Rush v. Rush

• Decision Date: 05 September 2014
• Docket Number: 2121079.
• Citation: 163 So.3d 362
• Court: Alabama Court of Civil Appeals
• Parties: Charles Edward RUSH v. Christopher RUSH.

163 So.3d 362

Charles Edward RUSH

v.Christopher RUSH.

2121079.

Court of Civil Appeals of Alabama.

Sept. 5, 2014.

Norma M. Wells, Albertville, for appellant.

Dave Beuoy of Burke, Beuoy & Maze, PC, Arab; and Amy Scott Wasyluka, Capshaw, for appellee.

Opinion

DONALDSON, Judge.

Charles Edward Rush(“Edward”) appeals from a judgment of the Marshall Circuit Court(“the circuit court”) appointing Christopher Rush(“Chris”) and Rhona Rush as co-guardians of Nell Rush, appointing Chris as conservator of Nell's estate, and denying all relief requested by Edward.¹The case was purportedly removed to the circuit court from the Marshall Probate Court(“the probate court”); however, the removal was not accomplished in accordance with § 26–2–2,Ala.Code 1975, and, thus, the circuit court did not acquire subject-matter jurisdiction to enter the judgment.Therefore, we dismiss the appeal.

Facts and Procedural History

Only a brief recitation of the facts and procedural history is necessary.Nell is Edward's mother and Chris's wife.On October 13, 2008, Edward petitioned the probate court to be appointed as guardian and conservator for Nell.On October 14, 2008, the probate court entered an order stating, in part:

“After consideration of the premises and of the pleadings presented to this Court, the Court finds that Nell N. Rush may be an incapacitated person within the meaning of the Uniform Guardianship and Protective Proceedings Act and that a temporary Guardian and Conservator of her estate should be appointed.It is therefore

“ORDERED, ADJUDGED AND DECREED that:

“1.The Petition filed herein, as it pertains to a temporary order, is hereby granted and Charles Edward Rush is hereby appointed Temporary Guardian and Conservator over the estate of Nell N. Rush.Temporary Letters of Guardianship and Conservatorship shall be immediately issued to the said Charles Edward Rush upon filing a $300,000 bond.²

“2.The Temporary Guardian and Conservator shall have all the powers and duties conferred under § 26–2A–152and –153 and § 26–2A–108 of the Code of Alabama, 1975.

“3.All other petitions, requests and outstanding matters are hereby reserved and shall be ruled upon by the Court at the final hearing.”

There is no indication in the record that Edward posted the $300,000 bond required by the October 14, 2008, order, and no letters of guardianship or conservatorship were issued to him.

On October 17, 2008, the probate court entered an order setting a final hearing date on the petition, appointing a court representative and a guardian ad litem to represent Nell, and ordering that Nell undergo a medical examination.On January 12, 2009, Edward amended his petition to request the appointment of his wife, Patti Rush, as guardian of Nell and to request the appointment of the county conservator, David Roadtruck, as the conservator of Nell's estate.On January 20, 2009, Chris filed a counterpetition requesting that he be appointed as guardian and conservator for Nell or, in the alternative, requesting that the probate court appoint Wendell Rush, another son of Nell's and Chris's, as Nell's guardian and conservator.Wendell died during the pendency of this case and is survived by his wife, Rhona.

On November 16, 2009,³the parties filed a joint petition in the circuit court seeking to remove the case from the probate court; that petition stated:

“Come now PetitionersEdward Rush and Patti Rush, through their attorney, Norma McCord and PetitionersChris Rush and Wendell Rush through their attorney, Dave Beuoy, and with the consent and knowledge of the Guardian ad litem and Court Representative, pursuant to § 26–2–2, Code of Alabama, 1975, and move and petition this Honorable Court for an Order removing the pending action for guardianship and conservatorship for Nell N. Rush, from the Probate Court of Marshall County to the Circuit Court of Marshall County because such guardianship and conservatorship can be better administered in the Circuit Court than in the Probate Court.”

The allegations of the removal petition were not sworn, and the petition was signed only by the attorneys representing the parties in the probate court.On November 18, 2009, the circuit court entered an order purporting to remove the case from the probate court to the circuit court.At the time the joint petition to remove was filed and the order of removal was entered, the probate court had not issued letters of guardianship or conservatorship to anyone.

