Ex parte Andrews

• Decision Date: 10 July 1987
• Parties: Ex Parte: Beverly Nesbitt ANDREWS. (In re: Beverly Nesbitt ANDREWS v. Marvin Nathaniel ANDREWS, Jr.) 85-1455.
• Court: Alabama Supreme Court

Page 507

520 So.2d 507

Ex Parte: Beverly Nesbitt ANDREWS.

(In re: Beverly Nesbitt ANDREWS v. Marvin Nathaniel ANDREWS, Jr.)

85-1455.

Supreme Court of Alabama.

July 10, 1987.

W. Eugene Rutledge and Kay S. Kelly, Birmingham, for petitioner.

Jesse P. Evans III, of Corretti & Newsom, Birmingham, for respondent.

SHORES, Justice.

We granted the writ of certiorari in this case to address a procedural issue: the effect of a timely filed notice of appeal (governed by Rule 4, A.R.App.P) on a timely post-judgment motion to alter, amend, or vacate a judgment (governed by Rules 52 and 59, A.R.Civ.P.)--a material question of first impression in the State of Alabama.

The issue in this case arises from a divorce proceeding in the Circuit Court of Jefferson County. That court entered a final judgment of divorce on December 17, 1985, and on January 10, 1986, it extended the final judgment of divorce to include an income withholding provision.

On January 14, 1986, Beverly Andrews, the plaintiff, filed a notice of appeal to the Court of Civil Appeals. This was followed on January 16, 1986, by a motion of Marvin Andrews, the defendant, to alter, amend, or vacate the final judgment of divorce.

Beverly Andrews filed in the trial court a document on February 4, 1986, styled "Plaintiff's/Appellant's suggestion on the record of lack of jurisdiction," in which she argued that the trial court did not have jurisdiction to rule on the defendant's motion because of the pendency of her appeal before the Alabama Court of Civil Appeals. On February 10, 1986, defendant's motion to alter, amend, or vacate was dismissed by the trial court. On March 21, 1986, Mr. Andrews filed a notice of cross-appeal from the order dismissing his motion to alter, amend, or vacate the final judgment of December 17, 1985. On March 25, 1986, the plaintiff filed a motion with the Court of Civil Appeals to dismiss the defendant's cross-appeal, contending that the time for filing a cross-appeal had expired.

The Court of Civil Appeals, 520 So.2d 505 (1986), dismissed the plaintiff's appeal as premature and ruled that the trial court improperly dismissed the defendant's post-trial motion that was timely filed, but filed after the plaintiff's notice of appeal from the December 17, 1985, final judgment. We agree with the Court of Civil Appeals' construction of Rule 4, A.R.App. P., vis-a-vis Rule 59(e), A.R.Civ.P.

In the case at bar, both the notice of appeal and the postjudgment motion to alter, amend, or vacate were timely under the rules. According to Rule 59(e), A.R.Civ.P., motions to alter, amend, or vacate the judgment must be filed within 30 days of the entry of judgment by the trial court. A notice of appeal must be filed within 42 days of the entry of the judgment or order appealed from. Rule 4(a)(1), A.R.App.P.

The Court of Civil Appeals is correct in its observation that the rules, both the Rules of Civil Procedure and the Rules of Appellate Procedure, fail to address specifically the effect of the filing of a timely post-trial motion upon the right to file an appeal, or vice versa. The rules do say, however, that the filing of a motion pursuant to Rules 50, 52, 55, or 59, A.R.Civ.P., shall suspend the running of the time for filing a notice of appeal:

"The filing of a post-judgment motion pursuant to Rules 50, 52, 55 or 59 of the Alabama Rules of Civil Procedure (ARCP) shall suspend the running of the time for filing a notice of appeal. In cases where postjudgment motions are filed, the full time fixed for filing a notice of appeal shall be computed from the date of the entry in the civil docket of an order granting or denying such motion. If such post-judgment motion is deemed denied under the provisions of 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. Any error or ground of reversal or modification of a judgment or order which was asserted in the trial court may be asserted on appeal without regard to whether such error or ground has been raised by motion in the trial court under Rule 52(b) or Rule 59 of the ARCP."

Rule 4(a)(3), A.R.App.P.

