Appellate Law

Untimely Filing of Notice of Appeal Results in Dismissal in Part

In Liberty Mutual Insurance Company v. Greenway Enterprises, Inc., released by the Alabama Court of Civil Appeals on March 13, the court dismissed the appeal in part for failure to timely file a notice of appeal.  

Liberty Mutual sued Greenway in this workers' compensation and employers' liability insurance policy case. On May 22, 2007, the court entered summary judgment in favor of Greenway.  The same day, the court entered an amended summary judgment adding "costs are taxed as paid." 

On May 29, 2007, Greenway moved the trial court to order Liberty Mutual to pay its costs and attorneys fees.  On June 7, 2007, Liberty Mutual filed a motion to alter, amend, vacate, or set aside the May 22, 2007 summary judgment.  The trial court set those motions for a hearing to take place on July 12, 2007, but the hearing was continued until November 19, 2007. 

The trial court entered an order on November 30, 2007, denying Liberty Mutual's motion to alter, amend, vacate, or set aside the summary judgment and granting Greenway's motion to tax costs and attorney fees.  The trial court entered an order on December 12, 2007, awarding Greenway costs and attorney fees.  Greenway filed it notice of appeal on January 22, 2008. 

The court concluded that it could not address the issues raised by Liberty Mutual regarding the May 22, 2007 summary judgment.  That judgement conclusively determined all the issues before the court and put an end to the proceedings, leaving nothing for further adjudication except Greenway's request in its answer for the impositions of costs and fees.  According to Rule 58(c), "the entry of the judgment or order shall not be delayed for the taxing of costs."  Hence,  the failure to tax costs did not affect the finality of the summary judgment.  Moreover, the failure to award attorney fees also does not render the summary judgment nonfinal.  

Therefore, Liberty Mutual had 42 days from the date of the entry of the summary judgment to file its notice of appeal.  Liberty Mutual tolled that time by filing its postjudgment motion pursuant to Rule 59.  Because that motion was deemed denied by operation of law on September 5, 2007, the time for filing a notice of appeal expired on October 17, 2007.  The January 22, 2008 notice of appeal was not timely filed and the appeal was due to be dismissed.  

Full post as published by Alabama Appellate Watch on March 16, 2009 (boomark / email).