Michael Glenn v. City of Wetumpka (Appeal from Elmore Circuit Court: CV-23-82).

Rel: August 16, 2024

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
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ALABAMA COURT OF CIVIL APPEALS
SPECIAL TERM, 2024
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CL-2024-0107
_________________________

Michael Glenn

v.

City of Wetumpka

Appeal from Elmore Circuit Court
(CV-23-82)

MOORE, Presiding Judge.

Michael Glenn appeals from a judgment entered by the Elmore

Circuit Court ("the circuit court") dismissing his appeal of a judgment

entered by the Elmore District Court ("the district court") denying his

motion to set aside a default judgment. We reverse the circuit court's

judgment and remand the case with instructions.
CL-2024-0107

Procedural History

On May 9, 2023, the City of Wetumpka ("the city") filed in the

district court a complaint against Glenn asserting a claim of unlawful

detainer; the city also sought an award of money damages in the amount

of $20,000. On June 15, 2023, the city filed an application and affidavit

for the entry of a default judgment. On June 27, 2023, the district court

entered a default judgment that, among other things, issued a writ of

possession in favor of the city; granted the city leave to prove damages;

and certified the judgment as final, pursuant to Rule 54(b), Ala. R. Civ.

P.

On July 24, 2023, Glenn filed in the district court a motion to set

aside the default judgment, arguing, among other things, that he had not

been served with the summons and the complaint. In response to Glenn's

motion, the city argued that, pursuant to Rule 55(dc)(2), Ala. R. Civ. P.,

Glenn's motion to set aside the default judgment was untimely because

it had been filed outside the 14-day period prescribed by law. On August

8, 2023, the district court entered an order denying Glenn's postjudgment

motion.

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On August 21, 2023, Glenn appealed the district court's "[d]enial of

[his] postjudgment motion" to the circuit court. Thereafter, on August

31, 2023, the city filed in the circuit court a motion to dismiss Glenn's

appeal for lack of subject-matter jurisdiction. In its motion, the city

argued that, under Ala. Code 1975, § 6-6-350, a notice of appeal to the

circuit court from a judgment entered by a district court in an unlawful-

detainer action must be filed within seven days of the entry of the order

being appealed from and that Glenn's notice of appeal, filed on August

21, 2023, seeking appellate review of the district court's August 8, 2023,

order was untimely filed and was due to be dismissed. That same day,

the circuit court entered an order granting the city's motion and

dismissing Glenn's appeal.

On September 29, 2023, Glenn filed a motion requesting that the

circuit court reconsider the dismissal of his appeal. He asserted, among

other things, that he was seeking appellate review of the "denial of his

Rule 60[, Ala. R. Civ. P.,] postjudgment motion, [and] not the order of

possession," and, therefore, he said, pursuant to Ala. Code 1975, § 12-12-

70, he had 14 days from the entry of the August 21, 2023, order within

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which to file his notice of appeal from the denial of his postjudgment

motion. In his motion, Glenn conceded that, if he had sought appellate

review of the judgment awarding the city possession, his time for appeal

would have been limited to seven days. In its response to Glenn's motion

to reconsider, the city argued that § 12-12-70, which allows 14 days to

appeal a ruling from district court to circuit court, is one of "general

application" and that it "does not apply to unlawful detainer actions."

According to the city, unlawful-detainer actions are governed by Ala.

Code 1975, § 6-6-350, which requires a notice of appeal to be filed within

seven days "despite what judgment the appeal is taken from." The circuit

court failed to make a ruling on Glenn's motion to reconsider; therefore,

it was deemed denied by operation of law on December 28, 2023. See

Rule 59.1, Ala. R. Civ. P. On February 6, 2024, Glenn timely appealed to

this court.

Glenn's Postjudgment Motion

In his brief to this court, Glenn posits, as he did before the circuit

court, that his motion to set aside in the district court was a motion filed

pursuant to Rule 60(b), Ala. R. Civ. P., and, therefore, § 12-12-70 provided

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a period of 14 days to appeal the denial of his motion. The city disputes

Glenn's assertion that his motion was a Rule 60(b) motion and, instead,

argues that Glenn's motion was a motion to set aside the default

judgment pursuant to Rule 55; thus, the city argues Glenn's motion was

untimely filed.

