Appellate Jurisdiction – Rule 60 Motion Is Not Subject To Denial by Operation of Law


Womble v. Moore, [Ms. 1210222, Aug. 12, 2022] __ So. 3d __ (Ala. 2022). The Court (Shaw, J.; Parker, C.J., and Bryan, Mendheim, and Mitchell, JJ., concur) dismisses Gary and Sheila Womble’s appeal challenging the Jefferson Circuit Court’s purported denial by operation of law of their motion filed pursuant to Rule 60(b), Ala. R. Civ. P., and its judgment dismissing their tort action against Collie Moore III based on their failure to prosecute the action.

The Court explains “[o]n October 12, 2021, the Wombles filed their motion, citing Rule 60(b), in which they contended that they were entitled to ‘relief from [the trial court's] judgment’ because their failure to appear for the previously scheduled trial was ‘inadvertent and the result of ‘excusable neglect.’ That motion in substance was a motion made under Rule 60(b)(1).” Ms. *5. The Court rejects the Wombles’ argument that their Rule 60 motion was denied by operation of law and notes “[t]he 90-day period provided in Rule 59.1 applies only to motions filed under Rules 50, 52, 55, and 59, Ala. R. Civ. P.; it does not apply to Rule 60(b) motions to set aside a judgment.” Ms. *6. “Because the Wombles’ Rule 60(b) motion remains pending before the trial court, this Court lacks jurisdiction over the Wombles’ appeal insofar as it challenges the trial court’s purported denial by operation of law of their Rule 60(b) motion, and, therefore, their appeal, insofar as it challenges that purported denial, is due to be dismissed.” Ms. *8.

The Court further holds that because a Rule 60 motion does not suspend the time for filing a notice of appeal, “the notice of appeal was untimely as to the trial court’s judgment of dismissal, [therefore] the Wombles’ appeal, insofar as it challenges that judgment, is due to be dismissed.” Ms. *9.

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