Arlington Props., Inc. v. Brown (Ex parte Arlington Props., Inc.)

• Decision Date: 18 June 2010
• Docket Number: 2090038.
• Citation: 83 So.3d 503
• Parties: Ex parte ARLINGTON PROPERTIES, INC.(In re Arlington Properties, Inc. v. Cantrell Brown).
• Court: Alabama Court of Civil Appeals

83 So.3d 503

Ex parte ARLINGTON PROPERTIES, INC.(In re Arlington Properties, Inc.

v.Cantrell Brown).

2090038.

Court of Civil Appeals of Alabama.

March 26, 2010.Rehearing Denied June 18, 2010.

Joseph M. Willoughby, Gadsden, for petitioner.

Misty S. Ledbetter of Legal Services Alabama, Inc., Anniston, for respondent.

MOORE, Judge.

Arlington Properties, Inc. (“Arlington”), petitions this court for a writ of mandamus directing the Etowah Circuit Court to grant its motion to dismiss Cantrell Brown's appeal from the Etowah District Court's judgment in favor of Arlington on Arlington's unlawful-detainer complaint. We grant the petition and issue the writ.

Procedural History

On June 24, 2009, Arlington filed in the Etowah District Court a complaint asserting an unlawful-detainer claim against Brown. After a trial, the district court rendered a judgment in favor of Arlington on July 21, 2009. In the judgment, the district court stated that Brown had until August 4, 2009, to appeal the judgment. The judgment was not entered into the State Judicial Information System until July 27, 2009, and, thus, it was deemed “entered” on that date. Rule 58, Ala. R. Civ. P. On August 4, 2009, Brown filed a notice of appeal to the Etowah Circuit Court. On August 12, 2009, Arlington filed a motion to dismiss the appeal, alleging that the notice of appeal had not been timely filed. On October 7, 2009, the circuit court denied that motion. Arlington filed its petition for a writ of mandamus to this court on October 14, 2009.

Standard of Review

“ ‘ “Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.” Ex parte Integon Corp., 672 So.2d 497, 499 (Ala.1995). The question of subject-matter jurisdiction is reviewable by a petition for a writ of mandamus. Ex parte Flint Constr. Co., 775 So.2d 805 (Ala.2000).’

“ Ex parte Liberty Nat'l Life Ins. Co., 888 So.2d 478, 480 (Ala.2003).”

Ex parte Progressive Specialty Ins. Co., 31 So.3d 661, 663 (Ala.2009).

Discussion

In its petition, Arlington argues that, pursuant to Ala.Code 1975, §§ 6–6–350 and 35–9A–461, Brown's notice of appeal to the circuit court was required to have been filed within seven days after the entry of the district court's judgment, that Brown's appeal was not filed within that seven-day period, and that, therefore, Brown's appeal is due to be dismissed as untimely filed. Specifically, Arlington points out that the Etowah District Court's practice is to handwrite, sign, and date orders in open court, to notify the losing party of his or her right to appeal and of the time within which the appeal must be perfected, and, generally, to deliver the order to the clerk's office that same day. Based on those facts, Arlington contends that the time to appeal should have run from the date the judgment was rendered, i.e., July 21, 2009, not the date it was entered into the State Judicial Information System, i.e., July 27, 2009.

Brown, on the other hand, argues that, pursuant to Rule 58(c), Ala. R. Civ. P., the district court's judgment was entered on July 27, 2009. He further argues that, because the time in which to file an appeal is less than 11 days, pursuant to Rule 6, Ala. R. Civ. P., intermediate Saturdays and Sundays must be excluded from the computation of the 7–day period. Rule 6(a) provides, in pertinent part:

“In computing any period of time prescribed or allowed by these rules, by order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday, or, when the act to be done is the filing of a paper in court, a day on which weather or other conditions have made the office of the clerk of the court inaccessible, in which event the period runs until the end of the next day that is not one of the aforementioned days. When the period of time prescribed or allowed is less than eleven (11) days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation.”

Based on his assertion that Rule 6 applies in this case, Brown concludes that his notice of appeal was filed 6 days after the district court's judgment was entered and, thus, was timely filed.

We initially note that Arlington's argument that the time for appeal ran from the date the district court's judgment was rendered is without merit. Both §§ 6–6–350 and 35–9A–461 provide that the time for appealing from an unlawful-detainer judgment runs from the “entry” of the judgment. There is a “distinction between the substantive, judicial act of rendering a judgment and the procedural, ministerial act of entering a judgment.” See Committee Comments to Amendment to Rule 58 Effective September 19, 2006, quoted in Bolden v. Wise Alloys, LLC, 5 So.3d 1287 (Ala.Civ.App.2008). Rule 58(c) specifically provides that a judgment is deemed entered as of the date it is entered into the State Judicial Information System. Accordingly, we conclude that the district court's judgment was entered on July 27, 2009.

