When a Continuance Extends Rule 59.1: Alabama Supreme Court Requires Continuance Motions and Orders to Appear in the Appellate Record

When a Continuance Extends Rule 59.1: Alabama Supreme Court Requires Continuance Motions and Orders to Appear in the Appellate Record

Introduction

In Teresa Williams and Barney’s Childcare and Learning Center, Inc., d/b/a Pooh Bear Academy v. Debbie Dodd et al. (Ala. Sept. 26, 2025), the Supreme Court of Alabama issued a substituted opinion that does two important things. First, on rehearing, it clarifies a critical interaction between Alabama Rule of Civil Procedure 59.1 (postjudgment motion deadlines) and Alabama Rule of Appellate Procedure 10(a)(2) (exclusions from the record on appeal). Specifically, where the parties’ consent to continue a postjudgment hearing beyond 90 days is the basis for extending the trial court’s time to rule under Rule 59.1 (as amended in 2020), the continuance motion and order must be included in the appellate record, notwithstanding Rule 10(a)(2)’s general exclusion of “motion[s] and order[s] of continuance.” Otherwise, an appellate court must treat the postjudgment motion as denied by operation of law at the 90-day mark for purposes of calculating the notice-of-appeal deadline.

Second, turning to the merits, the Court affirms the trial court’s disposition based on collateral estoppel. Although the trial court labeled its ruling a Rule 12(b)(6) dismissal, it relied on materials outside the complaint (the administrative decisions), thereby converting the motions to dismiss into motions for summary judgment. The Court holds the conversion proper and affirms the judgment because the plaintiffs’ appellate briefing failed to demonstrate error under the collateral-estoppel standards and did not comply with Rule 28(a)(10).

The case arises from a contentious licensing dispute between a Montgomery day-care provider and officials and employees of the Alabama and Elmore County Departments of Human Resources (collectively, the “DHR employees”). After an administrative law judge (ALJ) conditionally affirmed ADHR’s license revocation and renewal denial, ADHR subsequently reinspected and re-licensed the facility; a later appeal was dismissed as moot. The day-care operator and center then sued individual DHR employees in tort. The circuit court dismissed based on collateral estoppel; the Supreme Court now affirms.

Summary of the Opinion

The Supreme Court, on rehearing ex mero motu, withdraws its prior opinion and substitutes this decision. It holds:

  • Jurisdiction/timeliness: The notice of appeal was timely because the parties’ written, on-record consent to continue the postjudgment hearing beyond the 90-day Rule 59.1 period was filed before the 90 days expired. Given the 2020 amendment to Rule 59.1 deeming consent to continue a hearing beyond 90 days to include consent to extend the time to rule, the continuance extended the trial court’s ruling period. The Court permits supplementation of the record to include the continuance motion and order (which had been omitted under Rule 10(a)(2)). Importantly, the Court clarifies that going forward, when a continuance is the sole record evidence of consent to extend the Rule 59.1 period, the continuance motion and order must be included in the appellate record.
  • Merits/procedure: Because the circuit court considered administrative decisions attached to the motions to dismiss, it effectively converted the motions into motions for summary judgment.
  • Merits/substance: The appellants’ collateral-estoppel argument failed to meet Rule 28(a)(10)’s requirements and conflated res judicata and collateral estoppel. They also did not address privity. The Court therefore affirms the judgment on the stated ground of collateral estoppel, without reaching State immunity or State-agent immunity.

Background and Procedural History

The day-care operator applied to renew the center’s license. An employee (V.F.) had an “indicated” child-abuse report in ADHR’s central registry based on a 1997 incident. ADHR staff (Bridgette Smith and supervisor Debbie Dodd) treated that as a deficiency and rejected any waiver. The operator terminated V.F., then clashed with ADHR staff over the contents of the termination letter, allegations of continued employment, and access to inspect. Dodd contacted EDHR alleging inadequate supervision and suspicion V.F. still worked there; EDHR’s line caseworker found no such indication, but at the supervisor’s direction obtained a criminal warrant. ADHR issued a temporary suspension and immediate closure; police arrested the operator. ADHR publicized the suspension; criminal charges were later dismissed.

ADHR later sent an intent-to-revoke letter and denied renewal. After a hearing, an ALJ conditionally affirmed revocation and renewal denial, directing inspection and licensing upon compliance. ADHR reinspected and issued a license. The circuit court affirmed the ALJ; the Court of Civil Appeals later dismissed the appeal as moot because the suspension expired and a new license had issued.

