ALLSTATE INS., COMPANY v. Coastal Yacht Services, Inc.

• Decision Date: 14 December 2001
• Citation: 823 So.2d 632
• Parties: ALLSTATE INSURANCE COMPANY v. COASTAL YACHT SERVICES, INC.
• Court: Alabama Supreme Court

823 So.2d 632

ALLSTATE INSURANCE COMPANY v. COASTAL YACHT SERVICES, INC.

1001984.

Supreme Court of Alabama.

December 14, 2001.

Charles F. Beall, Jr., of Moore, Hill & Westmoreland, P.A., Pensacola, Florida, for appellant.

Daniel G. Blackburn and Cynthia J. Sherman of Blackburn & Conner, P.C., Bay Minette, for appellee.

LYONS, Justice.

Allstate Insurance Company (hereinafter "Allstate") sued Coastal Yacht Services, Inc. (hereinafter "Coastal Yacht"), to recover damages paid to Allstate's insured after a boat owned by the insured sank while in the custody of Coastal Yacht. The boat was pulled out of the water and, one month later, Allstate sold it. This action was filed almost two years after the boat was sold. After conducting limited discovery and before any depositions were taken, Coastal Yacht moved to dismiss the action as a discovery sanction against Allstate, charging Allstate with spoliation of evidence.

The trial court granted Coastal Yacht's motion to dismiss. On the case action summary, next to the date of May 22, 2001, the trial judge wrote, "[Defendant's] Motion to Dismiss is granted" and signed his name on the right-hand side of the next line below that entry. To the right of the judge's notation and signature, there appears the notation "filed 5/23/01," accompanied by initials, apparently of an employee of the clerk's office. On the next line, next to the date of May 24, 2001, there appears the notation "Notices Mailed." The notice states, "052201 DEFENDANT'S MOTION TO DISMISS IS GRANTED." Beneath this statement appears the following: "ISSUED ON: 05/24/2001 JUDGE: ROBERT WILTERS."

Allstate filed its notice of appeal on July 5, 2001. Allstate's appeal is timely if the action from which the appeal is taken occurred on May 23, 2001, or later, but it is untimely if the action occurred on May 22, 2001. Coastal Yacht filed a motion in this Court to dismiss the appeal; we grant the motion.

Rule 4(a)(1), Ala. R.App. P., provides that the notice of appeal "shall be filed with the clerk of the trial court within 42 days (6 weeks) of the date of the entry of the judgment or order appealed from." Failure to file a timely notice of appeal is a jurisdictional defect. Buchanan v. Young, 534 So.2d 263 (Ala.1988). Rule 58(c), Ala. R. Civ. P., provides, "Notation of a judgment or order on separately maintained bench notes or in the civil docket or the filing of a separate judgment or order constitutes the entry of the judgment or order."

This Court reviewed the effect of Rule 58 in Smith v. Jackson, 770 So.2d 1068 (Ala.2000). In that case, we stated:

"Pursuant to Rule 58(c), Ala. R. Civ. P., `[n]otation of a judgment or order on separately maintained bench notes or in the civil docket or the filing of a separate judgment or order constitutes the entry of the judgment or order.' `Rule 58 ... obliterate[s] any distinction between [the ministerial act of] entry and [the judicial act] of rendition of judgment and ... make[s] the operative event the act of the judge.' 2 Champ Lyons, Jr., Alabama Rules of Civil Procedure Annotated, § 58.2, at 255 (3d ed.1996). However, when a judge renders a judgment by a separate written order, that judgment is not entered until it is filed in the clerk's office. See Lacks v. Stribling, 406 So.2d 926, 930 (Ala.Civ. App.),cert. denied,406 So.2d 932 (Ala. 1981). Thus, although under Rule 58(c), rendition and entry of judgment occur simultaneously when the trial judge notes the judgment on the case action summary sheet or on separately maintained bench notes, see Rule 58, Ala. R. Civ. P., Committee Comments on 1973 Adoption, the Rule nevertheless preserves the distinction between rendition and entry of judgment when the trial judge renders judgment `by executing a separate written document,' Rule 58(a), Ala. R. Civ. P. In this case, the trial judge rendered his judgment on the jury verdicts by executing two separate orders. Therefore, the judgment against the defendants was not entered until the two orders were filed in the clerk's office on January 12, 1999. Accordingly, the notice of appeal was timely."

