8:00am - 5:00pm
Monday - Friday (or by appt)
(205) 293-5293
Select Page

Both parties in Slay v. Slay agreed to an extension of time past the 90 day deadline for deciding post trial motions.  The court entered an order extending the 90 day deadline.  Nevertheless, the Alabama Court of Civil Appeals – much to their own displeasure – dismissed the subsequent appeal  as untimely because the deadline extension failed to comply with “unnecessarily hypertechnical” procedural rules.


When to file your appeal is part science, part art, and part prediction.  Browne House has discussed the rules for when to file your appeal at length.  The basic rule that you must file your appeal within 42 days of a final judgment.

But no rule is ever basic enough.  File too early and the court will dismiss your appeal (and hopefully give you an opportunity to file again later).  File too late and they’ll dismiss your appeal, never to be seen again.  Make a calculation mistake around the deadline and you’ll have to cross your fingers and hope for the best.


The 42 deadline can also be changed, delayed, or reset by a motion to reconsider.  Ask the court to reconsider and you’re likely to get a new “final judgment” from which the 42 day deadline starts.

Frequently, litigants will ask the court to look at its decision again and correct a legal mistake.  Sometimes that request for reconsideration is required to preserve your appeal.  But the deadlines for those reconsiderations can trip litigants up as well, as a hyper-technical reading of a rule did for the parties in Slay v. Slay.

If a court rules against you and you ask the court to change its mind, the court only gets 90 days to decide whether or not to change its mind.  After 90 days your 42 day timeline to appeal begins to run whether or not the court has ruled on your request to reconsider its ruling.  That is unless – there’s always an “unless” – one or more of the parties asks and the court grants an extension of that 90 days.  That’s just what the litigants in Slay v. Slay did – or so at least one of them thought.


In Slay v. Slay, the appellant ask for a Rule 59.1 Extension – sort of.  Rule 59.1 cuts off post-judgment motions (the motions to reconsider) automatically after 90 days.  The Slay appellant had filed a motion to reconsider, the court had set it for a hearing, and the appellant asked to continue the hearing past the 90 day deadline – which the court did.  The error – according to the Court of Civil Appeals – was that they had extended only the hearing.  According to the court, the 90 day deadline still cut off after 90 days because they hadn’t requested to extend the hearing date  and the deadline.


Though the Court of Civil Appeals applied the rule in a “hyper-technical” way – they were not happy doing in.  Indeed, the Court itself calls the ruling “hyper-technical.”  Nevertheless, the Court of Civil Appeals felt itself constrained by an earlier Alabama Supreme Court case that applied the rule in this way.  Therefore, even while politely criticizing the hyper-technical rule, they applied it anyways and as a result, the appellant’s case was dismissed.

Three Things to Do When Calculating Your Appellate Deadlines:

  1. Read the Alabama Court of Civil Appeals opinion here;
  2. Keep an eye on the Browne House Blog to see if there are any later developments, including appeal to the Alabama Supreme Court; and
  3. Contact Browne House Law about your appeal.