January 9, 2015
Fulghum Fibres, Inc., and Alphonso Gross
C. Dwayne Stokes and Frisco Forest Products, LLC; C. Dwayne Stokes
Fulghum Fibres, Inc., and Alphonso Gross; Frisco Forest Products, LLC
C. Dwayne Stokes
Appeals from Monroe Circuit Court. (CV-11-900001). Dawn W.
Hare, Trial Judge.
Fulgham Fibres, Inc., Alphonso Gross,
Appellants/Cross-Appellees: William E. Shreve, Jr., Lara B.
Keahey, Phelps Dunbar LLP, Mobile.
Dwayne Stokes, Appellee/Cross-Appellant: R. Edwin Lamberth,
Gilmore Law Firm, Grove Hill.
Frisco Forest Products, LLC, Appellee/Cross-Appellant: Ian D.
Rosenthal, Patrick H. Sims, Cabaniss, Johnston, Gardner,
Dumas & O'Neal LLP, Mobile.
Judge. Thompson, P.J., and Thomas, Moore, and Donaldson, JJ.,
appeals (transferred to this court by our supreme court
pursuant to Ala. Code 1975, § 12-2-7(6)) arise from a
civil action brought in the Monroe Circuit Court by C. Dwayne
Stokes (" the employee" ). In his original
complaint, filed in March 2011, the employee asserted a
single claim seeking an award of benefits under the Alabama
Workers' Compensation Act, Ala. Code 1975, § 25-5-1
et seq. (" the Act" ), against his former employer,
Frisco Forest Products, LLC (" the employer" );
that complaint contained no demand for a trial by jury,
because the Act provides that claims as to benefits available
under the Act are to be decided by the trial judge sitting
without a jury. See Ala. Code 1975, § 25-5-89. In July
2011, the employee amended his complaint to add claims of
negligence and wantonness against a number of third parties
-- Fulghum Fibres, Inc. (" Fulghum" ); Alphonso
Gross; Jeffrey Stanford; Bryan Madden; Robert Maxwell; John
Straiton; and various fictitiously named defendants -- who,
the employee alleged, had breached duties of care so as to
have proximately caused the employee's purported
workplace injury. In his amended complaint, the employee
demanded a jury trial " of all issues ... which [we]re
triable to a jury," and the trial court set the case for
a jury trial to take place in August 2012.
that trial took place, Stanford, Madden, Maxwell, and
Straiton filed in July 2012 a motion for a summary judgment
as to all claims asserted against them. A " memorandum
of fact and law" was subsequently filed in support of
that motion; however, that filing listed Fulghum and Gross as
additional movants. The trial court entered an order on
August 8, 2012, granting the motion as to Stanford, Madden,
Maxwell, and Straiton, but it denied the motion as to all
other defendants; however, the trial court did not direct the
entry of a final judgment pursuant to Rule 54(b), Ala. R.
Civ. P., as to that partial summary judgment.
case then went to trial on the negligence claim against
Fulghum and Gross, with the employee and those defendants
presenting evidence and arguments and the employer
additionally participating by way of limited questioning and
argument addressed to the location of the employee at the
time his alleged injury occurred. At the conclusion of the
trial, the jury was given a verdict form containing the
following textual groupings, setting forth three alternative
" We, the jury, find in favor of the plaintiff
[employee] and against the defendants and assess the
plaintiff's damages at $ .
" We, the jury, find for the plaintiff and against the
" 1. Alfonso [sic] Gross
" 2. Fulghum Fibres, Inc. " and assess the
plaintiff's damages at $ .
" We, the jury, further find in favor of the following
" 1. Alfonso [sic] Gross
" 2. Fulghum Fibres, Inc."
jury deliberations took place, the foreperson of the jury
reported that the jury had reached a verdict, and the
foreperson returned the verdict form to the trial court. The
form, as completed, bore a handwritten circle around the name
of " Fulghum Fibres, Inc." in the second textual
grouping, and the damages figure of " $65,000"
immediately thereafter; neither the second nor the third
bore any markings in the proximity of Gross's name. The
trial court directed the clerk to " publish the
verdict," at which time the clerk stated the verdict as:
" We, the jury[,] find for the plaintiff and against the
following defendant, Fulghum Fib[re]s Incorporated and assess
the [p]laintiff's damages at sixty-five thousand
dollars." The trial court then polled the jury, and each
juror responded that the verdict was his or her own verdict;
however, no order or judgment on the jury's verdict was
immediately entered by the trial court.
