Appellate Law

Rule 59.1 Renders Appeal from Probate Court Untimely

In Morrison v. Phillips, released May 2, 2008, the Alabama Court of Civil Appeals dismissed an appeal from a probate court judgment as untimely filed by operation of Rule 59.1.  

In Morrison, the probate court entered a judgment of final settlement of the estate on January 11, 2007.  Phillips filed a postjudgment motion on January 19, 2007.  That motion was set for a hearing on April 25, 2007--a date more than 90 days after the motion was filed.  On April 26, 2007, Phillips filed what she termed a "Supplemental Motion for Modifications to Order Entered January 11, 2007."  That motion, however, did not allege any ground justifying relief under Rule 60(b) and was, in essence, a Rule 59(e) motion. On July 24, 2007, the probate court purported to enter an amended judgment, granting Phillips the relief she sought in her April 26 motion.  On August 10, 2007, Morrison appealed the probate court's purported July 24, 2007 judgment.  

The court noted that Rule 59.1 applies in probate court proceedings and that a trial court's setting a hearing on a postjudgment motion for a date beyond the expiration of the 90-day period provided in Rule 59.1 does not extend the length of time the motion can remain pending.  In this case, the 90th day after the filing of Phillip's January 19, 2007 postjudgment motion was April 19, 2007.  Because the probate court had not ruled on the motion by that date, the motion was deemed denied by operation of law on April 19, 2007.  As of that date, the probate court lost all jurisdiction to act and its purported July 24, 2007 judgment was a nullity.  Moreover, because the notice of appeal was filed long past May 31, 2007--the 42nd day after April 19, 2007, the date of denial of Phillips's postjudgment motion by operation of law--it was untimely and the appeal was due to be dismissed. 

Full post as published by Alabama Appellate Watch on May 06, 2008 (boomark / email).