FROM THE ALABAMA LAWYER: Tips Regarding Appeals to the Alabama Supreme Court in Civil Matters
Published on December 1, 2021
By Justice A. Kelli Wise
When appealing to the Alabama Supreme Court, practitioners must comply with the Alabama Rules of Appellate Procedure. Those rules set forth the steps for filing an appeal, information regarding time limitations, and detailed and technical requirements for filings in the court. It is also imperative that practitioners keep abreast of any recent amendments to those rules. This article touches on a few of those rules and on some practical matters that might be helpful to practitioners as they prepare to navigate the appellate process and to file a brief in the Alabama Supreme Court.
General Filing Provisions
Rule 25(a)(1), Ala. R. App. P., provides that documents required or permitted to be filed in an appellate court must be filed with the clerk of that court. Filing may be accomplished by mail addressed to the clerk, Rule 25(a)(3)(A), or electronically using the Appellate Courts’ Online Information Service (“ACIS”), located at https://acis.alabama.gov. ACIS is a separate and distinct system from Alafile, which is used to file documents electronically at the trial-court level. With regard to electronic filing, Rule 25(a)(2), provides: “Documents filed electronically shall be filed consistent with Rule 57, Interim Electronic Filing and Service Rule, originally adopted effective October 3, 2007, and incorporated as Rule 57 of these rules on October 1, 2010.” Rule 57(a), provides:
“Documents in proceedings before an appellate court may be filed, served, and preserved in an electronic format in lieu of the traditional paper format. Except for service of the record on appeal as provided in subsection (j)(3), the provisions for e-filing and service do not apply to parties who are proceeding pro se. These Rules of Appellate Procedure shall be fully applicable to e-filed documents to the extent these rules are not modified by this rule.”
Unfortunately, technological difficulties on a deadline date could cause a party to miss a filing deadline. Rule 57(k) sets forth the steps a practitioner must take in such an event. Specifically, the party must file the document and a motion to accept the document as timely filed in the appellate court “no later than the first day on which the appellate court is open for business following the deadline date for filing the document.” Rule 57(k). In the motion, the party must include a declaration stating the reason or reasons why they missed the deadline and stating why the document should be accepted as timely filed. Form B to Rule 57(k). It is imperative that practitioners filing documents electronically familiarize themselves with Rule 57.
Rule 32 sets forth detailed provisions regarding the form of briefs, petitions, motions, and other papers. Included in Rule 32 are formatting details regarding paper size, line spacing, margins, font, type style, and justification.
Practitioners should be aware that, effective October 1, 2020, Rule 32 was amended to provide that the font to be used for the text of all documents filed in our appellate courts, including the text of footnotes, is Century Schoolbook 14, “unless the attorney or unrepresented party certifies at the end of the document filed that access to equipment capable of producing that font is not reasonably available and that the font style used or the handwriting constitutes the closest approximation of Century Schoolbook 14 under the circumstances.” Rule 32(a)(7).
The Record on Appeal
The Alabama Supreme Court “‘cannot consider evidence that is not contained in the record on appeal because this court’s appellate review “‘is restricted to the evidence and arguments considered by the trial court.'”‘” Startley Gen. Contractors, Inc. v. Water Works Bd. of Birmingham, 294 So. 3d 742, 751-52 (Ala. 2019) (quoting Roberts v. NASCO Equip. Co., 986 So. 2d 379, 385 (Ala. 2007), quoting in turn other cases). Also, attachments to appellate briefs are not part of the record on appeal and will not be considered on appeal. See, e.g., Locklear Auto. Grp., Inc. v. Hubbard, 252 So. 3d 67, 91 (Ala. 2017).
Rule 10, Ala. R. App. P., governs the composition of the record on appeal, what is to be included in the record on appeal, and methods for supplementing the record on appeal. Rule 10(a) provides that certain items are not to be included in the record on appeal unless a particular question has been raised in the trial court regarding those items and a party has specifically designated those items to be included in the record on appeal.
Rule 10(b) provides that the record on appeal in civil matters is composed of two parts – the clerk’s record and the reporter’s transcript. It also allows parties in a civil case to designate that certain materials be included in the clerk’s record and to designate what portions of the proceedings will be included in the reporter’s transcript. Rule 10(b) provides specific instructions for making such designations and the process for ordering transcripts of the proceedings. It is imperative that practitioners ensure that they designate for inclusion in the clerk’s record all materials that were filed and admitted in the trial court and designate for inclusion in the reporter’s transcript all portions of the proceedings that are relevant to the issues they intend to raise on appeal.
