Appellate Law

Rule 59.1 Extensions Squandered

After obtaining two effective post-judgment extensions under Rule 59.1, a husband failed to appeal within 42 days of the circuit court’s order, and saw his appeal dismissed as untimely. Smith v. Smith, No. 2061150 (Ala. Civ. App. Feb. 15, 2008).

This divorce case involves two familiar rules: Rule 59.1 of the civil procedural rules, and Rule 4(a)(1) of the appellate rules.  Rule 59.1 denies by operation of law any post-judgment motion made under Rules 50, 52, 55 or 59, that is not ruled upon and remains pending for more than 90 days.  Rule 59.1 also allows the parties to extend this 90-day deadline to avoid an automatic denial.  Rule 4(a)(1) of the appellate rules sets the basic 42-day deadline for filing an appeal.

The parties in Smith effectively used Rule 59.1 twice to extend the post-judgment decision period.  After the circuit court divorced the parties, the husband timely moved under Rule 59(e) to alter, amend, or vacate the judgment.  The parties then twice moved jointly under Rule 59.1 to give the court more time to decide the husband’s motion, so that it would not be denied by operation of law.  The circuit court granted both extensions.  The last extension gave the court until July 12, 2007 to rule upon the pending motion.  The court entered an order purporting to deny that motion on July 30.  Forty days later, on September 8, the husband appealed.

The Court of Civil Appeals dismissed the case as untimely. “At the very latest,” the appellate court explained, “the husband’s postjudgment motion was denied by operation of law, pursuant to Rule 59.1 and the parties’ agreement, on July 12, 2007. The husband had 42 days from that date — i.e., until August 23, 2007 — to appeal. The husband appealed on September 8, 2007, after the time allowed by Rule 4(a)(1).” (Citation omitted.)  The husband’s late appeal did not invoke the jurisdiction of the appellate court, which was compelled to dismiss his case.

Full post as published by Alabama Appellate Watch on February 19, 2008 (boomark / email).