from Dallas Circuit Court (CV-14-900077)
THOMPSON, Presiding Judge.
Vincent and Orderick Vincent appeal from a summary judgment
the Dallas Circuit Court ("the trial court")
entered in favor of Kondaur Capital Corporation
("Kondaur") in its ejectment action against the
Vincents. However, the appeal of that judgment is due to be
dismissed as untimely.
the record indicates that Kondaur foreclosed on property
("the property") the Vincents had purchased with
the proceeds from a loan, which was secured by a mortgage
held by Kondaur. Kondaur purchased the property at a
foreclosure sale on December 6, 2013. The Vincents refused to
vacate the property, and on March 14, 2014, Kondaur filed an
ejectment action against them. The Vincents answered,
asserting that Kondaur's title to the property was due to
be set aside. They also asserted two counterclaims alleging
fraud and breach of contract. Specifically, the Vincents
alleged that Kondaur had made false representations that it
would not pursue foreclosure during the loan-modification
process as well as regarding other terms and costs they say
were material to the mortgage and foreclosure. The Vincents
also alleged that Kondaur "owed a duty" to them
pursuant to the mortgage and loan-modification documents and
that, in accelerating the loan and going forward with the
foreclosure, Kondaur breached the terms of the loan
litigation proceeded, and on January 29, 2016, Kondaur filed
a properly supported motion for a summary judgment on its
claim against the Vincents. As part of its evidentiary
submission and argument, Kondaur demonstrated that it
possessed legal title to the property and that the Vincents
remained on the property unlawfully. In response to
Kondaur's motion, the Vincents, who were appearing pro se
at that point in the litigation, submitted a handwritten
document stating that they would use Kondaur's
evidentiary submission "to show how [Kondaur has]
committed mortgage servicing fraud, wrongful foreclosure,
falsified documents, altered documents, dual tracking and
Vincents also requested an opportunity to demonstrate to the
trial court that their allegations against Kondaur were true.
They made no evidentiary submission of their own at that
time. In subsequent letters to and/or filings in the trial
court, the Vincents stated that they were "prepared to
provide the documents that [they had] indicated would be
evidence" to support their contentions "on the day
of summary judgment." Documents pertaining to the
mortgage or the loan-modification process were attached to
some of those filings. In their subsequent letters to and/or
filings in the trial court, the Vincents continued to
maintain that the foreclosure on the property was wrongful
and to accuse Kondaur of fraud, breach of the terms of the
mortgage and the loan-modification process, and other
misconduct in connection with the foreclosure.
trial court held a hearing on Kondaur's motion for a
summary judgment on September 29, 2016. No transcript of that
hearing is available. On March 15, 2017, the trial court
entered a judgment stating that, based on the testimony taken
at the September 29, 2016, hearing, the motion for a summary
judgment, and the documentation supporting the motion, the
summary-judgment motion was granted. The trial court awarded
Kondaur possession of the property and ordered the Vincents
to vacate and surrender the property within five days of the
entry of the judgment.
Vincents had until April 14, 2017--30 days after the summary
judgment was entered--to file a postjudgment motion.
See Rule 59(b), Ala. R. Civ. P; Burgess v.
Burgess, 99 So.3d 1237, 1239 (Ala. Civ. App. 2012).
However, it was not until May 11, 2017--57 days after the
judgment was entered, that they filed what they titled
"emergency motion to set aside judgment and stay writ of
possession." Because the Vincents' postjudgment
motion to set aside the judgment--which we construe as a Rule
59 motion to alter, amend, or vacate the judgment--was
untimely, the trial court no longer had jurisdiction over
this matter. Therefore, the trial court's orders
regarding the Vincents' motion to set aside, as well as
their subsequent requests for a new trial and mediation, were
void because the trial court had lost jurisdiction to
consider those motions. Burgess, supra. We note that
the substance of the Vincents' postjudgment motion does
not state a ground to set aside the judgment that would allow
us to consider it as a motion filed pursuant to Rule 60(b),
Ala. R. Civ. P. See Brasfield & Gorrie, L.L.C. v.
Soho Partners, L.L.C., 35 So.3d 601, 604 (Ala. 2009)
("It is well settled that '[t]his Court will look at
the substance of a motion rather than its title, to determine
how that motion is to be considered under the Alabama Rules
of Civil Procedure.'" (quoting Pontius v. State
Farm Mut. Auto. Ins. Co., 915 So.2d 557, 562-63 (Ala.
2005)). The Vincents argue that the summary judgment did not
resolve the counterclaims they filed against Kondaur and,
therefore, that the judgment was not final; we disagree.
Although the trial court did not explicitly rule on the fraud
and breach-of-contract counterclaims, the language of the
summary judgment indicates that the trial court implicitly
denied those claims. Thus, the judgment is deemed final.
Jones v. DeRamus, 199 So.3d 74, 75 (Ala. Civ. App.
2015); and Horton v. Perkins, 17 So.3d 235, 237 n. 2
(Ala. Civ. App. 2009). For example, in Hingle v.
Gann, 368 So.2d 22, 23-24 (Ala. 1979), our supreme court
held that claims seeking money damages for trespass asserted
by both a plaintiff and a defendant were implicitly denied
when the judgment entered established a boundary line but did
not mention those claims. More recently, in Ervin v.
Stackhouse, 64 So.3d 666, 672 (Ala. Civ. App. 2010),
this court held that when a trial court did not award damages
on a claim, that claim was implicitly denied.
case, by awarding Kondaur possession of the property, the
trial court necessarily had to have determined that the
foreclosure was not the result of fraud or breach of contract
on Kondaur's part. Thus, we conclude that the judgment in
favor of Kondaur implicitly denied the Vincents'
counterclaims and conclusively decided all the controversies
between the parties. Faith Props., LLC v. First
Commercial Bank, 988 So.2d 485, 490 (Ala. 2008).
Accordingly, the March 15, 2017, judgment was final and able
to support an appeal.
Vincents appear to assert that the time in which they had to
file their notice of appeal began to run when the trial court
purported to deny their untimely postjudgment motions and
purported to reinstate the writ of possession. Because the
trial court did not have jurisdiction to rule on those
motions, their argument is without merit.
untimely postjudgment motion or motions did not extend the
time for appeal. Bice v. SCI Alabama Funeral Home
Servs., 764 So.2d 1280, 1281 (Ala. Civ. App. 2000). The
Vincents did not file their notice of appeal until November
28, 2017, well beyond 42 days after the entry of the March
15, 2017, final judgment. See Rule 4(a)(1) and (3), Ala.
R. App. P. "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 the Vincents'
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.
Holt v. State ex rel. Jones, 185 So.3d 452, 453
(Ala. Civ. App. 2014).
Pittman, Thomas, Moore, and ...