Wallace v. Belleview Props. Corp., 1100902.

• Decision Date: 21 December 2012
• Docket Number: 1100902.
• Citation: 120 So.3d 485
• Parties: Dr. Stephen L. WALLACE v. BELLEVIEW PROPERTIES CORPORATION et al.
• Court: Alabama Supreme Court

120 So.3d 485

Dr. Stephen L. WALLACE

v.BELLEVIEW PROPERTIES CORPORATION et al.

1100902.

Supreme Court of Alabama.

Dec. 21, 2012.

Bert J. Miano of Miano Law PC, Birmingham, for appellant.

Joseph H. Driver and C. Steven Ball of Carr, Allison, Pugh, Howard, Oliver & Sisson, P.C., Birmingham, for appellees.

WISE, Justice.

Dr. Stephen L. Wallace, the plaintiff/counterclaim-defendant below, appeals from a summary judgment of the Jefferson Circuit Court in favor of Belleview Properties Corporation, IPF/Belleview Limited Partnership (“IPF”), HR/Belleview, L.P., and Infinity Property Management Corporation (hereinafter referred to collectively as “the defendants”). We dismiss the appeal.

Facts and Procedural History

In August 1991, Wallace leased office space in the Belleview Shopping Center in Fairfield, Alabama, to use for his dental practice. Around 1996, the defendants purchased the shopping center and renewed Wallace's lease. The lease was renewed a second time in 2003 for a term of five years.

On December 22, 2005, Wallace sued the defendants,¹ alleging fraud and suppression; negligence; wantonness; breach of contract; unjust enrichment; and negligent training, supervision, and retention. Wallace alleged that, during the term of the lease, he reported various maintenance problems to the defendants. He also alleged that, although the defendants assured him that the problems would be taken care of, they were not. Wallace asserted that, as a result of reported water leaks that were left unrepaired, the office was infested with toxic mold. Therefore, he asserted, in April 2005, he closed his practice to avoid exposing his employees and his patients to the toxic mold.

The defendants filed answers to the complaint and asserted affirmative defenses. Also, IPF filed a counterclaim alleging breach of contract, essentially seeking unpaid rent. Wallace answered the counterclaim, alleging that he was constructively evicted from the premises because of the mold infestation and asserting defenses to IPF's counterclaim.

On August 28, 2009, the defendants filed a motion for a summary judgment as to Wallace's claims against them. On September 11, 2009, IPF filed a motion for a summary judgment on its counterclaim against Wallace. On January 20, 2010, the trial court conducted a hearing on the motions for a summary judgment.

On January 27, 2010, the trial court entered an order granting the defendants' motion for a summary judgment as to Wallace's claims against them. The trial court certified the judgment as to all claims filed by Wallace as final pursuant to Rule 54(b), Ala. R. Civ. P.² Finally, it stated that it was taking IPF's motion for a summary judgment as to its counterclaim under advisement.

On February 11, 2010, Wallace filed a motion asking the trial court to reconsider or vacate its January 27, 2010, order and to set the matter for a hearing. The defendants filed a motion in opposition to Wallace's motion. The trial court conducted a hearing on the motion on April 27, 2010. On December 15, 2010, the trial court conducted a hearing on IPF's motion for a summary judgment on its counterclaim against Wallace. On December 27, 2010, the trial court denied the motion for a summary judgment on the counterclaim, explaining as follows: “The Court is of the opinion that this case should be tried and heard because the Court notes that there is a serious question of constructive eviction and promissory estoppel as a defense of the plaintiff to said counterclaim.” In that order, the trial court also stated: “Any other motions are hereby overruled and denied.” On February 14, 2011, Wallace filed a request for clarification of the December 27, 2010, order.

During a hearing on March 21, 2011, counsel for IPF specifically asked that the counterclaim be dismissed. As a result, on March 21, 2011, the trial court entered a final order of dismissal in the case. Wallace filed a notice of appeal to this Court on May 2, 2011.

Discussion

In his notice of appeal and in the statement of jurisdiction in his brief to this Court, Wallace purports to appeal from the trial court's March 21, 2011, final order of dismissal. However, he categorizes his arguments as follows in his brief to this Court:

1. “The trial court's order granting partial summary judgment was in error because genuine issues of material fact exist.”

2. “The trial court's December 27, 2010, order denying relief under Rule 60 was an abuse of discretion.”

3. “The Trial Court's Rule 54(b) certification was ineffective or, in the alternative, the rule adopted in Allen v. Briggs, 60 So.3d 899 (Ala.Civ.App.2010), should be overturned or modified based on the facts of this case.”

