Wright v. City of Mobile
Decision Date | 21 August 2015 |
Docket Number | 2140224 |
Parties | Angela Wright v. City of Mobile |
Court | Alabama Court of Civil Appeals |
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter.
Appeal from Mobile Circuit Court
On Application for Rehearing
Thirty years ago, our supreme court stated as follows:
1
Ex parte Dowling, 477 So. 2d 400, 403-04 (Ala. 1985) (emphasis added).
Three years later, in Vaughan v. Vaughan, 539 So. 2d 1058 (Ala. Civ. App. 1988), this court held that the supreme court's holding in Dowling did not apply to a motion filed pursuant to Rule 60(b), Ala. R. Civ. P., and that a party aggrieved by the denial of a Rule 60(b) motion could file a postjudgment motion and that the filing of that postjudgment motion would toll the time for taking of an appeal. On a petition for a writ of certiorari, our supreme court rejected that reasoning, holding:
Ex parte Vaughan, 539 So. 2d 1060, 1061 (Ala. 1989) (emphasis added).
Despite that clear pronouncement, this court erroneously continued to follow its decision in Vaughan. See Alexander v. Washington, 707 So. 2d 254 (Ala. Civ. App. 1997). In 1998, our supreme court reiterated its earlier decisions:
Ex parte Keith, 771 So. 2d 1018, 1022 (Ala. 1998) (emphasis added). Since that time, both our supreme court, see, e.g., Wallace v. Belleview Props. Corp., 120 So. 3d 485, 489 (Ala. 2012); Truss v. Chappell, 4 So. 3d 1110, 1112 (Ala. 2008); and Ex parte Jordan, 779 So. 2d 183, 184 (Ala. 2000), and this court, see, e.g., Evans v. Anderson, [Ms. 2130468, March 06, 2015] ___ So. 3d ___ (Ala. Civ. App. 2015); Dreding v. Kruse, 141 So. 3d 507 (Ala. Civ. App. 2013); Young v. Southeast Alabama Med. Ctr., 148 So. 3d 429 (Ala. Civ. App. 2013); T.K.W. v. State Dep't of Human Res. ex rel. J.B., 119 So. 3d 1187 (Ala. Civ. App. 2013); King v. King, 87 So. 3d 585 (Ala.Civ. App. 2012); R.M. v. Elmore Cnty. Dep't of Human Res., 75 So. 3d 1195, 1205 (Ala. Civ. App. 2011); Hardy v. Weathers, 56 So. 3d 634, 636 (Ala. Civ. App. 2010); Burleson v. Burleson, 19 So. 3d 233 (Ala. Civ. App. 2009); Attalla Health Care, Inc. v. Kimble, 14 So. 3d 883 (Ala. Civ. App. 2008); Pinkerton Sec. & Investigations Servs., Inc. v. Chamblee, 934 So. 2d 386 (Ala. Civ. App. 2005); Favors v. Skinner's Wholesale Nursery, Inc., 860 So. 2d 359 (Ala. Civ. App. 2003); and Moser v. Moser, 839 So. 2d 664 (Ala. Civ. App. 2002), have consistently followed the holding in Ex parte Keith.
Nevertheless, on rehearing, Wright's attorney complains that it would be "repugnant, prejudicial, and in plain error" for this court to enforce the law to dismiss Wright's appeal because, he says, the Alabama Rules of Civil Procedure do not plainly set out that a party may not file a motion to reconsider the denial of a Rule 60(b) motion. Wright's attorney argues:
In making that argument, Wright's attorney displays a monumental misunderstanding of the genesis of the rule set forth by our supreme court in Ex parte Keith. As pointed out in the emphasized portions of the above-quoted excerpts from Ex parte Dowling, Ex parte Vaughan, and Ex parte Keith, the Alabama Rules of Civil Procedure intentionally omit any procedure for the reconsideration of the denial of a Rule 60(b) motion because such a procedure is not authorized. In explaining that fact in Ex parte Dowling, Ex parte Vaughan,and Ex parte Keith, our supreme court did not make any changes, much less any "fundamental and material changes," to the Rules of Civil Procedure that would have necessitated an amendment of, or addition to, the rules.
Moreover, it would not be inequitable to enforce the law in this case solely because of Wright's attorney's ignorance of that law. By issuing over 40 reported decisions on the issue since 1998 alone, the appellate courts of this state have more than adequately notified the members of the bar of the law on this matter. A litigator exercising reasonable diligence to provide competent representation to his or her clients should be able to discover the law rather easily through cursory legal research. See Ala. R. Prof'l Conduct, Rule 1.1 () . Wright's attorney seeks to excuse his own failure to learn the law on the ground that the appellate courts have not neatly summarized it in handy rules for his convenience. This court will not further entertain such a frivolous argument.
Rule 60(b), Ala. R. Civ. P., provides, in pertinent part: "Leave to make the motion need not be obtained from any appellate court except during such time as an appeal from the judgment is actually pending before such court." As explained in our opinion on original submission, Wright's attorney moved this court for leave to file a Rule 60(b) motion in the trial court while Wright's first appeal, see Wright v. City of Mobile, [Ms. 2130156, Oct. 24, 2014] ___ So. 3d ___ (Ala. Civ. App. 2015) ("Wright I"), was pending before the court. ___ So. 3d at ___. This court granted that motion in an unpublished order, stating: "Appellant's motion for leave to file Rule 60(b), Ala. R. Civ. P., in trial court is granted." Wright's attorney thereafter filed the Rule 60(b) motion in the trial court, which motion the trial court denied. Rather...
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