Etherton v. City of Homewood
Decision Date | 15 August 1997 |
Parties | Vhern ETHERTON and Barbara Etherton v. CITY OF HOMEWOOD. 1951956. |
Court | Alabama Supreme Court |
John Wallace Savage of Cory, Watson, Crowder & Petway, Birmingham, for appellants.
Michael G. Kendrick and Victoria J. Franklin-Sisson of Gorham & Waldrep, P.C., Birmingham, for appellee.
Ken Smith, Alabama League of Municipalities, Montgomery, for amicus curiae Alabama League of Municipalities, in support of the appellee.
Vhern Etherton and his wife Barbara Etherton appeal from a judgment dismissing their action against the City of Homewood seeking compensation related to injuries Mr. Etherton suffered when he fell into an open service hole in the City of Homewood. We remand with directions.
On April 11, 1996, the Ethertons filed a complaint in the Jefferson County Circuit Court against several defendants, including the City of Homewood ("the City"). The complaint alleged that the defendants had "negligently maintained an open service hole" into which Mr. Etherton fell, and it alleged that Mr. Etherton suffered personal injuries in the fall. On May 21, 1996, the City moved, pursuant to Ala. R. Civ. P. 12(b)(6), to dismiss the claims against it.
On June 19, 1996, the trial court entertained oral arguments on the City's motion to dismiss, and at the conclusion of the arguments it granted the City's motion. The next day, June 20, the Ethertons filed a proposed order for the judge's signature and moved the court to make the dismissal a final judgment, pursuant to Ala. R. Civ. P. 54(b).
On July 26, the Ethertons moved the trial court to stay the action as to the other defendants, pending appellate review of the City's dismissal. On August 9, at a hearing on the motion to stay, the Ethertons learned, for the first time, that on June 26, 1996, the court had, in fact entered a final judgment pursuant to Rule 54(b). Thus, the 42-day period in which to appeal the judgment--see Ala. R.App. P. 4(a)(1)--had expired on August 7--two days before the hearing. Nevertheless, on August 29, 1996, the Ethertons filed a notice of appeal.
On November 1, 1996, the Ethertons filed in this Court a "Motion to Accept as Timely Filed Plaintiffs' Notice of Appeal." In that filing and in subsequent filings addressed to the issue, they contend that "they did not receive notice of the final judgment," as required by Ala. R. Civ. P. 77(d). That rule provides in part:
(Emphasis added.) In support of their arguments to this Court, the Ethertons allege that the following events transpired:
After some time had passed, during which the Ethertons received no notice of the disposition of their Rule 54(b) motion, their counsel began to inquire into the matter at the courthouse. More specifically, the Ethertons assert that on two occasions their counsel personally visited the office of the clerk of the Jefferson County Circuit Court to inspect the case action summary sheet, and that the case action summary sheet could not be located on either occasion. The Ethertons' counsel also visited the judge's office to inspect the case file. The Ethertons state that their counsel inspected and saw that the file contained "no copy of the case action summary sheet." Moreover, the Ethertons' counsel found that the proposed Rule 54(b) order had not been signed, and, the Ethertons say, the judge's "[law] clerk was unable to provide ... any information regarding" its disposition. They point out that their notice of appeal was filed well within the 42 days following August 9, 1996, when they actually learned of the entry of the final judgment. In addition, the notice of appeal was filed within 30 days of August 7, 1996, the date on which the 42-day appeal period expired.
They argue that they "should be entitled reasonably [to] rely on information contained in the formal case action summary sheets and the Circuit Clerk's court file," and, consequently, that they took all necessary steps to preserve their right to appeal. They contend that this case is controlled by Turner v. Barnes, 687 So.2d 197 (Ala.1997), and Sparks v. Alabama Power Co., 679 So.2d 678 (Ala.1996).
Sparks, like this case, involved the failure of the office of the clerk of the Jefferson County Circuit Court to mail the plaintiff notice of the entry of an order that commenced the running of the period in which to appeal. More specifically, on June 8, 1995, Mary Sparks moved for a new trial in a wrongful death action she was prosecuting against Alabama Power Company ("APCo"). 679 So.2d at 679. Id. On September 7, 1995, approximately six days after the 42-day period in which to appeal the July 21 judgment had expired, "APCo's counsel found the case action summary sheet ... in the 'disposed' case files in the Jefferson circuit clerk's office and learned from the notation on the case action summary sheet that Mrs. Sparks's motion for a new trial had been denied on July 21." Id. at 680.
On October 12, 1995, Mrs. Sparks filed a notice of appeal. Additionally, on October 19, 1995, she filed a motion in the trial court, requesting it to "hold that the Jefferson circuit clerk's computerized docket sheet is a legal equivalent of the formal case action summary sheet." Id. She alleged that throughout the 42-day appeal period, her counsel had "periodically checked with the circuit clerk's office regarding a possible ruling by the court on the motion for new trial, but were repeatedly informed that the court had not ruled." Id. She asked the trial court to hold that "she had a right to rely on what the clerk's office [had] told her counsel," id., and reasonably to believe that her June 8, 1995, "motion for a new trial had not been ruled on within 90 days and, thus, had been denied on the 90th day by operation of Rule 59.1, Ala. R. Civ. P." 679 So.2d at 680. Mrs. Sparks also asked the trial court to hold that her notice of appeal--which was filed within 42 days of September 6, the 90th day after her June 8 new-trial motion--was timely. Id.
"Following a hearing, the trial court overruled Mrs. Sparks's motion," which it considered to be one "essentially seek[ing] relief in the form of an extension of time for appeal" pursuant to Rule 77(d). 679 So.2d at 680. In doing so, it stated:
679 So.2d at 680 (emphasis added).
This Court disagreed with that holding and concluded that the trial court did have jurisdiction to grant relief. Id. More specifically, we deemed it "reasonable, under the facts of [that] case, to allow Mrs. Sparks to rely on the information affirmatively supplied her by the Jefferson circuit clerk's office--information indicating that as of the 90th day there had been no ruling on her motion for new trial." 679 So.2d at 681. We held that, because of the affirmative, erroneous actions of the circuit clerk's office, the 42-day appeal period should have been computed from September 6, 1995, the 90th day from the June 8, 1995, new trial motion.
Turner also involved the failure of the office of the Jefferson County Circuit Court clerk to mail the plaintiff a notice of the entry of orders that commenced the running of the period in which to appeal, that is, it failed to notify Geraldine Turner of the fact that judgments had been entered against her and filed in the clerk's office. 687 So.2d at 197. Turner's "attorney learned of the judgments from the clerk's office more than 42 days after they had been filed." Id. at 198. Although the time in which to file a notice of appeal had expired before she learned of the entry of the judgments, Turner promptly moved the trial court, pursuant to Rule 77(d), to extend the time for appeal. 687 So.2d at 198. She asserted that her "attorney [had] telephoned the clerk's office and acted diligently in an effort to 'keep abreast of the status of [the] case.' " Id. The trial court granted Turner's motion. Id.
We concluded that the trial court ruled properly in extending the time in which to file an appeal. Specifically, we stated: "Clerk's offices are...
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