Opinion
2190345
10-09-2020
Kelvin PEACOCK v. MFG/ALABAMA, LLC
Kelvin Peacock, appellant, pro se. Linda H. Ambrose of Williams & Associates, Birmingham, for appellee.
Kelvin Peacock, appellant, pro se.
Linda H. Ambrose of Williams & Associates, Birmingham, for appellee.
THOMPSON, Presiding Judge.
Kelvin Peacock appeals from the judgment of the Covington Circuit Court ("the trial court") in favor of MFG/Alabama, LLC ("MFG"), Peacock's former employer, in Peacock's workers’ compensation action against MFG.
Before considering the merits of this appeal, this court must first determine whether the Peacock's motion to alter, amend, or vacate the judgment was timely filed so as to toll the time for filing the notice of appeal. Peacock has appeared pro se throughout this litigation. The record before us indicates that the trial court entered the judgment on August 2, 2019. Subsequently, Peacock filed a motion to alter, amend, or vacate the judgment. The motion indicates that it was submitted on August 31, 2019. Peacock, who at the time of the trial of this action was incarcerated at the Bullock Correctional Facility and who continues to remain there, attached a "filing statement" to the motion. In that statement, he swore or affirmed that he had deposited the motion in the institutional mail system, postage prepaid and properly addressed to the trial court on August 31, 2019. He added that he had included the filing statement because he had no control over when a prison official would deliver the mail to the post office. The filing statement was witnessed by two other people. The motion to alter, amend, or vacate was datestamped "filed" in the trial-court clerk's office on September 12, 2019.
This court asked the parties to submit letter briefs on the issue of the timeliness of Peacock's postjudgment motion. In response, Peacock stated that he had filed the motion on August 31, 2019, within 30 days of the entry of the judgment. See Rule 59(e), Ala. R. Civ. P. If the postjudgment motion is deemed filed on that date, then the time for filing a notice of appeal was tolled, and the notice of appeal filed on January 10, 2020, is timely. Rule 4(a)(3), Ala. R. App. P. MFG stated that the postjudgment motion was filed on September 12, 2019, which would be untimely under Rule 59(e). If the postjudgment motion is deemed filed on that date, then the time for filing a notice of appeal was not tolled, and Peacock would have been required to file his notice of appeal no more than 42 days after the judgment was entered, i.e., September 13, 2019. In that case, the notice of appeal is untimely. "[A]n untimely filed notice of appeal results in a lack of appellate jurisdiction, which cannot be waived." Parker v. Parker, 946 So. 2d 480, 485 (Ala. Civ. App. 2006).
The trial court purported to deny the postjudgment motion on December 27, 2019. If the postjudgment motion was filed on August 31, 2019, then the trial court no longer had jurisdiction to rule on the motion on December 27, 2019, because the motion would have been deemed denied by operation of law on Monday, December 2, 2019, because, although the 90th day after August 31, 2019, was Friday, November 29, 2019, that day was a state holiday. See Rule 59.1, Ala. R. Civ. P., and Rule 6, Ala. R. App. P. Thus, under those circumstances, the notice of appeal would then have had to be filed on or before January 13, 2020, to be timely. Peacock filed the notice of appeal on January 10, 2020. Therefore, although the trial court may not have had jurisdiction over the matter when it purported to deny the postjudgment motion, the notice of appeal would still be timely considering the date the postjudgment motion was deemed denied.
In their respective letter briefs, neither party addressed the basis for the date that party had given as the date the postjudgment motion had been filed, that is, August 31, 2019, for Peacock, and September 12, 2019, for MFG. However, because this issue implicates this court's jurisdiction, we must seek to determine the date the postjudgment motion was filed. Nunn v. Baker, 518 So. 2d 711, 712 (Ala. 1987) ("[J]urisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu."). As mentioned, Peacock was incarcerated at all times relevant to this issue. Rule 4(c), Ala. R. App. P., states:
"If an inmate confined in an institution and proceeding pro se files a notice of appeal in either a civil or a criminal case, the notice will be considered timely filed if it is deposited in the institution's internal mail system on or before the last day for filing. If an institution has a system designed for ‘legal’ mail to be processed by the United States Post Office, the inmate must use that system to receive the benefit of this rule. Timely filing may be shown by a notarized statement that sets forth the date the filing was deposited in the institution's mail system."
