Ala. R. App. P. 3

As amended through March 28, 2024

Rule 3 - Appeal as of right - How taken

(a)Filing the Notice of Appeal.

(1) In civil cases, an appeal permitted by law as ofright shall be taken to an appellate court by filing a noticeof appeal with the clerk of the trial court within the timeallowed by Rule 4. The appellant shall cause a sufficientnumber of additional copies of the notice of appeal to bemarked filed with the date of filing noted thereon andcertified as a true copy by the clerk of the trial court forservice on the persons and parties as provided by (d)(1) ord(3) of this rule. Appeals by permission from interlocutoryorders shall be taken in the manner prescribed by Rule 5. Thenotice of appeal may be filed electronically with the trialcourt clerk through the trial court's electronic-filingsystem. If the notice of appeal is filed electronically, theappellant is not required to provide the additional copiesrequired by this rule.

(2) In criminal cases, an appeal permitted by law as amatter of right to an appellate court shall be taken by filinga written notice of appeal with the clerk of the trial courtwithin the time allowed by Rule 4, or by the defendant'sgiving an oral notice of appeal at the time of sentencing,which oral notice shall be noted of record; provided, that apre-trial appeal by the State shall be taken by filing awritten notice of appeal in the manner, and within the time,specified by the rule of criminal procedure providing for suchappeals. The notice of appeal may be filed electronically withthe trial court clerk through the trial court's electronic-filing system. On the date the notice of appeal is filed, theclerk of the trial court shall serve copies of the notice ofappeal on the persons specified by (d)(2) or d(3) of this rule.

(b) Joint or consolidated appeals. If two or more persons are entitled to appeal from a judgment or order and their interests are such as to make joinder practicable, they may file a joint notice of appeal, or may join in appeal after filing separate timely notices of appeal, and they may thereafter proceed on appeal as a single appellant. Appeals may be consolidated by order of the appellate court upon its own motion, or upon motion of a party, or by stipulation of the parties to the several appeals.

(c) Form and content of notice of appeal. The notice of appeal shall specify all parties taking the appeal and each adverse party against whom the appeal is taken; shall designate the judgment, order, or part thereof appealed from; and shall name the court to which the appeal is taken. Such designation of judgment or order shall not, however, limit the scope of appellate review. An appellant may not use the terms "et al." or "etc." to designate multiple appellants or appellees in lieu of naming each appellant or appellee.

(d) Service of the Notice of Appeal.

(1) In civil cases, the appellant shall serve a copy ofthe notice of appeal on each adverse party, but the copy neednot contain the clerk's filing notations.

In civil cases, the clerk of the trial court shall, onthe date the notice of appeal is filed, serve a true copy ofthe notice of appeal, or any amendment thereto, as required in(a)(1) above, personally or by mailing a copy thereof to eachof the following: the clerk of the appropriate appellatecourt; the court reporter who reported the evidence; counselof record for each party, or, if a party is not represented bycounsel, to the party at the party's last known address.Service shall be sufficient notwithstanding the death of theparty or the party's counsel. In civil cases, the copy of thenotice of appeal to the clerk of the appellate court will beaccompanied by payment of the docket fee as provided in Rule 35A(a)(1).

(2) In criminal cases, the clerk of the trial court shallserve the notice of appeal, whether oral or written, upon eachof the following: the clerk of the appropriate appellatecourt; the court reporter who reported the evidence; thedefendant; the defendant's appellate counsel; the districtattorney of the circuit in which the trial court is situated;and the Attorney General. The copy of the notice of appeal tothe clerk of the appellate court shall be accompanied by thedocket fee as provided in Rule 35A(b) of these rules, ifapplicable, unless the appellant failed to pay the docket feeat the time the notice of appeal was filed.