The operator and center then filed a tort action against DHR employees (sued in individual capacities, and the ADHR Commissioner also in her official capacity) alleging extortion, outrage, wantonness, defamation, negligence, and malicious prosecution, and sought a declaratory judgment regarding suitability determinations for employees with indicated CA/N reports. The defendants moved to dismiss under Rule 12(b)(6), attaching the ALJ, circuit, and civil-appeals decisions and pleading immunity; they later added collateral estoppel. The circuit court granted dismissal on collateral-estoppel grounds. A postjudgment motion was filed; the hearing was continued beyond 90 days by consent. Initially the Supreme Court deemed the appeal untimely, but on rehearing and after record supplementation under Rule 10(f), the Court found the notice of appeal timely and proceeded to the merits, ultimately affirming.

Analysis

Precedents and Rules Cited and How They Shaped the Decision

The Court’s jurisdictional and merits rulings are rooted in a suite of authorities:

  • Rule 59.1, Ala. R. Civ. P. (as amended in 2020): Historically, Rule 59.1 mandated that no postjudgment motion remain pending more than 90 days “unless with the express consent of all the parties, which consent shall appear of record.” Before 2020, Alabama law held that consent to continue a hearing did not equal consent to extend the trial court’s time to rule. The 2020 amendment added that consent to continue a postjudgment hearing beyond 90 days is deemed consent to extend the time to rule as well—provided that consent appears of record and is effective before the 90 days run. The Court applies these requirements here.
  • Ex parte Caterpillar, Inc., 708 So. 2d 142 (Ala. 1997), and Scheilz v. Scheilz, 579 So. 2d 674 (Ala. Civ. App. 1991): Consent must appear of record and must do so before the 90-day period expires; consent appearing later is ineffective. The Court reaffirmed these timing and record-appearance requirements.
  • Rule 10(a)(2), Ala. R. App. P.: Ordinarily, the record on appeal omits “motion[s] and order[s] of continuance” unless a particular question about them was raised and decided in the trial court and they are specifically designated. The Court reconciles Rule 10(a)(2) with amended Rule 59.1 by announcing a prospective clarifying rule for appellate records (discussed below).
  • Rule 10(f), Ala. R. App. P.: Permits supplementation of the record. The Court allowed supplementation here because the omission flowed from an understandable tension between Rule 10(a)(2) and amended Rule 59.1.
  • Owens v. National Security of Alabama, Inc., 454 So. 2d 1387, 1388 n.2 (Ala. 1984), and Ex parte Harrington, 289 So. 3d 1232, 1237 n.5 (Ala. 2019): A judgment disposing of fewer than all defendants is final where unserved defendants remain; this sustained the finality of the circuit court’s judgment notwithstanding an unserved defendant (Binkley).
  • Nance v. Matthews, 622 So. 2d 297 (Ala. 1993): Standard for Rule 12(b)(6) dismissals; “beyond doubt” that no set of facts would entitle relief. This framed the baseline but later gave way to conversion principles.
  • Ex parte Scannelly, 74 So. 3d 432 (Ala. 2011), and Lloyd Noland Foundation, Inc. v. HealthSouth Corp., 979 So. 2d 784 (Ala. 2007): Affirmative defenses like res judicata and collateral estoppel can be raised on a motion to dismiss only if they are clear on the face of the complaint; otherwise, raising them necessitates conversion to summary judgment. The complaint here did not reference the prior administrative litigation.
  • Ex parte Liberty National Life Ins. Co., 825 So. 2d 758 (Ala. 2002), and Ex parte Price, 244 So. 3d 949 (Ala. 2017): Attaching materials to a motion to dismiss does not automatically convert it; conversion occurs if the court actually considers matters outside the pleadings. The trial court did so here (by referencing the ALJ and related decisions), triggering conversion.
  • A.W. ex rel. Hogeland v. Wood, 57 So. 3d 751, 756 (Ala. 2010), and Boles v. Blackstock, 484 So. 2d 1077, 1079 (Ala. 1986): Where matters outside the pleadings are considered on a Rule 12(b)(6) motion, the motion is converted to summary judgment. The Court applies that principle to characterize the circuit court’s action accurately.
  • Hales v. First National Bank of Mobile, 380 So. 2d 797 (Ala. 1980): Parties are entitled to notice and an opportunity to respond upon conversion; however, prejudice must be preserved. The appellants did not raise lack-of-notice-of-conversion, so no reversal on this ground.
  • Ex parte Buffalo Rock Co., 941 So. 2d 273 (Ala. 2006): Sets out the five elements for applying collateral estoppel to administrative determinations: identity of parties or privies; identity of issues; adequate opportunity to litigate; issues actually litigated and determined; and necessity of determination to the decision. The Court references this framework in evaluating appellants’ arguments.
  • Lee L. Saad Construction Co., Inc. v. DPF Architects, P.C., 851 So. 2d 507 (Ala. 2002): Clarifies the distinction between res judicata (claim preclusion) and collateral estoppel (issue preclusion). The appellants conflated the two.
  • Griggs v. NHS Management, LLC, [Ms. SC-2023-0784, Nov. 15, 2024] ___ So. 3d ___ (Ala. 2024), Davis v. Sterne, Agee & Leach, Inc., 965 So. 2d 1076 (Ala. 2007), and S.B. v. Saint James School, 959 So. 2d 72 (Ala. 2006): Appellate briefs must contain arguments with developed analysis and specific authority; citing only a general rule (such as a list of elements) is not enough. This deficiency drove the affirmance on collateral estoppel.
  • Liberty National Life Insurance Co. v. University of Alabama Health Services Foundation, P.C., 881 So. 2d 1013, 1020 (Ala. 2003): The appellate court may affirm on any valid ground consistent with due process. The Court therefore did not need to reach State immunity or State-agent immunity defenses.

