New Addition Club, Inc. v. Vaughn

• Citation: 903 So.2d 68
• Parties: The NEW ADDITION CLUB, INC., an Alabama Corporation, et al. v. Linda VAUGHN and O.D. Vaughn, as co-administrators of the estate of Mary Elizabeth Vaughn, deceased.
• Decision Date: 16 July 2004
• Court: Supreme Court of Alabama

903 So.2d 68

The NEW ADDITION CLUB, INC., an Alabama Corporation, et al. v. Linda VAUGHN and O.D. Vaughn, as co-administrators of the estate of Mary Elizabeth Vaughn, deceased.

1022075.

Supreme Court of Alabama.

July 16, 2004.

Rehearing Denied December 17, 2004.

Robert G. Poole of Whittelsey, Whittelsey & Poole, P.C., Opelika, for appellants.

Michael S. Burroughs and John T. Sutton of Burroughs, Guin & Sutton, LLP, Tuscaloosa, for appellees.

SEE, Justice.

This case involves a wrongful-death action brought by Linda Vaughn and O.D. Vaughn, as co-administrators of the estate of their mother, Mary Elizabeth Vaughn. In the early morning hours of April 30, 2000, Peter Crenshaw shot and killed Mary Elizabeth Vaughn in the parking lot of the New Addition Club, a nightclub located in Greene County, Alabama.

I.

On April 29, 2000, Mary Vaughn received her first Social Security retirement check and decided to celebrate that event with her daughter, Linda Vaughn, and her friend, Mary Moore. Mary Vaughn, Linda, and Mary Moore were drinking at the New Addition Club, a nightclub owned by Jessie Green and his siblings. On the night of April 29, 2000, Jessie and his wife were tending bar, and Alex Green, Jessie's brother, was collecting money at the door. No other employees were present at the club. According to their testimony, when Mary Vaughn, Linda, and Mary Moore arrived at the New Addition Club, Peter Crenshaw was shooting pool. Two other patrons, Henry Winters and Mario Spencer, got into an argument on the dance floor. The argument escalated, and Winters and Spencer left the nightclub. Many of the other patrons, apparently including Crenshaw, followed Winters and Spencer into the parking lot. Spencer disappeared, and Crenshaw attacked Winters. Donna Bruno, Winters's sister, attempted to stop the fight, and she and Crenshaw began to fight. Mary Moore stepped in and stopped the fight. Crenshaw got a gun from his car and fired it, killing Mary Vaughn.

Jessie Green testified that he had not seen Crenshaw inside the club on the night of the shooting and that he was not aware of the fight until someone entered the club and took a pool cue outside. Jessie said that when he went outside to retrieve the pool cue he saw that Mary Vaughn had been shot.

Linda Vaughn and O.D. Vaughn, as co-administrators of Mary's estate, filed a wrongful-death action against the New Addition Club and Jessie Green (hereinafter collectively "the Club"), alleging general negligence and/or wantonness; negligent hiring, training, and/or supervision; negligence and/or wantonness in the context of premises liability; vicarious liability for the negligence of Alex Green and Jessie's wife, the only employees working at the club on the night Mary Vaughn was killed; and violation of the Dram Shop Act. The Club moved to dismiss, and the trial court denied the motion. The Club then moved for a summary judgment. The trial court denied the summary-judgment motion and the case went to trial.

At the close of the Vaughns' case-in-chief, the Club moved for a judgment as a matter of law as to all of the Vaughns' claims. The trial court entered a judgment as a matter of law in favor of the Club as to all counts except the premises-liability claim. The Club called no witnesses and again moved for a judgment as a matter of law as to the premises-liability claim. The trial court denied the motion. On April 3, 2003, the jury returned a verdict in favor of the Vaughns for $240,000. On May 2, 2003, the Club renewed its motion for a judgment as a matter of law or, in the alternative, moved for a new trial. On July 2, 2003, the trial court entered a judgment in favor of the Vaughns for $240,000. On September 11, 2003, the Club appealed.

II.

"`When reviewing a ruling on a motion for a JML [judgment as a matter of law], this Court uses the same standard the trial court used initially in granting or denying the motion. Palm Harbor Homes, Inc. v. Crawford, 689 So.2d 3 (Ala.1997). Regarding questions of fact, the ultimate issue is whether the nonmovant has presented sufficient evidence to allow the case or issue to be submitted to the jury for a factual resolution. Carter v. Henderson, 598 So.2d 1350 (Ala.1992). In an action filed after June 11, 1987, the nonmovant must present substantial evidence to withstand a JML. See § 12-21-12, Ala.Code 1975; West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). A reviewing court must determine whether the party who bears the burden of proof has produced substantial evidence creating a factual dispute requiring resolution by the jury. Carter, 598 So.2d at 1353. In reviewing a ruling on a motion for a JML, this Court views the evidence in the light most favorable to the nonmovant and entertains such reasonable inferences as the jury would have been free to draw. Id. If the question is one of law, this Court indulges no presumption of correctness as to the trial court's ruling. Ricwil, Inc. v. S.L. Pappas & Co. 599 So.2d 1126 (Ala.1992).'"

