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SPARKS v. ALABAMA POWER CO.6/21/1996
Mary Sparks, as administratrix of the estate of her husband Charles Sparks, deceased, has appealed from the trial court's denial of her motion for a new trial. That motion had followed a judgment entered on a directed verdict and a jury verdict in favor of the defendant Alabama Power Company ("APCo").
I. Facts
Charles Sparks was killed on the evening of November 30, 1991, when he contacted a fallen APCo line that was still energized and was carrying 19,900 volts of electricity. The 40-foot wooden pole suspending the uninsulated electric line was snapped into three pieces and caused to fall when it was struck by an automobile driven by one of Mr. Sparks's friends, who had lost control of his automobile while engaged in a drag race on Shelby County Highway 260 with a second automobile driven by another friend. Mr. Sparks was a participant in the drag race to the limited extent of driving his truck down the road to mark the finish for the race. After the accident occurred, Mr. Sparks drove his truck to the scene and checked on the condition of his friend in the damaged automobile. Mr. Sparks was killed when his shoulder contacted the electric line as he was returning to his truck.
In March 1992, Mary Sparks filed a wrongful death action against APCo. The case went to trial in May 1995, and at the close of the evidence the trial court granted APCo's motion for a directed verdict against Mrs. Sparks's wantonness claim. On May 11, 1995, the jury returned a verdict in favor of APCo on Mrs. Sparks's remaining negligence claim. She moved for a new trial on June 8, 1995, and the court held a hearing on the motion on July 5. The trial court overruled the new trial motion on July 21 by an order that was entered on the case action summary sheet. No notice of the order was mailed to Mrs. Sparks's counsel or to APCo's counsel, and no entry was made on the computer case record system used by the Jefferson circuit clerk's office personnel.
Under our usual procedure, the last day for Mrs. Sparks to file a timely appeal was September 1, 1995, the 42d day from the July 21 final judgment. However, she did not file her notice of appeal until October 12, 1995. APCo has moved this Court to dismiss the appeal as untimely. Thus, we must first determine whether the appeal should be dismissed.
A. Timeliness of the Appeal
In response to APCo's motion to dismiss her appeal, Mrs. Sparks claims that she relied in good faith on information obtained from the Jefferson circuit clerk's office indicating that her motion for new trial had not been ruled on within 90 days and, thus, had been denied on the 90th day by operation of Rule 59.1, Ala.R.Civ.P. Mrs. Sparks's counsel say that they periodically checked with the circuit clerk's office regarding a possible ruling by the court on the motion for new trial, but were repeatedly informed that the court had not ruled.
However, on September 7, APCo's counsel found the case action summary sheet for this case in the "disposed" case files in the Jefferson circuit clerk's office and learned from the notation on the case action summary sheet that Mrs. Sparks's motion for a new trial had been denied on July 21.
Mrs. Sparks's counsel say that because they did not receive notice of the trial court's July 21 ruling denying the motion for new trial, they believed the motion was denied by operation of law after 90 days — i.e., on September 6. Mrs. Sparks's notice of appeal was filed on October 12, within 42 days of September 6. However, October 12 is 83 days from July 21, the day the trial court entered its order denying the motion for new trial. Therein lies the issue whether the appeal was timely filed.
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