employee thereafter filed a motion seeking a new trial as to
the negligence claims. In his motion, the employee contended
(a) that the jury had returned no verdict at all as to
Gross's liability; (b) that, in the alternative, if the
jury's verdict were interpreted as a verdict in
Gross's favor, the verdict as a whole was inherently
inconsistent; and (c) that the jury had awarded inadequate
damages as a matter of law. Gross and Fulghum filed a
response in opposition to the employee's motion,
asserting that the jury verdict was neither incomplete nor
inconsistent, that the verdict did not award inadequate
damages, and that the employee's objections were
untimely. On December 4, 2012, the trial court entered an
order granting a new trial on the inadequate-damages ground
cited by the employee in his motion.
January 3, 2013, Gross and Fulghum filed a motion seeking
reconsideration of the order granting a new trial and, noting
the pendency of the workers' compensation claim against
the employer, requesting that the trial court instead direct
the entry of a final judgment pursuant to Rule 54(b) in favor
of Gross and against Fulghum so as to reflect, in the moving
parties' view, the apparent intent of the jury. That
motion was denied on January 8, 2013, immediately before the
circuit judge who had presided over the trial of the action
left office; that judge's successor in office recused
himself, and the case was assigned by the Chief Justice of
the Alabama Supreme Court to another judge. Gross and Fulghum
renewed their motion to vacate the order granting a new trial
and for the entry of a final judgment, and the trial court
set the case for a status and motion hearing to be held in
August 2013. On September 17, 2013, the trial court entered
an order that vacated the December 4, 2012, order granting a
new trial; found that a judgment was due to be entered in the
employee's favor for $65,000 on his claim against Fulghum
and entered in Gross's favor on the employee's claim
against Gross; determined that there was no just reason for
delay; directed the immediate entry of a final judgment as to
those rulings as to less than all claims against all parties
pursuant to Rule 54(b); and set the workers' compensation
matter for a subsequent hearing.
October 17, 2013, the 30th day after the entry of the
September 17, 2013, judgment, the employee filed a motion
directed to that judgment in which he sought an order
granting him a new trial as to his claims against Gross and
Fulghum. Unlike the previous motions filed by the parties
after the rendition of the jury's verdict, which were
subject to the power held by trial courts to revisit their
interlocutory orders at any time, see Rule 54(b), Ala. R.
Civ. P., the employee's October 17, 2013, motion was a
true postjudgment motion cognizable under Rule 59(a), Ala. R.
Civ. P., because it was aimed at obtaining relief with
respect to a final judgment. See Malone v. Gainey,
726 So.2d 725, 725 n.2 (Ala.Civ.App. 1999) (" [A] Rule
59 motion may be made only in reference to a final judgment
or order." ). No other timely postjudgment motions were
filed as to the September 17, 2013, final judgment. On
October 29, 2013, the trial court requested
that it be provided a transcript of the original trial
proceedings and directed that proceedings on the workers'
compensation claim be continued generally pending a ruling on
the October 17, 2013, new-trial motion.
59.1, Ala. R. Civ. P., provides as follows:
" No postjudgment motion filed pursuant to Rules 50, 52,
55, or 59 shall remain pending in the trial court for more
than ninety (90) days, unless with the express consent of all
the parties, which consent shall appear of record, or unless
extended by the appellate court to which an appeal of the
judgment would lie, and such time may be further extended for
good cause shown. A failure by the trial court to render an
order disposing of any pending postjudgment motion within the
time permitted hereunder, or any extension thereof, shall
constitute a denial of such motion as of the date of the
expiration of the period."
January 15, 2014, the 90th day after the filing of the
employee's postjudgment motion, a document was filed in
the trial court captioned as a " Notice of Consent of
All Parties for Rule 59.1 Extension to Rule on Post-Trial
Motions." That filing states that the parties, " by
signing (or giving permission for signing) th[e] Notice of
Consent," had given consent to a 60-day extension of
time for the trial court to rule on the pending postjudgment
motion. The " Notice of Consent" was signed by
counsel on behalf of " Plaintiff" (i.e., the
employee) and was also signed by the employee's counsel
on behalf of counsel for " Frisco Forest Products,
LLC" (i.e., the employer) and " Fulghum Fibres,
Inc.," with the language " (with permission)"
added to the pertinent signature lines. Notably, however, no
signature by or on behalf of Gross appears on the "
Notice of Consent" despite the fact that that notice
purported to constitute the consent of " all parties to
th[e] matter." Despite that omission, the trial court
entered an order on February 3, 2014, purporting to grant the
postjudgment motion and to order a new trial as to the
employee's claims against Gross and Fulghum.
