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REL: 11/06/2009

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ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2009 - 2010
2080023
Joe Fenison v.
Birmingham Spring Service, Inc., et al.
2080036
Birmingham Spring Service, Inc.
v.
Joe Fenison
Appeals from Jefferson Circuit Court (CV-04-3927)
PITTMAN, Judge.



REL: 11/06/2009

Southern Reporter
Southern Reporter.
ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2009 - 2010
2080023
Joe Fenison v.
Birmingham Spring Service, Inc., et al.
2080036
Birmingham Spring Service, Inc.
v.
Joe Fenison
Appeals from Jefferson Circuit Court (CV-04-3927)
PITTMAN, Judge.



REL: 11/06/2009

Southern Reporter
Southern Reporter.
ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2009 - 2010
2080023
Joe Fenison v.
Birmingham Spring Service, Inc., et al.
2080036
Birmingham Spring Service, Inc.
v.
Joe Fenison
Appeals from Jefferson Circuit Court (CV-04-3927)
PITTMAN, Judge.



REL: 11/06/2009

Southern Reporter
Southern Reporter.
ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2009 - 2010
2080023
Joe Fenison v.
Birmingham Spring Service, Inc., et al.
2080036
Birmingham Spring Service, Inc.
v.
Joe Fenison
Appeals from Jefferson Circuit Court (CV-04-3927)
PITTMAN, Judge.



REL: 11/06/2009

Southern Reporter
Southern Reporter.
ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2009 - 2010
2080023
Joe Fenison v.
Birmingham Spring Service, Inc., et al.
2080036
Birmingham Spring Service, Inc.
v.
Joe Fenison
Appeals from Jefferson Circuit Court (CV-04-3927)
PITTMAN, Judge.



REL: 11/06/2009

Southern Reporter
Southern Reporter.
ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2009 - 2010
2080023
Joe Fenison v.
Birmingham Spring Service, Inc., et al.
2080036
Birmingham Spring Service, Inc.
v.
Joe Fenison
Appeals from Jefferson Circuit Court (CV-04-3927)
PITTMAN, Judge.



REL: 11/06/2009

Southern Reporter
Southern Reporter.
ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2009 - 2010
2080023
Joe Fenison v.
Birmingham Spring Service, Inc., et al.
2080036
Birmingham Spring Service, Inc.
v.
Joe Fenison
Appeals from Jefferson Circuit Court (CV-04-3927)
PITTMAN, Judge.



REL: 11/06/2009

Southern Reporter
Southern Reporter.
ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2009 - 2010
2080023
Joe Fenison v.
Birmingham Spring Service, Inc., et al.
2080036
Birmingham Spring Service, Inc.
v.
Joe Fenison
Appeals from Jefferson Circuit Court (CV-04-3927)
PITTMAN, Judge.



REL: 11/06/2009

Southern Reporter
Southern Reporter.
ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2009 - 2010
2080023
Joe Fenison v.
Birmingham Spring Service, Inc., et al.
2080036
Birmingham Spring Service, Inc.
v.
Joe Fenison
Appeals from Jefferson Circuit Court (CV-04-3927)
PITTMAN, Judge.



REL: 11/06/2009

Southern Reporter
Southern Reporter.
ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2009 - 2010
2080023
Joe Fenison v.
Birmingham Spring Service, Inc., et al.
2080036
Birmingham Spring Service, Inc.
v.
Joe Fenison
Appeals from Jefferson Circuit Court (CV-04-3927)
PITTMAN, Judge.



REL: 11/06/2009

Southern Reporter
Southern Reporter.
ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2009 - 2010
2080023
Joe Fenison v.
Birmingham Spring Service, Inc., et al.
2080036
Birmingham Spring Service, Inc.
v.
Joe Fenison
Appeals from Jefferson Circuit Court (CV-04-3927)
PITTMAN, Judge.



REL: 11/06/2009

Southern Reporter
Southern Reporter.
ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2009 - 2010
2080023
Joe Fenison v.
Birmingham Spring Service, Inc., et al.
2080036
Birmingham Spring Service, Inc.
v.
Joe Fenison
Appeals from Jefferson Circuit Court (CV-04-3927)
PITTMAN, Judge.



REL: 11/06/2009

Southern Reporter
Southern Reporter.
ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2009 - 2010
2080023
Joe Fenison v.
Birmingham Spring Service, Inc., et al.
2080036
Birmingham Spring Service, Inc.
v.
Joe Fenison
Appeals from Jefferson Circuit Court (CV-04-3927)
PITTMAN, Judge.



REL: 11/06/2009

Southern Reporter
Southern Reporter.
ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2009 - 2010
2080023
Joe Fenison v.
Birmingham Spring Service, Inc., et al.
2080036
Birmingham Spring Service, Inc.
v.
Joe Fenison
Appeals from Jefferson Circuit Court (CV-04-3927)
PITTMAN, Judge.



2080023; 2080036

These consolidated cases arise out of an action brought in the Jefferson Circuit Court in June 2004 by Joe Fenison ("the employee") against three defendants: his former employer, Birmingham Spring Service, Inc. ("the employer"); Attenta, Inc., the employer's workers' compensation insurance administrator ("Attenta"); and Sarah Hargrove, an employee of Attenta. In that action, the employee sought compensatory and punitive damages based upon the defendants' alleged wrongful conduct in failing to abide by a consent judgment entered in October 2000 on the employee's earlier workers' compensation claim against the employer stemming from a work-related injury to the employee's right arm. The trial court entered a summary judgment in the action in favor of all defendants on January 14, 2008, and stated in that judgment that costs were "taxed as paid." Compare Rule 54(d), Ala. R. Civ. P. ("Except when express provision therefor is made in a statute, costs shall be allowed as of course to the prevailing party unless the court otherwise directs ").
On May 20, 2008, more than four months after the trial court had entered its judgment directing that costs were to be taxed as paid, the employer, Attenta, and Hargrove filed a

2



2080023; 2080036

These consolidated cases arise out of an action brought in the Jefferson Circuit Court in June 2004 by Joe Fenison ("the employee") against three defendants: his former employer, Birmingham Spring Service, Inc. ("the employer"); Attenta, Inc., the employer's workers' compensation insurance administrator ("Attenta"); and Sarah Hargrove, an employee of Attenta. In that action, the employee sought compensatory and punitive damages based upon the defendants' alleged wrongful conduct in failing to abide by a consent judgment entered in October 2000 on the employee's earlier workers' compensation claim against the employer stemming from a work-related injury to the employee's right arm. The trial court entered a summary judgment in the action in favor of all defendants on January 14, 2008, and stated in that judgment that costs were "taxed as paid." Compare Rule 54(d), Ala. R. Civ. P. ("Except when express provision therefor is made in a statute, costs shall be allowed as of course to the prevailing party unless the court otherwise directs ").
On May 20, 2008, more than four months after the trial court had entered its judgment directing that costs were to be taxed as paid, the employer, Attenta, and Hargrove filed a

