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Wal-Mart Stores11/12/2004
s judgment as to compensability. The employee's motion alleged no ground that might be cognizable under Rule 60(b) other than "newly discovered evidence." The employee's motion stated, as follows:
"Comes now the [employee] in the above-styled cause and moves this Honorable Court to set aside the ruling in paragraph ten of this Court's Order of March , 2003, [which] determined that the [employee's] neuropathic problems in her lower extremities and toenail fungus are not medically causally related to her on-the-job back injury. The [employee] specifically requests this Honorable Court to reconsider its finding based on the following medical information:
"1) The March 5, 2003, dated correspondence from Dr. Chitwood's office, along with his medical records attached hereto dated February 24, 2003 and March 5, 2003.
"1) Dr. Marzella's letter of April 11, 2003.
"3) Dr. Maddox's letter of April 17, 2003 and medical notes of April 2, 2003.
"WHEREFORE, the [employee] requests this Honorable Court to set aside its determination that the [employee's] neuropathic problems in her lower extremities and toenail fungus are not medically causally related to her on-the-job- back injury, and to specifically determine that her neuropathic problems in lower extremities and toenail fungus are medically causally related to her on-the-job back injury."
Our standard of review in cases involving a Rule 60(b) motion for relief from a judgment is well-settled:
"The granting of a Rule 60(b) motion is an extreme remedy to be used only in extraordinary circumstances. Morgan v. Estate of Morgan, 688 So. 2d 862 (Ala. Civ. App. 1997). The trial court has broad discretion in determining whether to grant or to deny a Rule 60(b) motion, and we will look to the grounds presented and the matters presented in support of the motion to determine if there was an abuse of that discretion. Morgan, supra, at 864. Further, the broad power granted by Rule 60(b) cannot be used to relieve a party from free, deliberate, and calculated choices. McDaniel v. McDaniel, 694 So. 2d 34 (Ala. Civ. App. 1997)."
State ex rel. Croson v. Croson, 724 So. 2d 36, 38 (Ala. Civ. App. 1998).
In other words, despite the general discretion vested in trial courts to grant or deny relief from a judgment, a Rule 60(b) motion "is not a substitute for appeal and is not available to relieve a party from his failure to exercise the right of appeal." Morgan v. Estate of Morgan, 688 So. 2d 862, 864 (Ala. Civ. App. 1997) ; see also McLeod v. McLeod, 473 So. 2d 1097, 1098 (Ala. 1985); and Wright v. Wright, 628 So. 2d 915, 916 (Ala. Civ. App. 1993);
The employee asserts on appeal that she adduced "newly discovered" evidence, which is cognizable as a ground for relief under subsection (2) of Rule 60(b), Ala. R. Civ. P., and that that evidence warranted the trial court's granting of her motion for relief from the March 4, 2003, judgment. However, our review of the record reveals that the employee's reliance on that ground as a basis for her motion is misplaced.
Rule 60(b)(2), Ala. R. Civ. P., authorizes relief from a final judgment on the basis of "newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial ...." Of course, the record reveals that the employee had been hospitalized and had undergone major surgery at the time she received notice from her counsel advising her of his intent to withdraw from her case. However, even if the employee's hospitalization might warrant a lenient application of the "due diligence" standard of Rule 60(b)(2), Ala. R. Civ. P., that rule nonetheless applies only to
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