May 1, 2015
from Walker Circuit Court. (CV-01-578).
Appellant: Phillip A. Laird and Russell B. Robertson of Laird
& Robertson, P.C., Jasper; and Richard E. Fikes of Jackson
Fikes Hood & Brakefield, Jasper.
Appellee: Charles C. Tatum, Jr., Jasper.
Waldrop appeals from a ruling entered by the Walker Circuit
Court on a postjudgment motion filed by Steve Evans, pursuant
to Rule 59, Ala. R. Civ. P. We dismiss the appeal as having
been taken from a nonfinal judgment.
1999, Evans leased from Waldrop a piece of commercial real
property located in Curry. The lease term was five years,
commencing on April 1, 1999, and ending on March 1, 2004.
Evans stopped paying rent in April 2000. Accordingly, in
August 2001, Waldrop sued Evans, alleging a breach of the
November 2012, the trial court held a bench trial. Evans did
not dispute at trial that he had ceased paying rent before
the lease term had expired. He did, however, claim that
Waldrop had unreasonably withheld his consent to a sublease
of the property.
On March 3, 2014, more than a year after the parties had
submitted posttrial briefs, the trial court entered a
judgment in favor of Waldrop. The judgment awarded Waldrop
damages for unpaid rent, as well as prejudgment interest and
to Rule 59, Ala. R. Civ. P., Evans timely filed a
postjudgment motion. In that motion, Evans asked the trial
court " for a new trial or to alter, amend and/or
vacate" the judgment entered in favor of Waldrop and
asked the trial-court judge to recuse himself from further
proceedings and to refer the action to the presiding
circuit-court judge for reassignment to a new circuit-court
judge. In support of his motion, Evans asserted that, before
the trial court had entered the judgment in favor of Waldrop
after the bench trial, Waldrop had filed with the Judicial
Inquiry Commission (" JIC" ) a complaint against
the trial-court judge for allegedly violating Canon 3.A.(5)
of the Alabama Canons of Judicial Ethics, which requires
judges to " dispose promptly of the business of the
court." Evans alleged further that, " almost
immediately following the filing of the JIC Complaint, [the
trial court] entered the Order favorable to [Waldrop]."
Evans asserted that the timing of the JIC complaint and the
entry of the judgment in favor of Waldrop " create[d]
the appearance that [the trial-court judge] might [have]
rushed to enter the Order at issue to avoid the appearance of
unfairness to [Waldrop]."
April 2014, the trial court entered an order ruling on
Evans's postjudgment motion. Although the trial court
stated in its order that the judgment in favor of Waldrop
" was not in any way influenced by the ... JIC
Complaint," in order to avoid the appearance of
unfairness and lack of impartiality, the trial court vacated
the judgment and the trial-court judge recused himself from
further proceedings and referred the action to the presiding
circuit-court judge for reassignment. The trial court,
however, specifically declined to grant or deny Evans's
request for a new trial, deferring a decision on that matter
to the circuit-court judge to whom the case would be
2014, the action was assigned to a new circuit-court judge.
The trial court never entered an order stating whether a new
trial would or would not take place. In June 2014, Waldrop
appealed to our supreme court, which transferred the appeal
to this court, pursuant to § 12-2-7(6), Ala. Code 1975.
response to Waldrop's appeal, Evans argues that the trial
court's order vacating the judgment that had been entered
in favor of Waldrop is not a final judgment. Specifically, he
asserts that the order did not adjudicate all the rights of
the parties or all matters in controversy because it
contemplated further proceedings after reassignment to a new
circuit-court judge. Thus, he argues, this court does not
have jurisdiction to consider the appeal. See Ex parte
Wharfhouse Rest. & Oyster Bar, Inc., 796 So.2d 316, 320
(Ala. 2001) (holding that a final judgment is necessary to
support appellate jurisdiction).
instant case is somewhat analogous to Tice v. Tice,
100 So.3d 1071 (Ala.Civ. 2012). The trial court in that case
had granted a husband's motion to alter, amend, or vacate
a division of marital property, which had been set out in the
trial court's earlier judgment divorcing the parties.
Before the trial court could issue an order specifying
exactly how the property division would be revised, however,
the wife appealed. 100 So.3d at 1073-74. This court dismissed
the appeal as having been taken from a nonfinal judgment.