2



2080023; 2080036

motion, pursuant to Rule 60(b), Ala. R. Civ. P., for relief from the costs provision of the judgment so as to award them costs, including attorney fees, in the total amount of $57,044.65; in that motion, the defendants averred that they had sought relief under Rule 60(b)(6) because "a thorough review of this file as well as invoices, billing, and expenditures subsequent to the entry of this court's final order in January 2008[] clearly showed that this litigation could have been handled much more efficiently and with much less cost to both parties." The motion was accompanied by attachments purporting to be court-reporting and transcription bills from 2005 and 2006 and legal-services statements covering the period from September 2004 through January 2008. Nine days after the defendants' motion was filed, on May 29, 2008, the trial court entered an order granting the defendants' Rule 60(b) motion in part and ordering the employee to pay costs in the amount of $19,529.45.
On May 30, 2008, the employee timely moved to vacate the trial court's order granting the Rule 60(b) motion, averring that a motion pursuant to Rule 60(b) was not an appropriate procedural device by which to seek review of the trial court's

3



2080023; 2080036

motion, pursuant to Rule 60(b), Ala. R. Civ. P., for relief from the costs provision of the judgment so as to award them costs, including attorney fees, in the total amount of $57,044.65; in that motion, the defendants averred that they had sought relief under Rule 60(b)(6) because "a thorough review of this file as well as invoices, billing, and expenditures subsequent to the entry of this court's final order in January 2008[] clearly showed that this litigation could have been handled much more efficiently and with much less cost to both parties." The motion was accompanied by attachments purporting to be court-reporting and transcription bills from 2005 and 2006 and legal-services statements covering the period from September 2004 through January 2008. Nine days after the defendants' motion was filed, on May 29, 2008, the trial court entered an order granting the defendants' Rule 60(b) motion in part and ordering the employee to pay costs in the amount of $19,529.45.
On May 30, 2008, the employee timely moved to vacate the trial court's order granting the Rule 60(b) motion, averring that a motion pursuant to Rule 60(b) was not an appropriate procedural device by which to seek review of the trial court's

3



2080023; 2080036
taxation of costs in its January 14, 2008, judgment. The trial court did not, however, rule upon the employee's motion on or before August 28, 2008, within 90 days of its having been filed, and pursuant to Rule 59.1, Ala. R. Civ. P., that motion was automatically denied. Notwithstanding that denial, on September 15, 2008, the trial court entered an order purporting to grant the employee's motion.
The employee filed a notice of appeal on October 9, 2008, 42 days after the automatic denial of his postjudgment motion to vacate the trial court's judgment as amended by its May 29, 2008, order granting the defendants' motion for relief from the January 14, 2008, judgment. That appeal was docketed in this court as case no. 2080023. On October 15, 2008, within a presumptively reasonable time for seeking review by a petition for an extraordinary writ, see Rule 21(a), Ala. R. App. P., the employer filed a petition for a writ of mandamus challenging the validity of the September 15, 2008, order purporting to grant the employee's May 30, 2008, motion. That petition was docketed in this court as case no. 2080036. Ex mero motu, this court ordered that the two proceedings be consolidated for briefing purposes and ordered that the

4



2080023; 2080036
taxation of costs in its January 14, 2008, judgment. The trial court did not, however, rule upon the employee's motion on or before August 28, 2008, within 90 days of its having been filed, and pursuant to Rule 59.1, Ala. R. Civ. P., that motion was automatically denied. Notwithstanding that denial, on September 15, 2008, the trial court entered an order purporting to grant the employee's motion.
The employee filed a notice of appeal on October 9, 2008, 42 days after the automatic denial of his postjudgment motion to vacate the trial court's judgment as amended by its May 29, 2008, order granting the defendants' motion for relief from the January 14, 2008, judgment. That appeal was docketed in this court as case no. 2080023. On October 15, 2008, within a presumptively reasonable time for seeking review by a petition for an extraordinary writ, see Rule 21(a), Ala. R. App. P., the employer filed a petition for a writ of mandamus challenging the validity of the September 15, 2008, order purporting to grant the employee's May 30, 2008, motion. That petition was docketed in this court as case no. 2080036. Ex mero motu, this court ordered that the two proceedings be consolidated for briefing purposes and ordered that the

4



2080023; 2080036
taxation of costs in its January 14, 2008, judgment. The trial court did not, however, rule upon the employee's motion on or before August 28, 2008, within 90 days of its having been filed, and pursuant to Rule 59.1, Ala. R. Civ. P., that motion was automatically denied. Notwithstanding that denial, on September 15, 2008, the trial court entered an order purporting to grant the employee's motion.
The employee filed a notice of appeal on October 9, 2008, 42 days after the automatic denial of his postjudgment motion to vacate the trial court's judgment as amended by its May 29, 2008, order granting the defendants' motion for relief from the January 14, 2008, judgment. That appeal was docketed in this court as case no. 2080023. On October 15, 2008, within a presumptively reasonable time for seeking review by a petition for an extraordinary writ, see Rule 21(a), Ala. R. App. P., the employer filed a petition for a writ of mandamus challenging the validity of the September 15, 2008, order purporting to grant the employee's May 30, 2008, motion. That petition was docketed in this court as case no. 2080036. Ex mero motu, this court ordered that the two proceedings be consolidated for briefing purposes and ordered that the

4



2080023; 2080036

employer's mandamus petition would be treated as if it were a "cross-appeal" from the judgment under review.
Because the employer's "cross-appeal" is directed to the trial court's most recent order, and may be resolved simply, we address it first. As we have noted, the employee's motion seeking to vacate the trial court's amended judgment was filed on May 30, 2008, but was not ruled upon by August 28, 2008.
Rule 59.1, Ala. R. Civ. P., states that a postjudgment motion to vacate pursuant to Rule 59, Ala. R. Civ. P., may not remain pending in the trial court for more than 90 days unless either "the express consent of all the parties" appears of record or an order of extension is issued by the appellate court to which an appeal of the judgment would lie; under Rule 59.1, any failure by the trial court to rule upon a postjudgment motion within the permitted time "constitute[s] a denial of such motion as of the date of the expiration of the period." On the authority of Ex parte Davidson, 782 So. 2d 237, 240-41 (Ala. 2000), we must conclude that the trial court's order of September 15, 2008, was entered without jurisdiction and was

