Bacon v. Winn-Dixie Montgomery, Inc
In Bacon v. Winn-Dixie Montgomery, Inc., 730 So. 2d 600 (Ala. 1998) the Court was presented with a similar factual situation similar to the one here now. In that case, the plaintiff did not learn that the trial court had entered a summary judgment for the defendant until after the 42-day period for appealing had expired. In that case, this Court noted that "Rule 77(d), Ala. R. Civ. P., exclusively governs the situation in which a litigant claims that the clerk's office failed to notify her of the trial court's entry of a judgment." (730 So. 2d at 602.) Rule 77(d) provides:
"Lack of notice of the entry by the clerk does not affect the time to appeal or relieve or authorize the court to relieve a party for failure to appeal within the time allowed, except that upon a showing of excusable neglect based on a failure of the party to learn of the entry of the judgment or order the circuit court in any action may extend the time for appeal not exceeding thirty (30) days from the expiration of the original time now provided for appeals in civil actions."
In interpreting Rule 77(d), the Court in Bacon wrote:
"The language of Rule 77(d) is clear. It involves a two-step process. Clerks are directed by Rule 77(d) to notify the parties by mail of the entry of a judgment. That language is not 'aspirational.' See, Turner v. Barnes, 687 So. 2d 197 (Ala. 1997). The Committee Comments to Rule 77(d), citing 7 Moore's Federal Practice, P 77.05 (2d ed. 1971), state: 'The duty which Rule 77(d) imposes on the clerks and registers is intended for the convenience of litigants.' However, the language following that portion of Rule 77(d) imposing on the clerks and registers a duty to notify the parties of the entry of a judgment, by mail, clearly states that the failure of the clerk's office to fulfill that duty in no way affects the time to appeal unless a party can show excusable neglect. Adherence to this rule by the clerk or register should alleviate any notice problems; however, regardless of the failure of the clerk's office to fulfill its duty imposed by Rule 77(d), nothing in the plain language of Rule 77(d) or in existing caselaw relieves the party seeking an extension of time of the burden of showing 'excusable neglect' that caused the appeal not to be filed within the time ordinarily allowed. That is, when nothing can be shown beyond a party's simple reliance on the notification process of the clerk's office, the plain language of Rule 77(d) prohibits the granting of an extension of time within which to appeal." (730 So. 2d at 602.)
In Bacon, the trial had also granted an extension of the time to file a notice of appeal; this Court stated:
"Winn-Dixie maintains that even assuming, but not conceding, that Bacon did not receive timely notice of the judgment for Winn-Dixie, she failed to demonstrate the 'excusable neglect' required by Rule 77(d) and/or failed to show that she had made the diligent effort it says is required by Rule 77(d) to learn whether the trial court had entered a judgment." (730 So. 2d at 601.)