Id. Likewise, the trial court in the instant case
ruled that the judgment in favor of Waldrop
was to be vacated, but there has been no new judgment issued
for this court to review.
reply to Evans's argument that there is no final judgment
from which Waldrop can appeal, Waldrop cites § 12-22-10,
Ala. Code 1975, which provides that " [e]ither party in
a civil case ... may appeal to the appropriate appellate
court from an order granting or refusing a motion for a new
trial by the circuit court." Waldrop contends that
Evans's request for a new trial was, in essence, granted
when the trial court vacated the underlying judgment. He
asserts that there is " no realistic ... opportunity ...
for any court to enter any new judgment in favor of either
party absent conducting a new trial on the merits of this
matter" and that, therefore, a new trial necessarily
must occur. Thus, Waldrop contends, he could appeal pursuant
it is not clear from a reading of Evans's postjudgment
motion that he requested the trial court, in the event the
underlying judgment was vacated, to order that a new trial
take place. To the contrary, it appears that Evans requested
(1) that the trial court vacate the judgment and that the
trial-court judge recuse himself or (2) that the trial court
order that a new trial take place. Thus, once the trial court
vacated the underlying judgment and the trial-court judge
recused himself, Evans's request for a new trial arguably
event, and notwithstanding Waldrop's suggestion that
conducting a new trial would have been the only proper way to
proceed after the underlying judgment was vacated, the trial
court simply did not grant a motion for a new trial. To the
contrary, as noted, the trial court expressly refused to rule
on such a request.
argues alternatively that, pursuant to Rule 59.1, Ala. R.
Civ. P., Evans's request for a new trial was denied by
operation of law on the 90th day after it was filed, which
was after Waldrop appealed. Under Rule 4(a)(5), Ala. R. App.
" [a] notice of appeal filed after the entry of the
judgment but before the disposition of all post-judgment
motions filed pursuant to Rules 50, 52, 55, and 59, Alabama
Rules of Civil Procedure, shall be held in abeyance until all
post-judgment motions filed pursuant to Rules 50, 52, 55, and
59 are ruled upon; such a notice of appeal shall become
effective upon the date of disposition of the last of all
Rule 4(a)(5) and Rule 59.1 can operate together to permit the
denial, by operation of law, of a postjudgment motion after
the filing of a notice of appeal. See Carnes v.
Carnes, 82 So.3d 704, 709-10 (Ala.Civ. 2011) (stating
that the appellant's notice of appeal, which had been
filed before the trial court ruled on the appellant's
Rule 59(e) motion to alter, amend, or vacate, was deemed held
in abeyance until the Rule 59(e) motion was denied by
operation of law pursuant to Rule 59.1). According to
Waldrop, because Evans's request for a new trial was
denied by operation of law, Waldrop's appeal is proper
under § 12-22-10.
already noted, it appears that Evans requested either
vacation of the underlying judgment and the trial-court
judge's recusal or a new trial. In any event, assuming
Evans's request for a new trial was denied
by operation of law, it is clear that Waldrop did not appeal
from that denial.
the designation of a particular judgment in a notice of
appeal does not necessarily limit the scope of this
court's review, see Rule 3(c), Ala. R. App. P., we note
that Waldrop, in his notice of appeal, designated for review
only the trial court's order vacating the judgment in
Waldrop's favor. There is no indication that Waldrop
intended to appeal from the denial of a motion for a new
trial. Moreover, Waldrop's initial brief to this court
makes absolutely no mention of the denial of a motion for a
new trial, and it contains no argument supporting an
assertion that such a denial should be reversed. Accordingly,
we conclude that Waldrop has not appealed from the denial of
a motion for a new trial and that § 12-22-10 cannot
possibly provide this court with jurisdiction in this case.
Waldrop suggests that a trial court's order vacating a
judgment pursuant to Rule 59(e), Ala. R. Civ. P., is always
immediately appealable. The cases he cites, however, do not
so hold. Although the appellate courts in those cases
reviewed orders vacating or modifying judgments, they did so
only after final judgments adjudicating all the rights of the
parties and all matters in controversy had been entered.
Without a final judgment, an appellate court does not have
jurisdiction to consider an appeal. Ex parte Wharfhouse
Rest. & Oyster Bar, Inc., 796 So.2d at 320. " A
final judgment that will support an appeal is one that puts
an end to the proceedings between the parties to a case and
leaves nothing for further adjudication." Id.
There has been no such judgment in this case. Accordingly, we
dismiss the appeal for lack of subject-matter jurisdiction.
P.J., and Thomas, Moore, and Donaldson, JJ., concur.
We express no opinion as to the
correctness of Waldrop's suggestion that it would be
error for a trial court to refuse to conduct a new trial
after a judgment like the one in the instant case is vacated.
See generally Rule 63, Ala. R. Civ. P. (governing procedure
when a trial judge in a civil action in which a trial has
been commenced " is unable to proceed" ).