5



2080023; 2080036

employer's mandamus petition would be treated as if it were a "cross-appeal" from the judgment under review.
Because the employer's "cross-appeal" is directed to the trial court's most recent order, and may be resolved simply, we address it first. As we have noted, the employee's motion seeking to vacate the trial court's amended judgment was filed on May 30, 2008, but was not ruled upon by August 28, 2008.
Rule 59.1, Ala. R. Civ. P., states that a postjudgment motion to vacate pursuant to Rule 59, Ala. R. Civ. P., may not remain pending in the trial court for more than 90 days unless either "the express consent of all the parties" appears of record or an order of extension is issued by the appellate court to which an appeal of the judgment would lie; under Rule 59.1, any failure by the trial court to rule upon a postjudgment motion within the permitted time "constitute[s] a denial of such motion as of the date of the expiration of the period." On the authority of Ex parte Davidson, 782 So. 2d 237, 240-41 (Ala. 2000), we must conclude that the trial court's order of September 15, 2008, was entered without jurisdiction and was

5



2080023; 2080036

employer's mandamus petition would be treated as if it were a "cross-appeal" from the judgment under review.
Because the employer's "cross-appeal" is directed to the trial court's most recent order, and may be resolved simply, we address it first. As we have noted, the employee's motion seeking to vacate the trial court's amended judgment was filed on May 30, 2008, but was not ruled upon by August 28, 2008.
Rule 59.1, Ala. R. Civ. P., states that a postjudgment motion to vacate pursuant to Rule 59, Ala. R. Civ. P., may not remain pending in the trial court for more than 90 days unless either "the express consent of all the parties" appears of record or an order of extension is issued by the appellate court to which an appeal of the judgment would lie; under Rule 59.1, any failure by the trial court to rule upon a postjudgment motion within the permitted time "constitute[s] a denial of such motion as of the date of the expiration of the period." On the authority of Ex parte Davidson, 782 So. 2d 237, 240-41 (Ala. 2000), we must conclude that the trial court's order of September 15, 2008, was entered without jurisdiction and was

5



2080023; 2080036
a nullity; thus, as to case no. 2080036, we direct the trial court to vacate that void order.1

We next turn to the employee's appeal from the trial court's May 29, 2008, order amending its judgment, in response to the defendants' May 20, 2008, Rule 60(b) motion, so as to tax to the employee a portion of the costs claimed by the defendants.2 Rule 60(b), Ala. R. Civ. P., provides, in

pertinent part:

"On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective

1The employee, with commendable candor, concedes this issue, averring in the statement of facts of his appellate brief that his May 30, 2008, motion was "overruled by operation of law" pursuant to Rule 59.1, Ala. R. Civ. P.
2That order, which contemplated "no further proceedings" the trial court, amounts to a final, appealable judgment. See R.E. Grills, Inc. v. Davison, 641 So. 2d 225, 228 (Ala. 1994).

in

6



2080023; 2080036
a nullity; thus, as to case no. 2080036, we direct the trial court to vacate that void order.1

We next turn to the employee's appeal from the trial court's May 29, 2008, order amending its judgment, in response to the defendants' May 20, 2008, Rule 60(b) motion, so as to tax to the employee a portion of the costs claimed by the defendants.2 Rule 60(b), Ala. R. Civ. P., provides, in

pertinent part:

"On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective

1The employee, with commendable candor, concedes this issue, averring in the statement of facts of his appellate brief that his May 30, 2008, motion was "overruled by operation of law" pursuant to Rule 59.1, Ala. R. Civ. P.
2That order, which contemplated "no further proceedings" the trial court, amounts to a final, appealable judgment. See R.E. Grills, Inc. v. Davison, 641 So. 2d 225, 228 (Ala. 1994).

in

6



2080023; 2080036
a nullity; thus, as to case no. 2080036, we direct the trial court to vacate that void order.1

We next turn to the employee's appeal from the trial court's May 29, 2008, order amending its judgment, in response to the defendants' May 20, 2008, Rule 60(b) motion, so as to tax to the employee a portion of the costs claimed by the defendants.2 Rule 60(b), Ala. R. Civ. P., provides, in

pertinent part:

"On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective

1The employee, with commendable candor, concedes this issue, averring in the statement of facts of his appellate brief that his May 30, 2008, motion was "overruled by operation of law" pursuant to Rule 59.1, Ala. R. Civ. P.
2That order, which contemplated "no further proceedings" the trial court, amounts to a final, appealable judgment. See R.E. Grills, Inc. v. Davison, 641 So. 2d 225, 228 (Ala. 1994).

in

6



2080023; 2080036
a nullity; thus, as to case no. 2080036, we direct the trial court to vacate that void order.1

We next turn to the employee's appeal from the trial court's May 29, 2008, order amending its judgment, in response to the defendants' May 20, 2008, Rule 60(b) motion, so as to tax to the employee a portion of the costs claimed by the defendants.2 Rule 60(b), Ala. R. Civ. P., provides, in

pertinent part:

"On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective

1The employee, with commendable candor, concedes this issue, averring in the statement of facts of his appellate brief that his May 30, 2008, motion was "overruled by operation of law" pursuant to Rule 59.1, Ala. R. Civ. P.
2That order, which contemplated "no further proceedings" the trial court, amounts to a final, appealable judgment. See R.E. Grills, Inc. v. Davison, 641 So. 2d 225, 228 (Ala. 1994).

in

6



2080023; 2080036
a nullity; thus, as to case no. 2080036, we direct the trial court to vacate that void order.1

We next turn to the employee's appeal from the trial court's May 29, 2008, order amending its judgment, in response to the defendants' May 20, 2008, Rule 60(b) motion, so as to tax to the employee a portion of the costs claimed by the defendants.2 Rule 60(b), Ala. R. Civ. P., provides, in

pertinent part:

"On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective

1The employee, with commendable candor, concedes this issue, averring in the statement of facts of his appellate brief that his May 30, 2008, motion was "overruled by operation of law" pursuant to Rule 59.1, Ala. R. Civ. P.
2That order, which contemplated "no further proceedings" the trial court, amounts to a final, appealable judgment. See R.E. Grills, Inc. v. Davison, 641 So. 2d 225, 228 (Ala. 1994).

in

6



2080023; 2080036

These consolidated cases arise out of an action brought in the Jefferson Circuit Court in June 2004 by Joe Fenison ("the employee") against three defendants: his former employer, Birmingham Spring Service, Inc. ("the employer"); Attenta, Inc., the employer's workers' compensation insurance administrator ("Attenta"); and Sarah Hargrove, an employee of Attenta. In that action, the employee sought compensatory and punitive damages based upon the defendants' alleged wrongful conduct in failing to abide by a consent judgment entered in October 2000 on the employee's earlier workers' compensation claim against the employer stemming from a work-related injury to the employee's right arm. The trial court entered a summary judgment in the action in favor of all defendants on January 14, 2008, and stated in that judgment that costs were "taxed as paid." Compare Rule 54(d), Ala. R. Civ. P. ("Except when express provision therefor is made in a statute, costs shall be allowed as of course to the prevailing party unless the court otherwise directs ").
On May 20, 2008, more than four months after the trial court had entered its judgment directing that costs were to be taxed as paid, the employer, Attenta, and Hargrove filed a