Legal Reasoning

1) Jurisdiction and Timeliness: Harmonizing Rule 59.1 and Rule 10(a)(2)

The Court’s jurisdictional analysis rests on a precise reading of postjudgment deadlines. Before 2020, a party’s consent to continue a hearing on a postjudgment motion did not extend the trial court’s 90-day ruling period under Rule 59.1, and any extension required express consent “appearing of record” before the 90-day period lapsed. The 2020 amendment changed the effect of a continuance: consent to continue a hearing beyond 90 days is now deemed consent to extend the time to rule. But two guardrails remain unchanged: the consent must appear in the record, and it must do so before the 90-day period runs.

The complication here was Rule 10(a)(2)’s general instruction that motions and orders of continuance are not included in the appellate record unless a particular question about them was raised and decided, and they are specifically designated. The appellants omitted the continuance motion and order out of deference to Rule 10(a)(2). As a result, on original submission the Supreme Court treated the appeal as untimely. On rehearing, however, the Court allowed supplementation, recognizing that the omission arose from a “potential conflict” between Rule 10(a)(2) and amended Rule 59.1 and that the consent had in fact been filed of record before day 90.

The Court then issued a forward-looking directive: when the only entry in the trial court’s record evidencing consent to extend the Rule 59.1 period is a motion to continue the postjudgment hearing beyond 90 days (and any order granting it), those documents must be included in the appellate record. Absent their inclusion, the appellate court must presume the postjudgment motion was denied by operation of law at the 90-day mark when assessing the timeliness of the notice of appeal.

2) Conversion of Rule 12(b)(6) to Summary Judgment

Because the circuit court relied on and quoted from administrative decisions attached to the motions to dismiss, the Supreme Court treated the proceedings as converted to summary judgment under Alabama law. Conversion occurs based on the court’s actual consideration of materials outside the pleadings, not merely on attachments to the motion. The appellants did not preserve any lack-of-notice-of-conversion argument, so the Court proceeded to review the judgment on its merits as a summary judgment.

3) Collateral Estoppel and Appellate Briefing Deficiencies

On the substance, the appellants argued that collateral estoppel did not apply because (a) the DHR employees were not parties to the administrative hearing; (b) their tort claims were not within the scope of the administrative proceeding; and (c) the administrative process did not adjudicate those tort claims. The Court found these arguments largely misdirected: collateral estoppel is issue preclusion, not claim preclusion. The question is not whether the tort claims were litigated, but rather whether the discrete issues necessary to those claims (e.g., grounds for suspension/revocation) were actually litigated and necessarily decided in the administrative proceeding.

More fundamentally, the appellants’ briefing fell short under Rule 28(a)(10). They cited Buffalo Rock only for the five collateral-estoppel elements, then provided conclusory statements without developed analysis or authority applying those elements to the ALJ’s findings. They also ignored privity, offering nothing to refute potential privity between ADHR/EDHR and their employees in the context of issue preclusion. Under Alabama appellate standards, such undeveloped argumentation is insufficient to show error, and the Supreme Court accordingly affirmed without needing to address the immunity defenses.

Impact and Practical Implications

A. Appellate Practice: Record-Building After the 2020 Amendment to Rule 59.1

This opinion delivers a concrete procedural rule for practitioners:

  • If the parties rely on a continuance to extend the trial court’s Rule 59.1 90-day period for ruling on a postjudgment motion, ensure the consent appears of record before the 90 days expire.
  • Designate the continuance motion and order for inclusion in the record on appeal, notwithstanding Rule 10(a)(2)’s general exclusion. The Supreme Court has instructed that in this circumstance, those documents “must” be included. If they are not in the appellate record, the appellate court must treat the postjudgment motion as denied by operation of law and may deem a subsequent notice of appeal untimely.
  • Best practice: file a joint written consent or a stipulation referencing Rule 59.1’s 2020 amendment, and obtain a written order on the continuance that is docketed before day 90. Then specifically designate those items for the record under Rule 10(a).