Rule 10(d) provides a method by which an appellant may prepare and file a statement of the evidence or proceedings when “no report of the evidence or proceedings at a hearing or trial was made” or when a transcript is unavailable. Rule 10(e) provides that the parties may prepare and sign “a statement of the case showing how the issues presented by the appeal arose and how they were decided in the trial court and setting forth only so many of the facts averred and proved or sought to be proved as are essential to a decision of the issues presented” in lieu of the record on appeal.
Once the record on appeal has been filed, “‘[i]t is the appellant’s duty to check the record and to ensure that a complete record is presented on appeal. Tarver v. State, 940 So. 2d 312, 316 (Ala. Crim. App. 2004).’ Alabama Dep’t of Pub. Safety v. Barbour, 5 So. 3d 601, 606 n.1 (Ala. Civ. App. 2008). ‘An error asserted on appeal must be affirmatively demonstrated by the record, and if the record does not disclose the facts upon which the asserted error is based, such error may not be considered on appeal.’ Martin v. Martin, 656 So. 2d 846, 848 (Ala. Civ. App. 1995).”
Brady v. State Pilotage Comm’n, 208 So. 3d 1136, 1141 (Ala. Civ. App. 2015). In particular, a practitioner should make sure that attachments to motions are included in the clerk’s record and that all relevant portions of the proceedings have been included in the reporter’s transcript.
Rule 10(f) provides for filing a motion to supplement or correct the record on appeal in civil cases when “admitted or offered evidence that is material to any issue on appeal is omitted from the record after being designated for inclusion as required in Rule 10(b)” or when “any question arises as to whether the record correctly reflects what occurred in the trial court and the parties cannot stipulate what action should be taken to supplement or correct the record.” If a party seeks to supplement the record with portions of the reporter’s transcript that have been omitted, the motion must be accompanied by copies of the transcript purchase order to prove that the omitted portions were originally requested. Also,
“[i]t is well settled that Rule 10(f) cannot be used to supplement the record on appeal to include matters that were not before the trial court at the time the order being appealed was entered. See Cowen v. M.S. Enters., Inc., 642 So. 2d 453, 455 (Ala. 1994) (holding that Rule 10(f) ‘was not intended to allow the inclusion of material in the record on appeal that had not been before the trial court’ and concluding that the trial court erred in granting the appellant’s Rule 10(f) motion to supplement the record with evidence that was not provided to the trial court before it entered the judgment supporting the appeal); and Houston Cty. Health Care Auth. v. Williams, 961 So. 2d 795, 810 n.8 (Ala. 2006) (‘Rule 10(f) does not allow … for the addition to the record on appeal of matters not before the trial court when it entered its decision ….’).”
Facebook, Inc. v. K.G.S., 294 So. 3d 122, 126 (Ala. 2019), cert. denied, 140 S. Ct. 2739, 206 L. Ed. 2d 917 (2020).
Practitioners should note that a motion to supplement or correct the record on appeal must be filed with the trial court, that a copy of the motion must also be filed in the appropriate appellate court, and that the motion must also be served on the court reporter if it seeks to supplement or correct the reporter’s transcript. Rule 10(f) also provides that a trial court must rule on a motion to supplement or correct the record within 14 days or the motion is deemed denied by operation of law, and it sets out the procedure a party dissatisfied with the trial court’s ruling must follow to seek appropriate relief in the appellate court. Practitioners should also note that, although a motion to supplement or correct the record on appeal does not suspend the running of the time for filing of briefs, a party may file a motion to suspend the time for filing briefs with the appellate court. See Rule 10(f)(1).
Briefs on Appeal
Rule 28, Ala. R. App. P., governs the content of appellate briefs. Before preparing a brief for this court, carefully review Rule 28. The appellant’s brief is the appellant’s chance to try to convince this court to rule in their favor. However, even if a party raises an interesting issue or a potentially meritorious argument, the failure to properly brief the issue or to comply with certain requirements of Rule 28 may cause that party to lose on appeal.
Rule 28(a) provides that the appellant’s brief shall comply with the requirements as to form set out in Rule 32, and also lists the requirements for the various parts of the brief.
A few provisions in Rule 28(a) warrant specific discussion.