We cannot, however, end our analysis here. We must determine whether Rule 6(a), Ala. R. Civ. P., applies to the computation of the time in which to appeal in this case because, if it does not apply, Brown's notice of appeal was not timely filed.¹

“The Rules of Civil Procedure cannot be applied if applying them would offend restrictions imposed by our Constitution.” Ex parte General Motors Corp., 800 So.2d 159, 164 (Ala.2000) (Lyons, J., concurring specially). “The Alabama Rules of Civil Procedure were promulgated by [the Alabama Supreme] Court under authority granted by the Alabama Constitution of 1901, amd. 328, § 6.11.” State v. Bragg, 710 So.2d 417, 418 (Ala.1998). That section of the constitution, now Art. VI, § 150, Ala. Const. 1901 (Off. Recomp.), provides, in pertinent part:

“The supreme court shall make and promulgate rules governing the administration of all courts and rules governing practice and procedure in all courts; provided, however, that such rules shall not abridge, enlarge or modify the substantive right of any party nor affect the jurisdiction of circuit and district courts or venue of actions therein....”

Sections 6–6–350 and 35–9A–461 both provide for a seven-day period in which to file a notice of appeal to the circuit court from an unlawful-detainer judgment entered in the district court. Thus, those statutes grant appellate jurisdiction to circuit courts to review an unlawful-detainer judgment only if the notice of appeal is filed within that seven-day period. The application of Rule 6 would extend that period and, consequently, the jurisdiction of the circuit courts to decide appeals when the notice of appeal is filed more than seven days after the judgment was entered. Because such a result would be offensive to our constitution, we must conclude that Rule 6 is inapplicable to appeals to the circuit court in unlawful-detainer actions.

In State v. Ladner & Co., 346 So.2d 1160, 1161 (Ala.Civ.App.1977), this court considered the question “whether a taxpayer who fail[ed] to perfect an appeal from a final tax assessment, pursuant to Tit. 51, § 140, [Ala.Code 1940 (Recomp.1958),] may thereafter have the assessment set aside by a Rule 60(b) [, Ala. R. Civ. P.,] motion.” The taxpayer argued that “a final assessment of taxes is as conclusive as a judgment of the circuit court” and, thus, could be “altered as any other judgment.” 346 So.2d at 1161. The State argued that Tit. 51, § 140, Ala.Code 1940 (Recomp. 1958), provided the exclusive method for contesting a tax assessment, i.e., an appeal to the circuit court, that the taxpayer had not followed that procedure, and, thus, that the trial court was without jurisdiction to entertain the taxpayer's Rule 60(b) motion. Id. This court agreed, stating:

“The Rules of Civil Procedure apply to proceedings in courts. Hence, the rules applied to the proceeding once it had been instituted in the Circuit Court of Mobile County. However, the rules do not provide the mechanism by which a party may invoke the jurisdiction of the court.

“The jurisdiction of the Circuit Court of Mobile County over disputes arising from assessments of taxes by the State is governed by statute. Tit. 51, § 140, Code of Alabama [1940 (Recomp. 1958) ]. Section 150 of the Alabama Constitution [of 1901] limits the rule making power of the supreme court to rules which do not affect the jurisdiction of the circuit court. The rules are only procedural and are not to be interpreted as modifying substantive law. Hence, an interpretation of Rule 60(b)[, Ala. R. Civ. P.,] which would be at odds with the statutory scheme of judicial review of the orders of administrative agencies would alter jurisdiction of the circuit court and would constitute judicial alteration of substantive law.”

346 So.2d at 1161.

In Mitchell v. State, 351 So.2d 599 (Ala.Civ.App.1977), a case that also challenged a final tax assessment, the taxpayer filed his notice of appeal beyond the 30 days provided by Tit. 51, § 140. The taxpayer argued that his appeal was timely filed pursuant to Rule 6(a) and 6(e), Ala. R. Civ. P., because the 30–day period expired on a Sunday and because he had received notice of the final assessment by mail.² 351 So.2d at 601. This court, citing Ladner, disagreed with the taxpayer, stating:

“Compliance with the procedures of § 140 is a jurisdictional requirement. ‘The jurisdiction of a court must be invoked in the manner and within the time required by statute.... The right of appeal from a final...