Released for Publication June 17, 2015.
Appeal from Jefferson Circuit Court. (CV-13-900765). Trial Judge: Houston L. Brown.
For Appellant: Mark Griffin, Chief counsel; Gwendolyn B. Garner, David E. Avery III, Asst. Counsel, Alabama Department of Revenue.
For Appellee: Barry V. Frederick, Brandi B. Frederick, The Frederick Firm, Birmingham.
THOMAS, Judge. Thompson, P.J., and Pittman, Moore, and Donaldson, JJ., concur.
The Alabama Department of Revenue (" ADOR" ) appeals from the Jefferson Circuit Court's denial of ADOR's motion to set aside a default judgment entered in favor of Barry V. Frederick and Brandi B. Frederick on their appeal from an administrative law judge's order upholding ADOR's final assessment of income tax owed by the Fredericks. The Fredericks have moved to dismiss ADOR's appeal, arguing that ADOR failed to timely file its notice of appeal with the trial-court clerk's office. After considering the rules governing Alabama's electronic-filing system, we agree with the Fredericks that the appeal is due to be dismissed.
The Fredericks filed their appeal from the administrative law judge's order on March 1, 2013. On December 20, 2013, the trial court held a status conference, at which the Fredericks orally moved for an entry of default and a default judgment
based on ADOR's failure to file an answer or to otherwise appear in the action. On December 30, 2013, ADOR filed a motion to dismiss the Fredericks' appeal. On December 31, 2013, the trial court entered a default judgment in favor of the Fredericks.
On January 3, 2014, ADOR filed a timely motion seeking to have the default judgment set aside. See Rule 55(c), Ala. R. Civ. P. (providing that a motion to set aside a default judgment must be filed within 30 days of the entry of the judgment). The Fredericks opposed ADOR's motion. On February 21, 2014, citing the fact that the trial court had set a hearing on the Rule 55(c) motion for a date after that motion would be denied by operation of law, ADOR filed a motion to " convert" its Rule 55(c) motion to a Rule 60(b), Ala. R. Civ. P., motion, stating grounds under Rule 60(b)(1) and Rule 60(b)(4). The trial court did not rule on ADOR's Rule 55(c) motion; thus, it was denied by operation of law on April 3, 2014. The record reflects that, as of the time of the filing of ADOR's notice of appeal, ADOR's Rule 60(b) motion remained pending below.
On May 15, 2014, 42 days after ADOR's Rule 55(c) motion was denied by operation of law, ADOR electronically filed a notice of appeal with the trial-court clerk's office. On May 22, 2014, the trial-court clerk's office accepted a " hard copy" of the notice of appeal. The State Judicial Information System's case-action summary indicates that the notice of appeal was filed on May 22, 2014, when it was delivered to the trial-court clerk's office.
As noted above, the Fredericks filed a motion to dismiss ADOR's appeal as having been untimely filed. ADOR argues that the appeal was timely filed because the notice of appeal was electronically submitted on May 15, 2014, exactly 42 days after the denial of its Rule 55(c) motion by operation of law. See Rule 4(a)(1) and (3), Ala. R. App. P. (stating that, in most instances, a notice of appeal shall be filed within 42 days of the denial of a timely postjudgment motion directed to the judgment from which the appeal is taken). As the Fredericks point out, however, a notice of appeal to an appellate court may not be filed electronically. ADOR contends that, pursuant to Rule 5(e), Ala. R. Civ. P., its electronic filing of its notice of appeal was timely. Rule 5(e) provides, in pertinent part, that " [a] pleading, motion, order, or other document filed by electronic means in accordance with an order or rules of the Supreme Court of Alabama constitutes filing with the court for the purpose of applying these rules." (Emphasis added.)
ADOR admits that a September 6, 2012, document entitled " Administrative Policies and Procedures for Electronic Filing in the Civil Division of the Alabama Unified Judicial System" (" the electronic-filing policy manual" ) governs electronic filing. The electronic-filing policy manual was issued on the same date that then Chief Justice Malone issued an administrative order requiring electronic filing by attorneys in all civil cases and stating that the electronic-filing policy manual would provide details and instructions on the proper methods for electronic filing. We conclude that the electronic-filing ...