233 So. 3d 982
Ala. Civ. App.2016Background
- May 13, 2015: Trial court entered a final PFA judgment in favor of Miranda Venturi (mother) against Kevin Venturi (father).
- June 11, 2015: Father timely filed a Rule 59 postjudgment motion (to alter, amend, or vacate; requested new trial if vacated).
- July 28, 2015: Trial court entered an order stating the motion was “granted in part” and that the issue of supervised visitation was set for an August hearing; no substantive relief was specified.
- Hearing originally set for August 24 was continued (motion to stay granted); the hearing eventually occurred December 7, 2015, with no witnesses — only counsel argument.
- December 7, 2015: Trial court entered an order denying relief on the postjudgment motion; father filed notice of appeal December 21, 2015.
- Court of Appeals held the July 28 order did not rule on the postjudgment motion for purposes of tolling Rule 59.1’s 90-day period; the postjudgment motion was deemed denied by operation of law on Sept. 9, 2015, rendering the December order null and the appeal untimely and dismissible.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the July 28 order tolled Rule 59.1’s 90-day period | Father: the order “granted in part” suspended the clock and preserved his postjudgment rights | Mother: the order merely set a hearing and did not rule on the motion, so the clock continued | Court: The order only set a hearing and did not grant substantive relief; it did not toll the 90-day period, so the motion was denied by operation of law |
| Whether the trial court’s Dec. 7 order was a valid post-judgment ruling | Father: Dec. 7 order constitutes a ruling on the postjudgment motion, supporting a timely appeal from that date | Mother: Trial court lacked jurisdiction after Rule 59.1 elapsed; Dec. 7 order is a nullity | Court: Trial court lost jurisdiction when Rule 59.1 expired; Dec. 7 order is void/nullity |
| Whether the appeal was timely | Father: Notice of appeal filed Dec. 21, 2015, listing Dec. 7 order — asserted appealable ruling | Mother: Appeal was filed more than 42 days after the postjudgment motion was deemed denied (Sept. 9) and therefore untimely | Court: Appeal was untimely and did not invoke appellate jurisdiction; appeal dismissed |
| Whether courts should clarify electronic orders that state "granted" on postjudgment motions | Father: (implicit) the electronic language reflected relief and preserved rights | Trial judge/concurring judge: electronic order language can mislead; substantive alteration must be explicit | Concurrence: Trial courts should expressly state the specific relief (alter/amend/vacate or new trial) within Rule 59.1 time to avoid confusion |
Key Cases Cited
- Smith v. Smith, 4 So.3d 1178 (Ala. Civ. App. 2008) (order that merely sets a hearing does not toll Rule 59.1’s time to rule)
- Ex parte Johnson Land Co., 561 So.2d 506 (Ala. 1990) (Rule 59.1 requires an order that either grants or denies the postjudgment motion)
- French v. Steel, Inc., 445 So.2d 561 (Ala. 1984) (defining the type of ruling Rule 59.1 contemplates)
- Eight Mile Auto Sales, Inc. v. Fair, 25 So.3d 459 (Ala. Civ. App. 2009) (order granting in part but not providing substantive relief does not toll shortened district-court postjudgment period)
- Robinson v. Robinson, 840 So.2d 180 (Ala. Civ. App. 2002) (order entered after court lost jurisdiction is nullity)
- Carter v. Hilliard, 838 So.2d 1062 (Ala. Civ. App. 2002) (appellate court may raise lack of jurisdiction for untimely notice of appeal sua sponte)
- Moragne v. Moragne, 888 So.2d 1280 (Ala. Civ. App. 2004) (same on appellate jurisdiction review)