Staples v. Alfa Mutual Insurance Co.

ROBERT P. BRADLEY, Retired Appellate Judge.

This is an appeal from a denial of a posttrial motion.

The appeal arises from an uninsured motorist case in which the only issue was the amount of damages to be awarded. The case was tried before a jury in the Circuit Court of St. Clair County. The plaintiffs requested that the jury be charged according to Alabama Pattern Jury Instructions 20.55. The jury returned a verdict for $30,-000 but did not award prejudgment interest. Judgment was entered in favor of the plaintiffs on February 16, 1990.

On March 1, 1990, the plaintiffs filed a posttrial motion requesting that the trial court award prejudgment interest. The plaintiffs further requested that certain deposition expenses be taxed as court costs. The posttrial motion was denied by operation of law on May 30, 1990 after the trial court failed to rule on the motion within 90 days. The plaintiffs then filed a notice of appeal to this court on July 13, 1990.

The plaintiffs’ appeal was not timely filed. The plaintiffs’ notice of appeal specifies June 20, 1990 as the date the posttrial motion was denied; however, this is in error. Under Rule 59.1, Alabama Rules of Civil Procedure, a posttrial motion cannot be pending after 90 days. Here, the post-trial motion was filed on March 1 and thus was denied by operation of law on May 30.

The plaintiffs were required to file a notice of appeal within 42 days from that date. Rule 4(a)(1) and (3), Alabama Rules of Appellate Procedure. The forty-second day fell on July 11, 1990, which was not a holiday; hence, the notice of appeal filed on July 13, 1990 was untimely. Consequently, this court is without jurisdiction to consider the appeal, and we have no alternative but to dismiss it.

The foregoing opinion was prepared by Retired Appellate Judge ROBERT P. BRADLEY while serving on active duty status as a judge of this court under the provisions of § 12-18-10(e), Code 1975, and this opinion is hereby adopted as that of the court.

APPEAL DISMISSED.

All the Judges concur.