Herring v. Shirah
| Decision Date | 15 July 1988 |
| Citation | 542 So.2d 271 |
| Parties | Jessie Lea HERRING v. Dr. Mitchell SHIRAH. 87-599. |
| Court | Alabama Supreme Court |
Our original opinion in this case is withdrawn, and the following opinion is substituted therefor:
This appeal is from a summary judgment entered for the defendant in a medical malpractice claim. On October 6, 1987, Jessie Lea Herring filed a complaint against Dr. Mitchell Shirah. The complaint alleged medical malpractice because Dr. Shirah allegedly failed to diagnose Ms. Herring's breast cancer when he examined her on January 21, 1985. The trial court granted a summary judgment for Dr. Shirah because, on its face, the plaintiff's complaint appeared to be barred by the applicable two-year statute of limitations. Judgment was entered on December 29, 1987. Ms. Herring filed a post-judgment motion for reconsideration, which we deem to be a Rule 59(e), A.R.Civ.P., motion. See Baker v. Ball, 473 So.2d 1031 (Ala.1985). On February 4, 1988, before the court ruled on Ms. Herring's post-trial motion, she filed a notice of appeal. Thereafter, on February 8, 1988, the trial court entered an order purporting to deny Ms. Herring's motion. We reverse the summary judgment.
Prior to discussing the substantive issue raised by Ms. Herring, we must address an interesting procedural question that arises because she filed her notice of appeal while her post-judgment motion was pending before the trial court. To file a timely post-judgment motion, a party must file the motion within 30 days of the entry of judgment. Rule 59(b), A.R.Civ.P. Ms. Herring filed her motion within the 30-day period. At that point, the 42-day period for filing a notice of appeal was tolled until the trial court ruled on the post-judgment motion, see Rule 4(a), A.R.App.P., or until the motion was deemed denied by operation of law. See Rule 59.1, A.R.Civ.P. Ms. Herring filed her notice of appeal within 42 days of the entry of the summary judgment, even though the court had not ruled on her pending post-judgment motion. Apparently, the plaintiff either misunderstood the tolling provision or was being cautious in preserving her right to an appeal. Nevertheless, because Ms. Herring had a pending motion before the trial court, we must decide how to treat her notice of appeal.
The Court of Civil Appeals addressed a similar problem in Farmer v. Farmer, 398 So.2d 723 (Ala.Civ.App.1981). In Farmer, the wife moved for a new trial following a judgment of divorce. Before the court ruled on the post-judgment motion, the wife filed a notice of appeal. Thereafter, the court purported to overrule her motion. The Court of Civil Appeals held that, because the wife was also the movant on the post-judgment motion, her appeal would be considered, but that her motion for new trial would not.
This Court has also addressed two similar procedural problems. In Ex parte Andrews, 520 So.2d 507 (Ala.1987), the trial court entered a final judgment in divorce proceedings and the wife filed a timely notice of appeal. Subsequently, the husband filed a timely post-judgment motion to alter, amend, or vacate pursuant to Rule 59, A.R.Civ.P. This Court granted certiorari to consider the effect of a timely filed post-judgment motion by one party, when a notice of appeal had already been filed by another party. We held that the notice of appeal was deemed void, because one party could not interfere with another party's right to obtain a ruling on his post-judgment motion. Therefore, we required that the notice of appeal be filed again after the post-judgment motion was ruled upon.
In Owens v. Coleman, 520 So.2d 514 (Ala.1987), which was decided the same day as Andrews, a similar question was involved. In Owens, after the entry of judgment, a post-judgment motion was timely filed by one party; thereafter, a notice of appeal was filed by the other party. (In Andrews the post-judgment motion was filed by the other party subsequent to the notice of appeal.) Owens followed the reasoning in Andrews in concluding that one party could not interfere with another party's right to a ruling on a post-judgment motion. In Owens we held:
Where a post-judgment motion has not been disposed of when the notice of appeal is filed, as in the case at bar, the notice of appeal is of no effect and it must be refiled within 42 days of the disposition of the post-judgment motion either by order or by operation of law under Rule 59.1, A.R.Civ.P.
Owens, 520 So.2d at 516. Our interpretation of the Rules of Civil Procedure in both Owens and Andrews was fair to both parties because it allowed one party to obtain a ruling from the trial court and also permitted the other party to appeal, although the appealing party had the burden of refiling.
Owens and Andrews provide some insight into the issue before the Court in the instant case; however, both cases are distinguishable from the instant case. In both Owens and Andrews one party filed the post-judgment motion and the other party filed the notice of appeal. In this case, the party filing the notice of appeal is the same party that filed the post-judgment motion; therefore, the issue is not the same as those raised in Owens and Andrews.
Basically, we have two options in the instant case: 1) we can treat the notice of appeal as a withdrawal of the post-judgment motion, or, 2) we can conclude that the notice of appeal has no force or effect until after the post-judgment motion is ruled upon; therefore, a new notice of appeal would be required within 42 days of the ruling on the post-judgment motion. If we adopt the latter procedure, then Ms. Herring would have lost her right to an appeal, because she did not refile a notice of appeal within 42 days of the entry of the trial court's order denying the post-judgment motion. That would be a harsh result in light of these facts: 1) the notice of appeal was filed within 42 days of the original judgment; 2) the issue on appeal is not dependent upon a ruling on the post-judgment motion (i.e., the issue was preserved for appeal without the need to file a post-judgment motion); and 3) Ms. Herring, not another party, would be impeding her own right to a ruling on her post-judgment motion.
We conclude that Ms. Herring's appeal worked as a withdrawal of her post-judgment motion, and that her appeal was therefore timely. We hold that a party's notice of appeal works as a withdrawal of that party's pending post-judgment motion, whether the notice of appeal is given during the 42-day period, or at some later time during the pendency of the post-judgment motion. Nevertheless, we caution anyone adopting this method that the issues raised on appeal must be such as would have been properly preserved without the need for a post-judgment motion. Otherwise, this Court will be precluded from addressing them on appeal.
Finally, we request our Standing Committee on Alabama Rules of Appellate Procedure to draft an amendment to Rule 4(a), A.R.App.P., so that rule reflects the holding of this opinion.
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...a jury" and when there is conflicting evidence, granting summary judgment on statute of limitations grounds is improper. Herring v. Shirah, 542 So.2d 271, 274 (Ala.1988). In Herring, the plaintiff was examined by the defendant, Dr. Shirah, for problems relating to a lump in her breast and w......
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