Conway v. Housing Authority of Birmingham Dist.
Decision Date | 15 March 1996 |
Citation | 676 So.2d 344 |
Parties | Shana CONWAY v. HOUSING AUTHORITY OF the BIRMINGHAM DISTRICT. 2950195. |
Court | Alabama Court of Civil Appeals |
Henry L. Penick of Penick & Associates, P.C., Birmingham, for Appellant.
No brief filed for Appellee.
The plaintiff appeals from an order holding that her Rule 60(b)(1), Ala.R.Civ.P., motion had been denied.
On November 16, 1994, Shana Conway sued the Housing Authority of the Birmingham District, seeking compensation for injuries that in her complaint she alleged had occurred on September 16, 1992. On December 29, 1994, the Housing Authority filed an answer and a motion for summary judgment, contending that Conway's claims were barred by the statute of limitations because her complaint was filed more than two years after the date of the alleged injury. The plaintiff was notified that the court would hold a hearing on the motion on January 13, 1995.
On January 13, 1995, the trial court granted the Housing Authority's motion and entered a summary judgment in favor of the Housing Authority. Counsel for Conway did not appear at the hearing on the motion for summary judgment, and no opposition to the Housing Authority's motion for summary judgment was filed.
On April 13, 1995, Conway filed a motion for relief from judgment pursuant to Rule 60(b)(1). She alleged that through mistake, inadvertence, surprise, or excusable neglect, the date of the accident had been stated in the complaint as September 16, 1992, when it was actually November 16, 1992. On August 10, 1995, Conway moved for a hearing on her Rule 60(b) motion. On September 21, 1995, the trial court entered an order stating:
Conway appeals from this order. She contends that the trial court erred in concluding that her motion for relief from judgment under Rule 60(b)(1) was denied by operation of law after 90 days had passed from the date the motion was filed. We agree.
Rule 59.1, Ala.R.Civ.P. provides:
It is well established that Rule 59.1 applies only to motions filed under rules 50, 52, 55, and 59. See Hollingsworth v. Wright, 369 So.2d 18 (Ala.Civ.App.1979), cert. denied, 369 So.2d 21 (Ala.1979).
We recognize that a Rule 60(b) motion to set aside a judgment cannot be substituted for a Rule 59 motion for a new trial or to alter, amend, or vacate a judgment. Matkin v. Smith, 531 So.2d 876 (Ala.1988). However, Conway's motion was a procedurally valid motion seeking relief under Rule 60(b)(1) because of mistake, inadvertence, surprise, or excusable neglect. Id.
Because Conway's motion sought relief under Rule 60(b) and not under Rule 50, 52,...
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