Peacock's filing statement was not notarized; instead, it was witnessed by two other people. However, in Ex parte Wright, 860 So. 2d 1253, 1257 (Ala. 2002), our supreme court held that a notarized statement was not mandated by Rule 4(c), explaining that,
"[w]hile Rule 4(c), Ala. R. App. P., includes a provision that ‘[t]imely filing may be shown by a notarized statement that sets forth the date the filing was deposited in the institution's mail system’ (emphasis added), this rule does not mandate such a notarized statement as the only way to establish the timeliness of a filing. Such a mandate would create still further issues about the availability and expense of a notary public that the rule is not drawn to resolve. The nonmandatory nature of the provision for the notarized statement is connoted by the use of the word may in contradistinction to the use of the word must elsewhere in the very same rule to connote a measure that is mandatory –- the inmate's use of the ‘legal’ mail system, if one is available in the institution, instead of the general mail system there."
This court has been faced with this situation before. In Parris v. Prison Health Services, Inc., 68 So. 3d 108 (Ala. Civ. App. 2009), the issue was whether Parris, an inmate, had timely filed his notice of appeal. The unverified certificate of service included with Parris's notice of appeal indicated that he had "mailed" the notice on May 8, 2008, within the time allowed by law for the filing of a notice of appeal in the case. Other evidence suggested that the notice of appeal had been timely placed in the prison mail system, and, we noted, there was no evidence to contradict Parris's assertion. However, we concluded that, based on the record before us, we could not verify that Parris had delivered his notice of appeal to the prison mail system by May 19, 2008, the day on which the period for filing his notice lapsed. Noting that we were the first court to consider the timeliness of Parris's notice of appeal, we remanded the cause for the trial court in that case to determine whether Parris had, in fact, deposited his notice of appeal in the appropriate prison mail system in a timely manner. In doing so, we advised the trial court that it could conduct such proceedings and take such evidence as it deemed necessary to make its findings of fact and that a written return to remand, including the trial court's findings of fact, was to be made to this court. Parris, 68 So. 3d at 111–12.
Similarly, in Ex parte Wright, supra, our supreme court observed that the Court of Criminal Appeals had been the first court to have the opportunity to consider the timeliness of the filing of Wright's notice of appeal and that there had been no evidence before that court to contradict the averments in Wright's "Declaration of Mailing," which, if true, established that his notice of appeal was timely under the mailbox rule. Therefore, the supreme court reversed the Court of Criminal Appeals judgment dismissing Wright's appeal and remanded the cause with instructions for the trial court to determine whether Wright had timely deposited his notice of appeal in the internal mail system of the prison. Wright, 860 So. 2d at 1257.
More recently, in Cook v. Alabama Department of Corrections, 292 So. 3d 1140, 1141–42 (Ala. Crim. App. 2019), the Court of Criminal Appeals stated that, in the absence of a notarized statement, the factual assertions in a prisoner's certificate of service may be disputed and that the trial court is the appropriate tribunal to resolve such a factual dispute. As in this case, the unsworn certificate of service on Cook's notice of appeal contained two handwritten signatures of designated witnesses to the filing of the certificate of service. The Court of Criminal Appeals had initially remanded the matter for the circuit court to determine whether Cook's notice of appeal had been timely filed. On return to remand, the Court of Criminal Appeals noted that, on remand, the circuit court had held an evidentiary hearing and had made findings of fact regarding the date on which it concluded Cook's notice of appeal had been mailed. Id.
In this case, Peacock's filing statement is unsworn. In their letter briefs, Peacock and MFG disagreed on the date the postjudgment motion was filed, but there is no indication in the record that the timeliness of the motion was considered by the parties or the trial court before this court raised the issue. Because we are unable to verify that Peacock's motion to alter, amend, or vacate was timely filed -- for example, no prison mail log or other evidence is contained in the record currently before us -- and because such a determination is required for us to determine whether we have jurisdiction over this appeal, on the authority of Cook, Parris, Wright, and the cases cited and relied upon in those opinions, we remand this cause for the trial court to determine whether Peacock deposited the postjudgment motion in the prison mail system so as to be deemed timely filed. The trial court may hold an evidentiary hearing if necessary to make its determination. A written return to remand, including the trial court's findings of fact, shall be filed with this court as expeditiously as possible. See Parris, 68 So. 3d at 112.
