July 10, 2015
George H. Johnson and Gloria J. Johnson
Heath Emerson and Danny Adcock
Appeals from Limestone Circuit Court. (CV-97-134).
Judge. Thompson, P.J., and Pittman, Thomas, and Moore, JJ.,
77(d), Ala. R. Civ. P., provides a procedure whereby a party
claiming lack of timely notice of the entry of an appealable
order or judgment may seek an extension of time to appeal.
This case presents an unusual procedural scenario in which
the Limestone Circuit Court (" the trial court" )
granted George H. Johnson and Gloria J. Johnson relief
pursuant to Rule 77(d) by extending the time to appeal from a
judgment permitting a writ of execution to be issued against
them in favor of Heath Emerson and Danny Adcock. This court
docketed that appeal as appeal no. 2130842. After that appeal
was docketed, Emerson and Adcock filed a motion in the trial
court essentially asking the trial court to rescind the order
extending the time to appeal. Following a hearing, the trial
court entered an order rescinding the order granting the
extension of time to appeal. The Johnsons appealed from that
order, and this court docketed that appeal as appeal no.
2130974. In appeal no. 2130974, we affirm the decision of the
trial court rescinding the extension of time to appeal, and
we dismiss appeal no. 2130842 as being untimely filed.
and Procedural History
unusual circumstances of this case present a procedural
quagmire. On April 1, 1997, Redstone Federal Credit Union
(" Redstone" ) sued the Johnsons in the trial court
alleging that the Johnsons had defaulted on payments required
to be made under a credit agreement. The trial court entered
a consent judgment against the Johnsons on June 9, 1997, in
favor of Redstone in the amount of $27,715.08, plus interest
and court costs. Redstone recorded the certificate of
judgment in the Limestone Probate Court.
judgment was not paid, and on May 3, 2007, Redstone filed a
motion in the trial court to revive the judgment pursuant to
§ 6-9-192, Ala. Code 1975, which provides, in pertinent
part, that " [n]o execution shall issue on a judgment
... on which an execution has not been sued out within 10
years of its entry until the [judgment] has been
revived." The trial court granted the motion to revive
the judgment on May 9, 2007. On June 26, 2007, Redstone
the certificate of the revived judgment in the Limestone
25, 2013, Redstone assigned the judgment to Emerson and
Adcock. A document providing notice of the transfer was filed
in the trial court and recorded in the probate court. On July
29, 2013, Emerson and Adcock filed a motion for a writ of
execution of the judgment against real property owned by the
Johnsons. Emerson and Adcock sought execution of the judgment
in the amount of $74,457.11, which they claimed was the
amount due with the accrual of postjudgment interest and
after applying any credits. On August 5, 2013, the trial
court granted the motion seeking a writ of execution. The
Johnsons filed a petition for relief in the United States
Bankruptcy Court for the Northern District of Alabama, and
the writ of execution was stayed.
stay was later lifted, and Emerson and Adcock proceeded with
collection efforts. On December 18, 2013, the trial court
entered an order on the Johnsons' claim of exemption and
directed that the real property not subject to exemption to
January 15, 2014, the Johnsons filed a motion that they
styled as being filed pursuant to Rule 60(b), Ala. R. Civ.
P., seeking to set aside the order granting the motion for a
writ of execution. In that motion, the Johnsons argued that
the June 9, 1997, judgment should be considered satisfied or
discharged and that the order reviving the judgment was void.
On March 3, 2014, the sheriff filed a return of execution
indicating that the designated real property had been sold
contingent upon the ruling of the trial court on the
Johnsons' pending Rule 60(b) motion. The trial court held
a hearing on the Johnsons' motion on April 2, 2014. On
May 20, 2014, the trial court entered an order denying the
Johnsons' motion and confirming the sheriff's sale of
the Johnsons' property.
3, 2014, 44 days after entry of the May 20, 2014, order, the
Johnsons filed a notice of appeal in the trial court.
Although they had been represented by counsel during some or
all of the aforementioned proceedings, the Johnsons filed the
notice of appeal without counsel, and only Gloria Johnson
signed the notice of appeal. The notice of appeal did
not contain a completed certificate of service; however, a
notation on the case-action summary indicates that the
trial-court clerk sent the notice of appeal to all counsel
and all parties on July 9, 2014. The notice of appeal was
docketed in this court on July 14, 2014, and assigned appeal
same day the notice of appeal was filed, the Johnsons filed a
copy of the notice of appeal in the trial court along with a
document stating: " We, George H. and Gloria J. Johnson
respectfully request a motion to accept out of time appeal.
