City of Birmingham v. Alexander

MURDOCK, Justice

(concurring specially).

I fully concur in the. main opinion. I write separately to comment further upon what distinguishes this case from NHS Management, LLC v. Wright, 24 So.3d 1153 (Ala.Civ.App.2009). As the main opinion indicates, in NHS no appeal was *1206taken. Consequently, the trial court’s appealable order in NHS became final and took on a res judicata effect.2

In contrast, the case before us does not involve a final judgment with res judicata effect because the judgment at issue was timely appealed before it took on that character. This fact makes a post-judgment Rule 60(b)(5), Ala. R. Civ. P., motion inapposite, while simultaneously opening the door for a law-of-the-case argument. For the reasons explained in the main opinion, 161 So.3d at 1199, however, I agree that that law-of-the-case argument fails.

. Because the trial court’s order in NHS became an unappealed, final judgment. Rule 60(b)(5), Ala. R. Civ. P., became relevant, but, as explained in the main opinion, the precedent that was overruled in a collateral case was not the type of "prior judgment upon which the [current] judgment is based” that, if reversed, warranted relief under Rule 60(b)(5). See 161 So.3d at 1204.