(3) If the notice of appeal is filed electronically in acivil case or in a criminal case, the appropriate appellatecourt clerk may be served with the notice by electronic means. If the attorney for the party to be served or the party to beserved is a registered user of the trial court's electronic-filing system or if the party has elected to receive notice byelectronic means pursuant to Rule 4.I(C) of the Alabama Rulesof Judicial Administration, service may be made by electronictransmittal in accordance with that system or rule. Service ofthe notice by electronic means shall be complete ontransmission of the electronic document. The clerk of thetrial court may serve the court reporter who reported the evidence by electronic mail, by personal service, or by mail. If an attorney or a party is not a registered user of thetrial court's electronic-filing system, then the clerk of thetrial court shall provide notice of the filing of the noticeof appeal pursuant to (d)(1) or (d)(2) of this Rule. If thenotice of appeal is filed electronically, the partyresponsible for payment of the docket fee shall remit that feedirectly to the clerk of the appropriate appellate court asprovided in Rule 35A(a)(1) or Rule 35A(b). The clerk of thetrial court is not required to certify as a true copy anelectronically filed notice of appeal.

(e)Filing the Docketing Statement. Each notice ofappeal to an appellate court, at the time it is filed with thetrial court, shall be accompanied by the appropriate'Docketing Statement' (Form 24, 25, or 26 ). An electronicallyfiled notice of appeal shall be accompanied by anelectronically filed docketing statement. If the notice ofappeal is given orally in a criminal case, the docketing statementshall be filed within 7 days (1 week) after the oral notice ofappeal is given. However, the appellant's failure to file thedocketing statement with the notice of appeal shall not affect thevalidity of the notice of appeal. The appellant, or if theappellant is represented by counsel, then the appellant's attorney,shall complete and sign the docketing statement before it is filedwith the court. If the notice of appeal is tendered to the clerk ofthe trial court without a properly completed docketing statement,the clerk shall accept the notice of appeal and shall inform theperson filing it of the requirements of this rule, and theappellant, or, if the appellant is represented by counsel, then theappellant's attorney, shall promptly file a properly completeddocketing statement. The clerk of the trial court, when serving thenotice of appeal as specified in this rule, shall attach thereto acopy of the docketing statement, if available. If, on the date thenotice of appeal is served, the docketing statement is notavailable, it shall be served on those persons on whom the noticeof appeal was served as soon as it becomes available. For thefailure to comply with the requirements of this rule, the appellatecourt in which the appeal is pending may make such orders as arejust, including an order staying the proceedings until thedocketing statement is filed or, after proper notice, an orderdismissing the appeal; and, in lieu of any orders or in addition toany orders, the court may treat the failure to comply with therequirements of this rule as contempt of court.

Ala. R. App. P. 3

Amended 10-14-76, eff. 1/16/1977; Amended 10-2-78, eff. 12/1/1978; Amended 2-6-84, eff. 4/1/1984; Amended 8-27-91, eff. 10/1/1991; Amended 11-17-93, eff. 2/1/1994; Amended 11-19-96, eff. 1/1/1997; Amended 5-3-00, eff. 9/1/2000; Amended 1-8-04, eff. 3/1/2004; Amended 5-7-15, eff. 8/1/2015; Amended 9-20-16, eff. 1/1/2017; amended July 1, 2019, effective 10/1/2019

Note from the reporter of decisions: The order amending Rule 3(d) (1), Rule 11(c), Rule 39(d) (4), and Rule 57(j) (1), effective August 1, 2015, and adopting the Committee Comments to the amendments to Rule 3(d) (1), Rule 11(c), and Rule 39(d) (4) is published in that volume of Alabama Reporter that contains Alabama cases from __ So. 3d.

Committee Comments

Committee Comments to Amendment to Rule 3(d) (1) Effective August 1, 2015

Rule 3(d) (1) was amended effective February 1, 1994, to add what was the last sentence of paragraph (d) (1), which read: "In civil cases, the appellant shall serve a copy of the notice of appeal on each adverse party, but the copy need not contain the clerk's filing notations." The purpose of this notice provision is to prevent the 14-day cross-appeal period from running before the adverse party or parties learn of the filing of a notice of appeal. This amendment moves that sentence to the beginning of the subdivision and in a separate paragraph for greater emphasis.

Committee Comments

Timely filing of the notice of appeal is a jurisdictional act. It is the only step in the appellate process which is jurisdictional. Rule 4(a) sets forth the relevant time periods for timely filing notice of appeal in civil appeals. Rule 4(b) sets forth the relevant time period for filing timely notice of appeal in criminal appeals.

