Slay v. Slay

292 So.3d 651

Deron E. SLAY

v.Stephanie C. SLAY

2171125

Court of Civil Appeals of Alabama.

June 28, 2019

Grady K. Edmonson, Mobile, for appellant.

Submitted on appellant’s brief only.

DONALDSON, Judge.

Deron E. Slay ("the husband") appeals from a judgment of the Mobile Circuit Court ("the trial court"). Because we do not have jurisdiction over the husband's appeal, we dismiss the appeal.

Facts and Procedural History

In December 2016, the husband filed a complaint for a divorce from Stephanie C. Slay ("the wife") and for other relief in the trial court. The wife filed an answer and counterclaim. The issues were tried on March 15-16, 2018. On March 23, 2018, the trial court entered a judgment divorcing the parties and addressing all pending claims. On March 23 and March 28, 2018, the trial court entered orders correcting clerical errors in the March 23, 2018, judgment.

The husband and the wife each filed various motions after the entry of the judgment. Some of the motions were directed to the husband's attempts to obtain postjudgment discovery from third parties. The following motions and rulings are pertinent to our disposition of this appeal.

On April 20, 2018, the husband filed a motion to alter, amend, or vacate the March 23, 2018, judgment or in the alternative, for a new trial, pursuant to Rule 59, Ala. R. Civ. P. On May 2, 2018, the trial court set the husband's motion for a hearing to be held on May 30, 2018.

On May 3, 2018, the wife filed a motion to continue the May 30 hearing on the husband's postjudgment motion. On May 4, 2018, the trial court entered an order granting the wife's motion to continue without resetting the hearing date. On May 8, 2018, the trial court entered an order setting June 25, 2018, as the new hearing date for the husband's postjudgment motion. On June 27, 2018, the trial court entered an order setting the hearing for the husband's postjudgment motion on July 23, 2018. Later that same day, the trial court entered an order setting the hearing on July 16, 2018.

On July 13, 2018, the husband's counsel and the wife's counsel both signed and submitted to the trial court a "Joint Motion for Delay Specifically Extending Rule 59.1 90-Day Deadline." In their motion, the parties stated:

"Come now the parties, by and through respective counsel, and move this court for a delay of the July 16, 2018, hearing date.

"The parties expressly consent to a delay beyond 90 days from the date of the filing of the post-judgment motion that is presently scheduled to be heard on the date in question; said 90 days occurring on July 18, 2018.

"WHEREFORE, premises considered, the parties expressly request a delay pursuant to Rule 59.1[, Ala. R. Civ. P.]. They ask for any further and different relief to which they might be entitled."

On July 16, 2018, the trial court entered an order that stated: "Motion to Continue filed by [the husband] is hereby Granted."

On July 17, 2018, the trial court entered an order setting August 15, 2018, as the hearing date for the husband's postjudgment motion. On August 16, 2018, the trial court entered an order purporting to deny the husband's postjudgment motion. The husband filed a notice of appeal to this court on September 11, 2018. The husband filed a brief on appeal, but the wife did not.

"It is well settled that jurisdictional matters are of such significance that an appellate court may take notice of them ex mero motu. Wallace v. Tee Jays Mfg. Co., 689 So. 2d 210, 211 (Ala. Civ. App. 1997) ; Nunn v. Baker, 518 So. 2d 711, 712 (Ala. 1987). ‘The timely filing of [a] notice of appeal is a jurisdictional act.’ Rudd v. Rudd, 467 So. 2d 964, 965 (Ala. Civ. App. 1985) ; see also Parker v. Parker, 946 So. 2d 480, 485 (Ala. Civ. App. 2006) (‘an untimely filed notice of appeal results in a lack of appellate jurisdiction, which cannot be waived’)."

Kennedy v. Merriman, 963 So. 2d 86, 87–88 (Ala. Civ. App. 2007).

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."

The husband's April 20, 2018, postjudgment motion could not remain pending in the trial court for more than 90 days unless the time for ruling on the motion was properly and timely extended pursuant to Rule 59.1. If the time for ruling on the motion was not properly extended, the husband's postjudgment motion was denied by the operation of law on July 19, 2018, because no ruling was rendered by the trial court disposing of the motion on or before that date, and the time for filing the husband's notice of appeal was due 42 days later, on or before August 30, 2018. Rule 4(a)(3), Ala. R. App. P.

