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The easiest way to waste an appellate filing fee is to file your appeal after the deadline for doing so has passed.  The law books are replete with cases where the Alabama Supreme Court or Court of Civil Appeals dismissed an appeal solely for filing a late appeal.  The Alabama Supreme Court issued a reminder once again in Beatty v. Carmichael that those who sit on their appeal deadline do so at their peril.

Late Appeal Means No Appeal

The general rule is that an appeal has to be made 42 days after a circuit court issues its opinion (the timing can be different in other courts).  But those rules can be hyper-technical as the Court of Civil Appeals recently explained one of its cases, Slay v. Slay.  In both Beatty v. Carmichael and Slay v. Slay, the appellants got tripped up by the circuit court’s rule of civil procedure.

Both Beatty v. Carmichael and Slay v. Slay ran into trouble when the asked the circuit court to change its mind.  Usually the civil rules give litigants 42 days from the date the court decides whether or not to change its mind.  However, if a court fails to decide whether or not to change its mind in a 90 day period, the request is deemed denied and the 42 day clock begins to run.

The appeal in Beatty v. Carmichael was initiated within 42 days of the circuit court’s order denying the appellant’s motion to reconsider.  However, the order denying the motion was well outside of the 90 day period in which the court had to decide the motion.  As a result, the appeal was filed late, and the appeal dismissed.

Is Beatty A Response to Slay?

The main of the decision in Beatty v. Carmichael is easily dispensed with and takes up only two paragraphs of the Alabama Supreme Court’s decision.  More time is spent refuting the appellant’s argument that a subject matter jurisdiction argument may be raised at any time – even the time for filing an appeal has lapsed.  According to the Supreme Court, subject matter jurisdiction is not a back door to a late appeal.

Typically, where one does not raise an issue at the trial court, that issue cannot be raised on appeal.  An exception to the rule is that one can always appeal a lack of subject matter jurisdiction, even if the issue wasn’t brought up to the trial court. This, however, does not mean it can be raised at any time.  Once the time for filing the appeal has lapsed, then the appellate court itself lacks jurisdiction to decide the appeal whether there is a subject matter jurisdiction problem or not.

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