WILSON v. HUNLEY (1999)

The trial court entered a judgment for Jerry Hunley on August 12, 1998.   Win T. Wilson, Jr., filed a postjudgment motion on September 10, 1998, and then he filed another postjudgment motion seeking the same relief, on September 11, 1998.   The trial court denied the September 10, 1998, motion on September 23, 1998, and it denied the September 11, 1998, motion on November 24, 1998.   Wilson filed a notice of appeal on December 4, 1998.   The supreme court transferred the appeal to this court, pursuant to Ala.Code 1975, § 12-2-7(6).   Wilson's appeal was untimely;  thus, it must be dismissed.

 The time allowed for filing the notice of appeal began to run upon the entry of the September 23, 1998, order denying the first postjudgment motion.   A second postjudgment motion requesting the same relief as the first postjudgment motion is not allowed by our rules of procedure.   Ex parte Dowling, 477 So.2d 400 (Ala.1985).   A notice of appeal must be filed within 42 days of the final judgment.  Rule 4(a)(1), Ala. R.App. P. The notice of appeal was filed on December 4, 1998, more than 42 days after September 23, 1998;  therefore, the appeal must be dismissed.

APPEAL DISMISSED.

While I disagree with the proposition that the September 10, 1998, and September 11, 1998, motions sought “identical” relief (a position this court rejected in denying the appellee's motion to dismiss on March 23, 1999), I do not believe the trial court's August 12, 1998, order to which those motions were addressed was a final judgment.   That order specifically left open the specific location of the easement, which was added only by a “nunc pro tunc” order of October 5, 1998;  the appellee was directed to provide a legal description for incorporation into the court's final judgment.   Because the August 12, 1998, order was not a final judgment, the appellants' motions to alter, amend, or vacate that order, or to afford a new trial, were not postjudgment motions contemplated by Rule 59, Ala.R.Civ.P., and Rule 4(a)(3), Ala.R.App.P., that would toll the time for filing a notice of appeal.   See Rheams v. Rheams, 378 So.2d 1125 (Ala.Civ.App.1979);  Thomas v. Swindle, 676 So.2d 333 (Ala.Civ.App.1996).

The appellants did not file a postjudgment motion within 30 days after the entry of the October 5, 1998, judgment, nor was their notice of appeal filed within 42 days of that judgment.   For this reason, I concur in the result to dismiss.

CRAWLEY, Judge.

YATES and THOMPSON, JJ., concur. ROBERTSON, P.J., and MONROE, J., concur in the result only.