2



2080023; 2080036

These consolidated cases arise out of an action brought in the Jefferson Circuit Court in June 2004 by Joe Fenison ("the employee") against three defendants: his former employer, Birmingham Spring Service, Inc. ("the employer"); Attenta, Inc., the employer's workers' compensation insurance administrator ("Attenta"); and Sarah Hargrove, an employee of Attenta. In that action, the employee sought compensatory and punitive damages based upon the defendants' alleged wrongful conduct in failing to abide by a consent judgment entered in October 2000 on the employee's earlier workers' compensation claim against the employer stemming from a work-related injury to the employee's right arm. The trial court entered a summary judgment in the action in favor of all defendants on January 14, 2008, and stated in that judgment that costs were "taxed as paid." Compare Rule 54(d), Ala. R. Civ. P. ("Except when express provision therefor is made in a statute, costs shall be allowed as of course to the prevailing party unless the court otherwise directs ").
On May 20, 2008, more than four months after the trial court had entered its judgment directing that costs were to be taxed as paid, the employer, Attenta, and Hargrove filed a

2



2080023; 2080036

motion, pursuant to Rule 60(b), Ala. R. Civ. P., for relief from the costs provision of the judgment so as to award them costs, including attorney fees, in the total amount of $57,044.65; in that motion, the defendants averred that they had sought relief under Rule 60(b)(6) because "a thorough review of this file as well as invoices, billing, and expenditures subsequent to the entry of this court's final order in January 2008[] clearly showed that this litigation could have been handled much more efficiently and with much less cost to both parties." The motion was accompanied by attachments purporting to be court-reporting and transcription bills from 2005 and 2006 and legal-services statements covering the period from September 2004 through January 2008. Nine days after the defendants' motion was filed, on May 29, 2008, the trial court entered an order granting the defendants' Rule 60(b) motion in part and ordering the employee to pay costs in the amount of $19,529.45.
On May 30, 2008, the employee timely moved to vacate the trial court's order granting the Rule 60(b) motion, averring that a motion pursuant to Rule 60(b) was not an appropriate procedural device by which to seek review of the trial court's

3



2080023; 2080036

motion, pursuant to Rule 60(b), Ala. R. Civ. P., for relief from the costs provision of the judgment so as to award them costs, including attorney fees, in the total amount of $57,044.65; in that motion, the defendants averred that they had sought relief under Rule 60(b)(6) because "a thorough review of this file as well as invoices, billing, and expenditures subsequent to the entry of this court's final order in January 2008[] clearly showed that this litigation could have been handled much more efficiently and with much less cost to both parties." The motion was accompanied by attachments purporting to be court-reporting and transcription bills from 2005 and 2006 and legal-services statements covering the period from September 2004 through January 2008. Nine days after the defendants' motion was filed, on May 29, 2008, the trial court entered an order granting the defendants' Rule 60(b) motion in part and ordering the employee to pay costs in the amount of $19,529.45.
On May 30, 2008, the employee timely moved to vacate the trial court's order granting the Rule 60(b) motion, averring that a motion pursuant to Rule 60(b) was not an appropriate procedural device by which to seek review of the trial court's

3



2080023; 2080036
taxation of costs in its January 14, 2008, judgment. The trial court did not, however, rule upon the employee's motion on or before August 28, 2008, within 90 days of its having been filed, and pursuant to Rule 59.1, Ala. R. Civ. P., that motion was automatically denied. Notwithstanding that denial, on September 15, 2008, the trial court entered an order purporting to grant the employee's motion.
The employee filed a notice of appeal on October 9, 2008, 42 days after the automatic denial of his postjudgment motion to vacate the trial court's judgment as amended by its May 29, 2008, order granting the defendants' motion for relief from the January 14, 2008, judgment. That appeal was docketed in this court as case no. 2080023. On October 15, 2008, within a presumptively reasonable time for seeking review by a petition for an extraordinary writ, see Rule 21(a), Ala. R. App. P., the employer filed a petition for a writ of mandamus challenging the validity of the September 15, 2008, order purporting to grant the employee's May 30, 2008, motion. That petition was docketed in this court as case no. 2080036. Ex mero motu, this court ordered that the two proceedings be consolidated for briefing purposes and ordered that the

4



2080023; 2080036

employer's mandamus petition would be treated as if it were a "cross-appeal" from the judgment under review.
Because the employer's "cross-appeal" is directed to the trial court's most recent order, and may be resolved simply, we address it first. As we have noted, the employee's motion seeking to vacate the trial court's amended judgment was filed on May 30, 2008, but was not ruled upon by August 28, 2008.
Rule 59.1, Ala. R. Civ. P., states that a postjudgment motion to vacate pursuant to Rule 59, Ala. R. Civ. P., may not remain pending in the trial court for more than 90 days unless either "the express consent of all the parties" appears of record or an order of extension is issued by the appellate court to which an appeal of the judgment would lie; under Rule 59.1, any failure by the trial court to rule upon a postjudgment motion within the permitted time "constitute[s] a denial of such motion as of the date of the expiration of the period." On the authority of Ex parte Davidson, 782 So. 2d 237, 240-41 (Ala. 2000), we must conclude that the trial court's order of September 15, 2008, was entered without jurisdiction and was

5



2080023; 2080036

employer's mandamus petition would be treated as if it were a "cross-appeal" from the judgment under review.
Because the employer's "cross-appeal" is directed to the trial court's most recent order, and may be resolved simply, we address it first. As we have noted, the employee's motion seeking to vacate the trial court's amended judgment was filed on May 30, 2008, but was not ruled upon by August 28, 2008.
Rule 59.1, Ala. R. Civ. P., states that a postjudgment motion to vacate pursuant to Rule 59, Ala. R. Civ. P., may not remain pending in the trial court for more than 90 days unless either "the express consent of all the parties" appears of record or an order of extension is issued by the appellate court to which an appeal of the judgment would lie; under Rule 59.1, any failure by the trial court to rule upon a postjudgment motion within the permitted time "constitute[s] a denial of such motion as of the date of the expiration of the period." On the authority of Ex parte Davidson, 782 So. 2d 237, 240-41 (Ala. 2000), we must conclude that the trial court's order of September 15, 2008, was entered without jurisdiction and was

5




2080023; 2080036
a nullity; thus, as to case no. 2080036, we direct the trial court to vacate that void order.1

