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“You filed your appeal too late,” is a common refrain from the Alabama Court of Civil Appeals.  In August the court dismissed an estate appeal that was filed too late.  Before that, the court dismissed a late filed divorce appeal on what the court itself called a “hyper-technicality.” The rule is that if you file your appeal late, the case will be dismissed.  Though last October the court allowed an appeal filed one day late to proceed, that case was the rare exception.  The Alabama Court of Civil Appeals again dismissed a (deceptively) late appeal in L.T.J., Jr. v. S.S., however the appellant still went home with a partial victory.

Appellant Asked the Trial Court to Change Its Mind

The L.T.J., Jr. case was a fight over a “protection-from-abuse” restraining order.  After it was issued, the subject of the order asked the trial court to change its mind.  A month later the party who had applied for the protection order asked that it be amended and expanded to a third party and a tennis team.

The amendment was first set for a trial, then continued, and finally an extension granted for L.T.J., Jr. to appeal.  L.T.J., Jr. appealed before the new hearing date but the trial court amended the restraining order anyways.

Trial Court Lacked Jurisdiction to Amend Restraining Order

The Court of Civil Appeals took issue with the appellee’s attempt to amend the restraining order.  In essence, the appeals court ruled that you can’t change what you’re asking for after a judgment is issued.  Here the appellee attempted to restraining new parties, and new conduct through a post-trial motion.  According to the appeals court, the trial court lacked jurisdiction to amend the restraining order to such a degree.  Presumably the appellee should have filed a new petition or at least a petition to modify.

Trial Court’s Extension of Time to Appeal was Void

While the appellee was trying to amend the restraining order, the appellant asked the court to extend the time for appeal – which it did – so that the underlying restraining order could be challenged (as well as any amendment thereto).  However, according to the Court of Civil Appeals the trial court was also wrong to extend the time to appeal.  The Court said the time for appeal could only be extended if the appellant hadn’t know about the appealable order, and if the lack of knowledge is due to “excusable neglect.”

Typically the parties can also extend appeal time by agreement when there is a post-judgment motion pending.  Presumably, the “motion to amend” wasn’t considered a valid post-judgment motion therefore the extension by consent in Rule 59.1 wasn’t available.

Result is a Dismissed Appeal and Vacated Order

Because the appellant didn’t file an appeal within 42 days of the judgment the restraining order couldn’t be appealed, case dismissed.  However, the appellant didn’t go home empty handed.  Because the trial court lacked authority to amend the restraining order, the Court of Civil Appeals directed that the post-trial enlargement of the restraining order be vacated.

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