B. Trial Practice: Anticipating Conversion and Creating a Clean Record

  • When raising affirmative defenses like collateral estoppel in a Rule 12(b)(6) motion, understand that the court cannot consider materials outside the complaint without converting to summary judgment. If outside materials are submitted or discussed, be prepared for Rule 56 treatment.
  • Preserve notice issues: if the court appears to consider extra-pleading materials, request formal notice of conversion and an opportunity to submit Rule 56 materials. Failure to object can waive the issue (Hales).
  • Consider moving directly for summary judgment on preclusion-based defenses, presenting a complete record and avoiding conversion ambiguity.

C. Substantive Litigation Against Government Employees: Collateral Estoppel from Administrative Decisions

While the Court’s affirmance rests on briefing deficiencies, the case serves as a cautionary tale: administrative decisions can collaterally estop subsequent civil litigation if the Buffalo Rock elements are met, including privity and identity of issues. Litigants seeking to avoid estoppel must:

  • Identify with precision the issues actually litigated before the ALJ and whether those issues were necessary to the agency’s decision.
  • Argue why alleged tort elements (e.g., lack of probable cause for malicious prosecution, falsity for defamation, or “extreme and outrageous” conduct for outrage) were not resolved by the administrative tribunal’s determinations.
  • Address privity between the agency and individual employees; failure to do so will likely be fatal to an anti-estoppel argument.

D. Immunity Defenses Left Unresolved

The Court did not reach State immunity or State-agent immunity, affirming on collateral estoppel alone and noting it can affirm on any valid ground consistent with due process. Practitioners should not assume the result hints at the strength or weakness of those defenses; they remain fully viable and often dispositive in suits against state officials and employees.

Complex Concepts Simplified

  • Rule 59.1’s 90-day clock: Alabama trial courts generally have 90 days to rule on postjudgment motions. If they do not, the motion is denied automatically (“by operation of law”) when the 90 days expire—unless the parties’ express consent to extend appears of record before then, or an appellate court extends the time.
  • 2020 amendment to Rule 59.1: If the parties consent to continue a postjudgment hearing beyond 90 days, that consent is deemed also to extend the court’s time to rule.
  • Rule 10(a)(2): The appellate record generally excludes continuance motions and orders. But if a particular question about them was raised and decided, and they are specifically designated, they can and should be included—especially when they bear on Rule 59.1 timing. This decision makes clear they must be included when they are the only record basis to extend Rule 59.1 time.
  • Denied “by operation of law”: A procedural denial that occurs automatically under a rule (here, Rule 59.1) when no ruling issues within the prescribed period and no proper extension exists.
  • Ex mero motu rehearing: The appellate court, on its own initiative, sets a case for rehearing to correct or clarify an aspect of its earlier opinion.
  • Collateral estoppel (issue preclusion): Prevents relitigation of an issue actually litigated and necessarily decided in a prior proceeding, involving the same parties or their privies, and where the party against whom it is asserted had a full and fair opportunity to litigate the issue.
  • Res judicata (claim preclusion): Bars entire claims that were, or could have been, litigated in prior litigation involving the same parties or their privies and arising out of the same transaction.
  • Privity: A legal concept denoting a close relationship between a party to a prior proceeding and a non-party such that the non-party’s interests were adequately represented. In administrative cases, privity often exists between an agency and its employees for issues decided in the agency’s adjudication.
  • Conversion of Rule 12(b)(6): When a court considers materials outside the pleadings to decide a motion to dismiss for failure to state a claim, the motion is “converted” to a motion for summary judgment, requiring adherence to Rule 56 standards.
  • Rule 28(a)(10): Appellate briefs must present developed arguments with specific citations to legal authorities and the record. Citing only a general proposition (like an elements list) is not sufficient.

Conclusion

This decision sets a clear procedural directive for Alabama appellate practice in the wake of the 2020 amendment to Rule 59.1: when a continuance beyond 90 days is the mechanism that extends the trial court’s time to rule on a postjudgment motion, the continuance motion and order must be included in the appellate record. Counsel who omit them risk an automatic conclusion that the motion was denied at day 90 and that any later notice of appeal is untimely.

On the merits, the opinion reinforces two settled but often misunderstood points. First, submitting and relying on materials outside the complaint converts a Rule 12(b)(6) motion to a motion for summary judgment. Second, appellate challenges to collateral estoppel must be specifically developed under the Buffalo Rock elements; conflating issue and claim preclusion, or failing to address privity and the actual issues determined, will not suffice under Rule 28(a)(10).

For litigants navigating the intersection of administrative adjudications and later tort suits against agency personnel, Williams v. Dodd underscores the importance of careful record-making, disciplined briefing, and a precise understanding of preclusion doctrine. Procedural rigor—both in the trial court and on appeal—will often determine whether a case is heard on the merits or ends at the courthouse door.

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