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 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.
By Justice William B. Sellers
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 t
o 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, 477 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 interloc
utory 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 to the validity of obligations of the State of Alabama or any agency or instrumentality thereof; and (E) any final order or judgment issued by a juvenile court.”
Practitioners also should be aware that certain statutes provide for a different period in which to commence an appeal in particular cases. For example, Ala. Code § 37-1-140 (1975), provides that appeals from “an action or order” of the Alabama Public Service Commission involving “rates and charges of telephone companies or public utilities” shall lie directly to the Alabama Supreme Court and shall be commenced within 30 days from the date of the “action or order” appealed from.
Because filing a notice of appeal is the act that invokes the jurisdiction of the appellate court, understanding the interplay of the rules discussed to determine when a notice of appeal is due to be filed is crucial to avoid dismissal of an appeal on the basis that it is untimely.
Final Judgments – Rule 54(b), Ala. R. Civ. P.
One of the most fundamental principles of appellate practice is that, typically, only final judgments are appealable. See Ex parte Wharfhouse Rest. & Oyster Bar, Inc., 796 So. 2d 316, 320 (Ala. 2001) (“Without a final judgment, this Court is without jurisdiction to hear an appeal.”). “A final judgment that will support an appeal is one that puts an end to the proceedings between the parties to a case and leaves nothing for further adjudication.” Id. Nonetheless, a trial court can certify a judgment as final and appealable with respect to less than all claims or all parties. See Rule 54(b), Ala. R. Civ. P. In such a case, the trial court may “direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.” Rule 54(b). When a trial court certifies a judgment as final as to certain claims or parties, only the judgment as to those claims or parties may be reviewed on appeal.
But a trial court’s Rule 54(b) certification is not always conclusive. Appellate courts will review whether such a certification was proper under the factors noted in Lighting Fair, Inc. v. Rosenberg, 63 So. 3d 1256 (Ala. 2010), which include whether the issues resolved in the judgment that was certified as final and appealable are so “intertwined” with other issues remaining before the trial court that a separate adjudication might result in inconsistent results and whether resolving issues that are still pending before the trial court will render moot the issues presented in the appeal. The fundamental policy behind Rule 54(b) is one of judicial economy.
- The Writ of Mandamus – Rule 21, Ala. R. App. P.
Appellate courts have the power to issue extraordinary writs. See, e.g., Rule 21, Ala. R. App. P. A petition for the writ of mandamus, for example, may be used to seek review of an otherwise nonappealable interlocutory order.
A mandamus petition must include: (1) a table of authorities; (2) a statement of the case; (3) a statement of the facts; (4) a statement of the issue presented and the relief sought; (5) a statement of why the writ should issue; and (6) an appendix that includes copies of all parts of the trial-court record necessary for an appellate court’s review. See Rule 21(a)(1), Ala. R. App. P. Some of the most common mistakes resulting in the dismissal or denial of a mandamus petition include the failure: (1) to timely file the petition, (2) to demonstrate that the matter complained of comes within any of the recognized situations in which mandamus review is appropriate, and/or (3) to attach all the materials essential for review. Mandamus petitions must be filed “within a reasonable time.” Rule 21(a)(3), Ala. R. App. P. “The presumptively reasonable time for filing a [mandamus] petition seeking review of an order of a trial court or of a lower appellate court shall be the same as the time for taking an appeal.” Id. If a petition is filed outside that window, the petitioner must include with the petition a statement of good cause why the appellate court should consider the petition despite its untimeliness. Id. A petitioner who fails to timely file a petition for a writ of mandamus and who offers no good cause for doing so risks having the petition denied or dismissed. Note, too, a motion to reconsider a trial court’s order does not toll the time for filing a petition for a writ of mandamus seeking review of that order. See Ex parte Troutman Sanders, LLP, 866 So. 2d 547 (Ala. 2003).
Moreover, because a petition for the writ of mandamus is not a substitute for an appeal, our appellate courts will not review all types of alleged trial-court error on a mandamus petition. Rather, mandamus review has essentially been limited to specific recognized situations in which a petitioner has a clear legal right to the relief sought from the lower court, but the lower court has refused to provide that relief. See, e.g., Ex parte U.S. Bank Nat’l Ass’n, 148 So. 3d 1060 (Ala. 2014), and Ex parte Hodge, 153 So. 3d 734 (Ala. 2014) (identifying situations in which mandamus review is appropriate). Thus, a petition for the writ of mandamus will often be denied when the issue presented in the petition does not fit within one of the recognized situations in which mandamus review is proper. See Ex parte Brown, [Ms. 1190962, Jan. 22, 2021] ___ So. 3d ___ (Ala. 2021) (denying a mandamus petition because the matter challenged did not come within an exception to the general rule that a petition for the writ of mandamus is not the appropriate means by which to seek review of the merits of an order denying a motion to dismiss).