Alabama Dep't of Transp. v. Land Energy, Ltd., 886 So.2d 787 (Ala.2004) (quoting Ex parte Alfa Mut. Fire Ins. Co., 742 So.2d 1237, 1240 (Ala.1999)).

III.

The Vaughns argue that we do not have jurisdiction over the Club's appeal because, they argue, the appeal was not timely filed. "The timely filing of the notice of appeal is a jurisdictional act." Thompson v. Keith, 365 So.2d 971, 972 (Ala.1978), citing Holmes v. Powell, 363 So.2d 760 (Ala.1978).

In the present case, the jury returned a verdict in favor of the Vaughns on April 3, 2003. On May 2, 2003, before the trial court had entered its final judgment, the Club renewed its motion for a judgment as a matter of law pursuant to Rule 50, Ala. R.App. P., or, in the alternative, moved for a new trial pursuant to Rule 59, Ala. R.App. P. The trial court, without ruling on the motion, entered a judgment on July 2, 2003. The Club did not file its notice of appeal until September 11, 2003, more than 42 days after the date the judgment was entered.¹ Although the notice of appeal was not filed within 42 days of the date the judgment was entered, the Club had moved for a judgment as a matter of law or, in the alternative, for a new trial, before the trial court entered the judgment that would have been the subject of such a "postjudgment" motion.

There is no rule that addresses the effect of a prematurely filed postjudgment motion; however, Rule 4(a)(4), Ala. R.App. P., does provide that "[a] notice of appeal filed after the announcement of a decision or order but before the entry of the judgment or order shall be treated as filed after the entry and on the day thereof." Moreover, Rule 4(a)(5), Ala. R.App. P., provides that a notice of appeal filed before the disposition of all postjudgment motions shall be held in abeyance until any remaining postjudgment motions are disposed of. Rule 4(a)(5) further provides that such a notice of appeal becomes effective on the date the last postjudgment motion is disposed of.²

The problem in the present case lies in determining when the 42-day period allowed for the filing of a notice of appeal begins. Rule 4(a)(3), Ala. R.App. P., suspends the running of the time for filing a notice of appeal until the trial court has disposed of all postjudgment motions.³ Thus, if a postjudgment motion was properly pending before the trial court, the 42-day period did not begin to run until the disposition of that motion. Rule 4(a)(3) does not expressly contemplate that a "postjudgment" motion could be filed before a judgment was entered. Thus, whether the filing of such a motion suspends the running of the 42-day period for filing a notice of appeal depends on whether such a motion is void and on when such a motion, if not void, is disposed of.

In Board of Water & Sewer Commissioners of Mobile v. Alabama Power Co., 363 So.2d 304 (Ala.1978), the Board of Water and Sewer Commissioners of the City of Mobile, before the trial court had entered its judgment, moved the trial court to reconsider its judgment. Alabama Power argued that the Board's motion for reconsideration of the trial court's judgment was a nullity because, it argued, at the time the motion was filed, there was no judgment for the trial court to reconsider. 363 So.2d at 306. This Court pointed out that Rule 59(e), Ala. R. Civ. P., provides that "a motion to alter, amend, or vacate a judgment shall be served not later than thirty (30) days after entry of the judgment." This Court concluded that "[i]t cannot then be argued successfully that the Board violated Rule 59(e) in serving the motion early." 363 So.2d at 307.⁴ Thus, we conclude that a postjudgment motion filed before a judgment is entered is not a nullity; it becomes effective when the judgment is entered.

Pursuant to Rule 4(a)(1) and (3), Ala. R.App. P., the Club had 42 days from the date of the denial of its motion for a judgment as a matter of law, or, in the alternative, a new trial, within which to file a notice of appeal. The trial court did not rule on the Club's motion for a judgment as a matter of law or for a new trial. Therefore, pursuant to Rule 59.1, Ala. R. Civ. P., the motion was denied by operation of law 90 days after it was filed.⁵ We hold that if a party moves for a judgment as a matter of law or, in the alternative, for a new trial before the court has entered a judgment, the motion shall be treated as having been filed after the entry of the judgment and on the day thereof. The Club moved on May 2, 2003, for a judgment as a matter of law or for a new trial. The trial court entered a final judgment on July 2, 2003. Thus, the motion is deemed to have been filed on July 2, 2003. Ninety days later, on September 30, 2003, the motion was denied by operation of law. Therefore, the Club's notice of appeal filed on September 11, 2003, was held in abeyance pursuant to Rule 4(a)(5) until September 30, 2003. The notice of appeal became "effective upon the date of...