Failure of an appellant to take any step other than the timely filing of a notice of appeal with the clerk of the trial court does not affect the validity of the appeal, but is ground only for such action as the appellate court deems appropriate, which may include dismissal of the appeal. Sanctions for such failures are set out in Rules 2 and 48.

Subdivision (c) provides that erroneous designation of the appellate court to which the appeal is taken is treated as merely a clerical mistake and may be corrected accordingly. Further, any steps necessary to effectuate the change in appellate courts shall be taken. This is in accordance with the existing Alabama practice under Code of Ala., § 12-1-4.

The intent of this rule is to provide a uniform and simplified method of taking an appeal, and it is contemplated that a single notice will be filed. The requirement of a citation on appeal required by Code 1940, Title 7, § 801, is eliminated and the holdings in cases such as Mid-State Homes v. Roberts, 288 Ala. 86, 257 So.2d 333, are superseded.

The form and content of a typical notice of appeal are set out in the Appendix of Forms to these rules in Forms 1 and 11, and Rule 50 specifically provides that the forms contained in the Appendix of Forms are sufficient.

In accordance with the existing practice under Code 1940, Title 7, § 804, even parties not joining in the appeal are given a copy of the notice of appeal. In criminal cases, the appellant and his counsel shall also he sent a copy of the notice so that they will know it has been received by the clerk and sent to the other parties.

Although notice of appeal is the only jurisdictional act to commence the appellate process, provision is made in Rules 7, 8 and 12 for supersedeas and cost bonds and docket fee, and a party shall be subject to sanctions for failure to comply, ultimately including dismissal of the appeal.

In civil appeals, filing and serving notice of appeal are governed by subdivisions (a) and (d). The interplay of(a) and (d) requires the appellant to file the notice of appeal with the clerk of the trial court. Also, the appellant is required to have the clerk mark a sufficient number of copies of the notice of appeal with the date of filing and certified as a true copy so that a copy can be sent to the clerk of the appellate court, the court reporter who reported the evidence, and counsel for each opposing party, or, each opposing party if not represented by counsel. Marking the copies with the filing date is because the date of filing the notice of appeal triggers the time schedule in the appellate process. The clerk is required to serve each of these copies of the notice of appeal. This requirement is not a jurisdictional act; however, it is subject to Rule 2 sanctions.

Likewise, in criminal appeals, filing and serving notice of appeal is governed by subdivisions (a) and (d). The interplay of (a) and (d) requires the appellant to either give oral notice of appeal at time of sentencing or written notice within the time allowed by Rule 4(b). This alternative of giving either oral or written notice continues practice under Code 1940, Title 15, § 368. Then, the clerk has the responsibility for serving the notice of appeal, whether the notice of appeal is given orally in open court or in writing, on various parties named in (d)(2). See Form 12 for service by the trial court clerk of the notice of appeal. The attorney general is added to this list due to the peculiar problem in criminal appeals wherein the appellate brief is handled by his office. Also, (d) requires that both the defendant and his attorney receive a copy of the notice of appeal.

It is contemplated that in cases which have not been consolidated at the trial level (when presumably the case would proceed as a single case thereafter), parties jointly interested in an appeal may file a joint notice of appeal or may consolidate their appeals after filing separate notices. They will then proceed as a single appellant as far as briefs, appendices, oral arguments, etc., are concerned.

Court Note

The words "or review by certiorari in a workmen's compensation case" have been added in the first sentence of subsection (a)(1) of Rule 3 and this subsection has been rewritten. The applicability of these rules to workmen's compensation cases, as to the time for taking the appeal and the procedure to be followed in perfecting the appeal, is not to be construed as changing or in any way superseding § 25-5-81 of the Code of Alabama providing for review by certiorari. However, all matters of procedure, including the giving of notice of appeal, the time within which such notice is to be given, the filing of an appeal or supersedeas bond, the preparation of the record on appeal, and the raising of the questions presented for review applicable to workmen's compensation cases, are governed by the Alabama Rules of Appellate Procedure; but the scope of appellate review shall remain as in cases on review by certiorari. See Alabama Digest, Workmen's Compensation, Key Nos. 1910, 1911, 1912, and 1935. Nor does this rule change the requirement that the trial court file a statement of the law and facts as mandated by § 25-5-88 of the Code of Alabama. See Leach Mfg. Co. v. Puckett, 284 Ala. 209, 224 So. 2d 242.