We next turn to the employee's appeal from the trial court's May 29, 2008, order amending its judgment, in response to the defendants' May 20, 2008, Rule 60(b) motion, so as to tax to the employee a portion of the costs claimed by the defendants.2 Rule 60(b), Ala. R. Civ. P., provides, in

pertinent part:

"On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective

1The employee, with commendable candor, concedes this issue, averring in the statement of facts of his appellate brief that his May 30, 2008, motion was "overruled by operation of law" pursuant to Rule 59.1, Ala. R. Civ. P.
2That order, which contemplated "no further proceedings" the trial court, amounts to a final, appealable judgment. See R.E. Grills, Inc. v. Davison, 641 So. 2d 225, 228 (Ala. 1994).

in

6



2080023; 2080036
a nullity; thus, as to case no. 2080036, we direct the trial court to vacate that void order.1

We next turn to the employee's appeal from the trial court's May 29, 2008, order amending its judgment, in response to the defendants' May 20, 2008, Rule 60(b) motion, so as to tax to the employee a portion of the costs claimed by the defendants.2 Rule 60(b), Ala. R. Civ. P., provides, in

pertinent part:

"On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective

1The employee, with commendable candor, concedes this issue, averring in the statement of facts of his appellate brief that his May 30, 2008, motion was "overruled by operation of law" pursuant to Rule 59.1, Ala. R. Civ. P.
2That order, which contemplated "no further proceedings" the trial court, amounts to a final, appealable judgment. See R.E. Grills, Inc. v. Davison, 641 So. 2d 225, 228 (Ala. 1994).

in

6



2080023; 2080036

application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and  for reasons (1), (2), and (3) not more than four (4)  months after the judgment, order, or proceeding was  entered or taken."
(Emphasis added.)
The employee posits that Rule 60(b) is not a proper
procedural vehicle by which a party may seek relief from a
trial court's taxation of costs. There is authority in
Alabama that supports the employee's position. In City of
Birmingham v. City of Fairfield, 396 So. 2d 692 (Ala. 1981),
the Alabama Supreme Court reviewed a trial court's order
granting a motion, labeled as a Rule 60(b) motion, that had
requested reexamination of the allocation of costs in the
trial court's judgment on the merits of the case. The Alabama
Supreme Court rejected the appellant's attempt to seek
reversal on the basis that Rule 60(b) was not a substitute for
appellate review; in doing so, it opined that the motion,
although ostensibly one filed under Rule 60(b), had in
actuality been a motion to alter, amend, or vacate so as to be
cognizable under Rule 59(e), Ala. R. Civ. P. 396 So. 2d at
695-96. Subsequently, in City of Jasper Civil Service Board
v. Schultz, 412 So. 2d 818 (Ala. Civ. App. 1982), this court

7



2080023; 2080036

application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and  for reasons (1), (2), and (3) not more than four (4)  months after the judgment, order, or proceeding was  entered or taken."
(Emphasis added.)
The employee posits that Rule 60(b) is not a proper
procedural vehicle by which a party may seek relief from a
trial court's taxation of costs. There is authority in
Alabama that supports the employee's position. In City of
Birmingham v. City of Fairfield, 396 So. 2d 692 (Ala. 1981),
the Alabama Supreme Court reviewed a trial court's order
granting a motion, labeled as a Rule 60(b) motion, that had
requested reexamination of the allocation of costs in the
trial court's judgment on the merits of the case. The Alabama
Supreme Court rejected the appellant's attempt to seek
reversal on the basis that Rule 60(b) was not a substitute for
appellate review; in doing so, it opined that the motion,
although ostensibly one filed under Rule 60(b), had in
actuality been a motion to alter, amend, or vacate so as to be
cognizable under Rule 59(e), Ala. R. Civ. P. 396 So. 2d at
695-96. Subsequently, in City of Jasper Civil Service Board
v. Schultz, 412 So. 2d 818 (Ala. Civ. App. 1982), this court

7



2080023; 2080036

application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and  for reasons (1), (2), and (3) not more than four (4)  months after the judgment, order, or proceeding was  entered or taken."
(Emphasis added.)
The employee posits that Rule 60(b) is not a proper
procedural vehicle by which a party may seek relief from a
trial court's taxation of costs. There is authority in
Alabama that supports the employee's position. In City of
Birmingham v. City of Fairfield, 396 So. 2d 692 (Ala. 1981),
the Alabama Supreme Court reviewed a trial court's order
granting a motion, labeled as a Rule 60(b) motion, that had
requested reexamination of the allocation of costs in the
trial court's judgment on the merits of the case. The Alabama
Supreme Court rejected the appellant's attempt to seek
reversal on the basis that Rule 60(b) was not a substitute for
appellate review; in doing so, it opined that the motion,
although ostensibly one filed under Rule 60(b), had in
actuality been a motion to alter, amend, or vacate so as to be
cognizable under Rule 59(e), Ala. R. Civ. P. 396 So. 2d at
695-96. Subsequently, in City of Jasper Civil Service Board
v. Schultz, 412 So. 2d 818 (Ala. Civ. App. 1982), this court

7



2080023; 2080036

application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and  for reasons (1), (2), and (3) not more than four (4)  months after the judgment, order, or proceeding was  entered or taken."
(Emphasis added.)
The employee posits that Rule 60(b) is not a proper
procedural vehicle by which a party may seek relief from a
trial court's taxation of costs. There is authority in
Alabama that supports the employee's position. In City of
Birmingham v. City of Fairfield, 396 So. 2d 692 (Ala. 1981),
the Alabama Supreme Court reviewed a trial court's order
granting a motion, labeled as a Rule 60(b) motion, that had
requested reexamination of the allocation of costs in the
trial court's judgment on the merits of the case. The Alabama
Supreme Court rejected the appellant's attempt to seek
reversal on the basis that Rule 60(b) was not a substitute for
appellate review; in doing so, it opined that the motion,
although ostensibly one filed under Rule 60(b), had in
actuality been a motion to alter, amend, or vacate so as to be
cognizable under Rule 59(e), Ala. R. Civ. P. 396 So. 2d at
695-96. Subsequently, in City of Jasper Civil Service Board
v. Schultz, 412 So. 2d 818 (Ala. Civ. App. 1982), this court

