Appellate Law

Second Motion to Reconsider Does Not Toll Time for Filing Notice of Appeal

Because a second-filed postjudgment motion does not toll the time for filing a notice of appeal, the Alabama Court of Civil Appeals dismissed the appeal in C & D Logging v. Willie Mobley, No. 2080659, released November 20th.   

On September 26, 2008, the trial court entered a final judgment on Mobley's claims against C&D Logging.  On October 16, 2008, C&D Logging filed a post-judgment motion to alter, amend, or vacate that judgment.  Therein, it contended that the trial court had erred in calculating certain benefits awarded to Mobley in its September 26, 2008 judgment.  C & D Logging also argued that the trial court had erred in reaching an earlier determination regarding Mobley's request concerning the composition of a panel of four physicians requested by Mobley.  

Mobley filed a response to the October 16, 2008 postjudgment motion in which he generally opposed most of the arguments set forth therein.  However, he agreed that the September 26, 2008 judgment should be modified to the extent that the trial court had miscalculated certain benefits.  Thereafter, on November 13, 2008, the trial court entered an amended judgment in which it adopted the benefits calculation advocated by C & D Logging in its postjudgment motion.  In all other respects, the November 13, 2008 amended judgment was almost identical to the original September 26, 2008, judgment. 

On December 10, 2008, C&D Logging filed a motion entitled "motion to alter, amend, or vacate."  That motion reasserted the same grounds and arguments first asserted in the October 16, 2008 postjudgment motion, with the exception that the arguments concerning the correct calculations of workers' compensation benefits were omitted.  Primarily, the motion reasserted C & D Logging's arguments pertaining to the 2007 dispute concerning the composition of the panel of four physicians. 

In considering its own jurisdiction, the court noted that a timely-filed postmjudgment motion will toll the time for taking an appeal until the date the trial court rules upon the motion or until the motion is denied by operation of law pursuant to Rule 59.1.  Here, C& D Logging timely filed its postjudgment motion within 30 days of the entry of the September 26, 2008 judgment.  In accordance with the arguments asserted in the October 16, 2008 postjudgment motion, the November 13, 2008 amended judgment corrected the calculations of the awards of benefits to Mobley.  Thus, the November 13, 2008 amended judgment constituted a postjudgment order in which the trial court ruled on C&D Logging's October 16, 2008, postjudgment motion by granting a portion of the relief requested in that motion. C & D Logging had 42 days from the entry of the November 13, 2008 amended judgment, or until December 29, 2008 in which to file a timely appeal. 

However, on December 10, 2008 C&D Logging filed a motion entitled "motion to alter, amend, or vacate."  C & D Logging asserts that its December 10, 2008, motion was denied by operation of law on March 10, 2009, and that its April 13, 2009 notice of appeal was therefore timely.  The court disagreed, however, reasoning that the December 10, 2008 purported postjudgment motion asserted the same grounds asserted in its October 16, 2008 postjudgment motion.  And, as a subsequent postjudgment motion, it did not work to further extend the time for taking an appeal.  It stated:

It has long been held that "while a Rule 59 motion tolls the time for taking an appeal, a subsequent request, by whatever label, seeking the trial court's reconsideration of its ruling on the former Rule 59 motion, does not operate to further toll the time for the appeal.

C&D Logging's  December 10, 2008 motion constituted an impermissible second request for reconsideration of the trial court's September 26, 2008 judgment and the November 13, 2008, amended judgment.  Accordingly, it did not extend the time for filing an appeal.  As the notice of appeal was not filed within 42 days of the November 13, 2008 amended judgment, the appeal was not timely filed and due to be dismissed.    

Full post as published by Alabama Appellate Watch on November 23, 2009 (boomark / email).