Rule 28(a)(1) addresses requests for oral arguments. Rule 34(a), provides, in part, that “[o]ral argument will be allowed when it is determined by the court, or the panel to which the case is assigned, from examination of the briefs and record that oral argument is desirable.” However, oral argument will not be allowed when the appeal is frivolous; when the dispositive issue or issues raised have been recently authoritatively decided; or when the facts and legal arguments have been adequately presented in the brief and the court’s decision will not be aided by oral argument. Id. When requesting oral argument, a practitioner should be as specific as possible as to why oral argument would be beneficial.
Rule 28(a)(10) may be seen as addressing the heart of brief writing. It requires that a brief include “[a]n argument containing the contentions of the appellant/petitioner with respect to the issues presented, and the reasons therefor, with citations to the cases, statutes, other authorities, and parts of the record relied on.” This court will not consider arguments that do not comply with the requirements of Rule 28(a)(10). See Harris v. Owens, 105 So. 3d 430, 436 (Ala. 2012). The burden is on the appellant to articulate an issue or issues and to include citations to authority that support their position, and it is not the duty of this court to do the appellant’s research or to create legal arguments for the appellant. See, id. Arguments should clearly and concisely explain why the appellant is entitled to relief. The importance of properly supporting an argument with citations to relevant legal authority cannot be understated. When an appellant does not support an argument with relevant legal authority, the effect is the same as if the appellant made no argument at all. Steele v. Rosenfeld, LLC, 936 So. 2d 488, 493 (Ala. 2005). Additionally, such a failure cannot be cured by including supporting authority for the first time in a reply brief. Id. Also, cited authority should support the specific arguments raised in the brief on appeal because “‘”general propositions of law are not considered ‘supporting authority’ for purposes of Rule 28. Ex parte Riley, 464 So. 2d 92 (Ala. 1985).'”‘” Harris, 105 So. 3d at 436 (quoting Allsopp v. Bolding, 86 So. 3d 952, 960 (Ala. 2011), quoting in turn S.B. v. Saint James Sch., 959 So. 2d 72, 89 (Ala. 2006)).
Rule 28(b) provides that the appellee’s brief shall also conform to the requirements set forth in Rule 28(a)(1)-(12). However, an appellee need not include statements of jurisdiction, the case, the issues, the facts, or the standard of review unless the appellee is dissatisfied with those statements made by the appellant.
Rule 28(c) provides that the appellant may file a reply brief and that when the appellee has cross-appealed, the appellee may file a brief replying to the appellant’s response to the issues presented by the cross-appeal. Rule 28(c) also provides that no additional briefs may be filed without leave of the court. It is important to remember that appellants may not raise new arguments in a reply brief. Steele, 936 So. 2d at 493.
Rule 28(j) provides for the lengths of various briefs. Effective October 1, 2020, Rule 28(j) was amended to provide word limits for most briefs, consistent with Rule 32. However, Rule 28(j) retains page limits for briefs that are filed by pro se litigants. Practitioners should be aware that Rule 32(c) provides that headings, footnotes, and quotations are included in computing the word limits for filings, and it also includes a list of items that are not included in that computation. Rule 28(a)(12) provides that, unless the brief is filed by a pro se litigant, it must include “[a] certificate showing compliance with the font and word limits as required by Rule 32(d)”
Finally, practitioners should be aware that, although Rule 28(j)(3) provides for motions requesting permission to exceed word or page limitations in briefs, the Alabama Supreme Court will not routinely grant such motions. Rather, parties must establish good cause for granting such a motion and “specify extraordinary circumstances that warrant a suspension of the rules.” Rule 28(j)(3). Such motions must be filed at least seven days before the date on which the brief is due.
These are just a few observations to aid practitioners who are engaged in appellate practice before the Alabama Supreme Court. Practitioners cannot underestimate the importance of careful compliance with the Alabama Rules of Appellate Procedure and any other court rules or statutes that govern.
. In this article, I focus on direct appeals in civil cases that are brought in the Alabama Supreme Court. Some of the rules discussed in this article are applicable to other types of cases and to appeals brought in the lower appellate courts. However, this article does not address the specific rules applicable to other types of appellate proceedings, such as Rule 21, governing petitions for extraordinary writs, or Rule 39, governing petitions for the writ of certiorari. Additionally, it does not address the specific rules that govern appeals in criminal cases.
. Rule 32, Ala. R. App. P., also sets out requirements for other documents, such as applications for rehearing, petitions for the writ of certiorari, petitions for extraordinary writs, petitions for permissive appeals pursuant to Rule 5, Ala. R. App. P., and motions and other papers and memoranda in support of, or in opposition to, motions.