Wright v. City of Mobile

• Decision Date: 15 May 2015
• Docket Number: 2140224.
• Citation: 192 So.3d 7
• Parties: Angela WRIGHT. v. CITY OF MOBILE.
• Court: Alabama Court of Civil Appeals

192 So.3d 7

Angela WRIGHT.

v.CITY OF MOBILE.

2140224.

Court of Civil Appeals of Alabama.

May 15, 2015.

Opinion on Overruling of Rehearing Aug. 21, 2015.

Carroll J. Ogden, Mobile, for appellant.

Wanda B. Rahman, asst. city atty., City of Mobile Police Department, for appellee.

MOORE, Judge.

On February 14, 2013, Samuel L. Jones, the mayor of the City of Mobile, dismissed Angela Wright from her employment as a dispatcher for the City of Mobile Police Department. Wright appealed to the Mobile County Personnel Board, which upheld Wright's dismissal. Wright then appealed to the Mobile Circuit Court (“the trial court”), which, by a judgment entered on September 20, 2013, reduced Wright's dismissal to a suspension for 30 days without pay and ordered that Wright be reinstated to her employment. After the trial court denied her postjudgment motion, Wright appealed to this court; this court affirmed the judgment of the trial court. See Wright v. City of Mobile, 170 So.3d 656 (Ala.Civ.App.2014).

While the earlier appeal in this court was pending, this court granted Wright's motion for leave to file a Rule 60(b), Ala. R. Civ. P., motion in the trial court. See Rule 60(b) and Jenkins v. Covington, 939 So.2d 31, 34 (Ala.Civ.App.2006) (holding that appellant must obtain leave from appellate court in order to file Rule 60(b) motion in trial court when appeal is pending). On September 30, 2014, Wright filed a motion in the trial court requesting the trial court to set aside its judgment based on newly discovered evidence, see Rule 60(b)(2), because of the alleged misconduct of an adverse party, see Rule 60(b)(3), because the judgment was allegedly void, see Rule 60(b)(4), and for “any other reason justifying relief from the operation of the judgment,” see Rule 60(b)(6). On October 7, 2014, the trial court denied Wright's motion without expressing its reasons for doing so. Wright filed a motion to alter, amend, or vacate the order, which the trial court purported to deny on November 6, 2014. Wright then appealed to this court on December 17, 2014.

“Although neither party addresses this court's jurisdiction over this appeal, we may take notice of a lack of jurisdiction ex mero motu. See Ruzic v. State ex rel. Thornton, 866 So.2d 564, 568–69 (Ala.Civ.App.2003), abrogated on other grounds by F.G. v. State Dep't of Human Res., 988 So.2d 555 (Ala.Civ.App.2007). ‘The timely filing of a notice of appeal is a jurisdictional act.’ Durr v. Durr, 961 So.2d 139, 140 (Ala.Civ.App.2006) (citing Gunnison–Mack v. State Pers. Bd., 923 So.2d 319, 320 (Ala.Civ.App.2005) ).”

Adkins v. Adkins, 61 So.3d 1071, 1074 (Ala.Civ.App.2010). In this case, the trial court denied Wright's Rule 60(b) motion by a final judgment entered on October 7, 2014. Wright then filed a motion cognizable under Rule 59(e), Ala. R. Civ. P., requesting that the trial court alter, amend, or vacate its denial of her Rule 60(b) motion. However,

“ ‘[a]fter a trial court has denied a postjudgment motion pursuant to Rule 60(b), that court does not have jurisdiction to entertain a successive postjudgment motion to “reconsider” or otherwise review its order denying the Rule 60(b) motion, and such a successive postjudgment motion does not suspend the running of the time for filing a notice of appeal.’ ”

Adkins, 61 So.3d at 1075 (quoting Ex parte Keith, 771 So.2d 1018, 1022 (Ala.1998) ).

