8:00am - 5:00pm
Monday - Friday (or by appt)
(205) 293-5293
Select Page

Ready, Set, Appeal

Timing is important when filing an appeal in Alabama.  Indeed, we’ve discussed when to file your appeal at length at Browne House Law.  File too late and the appellate court will dismiss your case for lack of jurisdiction.  But file too early and the appellate court will also dismiss your case for lack of jurisdiction.  The parties in Donald v. Kimberly learned the latter rule the hard way.

Property Dispute

Donald v. Kimberly was a boundary dispute case.  Two neighbors disagreed over the boundary lines to their properties and one of them got fed up enough to file a lawsuit.  The plaintiff filed the lawsuit pro se, meaning they didn’t use a lawyer.

Without a lawyer, the plaintiff managed to bring a sophisticated real estate boundary claim, file a number of motions, and put up a good fight.  When the defendant counterclaimed, the plaintiff filed various sophisticated motions about the counterclaims.  Eventually the motions were denied and the defendant’s counterclaims, which essentially alleged the complaint violated the Alabama law against frivolous lawsuits, was “severed” from plaintiff’s claims meaning they would be tried separately.

No Final Appealable Order

A trial was held and the plaintiff lost his case.  According to the court, the boundary was as the defendant said it was.  After the trial, the plaintiff disagreed and wanted to appeal.  However, because the case had been split into two parts, it wasn’t clear whether there was a “final order.”

Only “final orders” can be appealed.  If the trial court had properly severed the cases – by giving them two different case numbers and separate files – then the trial of the boundary dispute would have been a final appealable order.  However, the trial court did not sever the cases, it merely bifurcated the trials.  The court decided to have two trials instead of one, thereby bifurcating the case.  Despite using the word “severed” the trial court did not sever the parties’ claims and counterclaims into two separate cases.

Because the case was bifurcated rather than severed there was one case, not two.  Because there was one case, it could not be finished before the defendants counterclaims were resolved.  Because the case was not yet finished, there was no “final order” from which plaintiff could appeal. As a result the plaintiff’s appeal was dismissed.

Can’t Blame Appellant for Erring on Side of Filing Appeal

Even though the appeal was dismissed, it’s hard to blame the plaintiff for filing a premature appeal.  If the court had actually severed the cases and he’d waited until after the counterclaims had been resolved, it probably would have been too late to appeal.  The time rules for filing are technical and applied like written in stone.  If the appeal was filed late, it would have been dismissed.  Here, plaintiff’s choice to err on the side of caution is understandable.

Appeals are Technical – Where to Go for More Help

  1. Go to the source.  Look at Appellate Rule 4, which governs when you have to file your appeal;
  2. Go to the source.  Check out the civil trial rule on Final Orders;
  3. Read about the efforts of two famous lawyers who are trying to get more help for pro se appellants in federal cases;
  4. Read the opinion from the Alabama Court of Civil Appeals; and 
  5. Contact the lawyers at Browne House Law about whether you can (or must) appeal your case.  The rules are technical.  Hiring some help may be the way to go.