Spina v. Causey
| Decision Date | 21 August 1981 |
| Citation | 403 So.2d 199 |
| Parties | Nick J. SPINA, Marion P. Spina, Rose M. Spina & Ruth L. Spina v. J. F. CAUSEY. J. F. CAUSEY v. Nick J. SPINA, Marion P. Spina, Rose M. Spina & Ruth L. Spina. 79-877, 79-896. |
| Court | Alabama Supreme Court |
James W. May of Odom, May & De Buys, Birmingham, for appellants in 79-877, for cross-appellees in 79-896.
John W. Roach, Jr., Birmingham, for appellee in 79-877, for cross-appellant in 79-896.
Defendants appeal from a jury verdict for the plaintiff for $20,000.00, followed by plaintiff's filing a cross-appeal and a motion to dismiss the appeal. The case was heard by this Court on the motion and the merits. We grant the motion to dismiss, due to untimely filing of the notice of appeal under Rule 4(a)(3), ARAP, and Rule 59.1, ARCP.
Plaintiff Causey purchased from defendants Spina a 70-year-old warehouse building in Birmingham for $107,800.00 on November 19, 1976. Certain warranties in the contract, but not contained in the deed, precipitated suit some two years later by the plaintiff against defendants for breach of warrant. Plaintiff also alleged misrepresentations by defendants made mistakenly, innocently, recklessly or willfully by the defendants to plaintiff in the sale of the building. The trial court directed a verdict for the defendants on the issue of fraud and misrepresentation, and on December 14, 1979, the jury returned a verdict in favor of the plaintiff for $20,000.00 on the breach of warranty claim. The defendants filed a motion for judgment notwithstanding the verdict on January 4, 1980. On January 9, 1980, the defendants filed a motion for new trial. These two motions were set on the trial court's docket, continued twice, and argued on March 7, 1980. The trial court did not rule on the motions within 90 days, nor did the parties expressly consent to the court's carrying the motions over beyond the 90 days (as provided by Rule 59.1), and 90 days elapsed from the filing of the post-trial motions. On May 27, 1980, defendants filed a Rule 60(b), ARCP motion, citing excusable neglect on their part as grounds for relief from the Rule 59.1 denial of the post-trial motions. The trial court granted the 60(b) motion on July 8, 1980, while denying both post-trial motions. On August 19, 1980, defendants filed an appeal from the jury verdict. On August 29, 1980, plaintiffs filed a cross-appeal from the directed verdict. Finally, on October 15, 1980, plaintiffs filed a motion to dismiss the appeal as untimely.
To recapitulate the pertinent facts and dates, the following timetable is helpful:
December 14, 1979 Final judgment
January 4, 1980 Defendant files motion for judgment notwithstanding the verdict
January 9, 1980 Defendant files motion for new trial
March 7, 1980 Motions argued
April 3, 1980 Expiration of 90-day period for Rule 50 motion
April 8, 1980 Expiration of 90-day period for Rule 59 motion
May 20, 1980 Expiration of 42-day period under Rule 4
May 27, 1980 Defendant files Rule 60(b) ARCP motion directed to Rule 59.1, ARCP denial of post-trial motions
July 8, 1980 Court denies Rule 50 and Rule 59 motions. Court grants Rule 60(b) motion
August 19, 1980 Defendant files notice of appeal.
Based on these facts, we have no alternative but to grant the motion to dismiss the appeal for lack of jurisdiction. The rules of procedure, as well as case law, clearly support this decision.
Timely filing of an appeal is jurisdictional and "(a)n 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), ARAP. Under the rules, the time for taking an appeal from a final judgment is forty-two days after that judgment is entered. The filing of post-trial motions may suspend the time for taking an appeal, but with the express limitations and requirements of Rule 59.1, ARCP and Rule 4, ARAP.
Rule 59.1, ARCP, was enacted to "remedy any inequities arising from failure of the trial court to dispose of post-trial motions for unduly long periods." Committee Comments, Rule 59.1, ARCP. This Court interpreted this rule in Coosa Marble Co., Inc. v. Whetstone, 294 Ala. 408, 318 So.2d 271 (1975), as follows:
Under Rule 59.1, a motion for new trial shall not remain pending in the trial court for more than 90 days, without the express consent of all the parties, or unless extended by the appellate court to which an appeal of the judgment lies. A failure of the trial court to dispose of the motion within the 90 days constitutes its denial on the expiration of that period....
Here, the latter of the two post-trial motions was filed on January 9, 1980; therefore, the last day for the trial judge to grant or deny the motion was April 8, 1980. The judge did not act on either motion in the prescribed time limit; therefore, both motions are deemed denied by operation of law.
The denial of the post-trial motions under 59.1 has a clear effect on the time for taking an appeal, which is set out in Rule 4(a)(3), ARAP, as follows:
(3) The filing of a post-trial...
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First Alabama Bank of Montgomery, N.A. v. Parsons Steel, Inc.
...not final for purposes of appeal during the pendency of the judgment n.o.v. and new trial motions. See A.R.A.P. 4(a)(3); Spina v. Causey, 403 So.2d 199, 201 (Ala.1981). Therefore, the district court did not err in finding that there was no final judgment for preclusion purposes under Alabam......
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Warren v. Jefferson Cnty. (Ex parte Jefferson Cnty.)
...that the last viable postjudgment motion, i.e., the board's postjudgment motion, was denied by operation of law. See Spina v. Causey, 403 So. 2d 199, 201 (Ala. 1981) ; see also Landers v. Landers, 812 So. 2d 1212, 1215 (Ala. Civ. App. 2001). That motion was denied by operation of law on Sep......
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State v. Webber
...Because no party filed a timely appeal, no appellate court ever acquired any appellate jurisdiction over the cases. Spina v. Causey, 403 So.2d 199 (Ala.1981); Lewis v. State, 463 So.2d 154 (Ala.1985); Woods v. State, 371 So.2d 944, 945 (Ala.1979); and Turner v. State, 365 So.2d 335, 336 Wit......
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...Because no party filed a timely appeal, no appellate court ever acquired any appellate jurisdiction over the cases. Spina v. Causey, 403 So.2d 199 (Ala.1981); Lewis v. State, 463 So.2d 154 (Ala.1985); Woods v. State, 371 So.2d 944, 945 (Ala.1979); and Turner v. State, 365 So.2d 335, 336 (Al......