7



2080023; 2080036

application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and  for reasons (1), (2), and (3) not more than four (4)  months after the judgment, order, or proceeding was  entered or taken."
(Emphasis added.)
The employee posits that Rule 60(b) is not a proper
procedural vehicle by which a party may seek relief from a
trial court's taxation of costs. There is authority in
Alabama that supports the employee's position. In City of
Birmingham v. City of Fairfield, 396 So. 2d 692 (Ala. 1981),
the Alabama Supreme Court reviewed a trial court's order
granting a motion, labeled as a Rule 60(b) motion, that had
requested reexamination of the allocation of costs in the
trial court's judgment on the merits of the case. The Alabama
Supreme Court rejected the appellant's attempt to seek
reversal on the basis that Rule 60(b) was not a substitute for
appellate review; in doing so, it opined that the motion,
although ostensibly one filed under Rule 60(b), had in
actuality been a motion to alter, amend, or vacate so as to be
cognizable under Rule 59(e), Ala. R. Civ. P. 396 So. 2d at
695-96. Subsequently, in City of Jasper Civil Service Board
v. Schultz, 412 So. 2d 818 (Ala. Civ. App. 1982), this court

7



2080023; 2080036

application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and  for reasons (1), (2), and (3) not more than four (4)  months after the judgment, order, or proceeding was  entered or taken."
(Emphasis added.)
The employee posits that Rule 60(b) is not a proper
procedural vehicle by which a party may seek relief from a
trial court's taxation of costs. There is authority in
Alabama that supports the employee's position. In City of
Birmingham v. City of Fairfield, 396 So. 2d 692 (Ala. 1981),
the Alabama Supreme Court reviewed a trial court's order
granting a motion, labeled as a Rule 60(b) motion, that had
requested reexamination of the allocation of costs in the
trial court's judgment on the merits of the case. The Alabama
Supreme Court rejected the appellant's attempt to seek
reversal on the basis that Rule 60(b) was not a substitute for
appellate review; in doing so, it opined that the motion,
although ostensibly one filed under Rule 60(b), had in
actuality been a motion to alter, amend, or vacate so as to be
cognizable under Rule 59(e), Ala. R. Civ. P. 396 So. 2d at
695-96. Subsequently, in City of Jasper Civil Service Board
v. Schultz, 412 So. 2d 818 (Ala. Civ. App. 1982), this court

7



2080023; 2080036

application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and  for reasons (1), (2), and (3) not more than four (4)  months after the judgment, order, or proceeding was  entered or taken."
(Emphasis added.)
The employee posits that Rule 60(b) is not a proper
procedural vehicle by which a party may seek relief from a
trial court's taxation of costs. There is authority in
Alabama that supports the employee's position. In City of
Birmingham v. City of Fairfield, 396 So. 2d 692 (Ala. 1981),
the Alabama Supreme Court reviewed a trial court's order
granting a motion, labeled as a Rule 60(b) motion, that had
requested reexamination of the allocation of costs in the
trial court's judgment on the merits of the case. The Alabama
Supreme Court rejected the appellant's attempt to seek
reversal on the basis that Rule 60(b) was not a substitute for
appellate review; in doing so, it opined that the motion,
although ostensibly one filed under Rule 60(b), had in
actuality been a motion to alter, amend, or vacate so as to be
cognizable under Rule 59(e), Ala. R. Civ. P. 396 So. 2d at
695-96. Subsequently, in City of Jasper Civil Service Board
v. Schultz, 412 So. 2d 818 (Ala. Civ. App. 1982), this court

7



2080023; 2080036

application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and  for reasons (1), (2), and (3) not more than four (4)  months after the judgment, order, or proceeding was  entered or taken."
(Emphasis added.)
The employee posits that Rule 60(b) is not a proper
procedural vehicle by which a party may seek relief from a
trial court's taxation of costs. There is authority in
Alabama that supports the employee's position. In City of
Birmingham v. City of Fairfield, 396 So. 2d 692 (Ala. 1981),
the Alabama Supreme Court reviewed a trial court's order
granting a motion, labeled as a Rule 60(b) motion, that had
requested reexamination of the allocation of costs in the
trial court's judgment on the merits of the case. The Alabama
Supreme Court rejected the appellant's attempt to seek
reversal on the basis that Rule 60(b) was not a substitute for
appellate review; in doing so, it opined that the motion,
although ostensibly one filed under Rule 60(b), had in
actuality been a motion to alter, amend, or vacate so as to be
cognizable under Rule 59(e), Ala. R. Civ. P. 396 So. 2d at
695-96. Subsequently, in City of Jasper Civil Service Board
v. Schultz, 412 So. 2d 818 (Ala. Civ. App. 1982), this court

7



2080023; 2080036

application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and  for reasons (1), (2), and (3) not more than four (4)  months after the judgment, order, or proceeding was  entered or taken."
(Emphasis added.)
The employee posits that Rule 60(b) is not a proper
procedural vehicle by which a party may seek relief from a
trial court's taxation of costs. There is authority in
Alabama that supports the employee's position. In City of
Birmingham v. City of Fairfield, 396 So. 2d 692 (Ala. 1981),
the Alabama Supreme Court reviewed a trial court's order
granting a motion, labeled as a Rule 60(b) motion, that had
requested reexamination of the allocation of costs in the
trial court's judgment on the merits of the case. The Alabama
Supreme Court rejected the appellant's attempt to seek
reversal on the basis that Rule 60(b) was not a substitute for
appellate review; in doing so, it opined that the motion,
although ostensibly one filed under Rule 60(b), had in
actuality been a motion to alter, amend, or vacate so as to be
cognizable under Rule 59(e), Ala. R. Civ. P. 396 So. 2d at
695-96. Subsequently, in City of Jasper Civil Service Board
v. Schultz, 412 So. 2d 818 (Ala. Civ. App. 1982), this court

7



2080023; 2080036

application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and  for reasons (1), (2), and (3) not more than four (4)  months after the judgment, order, or proceeding was  entered or taken."
(Emphasis added.)
The employee posits that Rule 60(b) is not a proper
procedural vehicle by which a party may seek relief from a
trial court's taxation of costs. There is authority in
Alabama that supports the employee's position. In City of
Birmingham v. City of Fairfield, 396 So. 2d 692 (Ala. 1981),
the Alabama Supreme Court reviewed a trial court's order
granting a motion, labeled as a Rule 60(b) motion, that had
requested reexamination of the allocation of costs in the
trial court's judgment on the merits of the case. The Alabama
Supreme Court rejected the appellant's attempt to seek
reversal on the basis that Rule 60(b) was not a substitute for
appellate review; in doing so, it opined that the motion,
although ostensibly one filed under Rule 60(b), had in
actuality been a motion to alter, amend, or vacate so as to be
cognizable under Rule 59(e), Ala. R. Civ. P. 396 So. 2d at
695-96. Subsequently, in City of Jasper Civil Service Board
v. Schultz, 412 So. 2d 818 (Ala. Civ. App. 1982), this court

