Board of Water and Sewer Com'rs of City of Mobile v. Alabama Power Co.

• Court: Alabama Supreme Court
• Writing for the Court: BEATTY; TORBERT
• Citation: Board of Water and Sewer Com'rs of City of Mobile v. Alabama Power Co., 363 So.2d 304 (Ala. 1978)
• Decision Date: 29 September 1978
• Parties: BOARD OF WATER AND SEWER COMMISSIONERS OF the CITY OF MOBILE, a Public Corporation v. ALABAMA POWER COMPANY, a corporation. 77-269.

Page 304

363 So.2d 304

BOARD OF WATER AND SEWER COMMISSIONERS OF the CITY OF MOBILE, a Public Corporation v. ALABAMA POWER COMPANY, a corporation.

77-269.

Supreme Court of Alabama.

Sept. 29, 1978.

Joe H. Little, Jr. and Christopher G. Hume, III, Mobile, for appellant.

James J. Duffy, Jr., E. L. McCafferty, III and William C. Barclift, Mobile, for appellee.

BEATTY, Justice.

This is an appeal by the Board of Water and Sewer Commissioners of the City of Mobile from a summary judgment against it and from a denial of its motion for reconsideration (59(e), ARCP) of that judgment. We reverse and remand.

On September 20, 1976 Alabama Power Company (APCO) filed a complaint against the Board of Water and Sewer Commissioners of the City of Mobile (the Board) seeking to recover $11,121.41 under the theory of unjust enrichment plus interest and penalties assessed against APCO by the Alabama Department of Revenue (the Department) for the period of September 1, 1969 to June 30, 1972. This sum represented the liability of APCO to the Department under the Utility Gross Receipts Tax Act, Alabama Code of 1975, § 40-21-80 et seq.

That Act levies a direct tax upon each Purchaser of utility services; however, all subject utilities are charged with the responsibility of receiving and remitting this tax to the Department by adding to each purchaser's bill an amount equal to the tax imposed upon that purchaser. On the effective date of the Act, September 1, 1969, APCO began adding a charge, determined by a formula within the Act, to the monthly utility bill APCO sent to the Board. The Board, however, refused to pay the charge/tax, claiming to be exempt from September 1, 1969 to June 30, 1972 under certain exclusions within the Act, § 40-21-83(4). In response to APCO's complaint the Board's answer set forth this exemption, and also the statute of limitations and a general denial of APCO's allegations. Later, on November 23, 1976 the Board moved for summary judgment based upon the statute of limitations found within the Act, § 40-23-18(b). Summary judgment was denied. In due course the Board's motion to dismiss the amended complaint was also denied. The Board then answered the amended complaint, realleging its original defenses and adding the defense of the Statute of Frauds. On August 31, 1977 APCO served upon the Board a written notice for summary judgment on its amended three-count complaint. This motion was filed with the circuit court register who then set a hearing for September 16, 1977. Meanwhile discovery proceeded under Rules 33, 34 and 36, ARCP. APCO's answers to the Board's interrogatories were filed September 7, 1977, the day of trial.

On September 7, 1977 the Board moved under Rule 37(a), ARCP to compel APCO to answer its Interrogatory No. 6. Although the trial court took the matter under submission, it never ruled on this motion. The court proceeded to hear argument on APCO's motion for summary judgment. At this point APCO orally moved in open court to limit the theory of its previously filed written motion for summary judgment to the first count of its complaint. Apparently the trial court granted this oral motion. Summary judgment was ordered on this unjust enrichment count by written entry on September 23, 1977. The Board had previously filed and served on September 9, 1977 a Rule 59(e) Motion for Reconsideration. This motion was argued and taken under submission on October 21, 1977.

Notice of appeal from the summary judgment was filed January 13, 1978. APCO has moved this Court to dismiss the appeal as untimely in violation of Rule 4, ARCP. We disagree and hold the appeal was timely made.

This is the sequence of events central to our discussion of this motion:

September 7, 1977: APCO's motion for summary judgment argued.

September 8-9, 1977: Board's Motion for Reconsideration served, and filed in circuit court.

September 23, 1977: Order granting summary judgment entered.

October 21, 1977; Oral argument heard on Board's Motion for Reconsideration.

January 13, 1978: Notice of appeal filed by Board in circuit court.

