October 31, 2014
Tracy Bernard Holt
State of Alabama ex rel. Brian C.T. Jones
from Limestone Circuit Court. (CV-11-88).
Appellant: H. McGriff Belser III, Decatur.
Judge. Thompson, P.J., and Pittman, Moore, and Donaldson,
Bernard Holt was arrested and charged with unlawful
possession or receipt of controlled substances, possession of
drug paraphernalia, and four counts of unlawful distribution
of controlled substances. On April 19, 2011, Brian C.T.
Jones, the District Attorney for the 39th Judicial Circuit,
on behalf of the State, filed a complaint in the Limestone
Circuit Court seeking the civil forfeiture of Holt's
house, two parcels of property, three vehicles, three
motorized scooters, and $201,647 in cash (" the named
property" ), alleging that Holt had used the named
property to facilitate the sale of crack cocaine. Because
Holt faced criminal charges, he filed a motion seeking a
protective order in the forfeiture action, which the circuit
court granted on August 29, 2011.
many continuances, Holt, who was represented by an attorney,
entered into an agreement, in which he forfeited the named
property " in open court on December 2, 2013." The
circuit court entered a consent judgment incorporating the
terms of the agreement on December 5, 2013. On January 6,
2014, Holt filed a postjudgment motion seeking an order
setting aside the consent judgment. The circuit
court entered an order purporting to deny Holt's
postjudgment motion on April 22, 2014. On May 28, 2014, Holt
filed a notice of appeal seeking this court's review of
whether the circuit court had erred by denying his
postjudgment motion. We transferred the appeal to the Alabama
Supreme Court for lack of subject-matter jurisdiction. Our
supreme court transferred the appeal back to this court
pursuant to § 12-2-7(6), Ala. Code 1975.
circuit court did not rule upon Holt's postjudgment
motion within 90 days from January 6, 2014, see Rule 59.1,
Ala. R. Civ. P.; therefore, Holt's postjudgment motion
was denied by operation of law on April 7,
2014. Accordingly, the circuit court's
April 22, 2014, order was a nullity. See Brown v.
Brown, 808 So.2d 40, 42 (Ala.Civ.App. 2001)(explaining
that a trial court was deprived of jurisdiction to enter an
order on a postjudgment motion after the motion had been
denied by operation of law).
order to properly invoke the appellate jurisdiction of this
court, Holt was required to file his notice of appeal within
42 days of April 7, 2014. See Rule 4(a)(1) and (3), Ala. R.
App. P.; Newman v. Newman, 773 So.2d 481, 483
(Ala.Civ.App. 1999). Forty-two days from April 7, 2014, was
May 19, 2014. Holt filed his notice of appeal on May 28,
2014, which is after the expiration of the period for the
timely filing of a notice of appeal in this case. " The
timely filing of [a] notice of appeal is a jurisdictional
act." Rudd v. Rudd, 467 So.2d 964, 965
(Ala.Civ.App. 1985). Because Holt's notice of appeal was
untimely, it did not invoke the jurisdiction of this court,
and, therefore, this appeal must be dismissed. See Rule
2(a)(1), Ala. R. App. P.
P.J., and Pittman, Moore, and Donaldson, JJ., concur.
The 30th day after the judgment was entered
was Saturday, January 4, 2014. Therefore, Holt had until
Monday, January 6, 2014, to file a postjudgment motion. See
Rule 59(b), Ala. R. Civ. P., and Rule 6, Ala. R. Civ.
The 90th day after Holt filed his
postjudgment motion was Sunday, April 6, 2014.
Therefore, Holt's postjudgment motion was denied by
operation on law on Monday, April 7, 2014. See Rule 4(a)(1),
Ala. R. App. P., and Rule 6, Ala. R. Civ. P. See also,
Williamson v. Fourth Ave. Supermarket, Inc., 12
So.3d 1200, 1203-04 (Ala. 2009).