Opinion
No. 2020456.
Decided September 26, 2003.
Appeal from Baldwin Circuit Court (CV-00-410)
David McMurphy ("David") and J.E. McMurphy ("J.E.") appeal from an order condemning and disbursing $11,000 which was used to secure an appearance bond.
On May 5, 2000, East Bay Clothiers ("East Bay") sued David seeking to recover $16,001.68 plus interest for an unpaid balance on a clothing account. On January 29, 2001, the trial court entered a default judgment against David because of his failure to answer or defend the complaint filed against him; the trial court awarded East Bay damages in the amount of $16,916.72.
On March 7, 2001, East Bay filed postjudgment interrogatories for David to answer. David failed to answer the interrogatories, failed to comply with an order to answer, and failed to appear at a show-cause hearing. The trial court issued a warrant for David's arrest, and it set his appearance bond at $5,000. David was arrested on October 24, 2001; he paid $5,000 in cash to secure his release, and that money was ordered to be disbursed to East Bay on October 25, 2001.
The trial court set another show-cause hearing to be held on November 19, 2001. When David failed to appear for that hearing, the trial court issued an arrest warrant for David and set his bond at $11,000. David was arrested on or about July 22, 2002; $11,000 in cash was paid to secure his release on July 24, 2002. David alleged in a subsequent motion that the $11,000 bond was paid by J.E., his brother, the intervenor in this action. On August 1, 2002, East Bay filed a motion to condemn and disburse the $11,000. On August 6, 2002, the trial court entered a judgment granting East Bay's motion and ordering that the $11,000 be disbursed to East Bay.
On October 8, 2002, J.E. filed a motion to intervene. That same day, David filed a motion seeking to "set aside" the August 6, 2002, judgment, alleging that the judgment had been sent to him at an incorrect address. On October 15, 2002, the trial court granted J.E.'s motion to intervene, entered an order staying its August 6, 2002, disbursement order, and set the matter for a hearing. On November 1, 2002, the trial court denied David's October 8, 2002, motion. The same day, the trial court entered an order again condemning and disbursing the $11,000 to East Bay.
On November 12, 2002, David and J.E. filed a joint motion, purportedly pursuant to Rule 59(a) and (e), Ala.R.Civ.P., seeking to alter or amend the August 6, 2002, judgment. David and J.E. sought the same relief in their November 12, 2002, motion as David had sought in his October 8, 2002, postjudgment motion. A hearing was held on that motion on January 8, 2003, and the court denied the motion the same day. David and J.E. filed their notice of appeal on February 18, 2003.
Although neither party has addressed the issue, this court must determine whether it has jurisdiction over this appeal. Jurisdictional matters are of such importance that a court may take notice of them ex mero motu. Nichols v. Ingram Plumbing, 710 So.2d 454 (Ala.Civ.App. 1998). "`The timely filing of a notice of appeal is a jurisdictional act.'" Overy v. Murphy, 827 So.2d 804, 805 (Ala.Civ.App. 2001) (quotingRudd v Rudd, 467 So.2d 964, 965 (Ala.Civ.App. 1985)).
David filed his October 8, 2002, postjudgment motion more than 30 days after the entry of the August 6, 2002, judgment. Rule 59(e), Ala.R.Civ.P., requires that a motion seeking to alter, amend, or vacate a judgment must be made no later than 30 days after the entry of the judgment. David's October 8, 2002, motion, seeking to "set aside" the August 6, 2002, judgment, was untimely under Rule 59, Ala.R.Civ.P.
In his October 8, 2002, motion, David alleged that the August 6, 2002, judgment was mailed to an incorrect address, and, thus, he argued, he had no notice of the entry of the August 6, 2002, judgment. Although that motion could arguably have been considered a timely motion made pursuant to Rule 60(b)(6), Ala.R.Civ.P., the trial court denied that motion on November 1, 2002. Thus, even assuming that David's October 8, 2002, motion was a timely filed Rule 60(b) motion, the time to appeal the trial court's November 1, 2002, denial of that request for relief was within 42 days of that denial; no appeal was timely filed from that denial. See Rule 4(a)(1), Ala.R.App.P.
J.E. and David then, on November 12, 2002, filed a motion asking the trial court to alter or amend its August 6, 2002, judgment. That November 12, 2002, motion sought the same relief as David has sought in his October 8, 2002, motion. That request for relief had already been denied by the trial court. Our supreme court has explained, "if a party has his own post-judgment motion denied, the review of that denial is by appeal. The rules do not provide for a `motion to reconsider' the denial of one's own post-judgment motion." Ex parte Mutual Sav. Life Ins. Co., 765 So.2d 649, 651 (Ala. 1998).
Further, we cannot interpret the November 12, 2002, motion as a proper postjudgment motion seeking to reconsider the trial court's November 1, 2002, denial of David's October 8, 2002, motion. Our supreme court has held that "'[a] trial court does not have jurisdiction to entertain a motion to reconsider the denial of a Rule 60(b), [Ala.R.Civ.P.], motion.'" Ex parte Jordan, 779 So.2d 183, 184 (Ala. 2000) (quoting Ex parte Vaughan, 539 So.2d 1060, 1061 (Ala. 1989)). Thus, the November 12, 2002, motion did not serve to lengthen David and J.E.'s time for taking an appeal.
We conclude that this appeal is untimely and that it is not properly before this court. The appeal is due to be dismissed. Mills v. Davis, 577 So.2d 436 (Ala. 1991); Goodwin v. Calfee, 841 So.2d 274 (Ala.Civ.App. 2002); Overy v. Murphy, 827 So.2d 804 (Ala.Civ.App. 2001).
APPEAL DISMISSED.
Yates, P.J., and Crawley and Pittman, JJ., concur.
Murdock, J., dissents.