We were not made aware of a ruling by the judge for almost 2
weeks after it was entered due to attorney neglect." The
document did not contain a certificate of service.
15, 2014, the trial-court clerk docketed the Johnsons'
July 3 document attached to the notice of appeal as a "
motion to accept an out-of-time appeal." On July 22,
2014, new counsel entered an appearance for the Johnsons in
the trial court. On that same day, the trial court entered an
order stating as follows: " Ordered, MOTION TO ACCEPT
OUT OF TIME APPEAL filed by JOHNSON GEORGE H. and JOHNSON
GLORIA J. is hereby granted." (Capitalization in
Emerson and Adcock did not file a response to the July 3
document filed by the Johnsons before the trial court entered
the July 22 order granting the extension of time. On July 24,
2014, the Johnsons, through counsel, filed a motion in the
trial court seeking to amend the notice of appeal that had
been filed on July 3, 2014, to correct certain information
included in the July 3, 2014, notice of appeal and to include
other information omitted from that notice. There is no
indication that the trial court ruled on that motion.
28, 2014, Emerson and Adcock filed a motion in the trial
court that they styled as being filed pursuant to Rule 60,
Ala. R. Civ. P., seeking relief from the July 22, 2014, order
granting the Johnsons' motion for an out-of-time appeal.
In the motion, Emerson and Adcock argued, among other things,
that the Johnsons had failed to show excusable neglect for
filing a late notice of appeal as required by Rule 77(d),
Ala. R. Civ. P., and that, therefore, the order should be
rescinded. On August 20, 2014, the trial court held a hearing
on Emerson and Adcock's motion. At the hearing, the
Johnsons, through counsel, stipulated that their former
counsel had informed them of the trial court's May 20,
2014, order on May 30, 2014, and that therefore, at that
time, they still had 32 days in which to file a timely notice
of appeal. At the conclusion of the hearing, the trial court
" What I've got to look at ... is had I looked at
Rule 77, and I did not, and had these facts been known to me
I would have absolutely not granted the initial extension
because it appears to me they knew of the time they knew of
the order and had approximately thirty-two days to act upon
it and they didn't. And I think that door is probably
closed. And so, that being the case, right or wrong, I'm
going to rescind my order extending the time ...."
August 20, 2014, the trial court entered an order rescinding
the July 22, 2014, order granting the Johnsons' request
to extend the time to appeal. On August 27, 2014, the
Johnsons filed a notice of appeal from the August 20 order,
and that appeal was docketed in this court as appeal no.
2130974. The Johnsons filed a motion to consolidate the
appeals, which this court granted. Emerson and Adcock filed a
motion in this court to dismiss appeal no. 2130842 on the
ground, among others, the Johnsons' notice of appeal was
analysis begins with a review of the applicable rules and
procedures. The May 20, 2014, order of the trial court was an
appealable order. " [A] party may appeal the denial of a
Rule 60(b) motion." Ex parte Keith, 771 So.2d
1018, 1021 (Ala. 1998). Pursuant to Rule 4(a)(1), Ala. R.
App. P., the Johnsons had 42 days from the entry of that
order to file a notice of appeal. Their notice of appeal was
filed on July 3, 2014, or 44 days later. Rule 4(a)(1),
however, also provides that a notice of appeal may be filed
" within the time allowed by an extension pursuant to
Rule 77(d), Alabama Rules of Civil Procedure." Rule
77(d) provides a procedure whereby the Johnsons could request
the trial court to extend the time for appeal. That rule
states, in pertinent part, as follows:
" Lack of notice of the entry by the clerk does not
affect the time to appeal or relieve or authorize the court
to relieve a party for failure to appeal within the time
allowed, except that upon a showing of excusable neglect
based on a failure of the party to learn of the entry of the
judgment or order the circuit court in any action may extend
the time for appeal not exceeding thirty (30) days from the
expiration of the original time
now provided for appeals in civil actions."
Rule 77(d), Ala. R. Civ. P., exclusively governs situations
in which a party claims lack of notice of the entry of a
judgment or order." Hopper v. Sims, 777 So.2d
122, 125 (Ala.Civ.App. 2000). In the document filed with the
July 3 notice of appeal, the Johnsons claimed they were not
" made aware" of the May 20 order until "
almost 2 weeks" after the trial court entered the order.
