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APPEAL - EX PARTE LIMERICK

In Ex parte Limerick, [Ms. 1101201, Dec. 9, 2011] __ So. 3d __(Ala. 2011), the Supreme Court of Alabama granted a petition for writ of mandamus and ordered a circuit court to vacate an order granting a new trial under Ala. R. Civ. P. 60(b). The Supreme Court had previously issued a mandamus directing the circuit court to vacate an earlier order granting a motion for a new trial pursuant to Rule 59. However, while the Supreme Court was considering the propriety of the circuit court's Rule 59 new trial order, the plaintiffs filed another motion in the circuit court seeking relief under Rule 60(b). Upon release of the Supreme Court's opinion holding that the Rule 59 motion was untimely under Rule 59.1 and that, therefore, the circuit court erred in granting a new trial on that basis, the circuit court vacated its Rule 59 new trial order, but then proceeded to consider the Rule 60(b) request. Approximately six months later, the circuit court ordered a new trial, pursuant to Rule 60(b). The Supreme Court was again petitioned for a writ of mandamus to direct the circuit court to vacate its second new trial order. The Supreme Court held that "it is abundantly clear that a Rule 60(b) motion to set aside a judgment cannot be substituted for a Rule 59 motion so as to avoid the operation of Rule 59.1." Thus, relief under Rule 60(b) was unauthorized and improper.

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