Court Comment to Amendment to (a)(2) Effective April 1, 1984.

Section (a)(2) was amended effective April 1, 1984, to incorporate references to pretrial appeals by the state in criminal cases. Temporary Rule 17, A.R.Crim.P., allowing certain pretrial appeals by the state in criminal cases, became effective that date, and that rule, in providing for a notice of appeal in such cases, provided a procedure very different from that set out in this Rule 3(a)(2). At the same time, this Rule 3(a)(2) was clarified to speak of the defendant's "giving," rather than "filing," an oral notice of appeal.

Court Comment to Amendments Effective October 1, 1991.

The amendments to Rule 3(a)(2) and 3(d)(1) direct the clerk of the trial court to serve copies of the notice of appeal on the appropriate parties on the date of its filing. The adoption of Rule 3(e) introduces the docketing statement, which provides more detailed information to the appellate court concerning the appeal.

Committee Comments to Amendment to Rule 3(d)(1) Effective February 1, 1994.

This amendment added the last sentence to paragraph (d)(1) (reading "In civil cases, the appellant shall serve ..."). Every other paper in a civil case is served on other parties, so this rule will not be a burden. The primary purpose of the notice provision is to prevent the 14-day cross-appeal period from running before other parties learn of the filing of a notice of appeal.

Court Comment to Amendment to Rule 3(d)(1) Effective January 1, 1997.

The amendment to Rule 3(d)(1) removes gender specific pronouns.

Committee Comment to Amendment to Rule 3(a)(1) Effective September 1, 2000

This amendment deletes the reference to certiorari review of workers' compensation cases by the Court of Civil Appeals. Pursuant to Act No. 92-537, § 26, Ala. Acts 1992 (codified at § 25-5-81(e), Ala. Code 1975), review of workers' compensation cases is by appeal.

Notes from the reporter of decisions: The order amending Rule 3(a)(1), effective September 1, 2000, is published in that volume of Alabama Reporter that contains Alabama cases from ___ So. 2d.

The order amending Rule 3(d)(2), effective March 1, 2004, is published in that volume of Alabama Reporter that contains Alabama cases from ___ So. 2d.

The amendment requires that the notice of appeal specify by name all appellants and all appellees who are parties to the appeal and is designed to eliminate any confusion as to the actual participants to the appeal and to ensure that a party's ability to file a cross-appeal is not impaired due to uncertainty or a lack of notice.

Court Comment to Amendments to Rule 3(a), (d), and (e) Effective October 1, 2019

Electronic filing of a notice of appeal is allowed infederal district courts. Under the Alabama Rules of AppellateProcedure before these amendments, however, an appellant wasrequired to manually remit payment of the docket fee and filethe notice of appeal with the clerk of the trial court.

These amendments bifurcate the payment of the docket feeand the filing of the notice of appeal. Such bifurcation ispermissible because the timely filing of a notice of appeal isa jurisdictional act, while the payment of the docket fee isnot. See Ex parte Alfa Ins. Corp., 263 So. 3d 689, 695 (Ala.2018); and Wehle v. Bradley, 254 So. 3d 178, 186-87 (Ala.2017) (citing H.C. Schmieding Produce Co. v. Cagle, 529 So. 2d243, 249 (Ala. 1988), citing in turn Finch v. Finch, 468 So.2d 151, 154 (Ala. 1985)). Accordingly, the amendment to Rule 3(a) allows an appellant to file the notice of appeal usingthe trial court's electronic-filing system within the timeprovided for filing a notice of appeal. Under correspondingamendments to Rule 12(a) and Rule 35A(a)(1) and (b), theappellant may then send the docket fee to the clerk of theappropriate appellate court within seven days of theelectronic filing of the notice of appeal.

If the notice of appeal is filed electronically, underRule 3(d)(3), the clerk of the trial court may serve thenotice of appeal electronically on the appropriate appellatecourt, the parties registered in the trial court's electronic-filing system, and the court reporter. The amendment to Rule 3(e) requires an appellant who files the notice of appealelectronically to also file the docketing statementelectronically simultaneously with the notice of appeal.