On July 15, 2014, the document was docketed by the
trial-court clerk as a Rule 77(d) motion.
and Adcock did not file anything in opposition to the motion
before it was granted seven days later by the trial court
without a hearing. Our supreme court has held that a
party's " failure to oppose the trial court's
order extending the time for appeal precludes appellate
review of the merits of that order." Ex parte
S.W.T., 782 So.2d 766, 767 (Ala. 2000). See, e.g.,
Gotlieb v. Collat, 567 So.2d 1302, 1304 (Ala. 1990)
(holding that arguments presented for the first time on
appeal cannot be considered). In S.W.T., the party opposing
the extension of time never filed an opposition to the
extension at any point in the trial court. In this case,
however, Emerson and Adcock promptly filed a motion on July
28, 2014, asking the trial court to reconsider and to vacate
the trial court's July 22, 2014, order extending the time
for appeal. Therefore, unlike S.W.T., Emerson and
Adcock presented the trial court with their arguments and,
thus, are not precluded from presenting those arguments on
next question is whether the trial court lost jurisdiction to
reconsider the order granting the extension of time. It is
well settled that " [t]he timely filing of a notice of
appeal invokes the jurisdiction of an appellate court and
divests the trial court of jurisdiction to act except in
matters entirely collateral to the appeal." Harden
v. Laney, 118 So.3d 186, 187 (Ala. 2013). Although it
addresses a rule of procedure applicable to federal courts
that is not identical to Rule 77(d), we find analytical
guidance on this issue in the decision of the United States
Court of Appeals for the Third Circuit in RCA Corp. v.
Local 241, International Federation of Professional &
Technical Engineers, AFL-CIO, 700 F.2d 921 (3d Cir. 1983), in
which the court addressed whether a federal district court
had jurisdiction to vacate an order granting a party an
extension of time to appeal after the appeal had been
docketed by the appellate court. In RCA Corp., the
cross-appellant failed to file a notice of appeal within the
time prescribed by Rule 4(a)(3), Fed. R. App. P. Three weeks
after the time in which an cross-appeal was to be filed, the
cross-appellant filed a motion in the district court pursuant
to Rule 4(a)(5), Fed. R. App. P., seeking an extension of
time to file a cross-appeal. The cross-appellant misstated in
its motion seeking the extension that it had not received the
appellant's notice of appeal until after the time to file
a cross-appeal had elapsed. The appellant's opposition to
the cross-appellant's motion to extend the time to appeal
was not delivered to the district court because of a clerical
error. The district court granted
the cross-appellant's motion to extend the time to
cross-appeal, and a notice of appeal was filed. Eleven days
after the district court granted the cross-appellant's
motion, the appellant filed a motion in the district court
asking it to reconsider and to vacate the order granting the
extension of time. One month later, the district court
vacated the order granting the extension. The cross-appellant
then appealed that order to the Third Circuit Court of
Appeals. In its decision affirming the district court's
actions, that court stated:
" The central question which underlies these ... appeals
is whether the filing of a notice of appeal by a party
divests a trial judge of jurisdiction.
" In United States v. Leppo, 634 F.2d 101, 104
(3d Cir. 1980), Judge Aldisert, writing for a unanimous
" '[O]rdinarily the trial court loses its power to
proceed once a party files a notice of appeal. [Citations
omitted]. This rule is not based on statutory provisions or
the rules of procedure. Rather, it is a judge-made rule
designed to avoid confusion or waste of time that might flow
from putting the same issues before two courts at the same
time. As Professor Moore has observed, the rule " should
not be employed to defeat its purpose or to induce needless
paper shuffling." 9 J. Moore, Federal Practice §
203.11 at 3-44 n. 1 (1980); see C. Wright, A. Miller, E.
Cooper, & E. Gressman, Federal Practice and Procedure §
3949, at 358-59 (1977) (emphasis added.)'
" We agree with Judge Aldisert's reasoning in
Leppo, 634 F.2d at 104, that the rule which requires
a trial judge to divest himself of a case once a party has
filed a notice of appeal 'should not be employed to
defeat its purpose or to induce unnecessary paper
" In the instant case the trial judge vacated the [order
granting an extension of time for appeal] because he had
relied upon misrepresentations by [the cross-appellant's]
counsel and because he erroneously believed [the
cross-appellant's] motion was unopposed. Because of the
unusual nature of these circumstances, we hold that the trial
court had the jurisdiction to vacate its [order granting an
extension of time] and thereby deny [the cross-appellant],
retroactively, an extension of time in which to file a notice
of appeal ...."