similar cases involving a failure of an appellate record to
affirmatively demonstrate the consent of all parties to a
judgment to an extension of the 90-day period set forth in
Rule 59.1, this court has ruled that such omissions compel
the conclusion that the pertinent postjudgment motion is
automatically denied as of the expiration of the period. For
example, in HealthSouth Corp. v. Brookwood Health
Services, Inc., 814 So.2d 267 (Ala.Civ.App. 2000), which
involved judicial review pursuant to Ala. Code 1975, §
41-22-20, of an administrative order entered by a particular
governmental agency, one of the contestants filed a paper
indicating that party's consent to waive the 90-day
period, and a second party subsequently filed a paper
indicating its consent; however, consent of the pertinent
state agency, which was also a party to the judicial-review
proceedings, was not shown of record. We concluded
that the postjudgment motion was denied by operation of law
after the expiration of 90 days because of, among other
things, the absence of the express consent of the state
agency. 814 So.2d at 268. To like effect is A.M.K. v.
E.D., 826 So.2d 889 (Ala.Civ.App. 2002), in which the
State of Alabama participated as a party to an action in
which one of the other parties had sought
a finding that a particular statute was unconstitutional, yet
the State did not expressly consent to the extension of the
90-day period set forth in Rule 59.1 for ruling upon a
postjudgment motion that had been filed by another party; we
held in that case that the postjudgment motion had been
denied by operation of law 90 days after its filing. 826
So.2d at 890. See also Burge v. Hayes, 964 So.2d
672, 675 (Ala.Civ.App. 2006) (filing by two parties did not
satisfy express-consent exception to automatic-denial rule
because, among other things, it did not reflect a third
upon the plain language of Rule 59.1 and the foregoing case
authority, we must conclude in this case that the
employee's postjudgment motion was denied by operation of
law on January 15, 2014. Further, although the filing of a
postjudgment motion pursuant to Rule 59, Ala. R. Civ. P.,
will suspend the time for filing a notice of appeal, the time
for taking an appeal begins running " from the date of
denial of such motion by operation of law, as provided for in
Rule 59.1." Rule 4(a)(3), Ala. R. App. P. In this case,
no party filed a notice of appeal on or before February 26,
2014, i.e., within 42 days of the denial of the
employee's postjudgment motion, as is required by Rule
4(a)(1), Ala. R. App. P., in order for an appellate court to
have jurisdiction to consider an appeal.
case, Fulghum and Gross filed a notice of appeal on March 14,
2014. That appeal was taken more than 42 days after the trial
court lost jurisdiction to grant a new trial as to its
September 17, 2013, final judgment and is, therefore,
untimely under Rule 4(a)(1), Ala. R. App. P. Similarly, the
notices of appeal filed on March 28, 2014, by the employee,
in which he challenged the trial court's judgment in
favor of Gross, and by the employer, in which it challenged
the trial court's limitations upon its participation in
the jury trial, were filed neither within 42 days after the
employee's postjudgment motion was denied by operation of
law so as to be timely under Rule 4(a)(1), Ala. R. App. P.,
nor within 14 days of any timely notice of appeal by any
other party so as to constitute timely cross-appeals under
Rule 4(a)(2), Ala. R. App. P. Because Rule 2(a)(1), Ala. R.
App. P., requires the dismissal of an appeal " if the
notice of appeal was not timely filed to invoke the
jurisdiction of the appellate court," and because none
of the notices of appeal in this case was timely filed, the
case is dismissed in its entirety.
P.J., and Thomas, Moore, and Donaldson, JJ., concur.
The record indicates that the employee
withdrew his wantonness claim, and the trial court instructed
the jury regarding the elements of only a negligence
Alabama Code 1975, § 41-22-20(h),
provides that a petition for judicial review of an
administrative decision rendered by a state agency "
shall name the agency as [a] respondent."
Because the postjudgment motion was denied
by operation of law, the trial court's February 3, 2014,
order purporting to grant the postjudgment motion and to
order a new trial as to the employee's claims against
Gross and Fulghum was a nullity. See, e.g., Brown v.
Brown, 808 So.2d 40, 42 (Ala.Civ.App. 2001).