129 So. 3d 294
Ala. Civ. App.2013Background
- Viva Woodall died July 2, 2008; her son Bobby Woodall sought probate of the will in DeKalb Probate Court.
- Daughters Threasa Banks and Vivian Wiggs were named beneficiaries; executor sought final settlement in December 2010.
- Probate court set a hearing for Jan 11, 2011, later rescheduled to Jan 20, 2011; daughters did not appear.
- Judgment confirming the final settlement was entered January 20, 2011.
- Daughters learned of the rescheduled hearing and judgment in March 2011 and filed an April 15, 2011 postjudgment motion to alter, amend, or vacate.
- Daughters filed a notice of appeal on August 25, 2011; executor moved to dismiss as untimely.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the April 15, 2011 postjudgment motion tolled the appeal deadline. | Daughters contend motion tolled under Rule 59. | Executor contends motion was untimely under Rule 59 and did not toll the appeal. | No tolling from Rule 59; untimely appeal remained. |
| If construed as Rule 60(b)(4), whether the motion could render the judgment void for due process. | Motion could be construed as Rule 60(b)(4) voiding judgment. | Rule 60(b)(4) motions are not time-barred and may affect appeal differently. | Even as Rule 60(b)(4), appeal remained untimely since no ruling on motion by probate court. |
| Did the lack of notice argument provide a basis to appeal under Rule 60(b) or toll the deadline? | Daughters relied on lack of notice as due-process concern. | Lack of notice argument does not independently toll appeal unless court acted. | Lack of action on the motion meant no tolling basis from Rule 60(b) in this context. |
| Was the appeal timely filed given the January 20, 2011 judgment and 42-day deadline? | Appeal should be timely if tolling applied. | Notice of appeal filed August 25, 2011 was beyond 42 days. | Appeal untimely; circuit court properly dismissed. |
Key Cases Cited
- Lett v. Weaver, 79 So.3d 625 (Ala.Civ.App.2010) (Rule 60(b)(4) argument can sustain appeal where denial of Rule 60(b) motion is a separate appealable judgment; here distinguishable because probate court did not rule on motion.)
- Conway v. Housing Auth. of Birmingham Dist., 676 So.2d 344 (Ala.Civ.App.1996) (Rule 60(b) timing not subject to Rule 59.1 denial timing; motion remains pending if not acted on.)
- Burton v. Burton, 710 So.2d 1257 (Ala.Civ.App.1997) (Rule 59 timing; postjudgment motion not tolling appeal.)
- Ex parte Full Circle Distrib., L.L.C., 883 So.2d 638 (Ala.2003) (Rule 60(b)(4) not subject to reasonable-time requirement; may be brought any time.)
- Lett, 79 So.3d 625 (Ala. Civ. App. 2010), 79 So.3d 625 (Ala.Civ.App.2010) (See Lett for due-process/Rule 60(b) treatment in contest context.)