7



2080023; 2080036

application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and  for reasons (1), (2), and (3) not more than four (4)  months after the judgment, order, or proceeding was  entered or taken."
(Emphasis added.)
The employee posits that Rule 60(b) is not a proper
procedural vehicle by which a party may seek relief from a
trial court's taxation of costs. There is authority in
Alabama that supports the employee's position. In City of
Birmingham v. City of Fairfield, 396 So. 2d 692 (Ala. 1981),
the Alabama Supreme Court reviewed a trial court's order
granting a motion, labeled as a Rule 60(b) motion, that had
requested reexamination of the allocation of costs in the
trial court's judgment on the merits of the case. The Alabama
Supreme Court rejected the appellant's attempt to seek
reversal on the basis that Rule 60(b) was not a substitute for
appellate review; in doing so, it opined that the motion,
although ostensibly one filed under Rule 60(b), had in
actuality been a motion to alter, amend, or vacate so as to be
cognizable under Rule 59(e), Ala. R. Civ. P. 396 So. 2d at
695-96. Subsequently, in City of Jasper Civil Service Board
v. Schultz, 412 So. 2d 818 (Ala. Civ. App. 1982), this court

7



2080023; 2080036

application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and  for reasons (1), (2), and (3) not more than four (4)  months after the judgment, order, or proceeding was  entered or taken."
(Emphasis added.)
The employee posits that Rule 60(b) is not a proper
procedural vehicle by which a party may seek relief from a
trial court's taxation of costs. There is authority in
Alabama that supports the employee's position. In City of
Birmingham v. City of Fairfield, 396 So. 2d 692 (Ala. 1981),
the Alabama Supreme Court reviewed a trial court's order
granting a motion, labeled as a Rule 60(b) motion, that had
requested reexamination of the allocation of costs in the
trial court's judgment on the merits of the case. The Alabama
Supreme Court rejected the appellant's attempt to seek
reversal on the basis that Rule 60(b) was not a substitute for
appellate review; in doing so, it opined that the motion,
although ostensibly one filed under Rule 60(b), had in
actuality been a motion to alter, amend, or vacate so as to be
cognizable under Rule 59(e), Ala. R. Civ. P. 396 So. 2d at
695-96. Subsequently, in City of Jasper Civil Service Board
v. Schultz, 412 So. 2d 818 (Ala. Civ. App. 1982), this court

7



2080023; 2080036

application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and  for reasons (1), (2), and (3) not more than four (4)  months after the judgment, order, or proceeding was  entered or taken."
(Emphasis added.)
The employee posits that Rule 60(b) is not a proper
procedural vehicle by which a party may seek relief from a
trial court's taxation of costs. There is authority in
Alabama that supports the employee's position. In City of
Birmingham v. City of Fairfield, 396 So. 2d 692 (Ala. 1981),
the Alabama Supreme Court reviewed a trial court's order
granting a motion, labeled as a Rule 60(b) motion, that had
requested reexamination of the allocation of costs in the
trial court's judgment on the merits of the case. The Alabama
Supreme Court rejected the appellant's attempt to seek
reversal on the basis that Rule 60(b) was not a substitute for
appellate review; in doing so, it opined that the motion,
although ostensibly one filed under Rule 60(b), had in
actuality been a motion to alter, amend, or vacate so as to be
cognizable under Rule 59(e), Ala. R. Civ. P. 396 So. 2d at
695-96. Subsequently, in City of Jasper Civil Service Board
v. Schultz, 412 So. 2d 818 (Ala. Civ. App. 1982), this court

7



2080023; 2080036

application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and  for reasons (1), (2), and (3) not more than four (4)  months after the judgment, order, or proceeding was  entered or taken."
(Emphasis added.)
The employee posits that Rule 60(b) is not a proper
procedural vehicle by which a party may seek relief from a
trial court's taxation of costs. There is authority in
Alabama that supports the employee's position. In City of
Birmingham v. City of Fairfield, 396 So. 2d 692 (Ala. 1981),
the Alabama Supreme Court reviewed a trial court's order
granting a motion, labeled as a Rule 60(b) motion, that had
requested reexamination of the allocation of costs in the
trial court's judgment on the merits of the case. The Alabama
Supreme Court rejected the appellant's attempt to seek
reversal on the basis that Rule 60(b) was not a substitute for
appellate review; in doing so, it opined that the motion,
although ostensibly one filed under Rule 60(b), had in
actuality been a motion to alter, amend, or vacate so as to be
cognizable under Rule 59(e), Ala. R. Civ. P. 396 So. 2d at
695-96. Subsequently, in City of Jasper Civil Service Board
v. Schultz, 412 So. 2d 818 (Ala. Civ. App. 1982), this court

7



2080023; 2080036

application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and  for reasons (1), (2), and (3) not more than four (4)  months after the judgment, order, or proceeding was  entered or taken."
(Emphasis added.)
The employee posits that Rule 60(b) is not a proper
procedural vehicle by which a party may seek relief from a
trial court's taxation of costs. There is authority in
Alabama that supports the employee's position. In City of
Birmingham v. City of Fairfield, 396 So. 2d 692 (Ala. 1981),
the Alabama Supreme Court reviewed a trial court's order
granting a motion, labeled as a Rule 60(b) motion, that had
requested reexamination of the allocation of costs in the
trial court's judgment on the merits of the case. The Alabama
Supreme Court rejected the appellant's attempt to seek
reversal on the basis that Rule 60(b) was not a substitute for
appellate review; in doing so, it opined that the motion,
although ostensibly one filed under Rule 60(b), had in
actuality been a motion to alter, amend, or vacate so as to be
cognizable under Rule 59(e), Ala. R. Civ. P. 396 So. 2d at
695-96. Subsequently, in City of Jasper Civil Service Board
v. Schultz, 412 So. 2d 818 (Ala. Civ. App. 1982), this court

7



2080023; 2080036

application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and  for reasons (1), (2), and (3) not more than four (4)  months after the judgment, order, or proceeding was  entered or taken."
(Emphasis added.)
The employee posits that Rule 60(b) is not a proper
procedural vehicle by which a party may seek relief from a
trial court's taxation of costs. There is authority in
Alabama that supports the employee's position. In City of
Birmingham v. City of Fairfield, 396 So. 2d 692 (Ala. 1981),
the Alabama Supreme Court reviewed a trial court's order
granting a motion, labeled as a Rule 60(b) motion, that had
requested reexamination of the allocation of costs in the
trial court's judgment on the merits of the case. The Alabama
Supreme Court rejected the appellant's attempt to seek
reversal on the basis that Rule 60(b) was not a substitute for
appellate review; in doing so, it opined that the motion,
although ostensibly one filed under Rule 60(b), had in
actuality been a motion to alter, amend, or vacate so as to be
cognizable under Rule 59(e), Ala. R. Civ. P. 396 So. 2d at
695-96. Subsequently, in City of Jasper Civil Service Board
v. Schultz, 412 So. 2d 818 (Ala. Civ. App. 1982), this court