770 So.2d at 1071-72 (emphasis added).

The trial court in this case never entered a separate judgment or order in this proceeding. Instead, the trial court noted the judgment in the civil docket or on the case action summary. By the express terms of Rule 58(c), the action of the trial court constituted entry of the judgment. It is undisputed that the action of the trial court constituting entry of the judgment occurred on May 22, 2001.

Allstate relies upon Ex parte Potts, 814 So.2d 836 (Ala.2001), in which this Court rejected a challenge to the timeliness of the filing of the notice of appeal. In holding that the appeal was timely, this Court stated:

"Although the trial court's order is dated August 25, 1998 (44 days before Potts filed his notice of appeal), the order was not stamped `filed' until August 27, 1998 (42 days before the notice of appeal was filed). Rule 4(a)(1), Ala. R.App. P., requires that a notice of appeal `be filed with the clerk of the trial court within 42 days (6 weeks) of the date of the entry of the judgment or order appealed from.' This Court has held that the date of entry by the clerk, rather than the date the judgment is rendered, should be used when computing the time within which the notice of appeal must be filed. Holmes v. Powell, 363 So.2d 760 (Ala.1978)."

814 So.2d at 838 n. 1 (emphasis added).

Because the trial court's separate order in Potts was stamped "filed" two days after the judge signed the order, the date of entry of the judgment was properly determined by reference to filing. As this Court reiterated in Smith v. Jackson, supra, Rule 58(c) treats the date of filing "of a separate judgment or order" as the date of entry. Holmes v. Powell, 363 So.2d 760 (Ala.1978), cited in Potts, recognized the materiality of the date of filing with the clerk but, again, that statement in Holmes was made in the context of a separate order not previously noted on the case action summary. In Holmes, this Court stated:

"Filing the judgment or order in the office of the clerk (or register) or compliance otherwise under Rule 58(c), [Ala. R. Civ. P.,] constitutes `entry of the judgment' for purposes of computing the time within which notice of appeal must be filed."

363 So.2d at 761 (emphasis added).

Because Holmes expressly acknowledges the existence of other methods of effectuating an entry of a judgment in Rule 58(c)—such as notation on the civil docket (case action summary)—that do not include filing, Holmes does not, as Allstate urges, stand for the proposition that the date a judgment is filed in the clerk's office is always the critical date for computing the time for filing a notice of appeal.

Allstate also argues that it was entitled to rely on information the clerk provided to it in the notice mailed by the clerk's office. Allstate relies on Sparks v. Alabama Power Co., 679 So.2d 678 (Ala.1996). In Sparks, the trial court entered an order denying Sparks's motion for a new trial, but the clerk's office never mailed a copy of the order to Sparks. In addition, although the case action summary sheet bore a notation that the trial court had denied the motion for a new trial, the computerized records in the clerk's office did not so indicate. Sparks's counsel checked the computerized records in the clerk's office regularly during the 90 days after filing the motion for a new trial, and then filed her notice of appeal on the assumption that her motion for a new trial had been denied by operation of law pursuant to Rule 59.1, Ala. R. Civ. P. Alabama Power Company then moved to dismiss Sparks's appeal as untimely. This Court held that it was reasonable, given the facts of that case, to allow Sparks to rely on the information supplied to her by the clerk's office indicating that the trial court had not ruled on her motion for a new trial.

"[W]here there is a material discrepancy between the information contained on the formal case action summary sheet in a case and the information contained in the circuit clerk's computerized docket, a litigant should not be penalized [for] relying in good faith on the information contained in either `document.'"

679 So.2d at 681.

Allstate, however, cannot rely on Sparks because, unlike the litigant in Sparks, Allstate was provided the correct information by the clerk's office—information that would have allowed it to properly calculate the time within which it should have appealed. The notice sent by the clerk's office clearly stated that on May 22 the trial court had granted Coastal Yacht's motion to dismiss the complaint. The notice also bore the notation "ISSUED ON: 05/24/2001." Allstate argues in its brief that by that notation, the clerk's office "indicated an (apparently) incorrect date for entry of the judgment." We disagree. The only notation on the case action summary sheet for May 24 is the notation that notices were mailed to the attorneys in the case; therefore, it is likely that the notation "issued on" meant merely that the notice was issued on May 24. Rule 58 distinguishes judgments' being entered and being rendered, but does not discuss a judgment's being "issued." In any event, because there is no material discrepancy between the information contained in the notice mailed to the parties concerning the entry of the judgment on May 22 and the information contained on the case action summary sheet, this case is distinguishable from Sparks.

Coastal Yacht's motion to dismiss the appeal as...