CIVIL PROCEDURE - MCGINNIS V. STEELEMAN

McGinnis v. Steeleman, [Ms. 2140653, Dec. 4, 2015] __ So. 3d __ (Ala. Civ. App. 2015). If a trial court states new reasons when denying a post-judgment motion, a second post-judgment motion is allowed, and the denial of that second motion triggers the time for appeal. Also, a case should not be dismissed for failure to prosecute simply because the attorney for the plaintiff does not file a brief in opposition to the motion to dismiss. Finally, where the plaintiff's second post-judgment motion stated grounds constituting excusable neglect for failure to appear at a hearing, the circuit court should have granted that motion to set aside the dismissal. Whether that second post-judgment motion is deemed a Rule 59(e) motion to alter, amend, or vacate or a Rule 60(b)(1) motion to vacate a judgment for excusable neglect, the motion should have been granted. The initial dismissal did not state any reasons, but the denial of the plaintiff's first Rule 59(e) motion stated, for the first time, that the dismissal was based on the plaintiff’s failure to either respond to the motion to dismiss in writing or attend the hearing on the motion. The second post-judgment motion asserted that the failure to calendar the hearing was based on excusable neglect by the plaintiff's counsel (due to a failure by counsel's staff). The Court of Civil Appeals first dismissed the appeal as untimely, coming more than 42 days after denial of the first post-judgment motion. It reinstated the appeal on the ground that denial of the second motion triggered the time for appeal and reverses the denial of the second motion. The Court notes that there is no general requirement in the Rules of Civil Procedure to file a written response to a motion. "To justify a dismissal for lack of prosecution, the omission to file a written response must be joined by other evidence of unreasonable delay, willful default, or contumacious conduct, none of which appears in the record in this case."