Washington v. Limerick

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The Supreme Court addressed the validity of a circuit court order that granted Pamela and Robert Washington a new trial. In an earlier action, the Supreme Court issued a writ of mandamus on petition of John Limerick, which directed the trial court to vacate its order that granted the Washngtons' motion for a new trial. The Court issued the writ on the basis that the Washington's motion was entered after the 90-day period referred to in Rule 59.1, Ala. R. Civ. P., thus depriving the trial court of jurisdiction in the case. While the Supreme Court was considering the validity of the trial court's new-trial order in that earlier case, the Washingtons filed a motion for relief from judgment in the present case which related back to their motion in the earlier action. On January 7,
2011, upon release of our opinion in Limerick, the trial court entered an order vacating its order granting a new trial in accordance with our instructions but simultaneously setting the Washingtons' pending Rule 60(b) motion for a hearing. Approximately six months later, on July 1, 2011, the trial court once again ordered a new trial, purportedly based this time on Rule 60(b). Subsequently, Limerick petitioned this Court for a writ of mandamus directing the trial court to vacate its second new-trial order. Once again, the Supreme Court granted the petition and issued the writ.

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REL: 12/09/11 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA OCTOBER TERM, 2011-2012 _________________________ 1101201 _________________________ Ex parte John Aldridge Limerick PETITION FOR WRIT OF MANDAMUS (In re: Pamela Washington and Robert Washington, Jr. v. John Aldridge Limerick et al.) (Etowah Circuit Court, CV-08-182) WOODALL, Justice. For the second time, we are called upon to address the validity of an order of the Etowah Circuit Court granting a 1101201 new trial on the motion of Pamela Washington and her husband, Robert Washington, Jr. ("the Washingtons"). See Ex parte Limerick, sets 66 So. 3d 755 (Ala. 2011), which factual and procedural history of this action. out the In Limerick, we issued, on the petition of John Aldridge Limerick, a writ of mandamus directing the trial court to vacate its order granting the Washingtons' motion for a new trial, which they filed pursuant to Rule 59, Ala. R. Civ. P. We issued the writ on the ground that the trial court's order purporting to grant the Washingtons' postjudgment motion was entered after "the 90-day period referred to in Rule 59.1[, Ala. R. Civ. P., had] expired," thus depriving the trial court of jurisdiction in the case. 66 So. 3d at 757. postjudgment motion The basis of the Washingtons' was alleged juror misconduct. Specifically, they averred that the foreperson in the trial of their action had failed to respond honestly and accurately to questions asked on voir dire, thereby concealing the fact that she knew the Washingtons. On October 26, 2010, while this Court was considering the validity of the trial court's new-trial order in Limerick, the Washingtons filed in the trial court a motion for relief from 2 1101201 judgment, pursuant to Rule 60(b), Ala. R. Civ. P., on the ground of "jury misconduct," incorporating asserted in prior motions and oral arguments." "the facts as On January 7, 2011, upon release of our opinion in Limerick, the trial court entered an order vacating its order granting a new trial in accordance with our instructions but simultaneously setting the Washingtons' pending Rule 60(b) motion for a hearing. Approximately six months later, on July 1, 2011, the trial court once again ordered a new trial, purportedly based this time on Rule 60(b). Subsequently, Limerick petitioned this Court for a writ of mandamus directing the trial court to vacate its second new-trial order. Once again, we grant the petition and issue the writ. It is abundantly clear that "[a] Rule 60(b) motion to set aside a judgment cannot be substituted for a Rule 59 motion so as to avoid the operation of Rule 59.1." Ex parte Johnson, 715 So. 2d 783, 785-86 (Ala. 1998) (emphasis added). In that respect, "'a Rule 60(b) motion "is not a substitute for appeal and is not available to relieve a party from his failure to exercise the right of appeal."'" Washington Mut. Bank, F.A. v. Campbell, 24 So. 3d 435, 442 (Ala. 2009) (quoting Wal-Mart 3 1101201 Stores, Inc. v. Pitts, 900 So. 2d 1240, 1245 (Ala. Civ. App. 2004), quoting in turn Morgan v. Estate of Morgan, 688 So. 2d 862, 864 (Ala. Civ. App. 1997)). Thus, "'Rule 60(b) ... cannot serve as a basis for a motion that, in effect, seeks a reconsideration of matters already considered by the trial court in a previous postjudgment motion when the facts alleged in the Rule 60(b) motion "were known by the moving party at the time of his original [postjudgment] motion."'" Ex parte Haynes, 58 So. 3d 761, 765 (Ala. 2010) (quoting McIntyre v. Satch Realty, Inc., 961 So. 2d 135, 138-39 (Ala. Civ. App. 2006), quoting in turn Ex parte Dowling, 477 So. 2d 400, 403 (Ala. 1985)). In this case, the Washingtons' Rule 59 motion alleged juror misconduct. That motion was denied by operation of law when the trial court failed to act on it within the time prescribed by Rule 59.1. The Washingtons failed to appeal from the automatic denial of that motion. 1 Instead, they filed a Rule 60(b) motion, which they concede "seek[s] the same relief as set out in [their] Rule 59 motion." Washingtons' brief, at 2 (emphasis added). Their Rule 60(b) motion more sought, therefore, 1 nothing than a The trial court's untimely order purporting to grant the Rule 59 motion was a nullity. Limerick, 66 So. 3d at 757. 4 1101201 "reconsideration" of the matters already deemed denied by the trial court in their previous postjudgment motion and was an improper use of Rule 60(b) as a substitute for appeal. Under these facts, unauthorized and improper. vacate its July 1, 2011, relief under Rule 60(b) was The trial court is directed to order granting the Washingtons' motion for a new trial. PETITION GRANTED; WRIT ISSUED. Malone, C.J., and Bolin, Murdock, and Main, JJ., concur. 5

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