It is well settled that this court looks to the essence of a motion and

not to its title to determine how the motion is to be considered under the

Alabama Rules of Civil Procedure. Ex parte Johnson, 715 So. 2d 783,

785-86 (Ala. 1998). A lack of service of process is a ground upon which a

party may collaterally attack a judgment under Rule 60(b)(4). See

Allsopp v. Bolding, 86 So. 3d 952, 956 (Ala. 2011). Thus, we consider

Glenn's motion to vacate filed in the district court, in which he argued,

among other things, that he had not been served with the summons and

complaint, to be a Rule 60(b)(4) motion collaterally attacking the default

judgment.

Standard of Review

" 'The timely filing of a notice of appeal is a
jurisdictional act.' Rudd v. Rudd, 467 So. 2d 964, 965 (Ala.
Civ. App. 1985); see also Committee Comments to Rule 3, Ala.
R. App. P. The question whether the mother's appeal was
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timely and, thus, whether the circuit court acquired subject-
matter jurisdiction over the mother's appeal is a question of
law; thus, we review de novo the dismissal of the mother's
appeal by the circuit court. See Banks v. Estate of
Woodall, 129 So. 3d 294 (Ala. Civ. App. 2013); see also Ex
parte Terry, 957 So. 2d 455 (Ala. 2006) (stating that a claim
that a court lacks subject-matter jurisdiction presents a
question of law, which an appellate court reviews de novo)."

M.E.W. v. J.W., 142 So. 3d 1168, 1171 (Ala. Civ. App. 2013).

Discussion

On appeal, Glenn argues that the circuit court erred by dismissing

as untimely filed his appeal of the district court's judgment denying his

Rule 60(b)(4) motion. We agree.

The default judgment, which awarded the city possession of the

property at issue and allowed the city leave to prove money damages, was

certified as final, pursuant to the Rule 54(b), Ala. R. Civ. P. See Penick

v. Southpace Mgmt., Inc., 121 So. 3d 1015, 1020 (Ala. Civ. App. 2013)

(noting that, in unlawful-detainer actions, certification pursuant to Rule

54(b) of an order in which a trial court has granted a landlord possession

of property, but has reserved judgment as to the amount of unpaid rent

or damages, is not an uncommon practice). The denial of a Rule

60(b) motion seeking relief from a final judgment is, under Alabama law,
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itself a final judgment that will independently support an

appeal. See Food World v. Carey, 980 So. 2d 404, 406 (Ala. Civ. App.

2007) (noting that such an order is final and appealable and brings up for

review " ' "the matters pertinent thereto" ' " although it does not bring up

for review the underlying judgment on the merits (quoting Wilger v.

Department of Pensions & Sec., 343 So. 2d 529, 532 (Ala. Civ. App.

1977)). This court has held that § 12-12-70, which allows a period of 14

days to appeal a judgment entered by the district court to the circuit

court, applies to a district-court order denying a Rule 60(b) motion. See

Djibrine v. State Farm Mut. Auto. Ins. Co., 4 So. 3d 1136, 1138 (Ala. Civ.

App. 2008). Thus, we conclude that Glenn had 14 days from the entry of

the district court's order denying his Rule 60(b)(4) motion within which

to file his notice of appeal to the circuit court. To the extent that the city

argues that any appeal taken in an unlawful-detainer action must be

filed within seven days of the entry of the order or judgment from which

the appeal is being taken, we note that the cases and statutes that the

city relies upon in support of its argument address the issue of appealing

the underlying unlawful-detainer judgment on its merits and not, as in

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the current case, the denial of a Rule 60(b) motion collaterally attacking

that judgment. See Food World, 980 So. 2d at 406.

Based on the foregoing, we conclude that Glenn's August 21, 2023,

notice of appeal to the circuit court was filed within 14 days of the entry

of the district court's August 8, 2023, order denying his Rule 60(b)(4)

motion and was therefore timely filed. Accordingly, the circuit court

erred in dismissing Glenn's appeal from the district court. We therefore

reverse the circuit court's judgment dismissing Glenn's appeal from the

district court's order denying his Rule 60(b)(4) motion, and we remand

the cause for further proceedings. See Djibrine, 4 So. 3d at 1138.

REVERSED AND REMANDED WITH INSTRUCTIONS.

Edwards, Hanson, Fridy, and Lewis, JJ., concur.

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