L.T.J., Jr.
v.
S.S., on behalf of C.S., a minor child
Appeal
from Dale Circuit Court (DR-18-186)
MOORE,
JUDGE.
L.T.J.,
Jr., appeals from a judgment entered by Dale Circuit Court
("the trial court") in a protection-from-abuse
action commenced by S.S., on behalf of C.S., a minor child.
We dismiss the appeal.
On
October 31, 2018, S.S. filed, on behalf of her daughter, C.S.
("the child"), a petition for protection from abuse
against L.T.J., Jr. After a trial, the trial court entered a
final protection-from-abuse judgment against L.T.J., Jr., on
November 26, 2018. On November 27, 2018, L.T.J., Jr., filed a
postjudgment motion requesting the trial court to reconsider
the November 26, 2018, judgment; that motion was denied the
same day.
On
December 20, 2018, S.S. filed a motion requesting that the
trial court amend its judgment to prevent S.E. and
"anyone affiliated with [Grassroots Tennis Association]
or IDA, including teammates and teammates parents," from
contacting the child and to order the removal of "any
photos of [the child], her name, and the video they have
posted of 'the child effected by racism' to be pulled
off their website and ... to remove the post on YouTube [an
Internet video-streaming service] as well." On December
21, 2018, the trial court purported to set the motion to
amend filed by S.S. for a hearing to be held on February 11,
2019. On December 30, 2018, L.T.J., Jr., filed an
"Expedited Motion to Reconsider Hearing & Protection
Order."[1]
On
January 2, 2019, upon the motion of L.T.J., Jr., the trial
court purported to grant an extension of time to appeal until
after the hearing scheduled on February 11, 2019. The hearing
was subsequently continued to March 11, 2019. On March 4,
2019, L.T.J., Jr., filed his notice of appeal to this court.
On March 12, 2019, the trial court purported to amend the
protection-from-abuse judgment as requested by S.S. in her
December 20, 2018, motion.
"Although
the parties to this appeal have not challenged our appellate
jurisdiction, we must consider whether we have jurisdiction
over this appeal, because 'jurisdictional matters are of
such magnitude that we take notice of them at any time and do
so even ex mero motu.'" Hopper v.
Sims, 777 So.2d 122, 124 (Ala. Civ. App. 2000) (quoting
Wallace v. Tee Jays Mfg. Co., 689 So.2d 210, 211
(Ala. Civ. App. 1997), quoting in turn Nunn v.
Baker, 518 So.2d 711, 712 (Ala. 1987)). "The
failure to file a notice of appeal within the time provided
in Rule 4, [Ala. R. App. P.], is a jurisdictional defect and
will result in a dismissal of the appeal." Buchanan
v. Young, 534 So.2d 263, 264 (Ala. 1988). Because the
appeal was from a final protection-from-abuse judgment, the
42-day period for filing a notice of appeal applies.
See, e.g., Placey v. Placey, 51
So.3d 374, 376 n.3 (Ala. Civ. App. 2010). Therefore, unless
the time to appeal was tolled, L.T.J., Jr., had 42 days from
the entry of the November 26, 2018, judgment within which to
file his notice of appeal.[2]
Initially,
we note that the time to appeal was tolled by the
postjudgment motion filed by L.T.J., Jr., on November 27,
2018. That motion was denied that same day. See Rule
59.1, Ala. R. Civ. P. Subsequently, on December 20, 2018,
S.S. filed a motion that, in substance, sought to amend her
petition for protection from abuse to add additional parties
and additional requests for relief against those parties.
However, "a trial court has no jurisdiction to entertain
a motion to amend a complaint to add new claims or new
parties after a final judgment has been entered, unless that
'judgment is first set aside or vacated' pursuant to
the state's rules of civil procedure." Faith
Props., LLC v. First Commercial Bank, 988 So.2d 485, 490
(Ala. 2008). Because in the present case the trial court at
no time "'set aside or vacated'" its
November 26, 2018, judgment, it had no jurisdiction to
entertain S.S.'s motion to amend, id., and,
thus, her motion did not toll the time for filing a notice of
appeal after the entry of the postjudgment order on November
27, 2018. Additionally, we note that "a judgment entered
without subject-matter jurisdiction is void." K.R.
v. D.H., 988 So.2d 1050, 1052 (Ala. Civ. App. 2008).
Because the trial court lacked jurisdiction to entertain
S.S.'s motion to amend, the trial court's March 12,
2019, order purporting to amend the protection-from-abuse
judgment is void and must be set aside.
Based
on the foregoing, we conclude that L.T.J., Jr., had 42 days
from the denial of his postjudgment motion on November 27,
2018, or until January 8, 2019, to file his notice of appeal.
See Rule 4(a)(3), Ala. R. App. P. ("In cases
where post-judgment motions are filed, the full time fixed
for filing a notice of appeal shall be computed from the date
of the entry in the civil docket of an order granting or
denying such motion."). However, the notice of appeal in
this case was not filed until March 4, 2019.
With
regard to the trial court's attempt to extend the time
for filing the notice of appeal, we note that
"[t]he juvenile court is authorized, upon a showing of
'excusable neglect based on a failure of the party to
learn of the entry of the judgment or order,' Rule 77(d),
Ala. R. Civ. P., to extend the time to file notice of appeal
up to a maximum of 30 days from the original deadline for
filing a notice of appeal."
F.G. v. State Dep't of Human Res., 988 So.2d
555, 557 (Ala. Civ. App. 2007). In this case, however, the
motion to extend the time to appeal was not based on a
showing of "'excusable neglect based on a failure of
the party to learn of the entry of the judgment or order,
'" id., which is the only basis upon which
the trial court could have extended the time for appealing.
Therefore, we conclude that that motion was an improper
motion under Rule 77(d), Ala. R. Civ. P., and, thus, the
trial court was without jurisdiction to extend the time for
taking an appeal. Id.
Based
on the foregoing, we conclude that this appeal was untimely
filed. Therefore, this court is without jurisdiction to
entertain the appeal and must dismiss it. Buchanan,
534 So.2d at 264. The ...