Alabama Appellate Opinions Released November 9, 2018
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Alabama Appellate Opinions Released 
November 9, 2018
Alabama Supreme Court
Alabama Court of Civil Appeals
Court Emphasizes that Agreements to Continue a Hearing on a Post Judgment Motion Must be “Direct and Unequivocal” 

Johnson v. Cox & General Auto and Truck Repair, Inc.
Rule 59.1 of the Alabama Rules of Civil Procedure provides that a trial court must rule on a post-judgment motion within 90 days of its filing. However, this 90-day period for ruling on a post-judgment motion may be extended if the parties agree to an extension, the agreement is express, and the agreement appears on record. In the case Johnson v. Cox & General Auto and Truck Repair , the Alabama Court of Civil Appeals clarified what constitutes an “express” agreement for the purposes of extending the 90-day period.

In Johnson , the Plaintiff filed a complaint against the Defendants in the Jefferson County Circuit Court, in December of 2016, seeking damages for conversion, fraud, and unjust enrichment. The Defendants moved to dismiss the Plaintiff’s compliant arguing that the claims were barred by the doctrine of res judicata, the Statute of Frauds, statute of limitations, and a failure to plead fraud with particularity. Ultimately, the trial entered an order dismissing the Plaintiff’s complaint on July 7, 2017.

The Plaintiff filed a timely post-judgment motion on August 4, 2017, and the trial court set a hearing for October 4, 2017. One day before the end of the 90-day period, Plaintiff’s counsel moved to continue the hearing because Defendant’s counsel had “given sanction” to the post-judgment motion. The court granted the Plaintiff’s motion to continue, indicating on record that the motion to continue was “unopposed” by the Defendant.

After the trial court’s eventual adverse ruling on the Plaintiff’s post-judgment motion, the Alabama Supreme Court transferred this appeal to the Alabama Court of Civil Appeals. The threshold issue before the Alabama Court of Civil Appeals was whether the parties entered into an “express” agreement the day before the end of the 90-day period. Citing the case Personnel Bd. for Mobile Cty. v. Bronstein , the court emphasized that the mere assent or agreement to continue a hearing on a post-judgment motion is not enough to extend the 90-day period. 354 So.2d 8, 11 (Ala. Civ. App. 1977). Rather, the parties must take “positive steps to express [an agreement to extend the 90-day period] in a direct and unequivocal manner.” Ultimately, the court determined that the agreement between the parties in Johnson was not “express” and was at best mere assent by Defendant’s counsel to continue the hearing on the post-judgment motion.

As noted above, the record only indicated that Defendant’s counsel had “given sanction” to the post-judgment motion, which was not enough to satisfy the “direct and unequivocal” requirement. Thus, the Alabama Court of Civil Appeals held that the Plaintiff’s post-judgment motion was deemed denied by operation of law on the 90 th day after the filing of the post-judgment motion. 
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