Why Appellate Courts Commonly Dismiss or Summarily Deny Relief in Appellate Proceedings in Civil Matters

Publication year2021
Why Appellate Courts Commonly Dismiss or Summarily Deny Relief in Appellate Proceedings in Civil Matters

Vol. 82 No. 6 Pg. 413

The Alabama Lawyer

November, 2021

By Justice William B. Sellers

The Alabama Supreme Court is still seeing too many appeals and petitions denied for failure to comply with the Alabama Rules of Appellate Procedure. Regretfully, this can occur even when there is probable merit to the arguments of counsel. Our court desires to equip and assist practitioners to represent their clients well. As part of our continuing effort, Justice Kelli Wise and Justice Will Sellers have written the following articles to call attention to potential pitfalls and to rules that must be followed to perfect an appeal, to timely and properly present a petition, or to correctly argue the merits on matters before the Alabama Supreme Court. I recommend these articles to all members of the Alabama State Bar, whether as a first-time primer or a refresher course on the do's and don't's on supreme court practice in Alabama.

-Chief Justice Tom Parker has served on the Alabama Supreme Court for 18 years. He was elected chief justice in 2018.

It goes without saying (but I will nevertheless state it for the record): practice before the Alabama appellate courts in civil matters requires familiarity with the Alabama Rules of Appellate Procedure, the Alabama Rules of Civil Procedure, statutory law, and judicial precedent.

This article is intended as a reminder that, generally, a final judgment is necessary to support an appeal, and it highlights certain situations that commonly result in the dismissal of, or the summary denial of relief in, appellate proceedings in civil matters.

Filing Appeals Generally - Rule 4, Ala. R. App. P.

The timely filing of a notice of appeal pursuant to Rule 4(a), Ala. R. App. P., is a jurisdictional act. The prescribed time in which to file a notice of appeal cannot be waived or extended by the parties or an appellate court. See Rule 2(a)(1), Ala. R. App. P. (providing that "[a]n appeal shall be dismissed if the notice of appeal was not timely filed to invoke the jurisdiction of the appellate court"); Buchanan v. Young, 534 So. 2d 263, 264 (Ala. 1988) ("The failure to file a notice of appeal within the time provided in Rule 4, [Ala. R. App. P.], is a jurisdictional defect and will result in a dismissal of the appeal."). But cf. Rule 77(d), Ala. R. Civ. P. (authorizing circuit courts in civil cases to extend the time for filing an appeal by 30 days when a party wishing to appeal fails to learn of the entry of a judgment due to excusable neglect).

Rule 4(a)(1), Ala. R. App. P., typically requires that a notice of appeal be filed within 42 days of the date of the entry of the judgment or order appealed from. Rule 4(a)(2), Ala. R. App. P., provides that, after a notice of appeal has been timely filed by a party, "any other party may file a notice of appeal within 14 days ... of the date on which the first notice of appeal was filed, or within the time otherwise prescribed by [Rule 4]," whichever period last expires.

Postjudgment motions filed pursuant to Rules 50, 52, 55, and 59, Ala. R. Civ. P, toll the time for filing a notice of appeal in civil cases. See Rule 4(a)(3), Ala. R. App. P.

Pursuant to Rule 59.1, Ala. R. Civ. P., a trial court has 90 days in which to rule on a postjudgment motion filed pursuant to one of those rules and, unless that period is extended pursuant to the specific requirements of Rule 59.1, the postjudgment motion will be deemed denied by operation of law after 90 days. A motion to reconsider an order denying a postjudgment motion does not toll the running of the time for taking an appeal. Ex parte Dowling, All So. 2d 400, 404 (Ala. 1985) ("In the usual case, after a post-judgment motion has been denied, the only review of that denial is by appeal; a judge has no jurisdiction to 'reconsider' the denial."). Thus, generally, if a trial court has not ruled on a postjudgment motion within 90 days, then an appeal must be commenced before 42 additional days elapse, giving an appellant 132 days after the date the postjudgment motion was filed in which to appeal.

Rule 4(a)(1) also sets forth five specific categories of judgments or orders from which appeals are required to be commenced within 14 days of the date of the entry of the judgment or order appealed from (or within 14 days from the denial of a timely filed postjudgment motion, if applicable. See, e.g., Rule 1(B), Ala. R. Juv. P.). Those categories are:

"(A) any interlocutory order granting, continuing, modifying, refusing, or dissolving an injunction, or refusing to dissolve or to modify an injunction; (B) any interlocutory order appointing or refusing to appoint a receiver; (C) any interlocutory order determining the right to public office; (D) any judgment in an action for the validation of public obligations, including any action wherein a judgment is entered with respect...

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