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Appellate Law

: Alabama Appellate Watch

Appeal Dismissed Where Notice Was Filed Late

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The defendant filed his notice of appeal more than a year after the filing deadline. His appeal was dismissed for want of appellate jurisdiction. Bedgood v. McConico, No. 2080060 (Ala. Civ. App. July 10, 2009).

The trial court ordered a sale of property for the division of proceeds. The plaintiff moved post-judgment under Rule 59(e) to alter, amend or vacate that order. The trial court did not rule on the post-judgment motion, and under Rule 59.1, after 90 days the motion was denied by operation of law. At this point, the full filing deadline of 42 days under appellate Rule 4(a)(1) began to run. This was on June 12, 2007, which gave the defendant until July 24, 2007 to file his appeal. He did not file until October 3, 2008. His appeal was untimely and was dismissed for want of appellate jurisdiction.

Two tangential notes may be of interest. On August 23, 2008, the trial court purported to deny the defendant's Rule 59(e) motion. 'However, because [that] motion had previously been denied by operation of law, the trial court's purported denial of that motion was a nullity.'

Furthermore, given the type of case this was, in principle the defendant might have had a second chance to appeal the trial court's decision. 'In a sale-for-division case, both the order directing the sale and the subsequent order confirming the sale are considered final judgments for purposes of appeal.' Jetton v. Jetton, 502 So. 2d 756, 758-59 (Ala. 1987). In an appeal from the confirming order, the appellant

is entitled to raise objections arising from both the initial judgment ordering the land sold, and from the judgment confirming the sale, so long as the trial judge was given an opportunity to rule on such objections.

Here, the record contained no order 'confirming any subsequent sale of the property made pursuant to the February 20, 2007 order.' The appeal that was filed was late and was therefore dismissed.

Full post as published by Alabama Appellate Watch on July 20, 2009 (boomark / email).