A petition for the writ of mandamus must include “all parts of the record that are essential to understanding the matters set forth in the petition.” Rule 21(a)(1)(F), Ala. R. App. P. The failure to include with the petition all essential materials, such as, for example, a key trial-court order, deprives an appellate court of the means by which to properly conduct a review of the issues presented in the petition, thus often resulting in the dismissal or denial of the petition. See Ex parte Staats-Sidwell, 16 So. 3d 789 (Ala. 2008) (holding that the failure to include essential materials with a petition for the writ of mandamus rendered the petition fatally defective).
- The Writ of Certiorari – Rule 39, Ala. R. App. P.
The writ of certiorari is “[a]n extraordinary writ issued by an appellate court, at its discretion, directing a lower court to deliver the record in the case for review.” Black’s Law Dictionary 284 (11th ed. 2019). The filing of an application for rehearing in the Alabama Court of Civil Appeals is not a prerequisite for certiorari review in the Alabama Supreme Court. Rule 39(b)(1), Ala. R. App. P. Petitions for a writ of certiorari seeking review of a decision of the Alabama Court of Civil Appeals, when no application for rehearing was filed, are required to be filed with the Alabama Supreme Court within 14 days after the release of the decision of the Alabama Court of Civil Appeals; if an application for rehearing was filed in the Alabama Court of Civil Appeals, the petition must be filed within 14 days of the ruling on the application for rehearing. Rule 39(b)(3), Ala. R. App. P.
In most cases, the deadline to file a petition for a writ of certiorari is jurisdictional and cannot be enlarged. Thus, a petition for a writ of certiorari will be denied if the petition has not been timely filed to invoke the jurisdiction of the Alabama Supreme Court.
Whether to grant a petition for the writ of certiorari is discretionary, and the writ will be issued only in special and important circumstances and then only when there has been strict compliance with Rule 39, Ala. R. App. P. Many petitions for a writ of certiorari are denied because they are procedurally noncompliant or because they fail to demonstrate a probability of merit. In the last term of the Alabama Supreme Court, from October 1, 2019 to September 30, 2020, approximately 130 civil certiorari petitions were filed, and 120 of them were denied. Thus, knowledge of Rule 39 and other requirements applicable to certiorari review is imperative.
Appeals from Probate Matters – Strict Compliance with Probate Statutes Required
- Removal of Administration of Estates from Probate Court to Circuit Court – Ala. Code § 12-11-41 (1975)
Probate statutes were unknown to the common law; thus, strict compliance with the requirements of those statutes is mandatory. Section 12-11-41, a part of the Alabama Probate Code, provides, in relevant part, that the administration of any estate may be removed from a probate court to a circuit court at any time before a final settlement. To perfect a removal, an order of removal must be entered by the circuit court. See DuBose v. Weaver, 68 So. 3d 814, 822 (Ala. 2011) (holding that “the filing of a petition for removal in the circuit court and the entry of an order of removal by that court are prerequisites to that court’s acquisition of jurisdiction over the administration of an estate pursuant to § 12-11-41″) (Emphasis in original). When a removal order has not been entered by a circuit court, that court’s purported judgment on the merits is void. An appeal from a void judgment typically will be dismissed. Holt v. Holt, [Ms. 1190025, Aug. 21, 2020] ___ So. 3d ___, ___ (Ala. 2020) (“It … appears that a removal order was not entered in this case. As a result, the circuit court never acquired subject‑matter jurisdiction over the administration of [the decedent’s] estate; its … order, therefore, is void, and the appeal is due to be dismissed.”); Pickett‑Robinson v. Estate of Robinson, 164 So. 3d 1175, 1179 (Ala. Civ. App. 2014) (dismissing an appeal with instructions to vacate a judgment on the merits entered by a circuit court lacking jurisdiction over a purportedly removed estate administration).
Removal of Guardianship and Conservatorship Proceedings from Probate Court to Circuit Court – Ala. Code § 26-2-2 (1975)
Probate courts have jurisdiction over petitions for the appointment of guardians and conservators of minors or incapacitated persons. A guardianship or conservatorship proceeding may be removed to the circuit court pursuant to § 26-2-2. As is the case with the removal of estate administrations, the filing of a petition for the removal of a guardianship or conservatorship proceeding to the circuit court and the entry of an order of removal by the circuit court are prerequisites for the circuit court to acquire jurisdiction. See Beam v. Taylor, 149 So. 3d 571, 576 (Ala. 2014). Thus, when a removal order has not been entered by the circuit court, any order entered by that court is void and will not support an appeal. Moreover, a circuit court does not acquire subject-matter jurisdiction to enter an order of removal unless the statutory requirements of § 26-2-2 have been met with regard to the petition for removal. Those requirements are that the petition: (1) be “sworn”; (2) recite in what specified capacity the petitioner is acting; and (3) state that, in the opinion of the petitioner, the guardianship or conservatorship proceeding can be better administered in the circuit court than in the probate court.
