A technicality regarding counting time caused the dismissal of tenant’s appeal in an eviction case. Landlords need to pay attention, because they might be able to use the same technicality.
The case is McWhorter v. Parsons, decided in the Alabama Court of Civil Appeals on July 8, 2016. There was a LOT of legal maneuvering (read: lots of legal fees) but the case boiled down to the following facts:
- September 2, 2014, the District Court entered an unlawful detainer order in favor of Landlord McWhorter and against tenant Parsons. For purposes of appeal, it also found that the rent to be paid into court each month during the appeal was $680, and it set the appeal bond at $4,760. That number represented accrued and past due rent.
- September 8, 2014, Parsons filed a motion to reduce the appeal bond, because she had already paid all past due rent by that time.
- September 9, 2014, the District Court reduced the appeal bond to $680.
- September 10, 2014, Parsons filed notice of appeal to the Circuit Court.
The Circuit Court held a trial, and found in favor of tenant Parsons! McWhorter appealed to the Court of Civil Appeals. The appellate court found that Parsons’ original appeal was void because it was filed too late. In other words, the September 2, 2014 unlawful detainer order was reinstated.
What went wrong for Parsons? Under Alabama law, any appeal from an unlawful detainer (eviction) order must be filed within seven CALENDAR DAYS of the order. While there is a rule in the Alabama Rules of Civil Procedure that says time limits less than 11 days are counted as BUSINESS DAYS, the eviction statute specifically says it is CALENDAR DAYS for an eviction appeal. When there is a general rule, and then a specific rule for certain situations, the specific rule trumps.
Parsons next said her September 8 motion was a post-trial motion that “tolled” (stopped) the appeal time period. She said that the seven day clock did not start until the September 9 order.
The Court of Civil Appeals said the motion to reduce the appeal bond was not such a post-trial motion that would toll the appeal time period. Only certain motions will toll the time limit. Parsons should have filed her notice of appeal within seven days of September 2, which would have been September 9. Because she filed on September 10, it was too late. Her appeal was no good.
Landlords: pay attention to everybody’s time limits!!!! If McWhorter’s lawyer had thought about this time limit thing on September 10th, 2014, he or she might have been able to get Parsons thrown out of court long before the huge legal bills. FYI, the relevant rule is in Alabama Rules of Appellate Procedure, Rule 4(a)(3). It says that only motions under Rules 50, 52, 55 or 59 of the Alabama Rules of Civil Procedure will toll the appeal time. The motion to reduce the appeal bond was not one authorized under rules 50, 52, 55 or 59. That doesn’t mean it wasn’t an allowable motion. It just means it did not toll the appeal time limit.