We asked the parties to provide supplemental briefs "addressing whether the appeal is timely, and without limiting the response, addressing whether the July 13, 2018, joint motion of the parties and the July 16 and 17, 2018, orders of the [trial] court were effective to extend the time for the trial court to rule on any postjudgment motions." We provided citations to Rule 59.1 and to three cases for consideration. The wife did not respond. On May 15, 2019, the husband filed a response through appellate counsel without a citation to legal authority. In the response, the husband asserts that the intent of the parties in filing the July 13, 2018, motion was to extend the time for the trial court to rule on the postjudgment motion, and he contends that the trial court's orders granting the motion and resetting the hearing on the husband's postjudgment motion were "incorrectly styled" and constitute "harmless error."

In Traylor v. Traylor, 976 So. 2d 447 (Ala. Civ. App. 2007), the mother in that case filed a postjudgment motion in the trial court. The 90th day following the filing of the postjudgment motion was September 5, 2006. If no order was entered by the trial court disposing of the motion by that date, a notice of appeal was required to be filed within 42 days of September 5, or by October 17, 2006. A hearing on the motion was scheduled by the trial court to be held on August 7, 2006. No hearing was held on that date. On August 22, 2006, before the expiration of the 90-day period provided in Rule 59.1, the parties jointly filed a document titled "Motion to Extend Time for Hearing on Motion for New Trial." 976 So. 2d at 449. The document was signed by counsel for both parties, and it stated that the parties " ‘file this their consent under Rule 59.1 of the Alabama Rules of Civil Procedure to extend the time for the hearing on the Motion For New Trial Or In The Alternative, To Alter, Amend or Vacate the court's [final judgment], from September 5, 2006, until September 29, 2006.’ " Id. In response, the trial court entered an order on August 22, 2006, that provided:

" ‘The above consent of the parties having been presented to the court and the court having considered the same is of the opinion that the time for hearing the [mother's] motion for new trial filed under rule 59 of the Alabama Rules of Civil Procedure shall be extended in accordance with Rule 59.1 from September 5, 2006, until September 29, 2006.’ "

Id.

On September 27, 2006, the trial court in Traylor entered an order purportedly denying the postjudgment motion. The mother filed a notice of appeal on November 8, 2006, which was within 42 days of the entry of the order purportedly denying the postjudgment motion.

On appeal, this court determined that the August 22, 2006, joint motion filed by the parties was not effective in extending the time for the trial court to rule on the postjudgment motion. This court stated:

"In the present case, the parties expressly consented on the record to extend the time for a hearing on the mother's postjudgment motion. Our Supreme Court, however, has held that ‘consent to extend the time for a hearing on a postjudgment motion does not equate to consent to extend the pendency of the postjudgment motion beyond the 90–day period prescribed by Rule 59.1, Ala. R. Civ. P.’ Ex parte Bodenhamer, 904 So. 2d 294, 295 (Ala. 2004) ; see also Burge v. Hayes, 964 So. 2d 672, 675 (Ala. Civ. App. 2006). Accordingly, the joint motion to extend the time for a hearing on the mother's postjudgment motion did not extend the 90–day period for the motion to remain pending as provided in Rule 59.1, and the trial court had 90 days from June 7, 2006, the date the mother filed her postjudgment motion, to rule on that motion. Burge, 964 So. 2d at 675. At the expiration of 90 days, i.e., on September 5, 2006, the mother's postjudgment motion was denied by operation of law. Burge, 964 So. 2d at 675."

Id. at 449-50. Accordingly, this court determined that the appeal was untimely and dismissed the appeal.

In Ex parte Bodenhamer, 904 So. 2d 294 (Ala. 2004), a party filed a motion asking the trial court to extend the time for ruling on that party's postjudgment motion. Attached to the motion was a letter from counsel for the opposing party that stated: " ‘I agree to extend the ninety (90) day period for the hearing on your motion in the above-referenced matter.’ " 904 So. 2d at 295. The trial court entered an order "grant[ing]" the motion " ‘until such time as the court may set the same for a hearing and may thereafter be ruled upon by the court.’ " Id. The trial court later entered a ruling on the postjudgment motion more than 90 days after it had been filed. A notice of appeal was filed within 42 days of the ruling on the postjudgment motion, but beyond the time for filing a notice of...