In Ex parte Tutt Real Estate, LLC v. Smith, [Ms. 1190963, Mar. 26, 2021] ___ So. 3d ___ (Ala. 2021), the Alabama Supreme Court explained that, for a removal petition to meet the requirement of being “sworn,” the petitioner must declare under oath that the petitioner believes, and has made sufficient inquiry to confirm, that the contents of the petition are accurate. The court in Tutt Real Estate held that such a declaration must be properly acknowledged by a notary public or a judge and that the filing of an unsworn petition does not comply with § 26-2-2 because that statute requires one petitioning under the statute to fully appreciate the significance and seriousness of their actions by swearing under oath and thus invoking penalties for perjury should the petition be knowingly false. Section 26-2-2 also provides that, “without assigning any special equity,” a petition for removal may be filed by only a “guardian or conservator or guardian ad litem or next friend
for the ward or such person entitled to support out of the estate of such ward.” The petitioner is required to state in which specified capacity the petitioner is acting, and the failure to do so is fatal. A recitation of capacity is still required even if the petitioner has a blood relationship or is the next of kin to the protected person. In Tutt Real Estate, the Alabama Supreme Court issued a writ of mandamus directing the circuit court to vacate an order purporting to remove an action involving a guardianship/conservatorship from the probate court to the circuit court because the removal petition was unsworn and did not recite the capacity in which the petitioners were acting. Thus, the circuit court, which entertained the action for an extensive amount of time, had never acquired jurisdiction over the action, and the action remained in the probate court. As noted, appeals from judgments of courts without jurisdiction typically will be dismissed.
State or Sovereign Immunity – Art. I, §14, Ala. Const. 1901
There are also certain defenses that could result in the dismissal of an appeal. For example, Article I, § 14, Alabama Constitution of 1901, provides generally that the State is immune from suit: “[T]he State of Alabama shall never be made a defendant in any court of law or equity.” The immunity afforded the State by § 14 also applies to agencies of the State, as well as State officers sued in their official capacities when an action against the State officer is effectively an action against the State. An action is one against the State when a favorable result for the plaintiff would directly affect a contract or property right of the State or would result in the plaintiff’s recovery of money from the State. Section 14 immunity is a jurisdictional bar that deprives a trial court of subject-matter jurisdiction. If a trial court lacks subject-matter jurisdiction to enter a judgment, such a judgment is void and will most likely result in the dismissal of an appeal. See, e.g., Russo v. Alabama Dep’t of Corr., 149 So. 3d 1079, 1081 (Ala. 2014) (holding that an inmate’s action against the Alabama Department of Corrections was barred by State immunity and dismissing the inmate’s appeal from an adverse judgment); Alabama Dep’t of Pub. Health v. Noland Health Servs., Inc., 267 So. 3d 873, 875 (Ala. Civ. App. 2018) (holding that an action was barred by State immunity and dismissing an appeal with instructions to vacate the trial court’s judgment on the merits).
There are other reasons an appeal might be dismissed. For example, an appeal can be dismissed when the issue presented by the appeal has become moot. In addition, Rule 2(a), Ala. R. App. P., provides that an appeal may be dismissed for failing to file a brief within the time provided by Rule 31, Ala. R. App. P.; when an appeal is frivolous; when an appellate court determines that there is an obvious failure to prosecute an appeal; or when a party fails to substantially comply with the Rules of Appellate Procedure. Moreover, non-attorneys cannot represent other parties, and an appeal filed by a non-attorney might therefore be dismissed. And, as a general rule, an attorney’s authority to act on behalf of a client ceases on the death of that client, and an appeal filed on behalf of a deceased client might be dismissed.
Review by an appellate court typically is the last opportunity to challenge a lower court’s adverse judgment. Familiarity with, and adherence to, court rules, statutes, and judicial precedent regarding appellate review is therefore imperative to avoid the dismissal of, or the summary denial of relief in, appellate proceedings in civil matters.
. Interlocutory orders are not always considered unappealable. For example, under Rule 5(a), Ala. R. App. P., the Alabama Supreme Court is authorized to grant a party permission to appeal from an interlocutory order that “involves a controlling question of law as to which there is substantial ground for difference of opinion” when “an immediate appeal … would materially advance the ultimate termination of the litigation” and would “avoid protracted and expensive litigation.” Additionally, as noted earlier in this article, Rule 4(a)(1), Ala. R. App. P., permits appeals from interlocutory orders in certain circumstances, and Rule 4(d), Ala. R. App. P., allows immediate appeals from orders denying (or granting) motions to compel arbitration.
. The third requirement of § 26‑2‑2, namely, that a removal petition contain a statement or allegation that, “in the opinion of the petitioner such guardianship or conservatorship can be better administered in the circuit court than in the probate court,” is subjective in nature and does not require any magic words on the part of the petitioner. See Tutt Real Estate, supra.