Ala. R. App. P. 4
Ala. R. App. P. 4
Committee Comments to Rule 4(e) Effective February 1, 2009
In his concurring opinion in Birmingham News Co. v. Horn, 901 So. 2d 27, 45 (Ala. 2004), Justice Lyons invited the Standing Advisory Committee on the Rules of Appellate Procedure "(a) to establish an easily understood triggering date for the time for taking an appeal from an arbitrator's award and, should the proposed revision conflict with [Ala. Code 1975,] § 6-6-15, to recommend the abrogation of § 6-6-15, and (b) to recognize the availability of an independent action in the circuit court from which an appeal would lie as in other cases." The Court provided further guidance in Horton Homes, Inc. v. Shaner, [Ms. 1061659, June 20, 2008] ___ So. 2d ___ (Ala. 2008). The Standing Advisory Committees on the Rules of Appellate Procedure and the Rules of Civil Procedure collaborated in response to those cases. The Standing Advisory Committee on the Rules of Civil Procedure proposed the adoption of Rules 71B and 71C, Alabama Rules of Civil Procedure. The Standing Advisory Committee on the Rules of Appellate Procedure proposed the adoption of subdivision (e) to this rule. Rule 71B clarifies the method for taking an appeal from an arbitration award and supersedes the procedure provided by Ala. Code 1975, § 6-6-15. Pursuant to that rule, the aggrieved party has no right to appellate review of an arbitration award unless that party has appealed to the circuit court from the arbitration award within 30 days of service of the notice of the award and has timely filed a Rule 59, Ala. R. Civ. P., motion to set aside or vacate the judgment on the arbitration award as described above. The rule provides that the notice of appeal from the arbitration award pursuant to Ala. Code 1975, § 6-6-15, must be filed in the appropriate circuit court within 30 days of the receipt of the award. If a party is dissatisfied with the circuit court's order granting or denying the Rule 59 motion to set aside or vacate the judgment, a notice of appeal seeking review by the appropriate appellate court must be filed within 42 days of the circuit court's ruling on the Rule 59 motion.
A fundamental change wrought by Rule 4 is the shortening of the time for the taking of criminal and civil appeals from the present six month period to 42 days. This 42-day period is to be applied uniformly except in the enumerated instances contained in subdivision (a). It commences in accord with ARCP Rule 77.
The time allowed to the state for an appeal is the same as for private parties.
It is felt that the time period of 42 days is both reasonable in a general sense and particularly so in light of the fact that a party is required to do nothing to initiate the appellate process except file a simple notice.
The provision of subdivision (a)(3) in the last sentence permitting assertion in the appellate court of any matter raised or asserted in the trial court whether such matter was raised by motion for new trial under ARCP Rule 59 or for motion of amendment of findings of fact under ARCP Rule 52(b) is a departure from existing Alabama practice. The rule does not, however, extend the right to raise for the first time on appeal new matter not presented to the trial court or upon which the trial court had no opportunity to pass.
The requirement retains the practice that matters raised on appeal must have been presented to the trial court at some stage. Thus matters which can only be raised by post-trial motion must be so asserted. The provision is intended to avoid the necessity of repeated assertions of the same point below. Once ruled on by the trial court in some form, the point is preserved for review on appeal.
The third sentence of subdivision (a) is intended to eliminate the confusion resulting from multiple "final" orders or decrees or judgments. In this connection, the holdings in such cases as Federal Deposit Ins. Corp. v. Equitable Life Ins. Co., 289 Ala. 192, 266 So.2d 752; Labovitz v. Gulf American Fire & Casualty Co., 47 Ala.App. 412, 255 So.2d 592; and Moody v. Myers, 265 Ala. 435, 91 So.2d 686, are superseded. However, this rule is not intended to affect final judgments in situations such as domestic relations cases which are final in the sense of concluding the litigation, yet subject to modification based on changed circumstances. Such a subsequent proceeding is, in reality, a new proceeding and cannot, on appeal of it, open up matters contained in the original proceedings years before.
Subdivision (b) deals with the notice of appeal in criminal cases and essentially retains existing practice under Code 1940, Title 15, § 368, except that the time for giving notice of appeal is shortened from six months to 42 days.
Because of the extremely large number of former statutes dealing with time periods for appeals, special attention should be given to the appendices of superseded and modified statutes accompanying these rules.
Court Comment Applicable to Rule 4(b) as Amended.
Statutory procedures for appeals from the district and municipal courts are found at § 12-12-70, et seq., and § 12-14-70, et seq., Code of Alabama 1975.
Court Comment Applicable to Amendment of March 1, 1984.
