiction to grant that motion 73 days after the entry of the original judgment.  The motion must be granted, and the appeal filed, within 72 days after the judgment (42 days to appeal, plus 30 day extension).    

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