Personnel Bd. For Mobile County v. Bronstein

• Decision Date: 26 October 1977
• Citation: 354 So.2d 8
• Parties: PERSONNEL BOARD FOR MOBILE COUNTY, Alabama, City of Mobile, a Municipal Corporation, et al. v. Gary BRONSTEIN. Civ. 1181.
• Court: Alabama Court of Civil Appeals

Page 8

354 So.2d 8

PERSONNEL BOARD FOR MOBILE COUNTY, Alabama, City of Mobile, a Municipal Corporation, et al. v. Gary BRONSTEIN.

Civ. 1181.

Court of Civil Appeals of Alabama.

Oct. 26, 1977.

Rehearing Denied Nov. 30, 1977.

William R. Lauten, Mobile, for City of Mobile.

Mylan R. Engel, Mobile, for Personnel Board of Mobile County.

Donald M. Briskman, Mobile, for appellee.

BRADLEY, Judge.

Appellee, Gary Bronstein, was appointed superintendent of recreation for the City of Mobile on August 19, 1974 and thereafter began a working test period which was to last one year. Prior to the expiration of the one year, the test period was extended for a period of about five months. During the extended test period, appellee was notified by the City that his employment would be terminated at the end of the extended test period. Appellee appealed the dismissal order to the Mobile County Personnel Board. The City then moved the Board to dismiss the appeal. The Board granted the City's motion and dismissed the appeal. Appellee appealed the Board's dismissal order to the Circuit Court of Mobile County. The circuit court after a hearing reversed the Board's dismissal order and remanded the matter to the Board for a hearing on the City's termination of appellee's employment. The City and the Personnel Board appealed that ruling to this court.

After the appeal had been perfected to this court, the appellee filed a motion to dismiss the appeal on the ground that the appeal had not been filed within the time limits required by Rule 4, ARAP, and Rule 59.1, ARCP.

This contention arises from the following set of facts. The original order in this case was rendered by the circuit court on November 10, 1976. The City of Mobile filed a motion for new trial on December 6, 1976. Argument was set for January 7, 1977; however, the matter was taken under submission so that the City could file a brief in support of its motion. On February 28, 1977, eighty-four days after the motion for new trial had been filed, appellee's attorney filed a motion to strike the motion for new trial and requested an oral argument on his motion to strike.

The matter was set for oral argument on March 4, 1977 and counsel for appellee appeared in court on that date. However, the attorney for the City of Mobile was not present due to the serious illness of his wife. Because he could not be present, the City's counsel requested that the matter be continued. Appellee's attorney did not object to nor did he agree to the continuance, and argument was reset for April 8, 1977.

On March 7, 1977, the ninetieth day after the City's motion was filed, ¹ appellee's attorney wrote a letter to the City's counsel offering his condolences and informing the attorney for the City that the motions which had originally been set for hearing on March 4 had been reset for argument on April 8, 1977. Although appellee's attorney advised the City's attorney that if April 8, 1977 was inconvenient he (counsel for appellee) would be glad to cooperate in any way he could, at no point in the letter did the appellee's lawyer expressly consent to extend the 90 day period for which post-trial motions may remain pending before a court without being deemed denied. In fact the 90 day period had actually expired on this date without appellee's attorney having expressly consented to any extension of the time period.

Prior to April 8, 1977, the City filed a written brief in support of its motion with the trial court. Appellee's attorney filed a brief in response to the City's brief. However, on April 8, 1977 arguments on appellee's motion to strike the City's motion for new trial were again continued until April 22, 1977. It is unclear if either party requested this continuance since the circuit court's motion docket is the only record which indicates that the matter was delayed until April 22.

Nonetheless, a flood in Mobile, which prevented many lawyers from reaching the courthouse, resulted in yet another delay of the hearing. Thus, because of the flood conditions existing in Mobile on April 22, the hearing was reset for April 28.

On April 28, 1977 the motions of the parties were argued. Six days later on May 4, 1977 the circuit court entered its order which in substance denied the City's motion for a new trial. The Personnel Board's notice of appeal was filed on May 19, 1977 and the City's notice of appeal was filed on June 13, 1977.

From the above recitation of events, it appears that the judge did not rule on the City's motion for new trial until approximately 150 days after that motion was filed. Therefore, by virtue of Rule 59.1, ARCP, the City's motion was deemed denied on the ninetieth day following the filing of the motion, unless the parties expressly consented to the delays. And the time period for filing notice of appeal would, of course, have begun to run as of that ninetieth day. Coosa Marble Co. v. Whetstone, 294 Ala. 408, 318 So.2d 271.

Appellee contends that since neither appellant filed notice of appeal within 42 days of the expiration of the 90 day period, appellee's motion to dismiss this appeal should be granted.

On the other hand, appellants argue that the record before this court indicates that appellee's attorney expressly consented to an extension of the 90 day period and thus the City's motion was not denied until the circuit court actually entered its order of May 4, 1977. On the basis of this argument appellants submit that their notices of appeal were timely and appellee's motion to dismiss the appeal should be denied.

Rule 59.1, ARCP, provides that a motion for new trial shall not remain pending in a trial court for more than 90 days unless all parties expressly consent to extend the time period (or the appellate court to which an appeal of the judgment would lie agrees to extend the time). ²

Black's Law Dictionary 377 (4th ed. 1968) defines "express consent" as:

"That directly given either (orally) or in writing. It is positive, direct, unequivocal consent, requiring no inference or implication to supply its meaning."

The following definition of "express" is found in Words & Phrases, Vol. 15A, p. 522:

" 'Express' means 'made known distinctly and explicitly, and not left to inference or implication; declared in terms; set forth in words; manifested by direct and appropriate language, as distinguished from that which is inferred from conduct. . . . ' "

In the instant case there was no express consent by appellee's attorney to extend the 90 day time period. While counsel for appellee did not expressly object to the extensions and delays which caused the 90 day period to expire, he did not expressly consent to extend the time period for disposing of the City's motion beyond 90 days either. Moreover, Rule 59.1 does not require that a party object to actions by the court which extend the 90 day period. It does, however, in clear and unequivocal language, require a party's express consent to such an extension.

In addition, the delays and extensions which occurred in the present case were not the fault of appellee's attorney. Despite the fact that counsel for appellee filed his motion to strike appellants' motion for new trial 84 days after the latter motion had been filed, the date set for hearing on both parties' motions was March 4, 1977 two days prior to the expiration of the 90 day time limit. However, on March 4 appellants' counsel requested a continuance due to personal problems. Appellee's lawyer assented to this continuance by not objecting to the extension although he was at the courthouse and could have done so. Likewise, appellee's attorney gave further assent to the continuance by his letter of March 7, notifying appellants of the new date for which hearing had been set. Nonetheless, assent alone was not sufficient to extend the 90 day period for statutory denials. The language of Rule 59.1 requires express consent. And the law has long recognized a material distinction between "assent" and "consent," the former meaning passive or submissive conduct while the latter involves positive action. Perryman v. State, 63 Ga.App. 819, 12 S.E.2d 388. In the instant case counsel for appellee did not take positive steps to express in a direct and unequivocal manner that he was willing to extend the 90 day period. Nor did his assent to the continuation of the proceedings constitute a waiver of the requirement of express consent.

By failing to appear at the hearing of March 4, the City's attorney was responsible for the delay which caused the proceedings to extend beyond the 90 day period for statutory denials. And regardless of his reasons or good faith...