The construction adopted by the Court of Civil Appeals comports with reason and justice and follows the spirit of Rule 1, A.R.Civ.P., and Rule 1, A.R.App.P. It is also consistent with the Federal Rules of Appellate Procedure, after which the Alabama Rules of Appellate Procedure were modeled. Until 1979, the Federal rules, like the Alabama rules, were also silent as to the effect of the filing of a post-judgment motion upon the right to appeal. Federal Rule 4(a) stated that the timely filing of a post-trial motion "terminated, as to all parties" the running of the time within which an appeal could be taken. The Alabama rule quoted above provides that the filing of a post-judgment motion suspends the running of the time for filing a notice of appeal. The federal rules were amended in 1979 to add the following language of Rule 4(a)(4), F.R.App.P.:

"If a timely motion under the Federal Rules of Civil Procedure is filed in the district court by any party [pursuant to Rule 50(b), 52(b), or Rule] 59 to alter or amend the judgment ... or ... for a new trial, the time for appeal for all parties shall run from the entry of the order denying a new trial or granting or denying any other such motion. A notice of appeal filed before the disposition of any of the above motions shall have no effect. A new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the motion as provided above. No additional fees shall be required for such filing." (Emphasis added.) ¹

An appeal filed within 42 days of the judgment is timely. Rule 4(a)(1), A.R.App.P. However, a post-judgment motion to alter amend, or vacate is also timely if filed within 30 days of the entry of judgment. If both are timely filed, the time for properly taking an appeal is suspended until the motion is formally ruled on or denied by operation of law. The notice of appeal must then be refiled within 42 days of the order or the denial by operation of law. By this construction, a party's right to appeal is not taken away; it is simply delayed so that the other party's right to file a post-judgment motion and get a ruling thereon is preserved.

We hold that a notice of appeal filed within 30 days of judgment does not divest the trial court of jurisdiction to receive post-judgment motions to alter, amend, or vacate that are timely filed within 30 days of the judgment and to rule thereon within 90 days of the filing of the motion as permitted under Rule 59.1, A.R.Civ.P. A notice of appeal may be filed by the dissatisfied party within 42 days after the trial court rules on the motion or it is denied by operation of law.

It is true, as the petitioner argues, that the holding of Walker v. Alabama Public Service Comm'n, 292 Ala. 548, 297 So.2d 370 (1974), and of the cases therein cited, is to the contrary. For subsequent cases containing language to like effect, see MCI Telecommunication, Inc. v. Alabama Public Service Comm'n, 485 So.2d 700 (Ala.1986); Foster v. Greer & Sons, Inc., 446 So.2d 605 (Ala.1984). To the extent that Walker, Foster, and MCI hold that the filing of a notice of appeal ousts the trial court of jurisdiction to consider a timely-filed post-judgment motion, those cases are expressly overruled. A notice of appeal does not oust the trial court of its jurisdiction to consider a timely-filed post-judgment motion, and this is the rule without regard to the sequence in which the notice of appeal and the post-trial motion are filed. See Owens v. Coleman, 520 So.2d 514 (Ala.1987) (post-trial motion filed before the notice of appeal). It is clear from the comment to the 1979 amendment to Rule 4(a)(4), F.R.App.P. (set out in footnote 1) that the purpose of the amendment was to remove an ambiguity in the preexisting language of the rule; thus, we overrule prior case law to the contrary and will forthwith request the Alabama Supreme Court Standing Committee on Alabama Rules of Appellate Procedure to draft an amendment to Rule 4(a), A.R.App.P., in accordance with this opinion.

We agree with the Court of Civil Appeals in the case at bar that the trial court had jurisdiction to rule on the defendant's motion to alter, amend, or vacate the judgment, and that the defendant's cross-appeal was timely filed on March 21, 1986, within 42 days of the trial court's order dismissing his motion for want of jurisdiction. Rule 4(a)(3), A.R.App.P.

We affirm the Court of Civil Appeals' holding that the timely filing of a post-judgment motion authorizes the trial court to rule on the motion and that a notice of appeal filed before disposition of the post-judgment motion has no effect. However, we acknowledge that equity compels a review of the trial court's order of January 10, 1986, in this case. At the time Mrs. Andrews filed her notice of appeal from this order, there was no rule or decision that clearly foreclosed review. It would be inequitable to deny her a hearing on the merits of her appeal, notwithstanding our holding herein.

Therefore, the cause is affirmed in part, reversed in part, and remanded to the Court of Civil Appeals for its consideration of Mrs. Andrews's appeal.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH DIRECTIONS.

TORBERT, C.J., and MADDOX, JONES, ALMON, ADAMS, HOUSTON and STEAGALL, JJ., concur.

BEATTY, J., concurs specially.

BEATTY, Justice (concurring specially):

To the extent the majority's opinion is predicated on this Court's adoption of the 1979 amendment to Rule 4(a)(4), F.R.App.P., to be applied prospectively, I concur. It is quite clear to me, however, that the result called for by the language of that amendment cannot be reached by an interpretation or construction of the Alabama Rules of Appellate Procedure ("Rules") a...