HEALTHSOUTH CORPORATION v. Brookwood Health Services, Inc.

814 So. 2d 267 (2000)

HEALTHSOUTH CORPORATION v. BROOKWOOD HEALTH SERVICES, INC. Brookwood Health Services, Inc. v. HealthSouth Corporation.

2990511.

Court of Civil Appeals of Alabama.

August 18, 2000.

Rehearing Denied October 27, 2000.

Certiorari Quashed August 31, 2001.

Peck Fox of Maynard, Cooper & Gale, P.C., Montgomery; and Derrell Fancher of Fancher & Gatch, Clanton, for appellant/cross appellee HealthSouth Corp.

John T. Mooresmith, John C. Morrow, and Cary Tynes Walheim of Burr & Forman, L.L.P., Birmingham, for appellee/cross appellant Brookwood Health Services, Inc.

Alabama Supreme Court 1000278.

CRAWLEY, Judge.

Brookwood Health Services, Inc., filed a petition for judicial review in the Montgomery Circuit Court, against the State Health Planning and Development Agency ("SHPDA") and HealthSouth Corporation. The circuit court entered a judgment reversing SHPDA's decision on September 2, 1999. HealthSouth filed a postjudgment motion on September 30, 1999. On December 29, 1999, pursuant to Rule 59.1, Ala. R. Civ. P., HealthSouth filed a consent to extend the time for the circuit court to rule on HealthSouth's postjudgment motion, to January 17, 2000. On February 3, 2000, Brookwood filed a "Notice of Consent for Additional Time," stating that it had consented to the extension as stated by HealthSouth on December 29, 1999. The trial court never ruled on the postjudgment motion, and HealthSouth filed a notice of appeal on February 15, 2000. *268 Brookwood filed a cross-appeal on March 1, 2000.

We conclude that the appeal and the cross-appeal are untimely. Rule 59.1 provides that a postjudgment motion will be denied by operation of law 90 days after it is filed "unless with the express consent of all the parties, which consent shall appear of record" (emphasis added). The record contains no consent by SHPDA to the extension. Also, Brookwood's consent did not "appear of record" until February 3, 2000, after the 90 days had elapsed.

Because SHPDA never consented to the extension and because Brookwood's consent was provided late, the trial court's judgment was denied by operation of law on December 29, 1999, the 90th day after the September 30, 1999, judgment. The time for HealthSouth to file its notice of appeal expired on February 9, 2000, the 42nd day after December 29, 1999. See Rule 4(a)(1), Ala. R.App. P. Therefore, HealthSouth's February 15, 2000, notice of appeal is untimely. Brookwood's March 1, 2000, cross-appeal is also untimely. See Rule 4(a)(2), Ala. R.App. P. (providing that a cross-appeal must be filed within 14 days of a timely notice of appeal, or within 42 days of the trial court's judgment).

APPEALS DISMISSED.

ROBERTSON, P.J., and MONROE, J., concur.

YATES, J., concurs in the result.

THOMPSON, J., recuses himself.