7



2080023; 2080036

application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and  for reasons (1), (2), and (3) not more than four (4)  months after the judgment, order, or proceeding was  entered or taken."
(Emphasis added.)
The employee posits that Rule 60(b) is not a proper
procedural vehicle by which a party may seek relief from a
trial court's taxation of costs. There is authority in
Alabama that supports the employee's position. In City of
Birmingham v. City of Fairfield, 396 So. 2d 692 (Ala. 1981),
the Alabama Supreme Court reviewed a trial court's order
granting a motion, labeled as a Rule 60(b) motion, that had
requested reexamination of the allocation of costs in the
trial court's judgment on the merits of the case. The Alabama
Supreme Court rejected the appellant's attempt to seek
reversal on the basis that Rule 60(b) was not a substitute for
appellate review; in doing so, it opined that the motion,
although ostensibly one filed under Rule 60(b), had in
actuality been a motion to alter, amend, or vacate so as to be
cognizable under Rule 59(e), Ala. R. Civ. P. 396 So. 2d at
695-96. Subsequently, in City of Jasper Civil Service Board
v. Schultz, 412 So. 2d 818 (Ala. Civ. App. 1982), this court

7



2080023; 2080036

application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and  for reasons (1), (2), and (3) not more than four (4)  months after the judgment, order, or proceeding was  entered or taken."
(Emphasis added.)
The employee posits that Rule 60(b) is not a proper
procedural vehicle by which a party may seek relief from a
trial court's taxation of costs. There is authority in
Alabama that supports the employee's position. In City of
Birmingham v. City of Fairfield, 396 So. 2d 692 (Ala. 1981),
the Alabama Supreme Court reviewed a trial court's order
granting a motion, labeled as a Rule 60(b) motion, that had
requested reexamination of the allocation of costs in the
trial court's judgment on the merits of the case. The Alabama
Supreme Court rejected the appellant's attempt to seek
reversal on the basis that Rule 60(b) was not a substitute for
appellate review; in doing so, it opined that the motion,
although ostensibly one filed under Rule 60(b), had in
actuality been a motion to alter, amend, or vacate so as to be
cognizable under Rule 59(e), Ala. R. Civ. P. 396 So. 2d at
695-96. Subsequently, in City of Jasper Civil Service Board
v. Schultz, 412 So. 2d 818 (Ala. Civ. App. 1982), this court

7



2080023; 2080036

application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and  for reasons (1), (2), and (3) not more than four (4)  months after the judgment, order, or proceeding was  entered or taken."
(Emphasis added.)
The employee posits that Rule 60(b) is not a proper
procedural vehicle by which a party may seek relief from a
trial court's taxation of costs. There is authority in
Alabama that supports the employee's position. In City of
Birmingham v. City of Fairfield, 396 So. 2d 692 (Ala. 1981),
the Alabama Supreme Court reviewed a trial court's order
granting a motion, labeled as a Rule 60(b) motion, that had
requested reexamination of the allocation of costs in the
trial court's judgment on the merits of the case. The Alabama
Supreme Court rejected the appellant's attempt to seek
reversal on the basis that Rule 60(b) was not a substitute for
appellate review; in doing so, it opined that the motion,
although ostensibly one filed under Rule 60(b), had in
actuality been a motion to alter, amend, or vacate so as to be
cognizable under Rule 59(e), Ala. R. Civ. P. 396 So. 2d at
695-96. Subsequently, in City of Jasper Civil Service Board
v. Schultz, 412 So. 2d 818 (Ala. Civ. App. 1982), this court

7



2080023; 2080036

reversed an order issued by a trial court that had purported to grant a party's pro se oral motion that had been presented more than four months after an amended judgment taxing costs against him; in Schultz, we characterized City of Birmingham as having held that a Rule 60(b) motion "was not a proper procedural device by which to seek a reconsideration of the issue of taxing costs," and we ruled that the oral motion could only be properly viewed as an untimely Rule 59(e)
motion. 412 So. 2d at 818-19.
However, we reached a seemingly contrary conclusion in Rebel Oil Co. v. Pike, 473 So. 2d 529 (Ala. Civ. App. 1985), in which we construed a request to amend a judgment so as to provide for a lump-sum award of attorney fees -- an element of costs -- as cognizable under Rule 60(b). Because, as we explain herein, Rebel Oil casts doubt upon the correctness of the trial court's May 29, 2008, order in other respects, we will assume that Rebel Oil correctly determined that some portion of Rule 60(b) may, in a proper case, serve as a basis for seeking relief from the cost provisions of a judgment.
"In order to obtain Rule 60(b) relief, the movant must allege and prove one of the grounds in the rule." Briscoe v.

8



2080023; 2080036

reversed an order issued by a trial court that had purported to grant a party's pro se oral motion that had been presented more than four months after an amended judgment taxing costs against him; in Schultz, we characterized City of Birmingham as having held that a Rule 60(b) motion "was not a proper procedural device by which to seek a reconsideration of the issue of taxing costs," and we ruled that the oral motion could only be properly viewed as an untimely Rule 59(e)
motion. 412 So. 2d at 818-19.
However, we reached a seemingly contrary conclusion in Rebel Oil Co. v. Pike, 473 So. 2d 529 (Ala. Civ. App. 1985), in which we construed a request to amend a judgment so as to provide for a lump-sum award of attorney fees -- an element of costs -- as cognizable under Rule 60(b). Because, as we explain herein, Rebel Oil casts doubt upon the correctness of the trial court's May 29, 2008, order in other respects, we will assume that Rebel Oil correctly determined that some portion of Rule 60(b) may, in a proper case, serve as a basis for seeking relief from the cost provisions of a judgment.
"In order to obtain Rule 60(b) relief, the movant must allege and prove one of the grounds in the rule." Briscoe v.

8



2080023; 2080036

reversed an order issued by a trial court that had purported to grant a party's pro se oral motion that had been presented more than four months after an amended judgment taxing costs against him; in Schultz, we characterized City of Birmingham as having held that a Rule 60(b) motion "was not a proper procedural device by which to seek a reconsideration of the issue of taxing costs," and we ruled that the oral motion could only be properly viewed as an untimely Rule 59(e)
motion. 412 So. 2d at 818-19.
However, we reached a seemingly contrary conclusion in Rebel Oil Co. v. Pike, 473 So. 2d 529 (Ala. Civ. App. 1985), in which we construed a request to amend a judgment so as to provide for a lump-sum award of attorney fees -- an element of costs -- as cognizable under Rule 60(b). Because, as we explain herein, Rebel Oil casts doubt upon the correctness of the trial court's May 29, 2008, order in other

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