Wright's filing of her Rule 59(e) motion did not suspend the time for filing a notice of appeal from the trial court's denial of her Rule 60(b) motion, which occurred on October 7, 2014. Wright did not file her notice of appeal until December 17, 2014, after the expiration of the 42–day appeal period provided under Rule 4(a)(1), Ala. R.App. P. Because Wright's appeal of the trial court's denial of her Rule 60(b) motion is not timely, we dismiss her appeal.

APPEAL DISMISSED.

THOMPSON, P.J., and PITTMAN, THOMAS, and DONALDSON, JJ., concur.

On Application for Rehearing

MOORE, Judge.

Thirty years ago, our supreme court stated as follows:

“The denial of a motion under Rule 59 or Rule 60 [, Ala. R. Civ. P.,] is usually appealable. That avenue, then, should be pursued by an aggrieved party. A motion to reconsider cannot be used as a substitute for an appeal. See, Pace v. Jordan, 348 So.2d 1061 (Ala.Civ.App.1977), cert. denied, 348 So.2d 1065 (Ala.1977). This Court has been presented from time to time several instances when losing parties have attempted to get trial judges to reconsider action taken on their post-judgment motions. Most attempt to draft their motions to come within the provisions of Rule 60(b). In view of the fact that this case presents to us that situation, we take this opportunity to point out to the bench and bar that the Rules of Civil Procedure do not authorize a movant to file a motion to reconsider the trial judge's ruling on his own post-judgment motion. However, in some cases such successive post-judgment motions may be permitted. If, for example, the judge has rendered a new judgment pursuant to a Rule 59(e) motion to alter, amend, or vacate a judgment or pursuant to a Rule 50(b)[, Ala. R. Civ. P.,] motion for judgment notwithstanding the verdict, the party aggrieved by the new judgment may have had no reason to make such a motion earlier. In the usual case, after a post-judgment motion has been denied, the only review of that denial is by appeal; a judge has no jurisdiction to ‘reconsider’ the denial. Post-judgment motions made pursuant to Rules 50 and 59, Ala. R. Civ. P., should be properly styled: e.g., ‘Motion for New Trial,’ ‘Motion for Judgment Notwithstanding the Verdict.’ There is no post-judgment motion referred to in our rules as a ‘motion to reconsider.’ ”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:

“After an examination of the petition for writ of certiorari, it is our considered opinion that the writ is due to be denied. We note that Mr. Vaughan's appeal to the Court of Civil Appeals was not timely. A trial court does not have jurisdiction to entertain a motion to reconsider the denial of a Rule 60(b), A[la]. R. Civ. P., motion. See Ex parte Dowling, 477 So.2d 400 (Ala.1985). Consequently, the Alabama Rules of Appellate Procedure do not suspend the running of the time for filing a notice of appeal during the pendency of a motion to reconsider the denial of a Rule 60(b) motion. See Spriggs Enterprises, Inc. v. Malbis Plantation, Inc., 502 So.2d 374 (Ala.1987). Mr. Vaughan's notice of appeal was filed on February 25, 1988, more than 42 days from December 23, 1987, the date the trial court denied the petitioner's Rule 60(b) motion.”

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:

“We clarify the rule: After a trial court has denied a postjudgment motion pursuant to Rule 60(b), [Ala. R. Civ. P.,] that court does not have jurisdiction to entertain a successive postjudgment motion to ‘reconsider’ or otherwise review its order denying the Rule 60(b) motion, and such a successive postjudgment motion does not suspend the running of the time for filing a notice of appeal. We note, as the Court of Civil Appeals has done on several occasions, that the Alabama Rules of Civil Procedure do not contain any provision for a ‘motion to reconsider’ a ruling on a Rule 60(b) motion. ”

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, 176 So.3d 232 (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:

“What is extremely troubling is the idea that this Court of Civil Appeals and the Alabama Supreme Court are responsible totally for the judicial Rules. After all, both Appellate Courts influence directly or indirectly the Rules of Civil Procedure and Appellate Court Rules.

“....

“If these fundamental and material changes were enacted into procedural law, then why were those changes not ‘immediately’ written into the ‘Actual Rules' for all to see in the

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