Also, in the summary of the argument portion of his brief to this Court, Wallace states: “This appeal is filed to challenge an erroneous grant of summary judgment, denial of a Rule 60 motion, and an improper and ineffective Rule 54(b) certification.” Therefore, it is clear that Wallace is challenging the summary judgment the trial court entered in favor of the defendants on January 27, 2010, and the denial of his motion for reconsideration, rather than the trial court's March 21, 2011, final order of dismissal.

The defendants argue that this Court should dismiss this appeal as untimely. Specifically, they contend that the notice of appeal was filed more than 42 days after the trial court certified the summary judgment on Wallace's claims against them as final pursuant to Rule 54(b). The defendants also assert that, if Wallace's motion to reconsider was filed pursuant to Rule 59, it was denied by operation of law after 90 days, and the notice of appeal was not filed within 42 days after that denial. Finally, they allege that, if Wallace's motion to reconsider was filed pursuant to Rule 60(b), it was denied on December 27, 2010, and the notice of appeal was not filed within 42 days after that date. We agree with the defendants that Wallace's appeal is untimely.

With regard to when an appeal should be taken, Rule 4(a)(1), Ala. R.App. P., provides:

“Except as otherwise provided herein, in all cases in which an appeal is permitted by law as of right to the supreme court or to a court of appeals, the notice of appeal required by Rule 3[, Ala. R.App. P.,] shall be filed with the clerk of the trial court within 42 days (6 weeks) of the date of the entry of the judgment or order appealed from....”With regard to tolling the time for filing a notice of appeal, Rule 4(a)(3), Ala. R.App. P., provides:

“The filing of a post-judgment motion pursuant to Rules 50, 52, 55 or 59 of the Alabama Rules of Civil Procedure ( [Ala. R. Civ.P.] ) shall suspend the running of the time for filing a notice of appeal. In cases where post-judgment motions are filed, the full time fixed for filing a notice of appeal shall be computed from the date of the entry in the civil docket of an order granting or denying such motion. If such post-judgment motion is deemed denied under the provisions of Rule 59.1 of the Alabama Rules of Civil Procedure, then the time for filing a notice of appeal shall be computed from the date of denial of such motion by operation of law, as provided for in Rule 59.1.”

With regard to postjudgment motions in civil cases, Rule 59, Ala. R. Civ. P., provides, in relevant part:

“(e) Motion to Alter, Amend, or Vacate a Judgment. A motion to alter, amend, or vacate the judgment shall be filed not later than thirty (30) days after entry of the judgment.”

Finally, Rule 59.1, Ala. R. Civ. P., provides:

“No postjudgment motion filed pursuant to Rules 50, 52, 55, or 59 shall remain pending in the trial court for more than ninety (90) days, unless with the express consent of all the parties, which consent shall appear of record, or unless extended by the appellate court to which an appeal of the judgment would lie, and such time may be further extended for good cause shown. A failure by the trial court to render an order disposing of any pending postjudgment motion within the time permitted hereunder, or any extension thereof, shall constitute a denial of such motion as of the date of the expiration of the period.”

As the defendants note, Wallace clearly filed his notice of appeal more than 42 days after the trial court certified the summary judgment in their favor as final pursuant to Rule 54(b) on January 27, 2010. However, on February 11, 2010, Wallace filed a motion asking the trial court to reconsider or vacate its January 27, 2010, order. If that motion is considered a postjudgment motion to alter, amend, or vacate filed pursuant to Rule 59, it was denied by operation of law 90 days after it was filed, because the trial court did not rule on it within 90 days and the time for ruling on it was not extended. Wallace did not file his notice of appeal within 42 days after the date the motion was denied by operation of law. Therefore, if the motion to reconsider was a postjudgment motion filed pursuant to Rule 59, Wallace's appeal is not timely.

Wallace argues that his postjudgment motion to reconsider was filed pursuant to Rule 60(b), rather than Rule 59, because, he says, he sought relief as the result of mistake, inadvertence, surprise, or excusable neglect. If the motion was filed pursuant to Rule 60(b) and not Rule 59.1, “it was not denied by operation of law pursuant to Rule 59.1 after 90 days had expired from the time it was filed.” Conway v. Housing Auth. of Birmingham Dist., 676 So.2d 344, 345 (Ala.Civ.App.1996). See also Rhodes v. Rhodes, 38 So.3d 54, 63 (Ala.Civ.App.2009) (“[T]he 90–day period for ruling on postjudgment motions announced in Rule 59.1, Ala. R. Civ. P., applies only to motions filed under Rules 50, 52, 55, and 59, and not those filed under Rule 60(b).”). However, even if Wallace's motion to reconsider was a postjudgment motion filed pursuant to Rule 60, it was denied on December 27, 2010, and Wallace did not file his notice of appeal within 42 days after that date.³ Therefore, whether...