Id. at 924.
our Rule 77(d) vests the trial court, not an appellate court,
with the authority to determine whether to grant an extension
of time to appeal. Accordingly, the trial court should not be
divested of jurisdiction to reconsider its decision to grant
an extension of time to appeal when it is appropriate to do
so and when the request to reconsider is timely submitted. In
the present case, despite the docketing of the notice of
appeal in this court and despite the expiration of the 30-day
extension period prescribed by Rule 77(d) at the time it
entered its August 20, 2014, order, the trial court's
reconsideration of its order to extend the Johnsons' time
for appeal was proper.
that in Altmayer v. Stremmel, 891 So.2d 305, 308
(Ala. 2004), our supreme court held that a trial court loses
jurisdiction to grant a party's motion to extend the time
for appeal under Rule 77(d) after expiration of the 30-day
extension period prescribed by that rule. This is evident by
the language of the rule, which limits the time in which an
extension can be granted to 30 days beyond the ordinarily
mandated time. In this case, the trial court did not purport
to grant the time to extend the appeal but, rather, rescinded
an order doing so.
next turn to the question whether the trial court exceeded
its discretion in rescinding the order granting the Johnsons
an extension of time to file a notice of
" Rule 77(d), exclusively, governs the situation in
which a litigant claims that the clerk's office failed to
give notice of the entry of the trial court's judgment.
Lindstrom v. Jones, 603 So.2d 960 (Ala. 1992).
'The intent of Rule 77(d) was to allow an out of time
appeal where fault for the untimely appeal does not lie with
the party seeking to appeal.'"
W.T.M. v. Department of Human Res., 736 So.2d 1120,
1121 (Ala.Civ.App. 1999)(quoting Moser v. Crayton,
726 So.2d 696, 698 (Ala.Civ.App. 1998)). This court has held
that " Rule 77(d) is not applicable when a party learns
of the entry of a judgment before the time for appeal
lapses." Salvant v. Howell, 854 So.2d 118, 123
(Ala.Civ.App. 2003). The Johnsons do not contend that the
trial-court clerk failed to notify them of the May 20, 2014,
order, and the record establishes that notice of the May 20,
2014, order was provided in a timely manner to their former
counsel. The record shows that the Johnsons became aware of
the order with 32 days remaining to file a notice of appeal.
The Johnsons failed to articulate how neglecting to file a
notice of appeal within that 32-day period was excusable. As
this court has noted, " [r]ules governing the operation
of the courts of this state are no more forgiving to a pro se
litigant than to one represented by counsel."
Lockett v. A.L. Sandlin Lumber Co., 588 So.2d 889,
890 (Ala.Civ.App. 1991).
" A pro se litigant is not exempt from procedural rules
merely because of an unfamiliarity with them. See Asam v.
Devereaux, 686 So.2d 1222 (Ala.Civ.App. 1996).
'[T]he rules governing the operation of the courts of
this state are no more forgiving to a pro se litigant than to
one represented by counsel.' Id. at 1223."
Walker v. Blackwell, 800 So.2d 582, 588 (Ala. 2001).
the Johnsons failed to show that excusable neglect existed to
justify an extension of the time for filing a notice of
appeal, and because the trial court could reconsider the
issue based on the prompt filing of the motion to reconsider,
we affirm the trial court's order of August 20, 2014
(appeal no. 2130974). Accordingly, we conclude that the
Johnsons' notice of appeal to this court in appeal no.
2130842 was untimely filed. We dismiss appeal no. 2130842.
foregoing reasons, we affirm the trial court's order of
August 20, 2014, in appeal no. 2130974, and we dismiss appeal
-- APPEAL DISMISSED.
P.J., and Pittman, Thomas, and Moore, JJ., concur.
Based on our disposition of these appeals,
we need not address the failure of George Johnson to
sign the notice of appeal.
Although Emerson and Adcock's motion
was styled as a motion for relief pursuant to Rule 60(b), the
motion was not cognizable under any of the grounds enumerated
in Rule 60(b). Rather, Emerson and Adcock's motion is
best considered as a motion requesting the trial court to
reconsider the July 22, 2014, order. " A motion to
reconsider is generally a request that the trial court
take a second look at what has already come before it
...." Ex parte Ward, 46 So.3d 888, 893 (Ala.
2007). See T.K.W. v. State Dep't of Human Res. ex
rel. J.B., 119 So.3d 1187, 1194 (Ala.Civ.App. 2013)
(noting that a motion should be interpreted according to its
A holding that a party must present an
objection to a request of extension to the trial court before
the entry of an order granting the extension of time would
not account for situations in which there was no meaningful
opportunity to do so. In exercising its discretion whether to
rescind an order granting an extension of time to appeal,
however, the trial court could consider factors such as
whether the objecting party waived the issue by failing to
promptly challenge the order, whether costs have been
incurred in preparation of the appeal, etc.