On October 4, 2010, the circuit court entered an order of protection over Nell's assets.The order also authorized the parties' attorneys to obtain and disclose information regarding Nell and her assets and appointed a physician to examine Nell.On May 1, 2013, the circuit court held a final hearing in which it received ore tenus evidence from the parties.On May 22, 2013, the circuit court entered a judgment finding Nell to be an incapacitated person, appointing Chris and Rhona as co-guardians of Nell, and appointing Chris as conservator of Nell's estate.The judgment ordered Edward to “return all jewelry, appraisals or other things of value in his possession or control, belonging to Nell N. Rush or Chris Rush to Chris Rush within 10 days from the date of this Order.”The judgment provided that Edward could have visitation with Nell “at any appropriate time, but not in the presence of Chris Rush.”The circuit court expressly denied “all other relief requested and not herein granted.”

On June 2, 2013, Edward and Nell's guardian ad litem filed a joint motion to alter or amend the terms of Edward's visitation with Nell as contained in the May 22, 2013, judgment.On June 4, 2013, Edward filed a motion requesting that the circuit court vacate the provision in the May 22, 2013, judgment ordering Edward to return anything in his possession that belonged to Nell or Chris.On July 9, 2013, the circuit court granted the June 2, 2013, postjudgment motion filed by Edward and Nell's guardian ad litem and entered an order altering Edward's visitation with Nell.The July 9, 2013, order did not address Edward's June 4, 2013, motion, and the circuit court never ruled on the June 4, 2013, motion.

On September 24, 2013, Edward filed a notice of appeal to this court.This court transferred the appeal to the Alabama Supreme Court on jurisdictional grounds.The supreme court then transferred the appeal to this court, pursuant to Ala.Code 1975, § 12–2–7(6).

Discussion

A.Timeliness of Appeal

Chris contends that this court does not have jurisdiction because, he asserts, Edward's appeal was untimely.“The timely filing of the notice of appeal is a jurisdictional act.”Rudd v. Rudd,467 So.2d 964, 965(Ala.Civ.App.1985).“An appeal shall be dismissed if the notice of appeal was not timely filed to invoke the jurisdiction of the appellate court.”Rule 2(a)(1), Ala. R.App. P.

Pursuant to Rule 59, Ala. R. Civ. P., a postjudgment motion filed within 30 days of the entry of a judgment suspends the time for filing a notice of appeal from the judgment until 42 days from the date the postjudgment motion is ruled upon or denied either expressly or by operation of law.Rule 4(a)(3), Ala. R.App. P. Edward filed two postjudgment motions to alter, amend, or vacate portions of the May 22, 2013, judgment: one on June 2, 2013, directed to visitation with Nell and a second motion on June 4, 2013, directed to the return of property to Nell and Chris.The circuit court granted Edward's June 2 motion but never ruled on Edward's June 4 motion.The June 4 motion was denied by operation of law on September 3, 2013, pursuant to Rule 59.1, Ala. R. Civ. P.⁴ Edward's September 24, 2013, notice of appeal was filed within 42 days after the June 4 motion was denied by operation of law, but beyond 42 days from the circuit court's entry of the July 9, 2013, order granting Edward's June 2 motion.

Chris argues that Edward filed successive postjudgment motions and, therefore, that the second postjudgment motion on June 4 did not toll the time for filing an appeal.In support, Chris cites Ex parte Dowling,477 So.2d 400(Ala.1985), andWashington v. Washington,24 So.3d 1126(Ala.Civ.App.2009), for the proposition that a successive postjudgment motion does not extend the time for filing a notice of appeal.In each of those cases, the second postjudgment motion was filed after the trial court had entered a ruling on the first postjudgment motion.“Our supreme court has explained ... that ‘if a party has his own post-judgment motion denied, the review of that denial is by appeal.The rules do not provide for a “motion to reconsider” the denial of one's own post-judgment motion.’ ”Burgess v. Burgess,99 So.3d 1237, 1241(Ala.Civ.App.2012)(quotingEx parte Mutual Sav. Life Ins. Co.,765 So.2d 649, 651(Ala.1998) ).

In Henderson v. Koveleski,717 So.2d 803(Ala.Civ.App.1998), this court discussed two different scenarios involving sequentially filed postjudgment motions.In one scenario, the father had filed postjudgment motions that the trial court denied.

Afterwards, the father filed an additional postjudgment motion that this court held “effectively sought nothing more than review of the trial court's denial of the father's previous postjudgment motions.”Id. at 806.As in Ex parte Dowling and Washington v. Washington, the latter postjudgment motion did not toll the time for filing an appeal.This court also discussed another scenario that occurred earlier in the case.After the trial court entered its judgment, the father initially filed two postjudgment motions on the same day “challenging different aspects of that judgment and requesting that the trial court revise its judgment.”Henderson,717 So.2d at 805.The trial court denied the first motion, which had been directed toward one ruling within the judgment, but the trial court did not rule on the second motion challenging another ruling within the judgment.Regarding the second motion in that scenario, this court held that the father“continued to...