REMANDED WITH INSTRUCTIONS.
Moore, Donaldson, Edwards, and Hanson, JJ., concur.
On Return to Remand
THOMPSON, Presiding Judge.
Kelvin Peacock, who at all times relevant to this appeal was incarcerated in the Bullock Correctional Facility, appealed from an August 2, 2019, judgment entered by the Covington Circuit Court ("the trial court"). On October 9, 2020, this court, on original submission, remanded the case to the trial court to determine "whether Peacock deposited [his] postjudgment motion in the prison mail system so as to be deemed timely filed." Peacock v. MFG/Alabama, LLC, [Ms. 2190345, October 9, 2020] ––– So. 3d ––––, ––––, 2020 WL 5988225 (Ala. Civ. App. 2020). The trial court complied with our instructions and, in reaching its decision on remand, considered evidence submitted by the parties. In support of its contention that Peacock's postjudgment motion was not timely filed, MFG/Alabama, LLC, the defendant below, submitted an affidavit from Olivia Hicks, the mail clerk at the Bullock Correctional Facility during the period when Peacock would have mailed his postjudgment motion, i.e., in August and September 2019. Hicks averred in pertinent part:
"4. Now, and in 2019, the Bullock Correctional Facility had two mail systems for inmates to use: one for regular mail
and one for ‘legal mail.’ For regular mail, an inmate pays for his own postage and places the mail in an outgoing mailbox designated for regular mail. If an inmate needs to send mail relating to a court case, [he or she is] allowed to use the box designated for ‘legal mail.’ The State of Alabama pays for the cost of two (2) stamps per week for postage for legal mail. In 2019 and currently, for outgoing legal mail where postage was paid by the State of Alabama, I have the responsibility of placing postage on any outgoing legal mail using a postage meter, logging the mail as ‘outgoing legal mail,’ logging the amount of the postage, the date it was mailed, the inmate's name, and the recipient's name and address.
"5. I personally checked my records of ‘outgoing legal mail’ for August and September 2019, I have no record of mailing any ‘legal mail’ for Kelvin Peacock during this time period."
On April 19, 2021, the trial court entered an order finding:
"1. At the time [Peacock] filed his ‘motion to alter, amend, or vacate judgment,’ he was an inmate at the Bullock Correctional Facility.
"2. The Bullock Correctional Facility has a mail system designed for ‘legal’ mail.
"3. [Peacock] did not use the ‘legal’ mail system to deliver his motion to the circuit clerk.
"4. [Peacock's] motion was date-stamped by the circuit clerk on September 12, 2019.
"5. More than thirty (30) days elapsed from the final order issued in this case and the filing of [Peacock's] motion.
"6. [Peacock's] ‘motion to alter, amend, or vacate judgment’ was untimely. See Rule 59(e), Ala. R. Civ. P."
The record supports the trial court's determinations that, because Peacock did not comply with Rule 4(c), Ala. R. App. P., Peacock's postjudgment motion filed with the circuit clerk on September 12, 2019, was untimely and, consequently, that the time for filing a notice of appeal was not tolled pursuant to Rule 4(a)(3), Ala. R. App. P. The final judgment in this case was entered on August 2, 2019. Peacock's notice of appeal was filed on January 10, 2020. Because Peacock did not file his notice of appeal within 42 days of the entry of the August 2, 2019, judgment, i.e., on or before September 13, 2019, Peacock's notice of appeal was untimely and did not invoke this court's jurisdiction, and, accordingly, this appeal is dismissed. See Buchanan v. Young, 534 So. 2d 263, 264 (Ala. 1988) ("The failure to file a notice of appeal within the time provided in Rule 4, [Ala. R. App. P.], is a jurisdictional defect and will result in a dismissal of the appeal."); and Rule 2(a)(1), Ala. R. App. P. ("An appeal shall be dismissed if the notice of appeal was not timely filed to invoke the jurisdiction of the appellate court.").
APPEAL DISMISSED.
Moore, Edwards, Hanson, and Fridy, JJ., concur.