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Appellate Law

: Alabama Appellate Watch

Rule 60(b)(5) Motion Cannot Be Used As Substitute For Appeal

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In NHS Management, LLC v. Wright, [Ms. 2071129] (May 29, 2006), the Court of Civil Appeals reversed the trial court's granting of a Rule 60(b)(5) motion for relief from judgment due to an alleged change in the law because the Rule 60(b)(5) motion was being used as a substitute for an appeal.

The trial court granted the defendant's motion to compel arbitration for claims of negligence and assault occurring at a nursing home.  The plaintiff did not appeal.  Before the time to appeal had run, the Alabama Supreme Court issued an opinion which indicated that the motion to compel arbitration was due to be denied.  Plaintiff, however, did not appeal.

Plaintiff subsequently filed a "motion for reconsideration" of the order compelling arbitration based on the new Supreme Court case, which was treated as a Rule 60(b)(5) motion for relief from judgment.  The trial court granted the motion and vacated its order compelling arbitration.

The Court of Civil Appeals reversed.  First, the court noted that the "prior judgment" clause of Rule 60(b)(5) did not permit past decisions to be changed just because of precedential evolution.  Further, a Rule 60(b)(5) motion cannot be used as a substitute for an appeal.  The plaintiff could have appealed the order compelling arbitration but did not, and plaintiff cannot  use Rule 60(b)(5) for a second chance to appeal.

Full post as published by Alabama Appellate Watch on June 05, 2009 (boomark / email).

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