Strong v. Slate, [Ms. 2160649, Mar. 2, 2018] __ So. 3d __ (Ala. 2018). This unanimous decision by Judge Pittman (Thompson, P.J. and Thomas, Moore and Donaldson, JJ., concur) dismisses an appeal from a civil action in the Clay Circuit Court involving Slate’s request for a prescriptive easement across Strong’s property. Following the circuit court’s February 2, 2017, judgment dismissing Slate’s complaint for prescriptive easement, Strong filed a motion seeking an award of litigation expenses, surveyor fees, and attorney fees. Ms. *3. In the instant appeal, Strong challenged what she characterized as the circuit court’s implied denial under Rule 59 of her request for litigation expenses.
However, the court held unanimously that the “motion for litigation expenses and attorney’s fees was not a motion to alter or amend the judgment pursuant to Rule 59(e), Ala. R. Civ. P.” Ms. *7, quoting Ford v. Jefferson County, 989 So. 2d 542, 545 (Ala. Civ. App. 2008). The court held that Strong’s motion “was in the nature of a motion under Rule 54(d), Ala. R. Civ. P., that required an inquiry separate from the decision on the merits of Slate’s right-of-way claim.” Ms. *8, citing Russell v. State, 51 So. 3d 1026, 1028, n. 4 (Ala. 2010) (internal quote marks omitted). Because the motion had not been ruled upon and was not susceptible to denial by operation of law, it remained pending before the trial court. Ms. *8-9.