Appellate Law

Bulk of Appeal Dismissed as Untimely Filed

The Court of Civil Appeals dismissed the bulk of the appellant's appeal in Watson v. Whittington Real Estate, LLC as untimely filed.

Two orders were at issue in Watson: the first was a January 10, 2007 judgment which "disposed of all remaining claims in all cases, except for the amount of attorneys fees and costs." The order did not expressly address all the claims that remained pending at that time.  The second order at issue was the February 26, 2008 judgment, which awarded attorneys' fees.  The notice of appeal was filed on April 4, 2008: 42 days from the Februrary 26, 2008 judgment, but more than 42 days from the January 10, 2007 judgment. 

In accepting the appellees' argument that the operative final judgment was the January 10, 2007 judgment and that the appeal was untimely filed, the court stated:

As noted above, the trial court's January 10, 2007 judgment "disposed of all remaining claims in all cases, except for the amount of attorneys fees and costs...."  Although the trial court's January 10, 2007 judgment does not expressly address all the claims that remained pending at that time, any claims that were not specifically addressed in that order are presumed to have been denied.  [The appellant] had 42 days from the date his postjudgment [motion] was denied by operation of law on April 18, 2007, in which to appeal from the trial court's January 10, 2007 judgment; however, [the appellant] did not file his notice of appeal until April 4, 2008.  Accordingly, we dismiss [his] appeal as being untimely filed with regard to all his appellate arguments, with the exception of his argument regarding the trial court's award of attorneys'  fees....

The court proceeded to review the attorneys fee issue and affirmed the trial court's award. 

Full post as published by Alabama Appellate Watch on February 14, 2009 (boomark / email).