Rule 4(a)(3) was amended effective March 1, 1984, to provide that the filing of a motion pursuant to Rule 55, A.R.Civ.P., to set aside a default judgment will have the effect of tolling the period for appeal. This amendment corresponds with amendments of the same date to Rules 55(c) and 59.1, A.R.Civ.P.
Court Comment to Amendments to (a) and (b), Effective April 1, 1984.
Temporary Rule 17, A.R.Crim.P., providing for certain pre-trial appeals by the state in criminal cases, became effective April 1, 1984. On that date, (a) and (b) were amended to include references to those pre-trial appeals and the rules of criminal procedure, in recognition of the fact that Temporary Rule 17, A.R.Crim.P., sets out the time and procedure for such appeals.
Committee Comment Added Effective May 14, 1990.
The practitioner should be aware that there may be statutes providing a different time period for the taking of an appeal. Specifically, for example, Code 1975, § 37-1-140, provides a 30-day time period for the taking of an appeal in a public service commission rate case.
Committee Comments to Amendment to Rule 4(a)(1) Effective February 1, 1994.
This amendment added the reference to Rule 77(d), A.R.C.P., to note that under that rule appeal time may be extended by the circuit court "upon a showing of excusable neglect based on a failure of [a] party to learn of the entry of the judgment or order."
Committee Comments to Amendment Adding Rule 4(a)(4) and (5) Effective February 1, 1994.
Paragraphs (a)(4) and (5) are based upon the August 1991 proposed amendments to Rule 4(a), Federal Rules of Appellate Procedure. Paragraph (a)(4) alters the statement in State Farm Mut. Auto. Ins. Co. v. Robbins, 541 So.2d 477 (Ala. 1989), indicating that a notice of appeal filed before the disposition of one's own motions would work as a waiver of one's post-judgment motions - and the possible loss of certain issues for appellate review.
Paragraph(a)(5) alters the procedure established by Ex part Andrews, 520 So.2d 507 (Ala. 1987); Owens v. Coleman, 520 So.2d 514 (Ala. 1987); and Herring v. Shirah, 542 So.2d 271 (Ala. 1989). Those cases held that the filing of a notice of appeal while an opponent's post-judgment motion is pending is a nullity; that a notice of appeal filed within 30 days after the entry of the judgment is subject to ouster by an opponent's post-judgment motion; and that one's filing of a notice of appeal while one's own post-judgment motion is pending works as a waiver and withdrawal of the motion.
The "abeyance" procedure created by this amendment will, in some instances, create an appeal from a judgment that has been altered substantially, or even set aside, by the ruling on the motion. In such a case, the appellee may move to dismiss the appeal; in responding, the appellant can state whether appellate review is still sought on some aspect of the case. The appellant may, within 42 days after the disposition of the last motion, amend the notice of appeal, but such an amendment is not jurisdictional.
The appellant should notify the appellate court clerk when the appellant discovers that the notice of appeal is being held in abeyance, or has been held in abeyance, under Rule 4(a)(5). Whenever an appeal has been held in abeyance, the appellate court clerk may require the appellant to file a new docketing statement (see Rule 3(e) ).
Committee Comments to Amendment to Rule 4(a)(1) and Adoption of Rule 4(c) Effective September 1, 2000
This amendment to Rule 4(a)(1) adds appeals from final orders or judgments of a juvenile court to the list of those orders or judgments from which an appeal must be taken within 14 days. See Rule 28(C), Ala.R.Juv.P.
Rule 4(c) is patterned after Rule 4(e), Federal Rules of Appellate Procedure. This rule recognizes that a notice of appeal filed by an inmate confined in an institution and who is proceeding pro se is timely filed when the inmate documents the delivery of the notice of appeal to prison authorities for mailing. See Houston v. Lack, 487 U.S. 266(1988), Ex parte Williams, 651 So.2d 569 (Ala. 1992), and Ex parte Jones [Ms. 1962127, June 19, 19981 So.2d (Ala. 1998).
Note from the reporter of decisions: The order amending Rule 4(a)(1) and the adoption of Rule 4(c) effective September 1, 2000, is published in that volume of Alabama Reporter that contains Alabama cases from ___ So. 2d.
Court Comment to Amendment of Rule 4(a)(1) and Adoption of Rule 4(d) Effective October 1, 2001.
Before the adoption of Rule 4(d), review of an order granting a motion to compel arbitration was by a petition for a writ of mandamus, while review of an order denying a motion to compel arbitration was by appeal. Rule 4(d) provides that review of either the grant or the denial of a motion to compel arbitration is by appeal. The amendment to Rule 4(a)(1) adds a sentence recognizing the adoption of Rule 4(d).
Note from the reporter of decisions: The order amending Rule 4(a)(1) and adopting Rule 4(d), effective October 1, 2001, is published in that volume of Alabama Reporter that contains Alabama cases from ___ So. 2d.