APCO argues first that the Board's Motion for Reconsideration filed September 9, 1977 was a nullity because at that point there was no order entered and thus nothing to reconsider, hence when judgment was entered on September 23, 1977 the Board had forty-two days in which to file notice of appeal and did not do so. While this argument has logical appeal it rests on the premise that the motion of September 9, 1977 was a nullity. In this they are mistaken. Rule 59(e) directs that:

(A) motion to alter, amend, or vacate a judgment shall be served Not later than 30 days after entry of the judgment. (emphasis added)

It cannot then be argued successfully that the Board violated Rule 59(e) in serving the motion early. APCO itself admits in brief that the trial court displayed an inclination to grant its motion for summary judgment on September 7, 1977. A motion is timely even though made before the entry of an order if the court has previously indicated the order which it will make. 9 Moore's Federal Practice, par. 204.12(4) at 962.

APCO cites Miller v. Shell Oil Co., 345 F.2d 891 (10th Cir. 1965), which held that a motion such as that filed here was not within the contemplation of any rule of procedure. However, the Tenth Circuit has reconsidered its position and now recognizes the validity of such a motion. See Director of Revenue, Colorado v. United States, 392 F.2d 307 (10th Cir. 1968).

Next APCO argues that even if it could have been viewed as a timely motion under Rule 59(e), the pending motion for reconsideration was impliedly denied when the written order was entered September 23, 1977. We find the order of September 23, 1977 granting summary judgment to APCO did not impliedly deny the Board's 59(e) motion. On October 21, 1977 a hearing was held before the trial court at which both parties participated, at the conclusion of which the court Took the motion under submission. Those events do not imply a denial of the motion. Cf. Director of Revenue, Colorado v. United States, supra ; United States v. Pan American World Airways, Inc., 299 F.2d 74 (5th Cir. 1962); Partridge v. Presley, 88 U.S.App.D.C. 298, 189 F.2d 645 (1951) (motions for rehearings on new trials under 59(b)). Partridge, cited with approval in Director of Revenue, Colorado, supra, held that the entry of judgment Without more did not operate to overrule a motion, at least in the absence of a showing that a hearing was had on the motion or that the trial judge had consciously disposed of the matter raised by the premature motion. These cases are in keeping with the spirit of our rules. Rule 1, ARAP. Therefore, while we do not hold that an entry of final judgment cannot deny pending motions by appropriate language or actions of the trial court, we do hold that on these facts the motion was not denied by the September 23, 1977 entry of summary judgment. This result is consistent with the language of the rules. Rule 4(a) (3), ARAP assures that a timely Rule 59 motion will toll the time for making an appeal until denied by entry of an order in response to the motion or by operation of law pursuant to Rule 59.1. That rule provides:

No post-trial motion filed pursuant to Rules 50, 52 or 59 shall remain pending in the trial court for more than 90 days, unless with the express consent of all the parties, which consent shall appear of record, or unless extended by the appellate court to which an appeal of the judgment would lie, and such time may be further extended for good cause shown. A failure by the trial court to dispose of any pending post-trial motion within the time permitted hereunder, or any extension thereof, shall constitute a denial of such motion as of the date of the expiration of the period.

Rule 4(a)(3), ARAP provides that:

The filing of a post-trial motion pursuant to Rules 50, 52 and 59 of the Alabama Rules of Civil Procedure (ARCP) Shall suspend the running of the time for filing a notice of appeal. . . . If such post-trial motion is deemed denied because of its pendency in the trial court for more than 90 days, as provided in Rule 59.1 of the Alabama Rules of Civil Procedure, then the time for filing a notice of appeal shall be computed from the date of denial of such motion by operation of law, as provided for in Rule 59.1. . . . (emphasis added)

Unfortunately, neither side appropriately addressed the central issue of the date When the ninety-day period of Rule 59.1 began to run in this case. It appears that both sides assumed, erroneously, that the period began on the October 21, 1977 hearing date. This position ignores the obvious wording of the rules. It is plain that the Rule 59(e) motion was Filed by defendant September 9, 1977 and it is the filing which tolls the time for taking the appeal. Thus, the ninety-day period of Rule 59.1 began the very next day on September 10, 1977 pursuant to Rule 6(a), ARCP.

The defendant's novel argument that a new 59(e) motion was made at the October 21, 1977 hearing on the September 9th motion for reconsideration is unsupported by the record. Hence, on December 8, 1977, ninety days from September 9, 1977 (not including September 9) the defendant's motion for reconsideration was denied by operation of law. The forty-two day period of Rule 4(a), ARAP thus began the next day, December 9, 1977, and ended January 20, 1978. As defendant filed notice of appeal January 13, 1978 his appeal was timely.

Summary judgment may be granted only when there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Studdard v. South Central Bell Telephone Co., 356 So.2d 139 (Ala.1978); Water Works, Gas & Sewer Board of the City of Oneonta v. Buchanan Construction Co., 294 Ala. 402, 318 So.2d 267 (1975); Birmingham Television Corp. v. Water Works, 292 Ala. 147, 290 So.2d 636 (1974).

At the hearing on the plaintiff's motion for summary...