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Narrow Window to File Appeal

What’s the right time to file an appeal in Alabama?  Usually you’d wait until your case is finished and then file within the time allowed after the case is over, usually 42 days (depending on the type of case).  Wait too long to file your appeal and you’ll lose your rights.  File your appeal too early and the appellate court is likely to kick you out.

What if there’s a good reason to appeal early?  In some cases, if you ask permission, the trial court might certify an issue as a final judgment, thereby paving the way for an appeal of that issue.  When the trial court certifies your appellate issue, you can proceed with an appeal even if though rest of your case is going to continue in the trial court.

The Trial Court Said I Could Appeal

In Estate of Wright v. Harris the administrator of an estate convinced a trial court to certify its summary judgment order as a final appealable order.  The administrator had lost at summary judgment to some nurses that were being sued.  After the summary judgment, the nurses were dismissed from the case but the administrator’s case against other defendants continued.

Though the case continued, the administrator was able to file an appeal with the Alabama Supreme Court over the dismissal of the nurses in summary judgment.  However, even though the question had been certified as a final judgment, the Supreme Court was skeptical the case was ready for appeal.

Slow Down.  Is Your Case Exceptional?

The trial court said the dismissal of the nurses on summary judgement was a final appealable order, but was it?  According to the Supreme Court, certification of an order so it can be appealed should be rare.  Only exceptional cases should be split in two with one track headed towards trial and the other already in an appeal.

There was some grousing from the Supreme Court about the possibility of having to read the same facts twice if the non-nurse defendants appealed later,  but their real concern was that one of the issues on appeal was still an issue for the remaning defendants at trial.  One of the central issues of the appeal was whether the defendant nurses caused a particular injury.  Causation was apparently also an issue raised by the remaining defendants.

This overlap over causation of the plaintiff’s injuries was enough to make the nurses’ dismissal on summary judgment “not” exceptional.  Even though the trial court had certified the issue as final and appealable, the Supreme Court said it was not.  The trial court had abused its discretion and the appeal was dismissed.

The Alabama Supreme Court is Fast

The case may not have been exceptional but the speed with which the Supreme Court has issued decisions in this case is.  This is the second time the court has ruled on this case, the last time was in 2017.  December 2017.

To issue two rulings on one case in just over a year is exceptionally fast for an appellate case.  Indeed, in this the second appeal, the case went up in July and the case was briefed and decided in under seven months.  Exceptional.  If your civil case goes to trial, you’re lucky if it takes only 18 months from filing the complaint until trial.  The Alabama Supreme Court works fast.

Is it Time to Appeal My Case?

If you’re thinking about an appeal, don’t sit on it.  Here are a few resources:

  1. Read Part 1 of When to File Your Appeal;
  2. Want an overview of the process?  Check out this flowchart from the Alabama Judicial Branch;
  3. Review the Browne House Law appeal lawyer blog on how to file your Notice of Appeal;
  4. Read the Alabama Supreme Court opinion and their reasoning why the issue wasn’t exceptional enough to warrant splitting the case in two; and
  5. Contact an appellate lawyer at Browne House Law to shepherd your appeal.