Rule 2. Penalties for noncompliance with these rules; suspension of rules

Alabama Rules of Appellate Procedure

Rule 2.

Penalties for noncompliance with these rules; suspension of rules.

(a) Dismissal of appeal.

(1)

An appeal shall be dismissed if the notice of appeal was not timely

filed to invoke the jurisdiction of the appellate court.

(2)

An appeal may be dismissed: (A) if an appellant fails to file a brief

within the time provided by Rule 31, or within the time as extended;

(B) when an appellant takes a frivolous appeal as provided in Rule

38; (C) when the appellate court, on motion of a party or on its own

motion, determines that there is an obvious failure to prosecute an

appeal; or (D) when a party fails to comply substantially with these

rules.

When an appellate court, on motion of a party, or on its own motion, shall

determine that a party is obviously failing to prosecute the appeal (C), or has

substantially failed to comply with these rules (D), the appellate court shall cause

notice to be sent to the party in default, notifying the party, in general terms, of the

deficiency. If the party in default fails to correct the deficiency prior to submission,

or within such time as the appellate court shall direct, the appellate court may

dismiss the appeal. The attorney for the party in default has the burden to correct

promptly any deficiency or to see that the default is corrected by the appropriate

official.

(b)

Suspension of rules. In the interest of expediting decision, or for other

good cause shown, an appellate court may suspend the requirements or

provisions of any of these rules in a particular case on application of a party or on

its own motion and may order proceedings in accordance with its direction;

provided, however, an appellate court may not extend the time for taking an appeal,

as provided in Rule 4(a)(1); and the supreme court may not extend the time for

filing a petition for certiorari to the courts of appeals as provided in Rule 39(b);

provided, however, that the supreme court may extend the time for filing a petiti

motion and may order proceedings in accordance with its direction;

provided, however, an appellate court may not extend the time for taking an appeal,

as provided in Rule 4(a)(1); and the supreme court may not extend the time for

filing a petition for certiorari to the courts of appeals as provided in Rule 39(b);

provided, however, that the supreme court may extend the time for filing a petition

for certiorari in a criminal case in which the death penalty was imposed as

punishment.

(c)

Striking of Petition for Certiorari. A petition for certiorari to the courts

of appeals shall be stricken if the petition for certiorari was not timely filed to invoke

the jurisdiction of the supreme court.

[Amended 5-4-81, eff. 5-18-81; Amended 6-2-81, eff. 7-15-81; Amended 11-1996,

eff. 1-1-97; Amended 9-20-2016, eff 1-1-2017; Amended 11-30-2020, eff. 11-

2021.]

Committee Comments

The Alabama Rules of Appellate Procedure will be construed to assure the

just, speedy and inexpensive determination of every appellate proceeding.

Compliance with these rules is encouraged, because the rules are designed to

ensure the just, speedy and inexpensive determination of every appellate

proceeding, and should be followed, even in their technical requirements.

The responsibility for complying with the rules still rests principally with the

attorneys, and the fact that this rule substantially changes the penalty for

noncompliance with the appellate rules should not encourage attorneys to engage

in careless appellate practice. In fact, penalties for noncompliance may be

imposed.

If an appeal is not taken within the time as specified in Rule 4(a)(1), the

appellate court shall dismiss it.

If the appellant fails to file his briefs on time the appeal may be dismissed.

Rule 31.

Frivolous appeals may be dismissed. Rule 38

the appellate rules should not encourage attorneys to engage

in careless appellate practice. In fact, penalties for noncompliance may be

imposed.

If an appeal is not taken within the time as specified in Rule 4(a)(1), the

appellate court shall dismiss it.

If the appellant fails to file his briefs on time the appeal may be dismissed.

Rule 31.

Frivolous appeals may be dismissed. Rule 38.

It is intended that deficiencies relating to such things as the size of paper,

service of notices on opposing parties, certifications and the like are not sufficient

grounds for dismissal of an appeal.

This rule is not intended as a substitute for specific provisions as to time for

filing various papers, and the like, since specific penalties for those items are

provided in the rules governing the filing of briefs, appendices, notices of appeal

and the like.

Decisions such as Coca Cola Bottling Co. v. Hammac, 48 Ala.App. 60, 261

So.2d 893, and Metzger Bros. v. Friedman, 288 Ala. 386, 261 So.2d 398, under

former appellate practice shall not be followed. Counsel are also directed to the

resolution of the Bar in 29 Alabama Lawyer 388 (October 1968) for the kind of

technical dismissals of review sought to be avoided by this rule.

This rule is intended in its scope to apply to all applications for extraordinary

remedies as well as appeals. It is further intended to include delinquencies or

failures of court reporters, clerks and registers. It is intended that all attorneys, not

merely the attorney for the party in default, should be apprised of the procedural

delinquency. Under this rule, the burden is on the attorney for the party in default

to correct the deficiency or see that it is corrected by the appropriate official.

The primary purpose of subdivision (b) is to make clear the power of the

appellate court to expedite the determination of cases of pressing concern to the

public or to the litigants by prescribing procedures and time schedules other than

those provided by the rules

is on the attorney for the party in default

to correct the deficiency or see that it is corrected by the appropriate official.

The primary purpose of subdivision (b) is to make clear the power of the

appellate court to expedite the determination of cases of pressing concern to the

public or to the litigants by prescribing procedures and time schedules other than

those provided by the rules. The rule prohibits an appellate court from extending

the time within which to take an appeal. This rule contemplates that an appellate

court may relieve a litigant of the consequences of default where manifest injustice

would otherwise result. See Rule 48 for treatment of the sanction of contempt of

court.

In criminal cases, because of constitutional requirements and with due

regard for the fundamental rights of a defendant, the interplay between available

penalties for noncompliance with the rules, on the one hand, and suspension of

the rules, on the other hand, is left to the sound discretion of the Court of Criminal

Appeals.

Court Comment to Amendment to Rule 2(a)(2)

Effective January 1, 1997

The amendment to Rule 2(a)(2) removes gender specific pronouns.

Committee Comment to Amendment to Rule 2(b)

Effective January 1, 2021

Rule 2(b) has been amended to clarify that the prohibition of extending the time

for filing a petition for the writ of certiorari applies to petitions to the Court of Civil

Appeals and to the Court of Criminal Appeals in non-death-penalty cases.

Note from the reporter of decisions: The order amending Rule 2(c) and

Rule 3(c) and adopting Rule 28A and Rule 28B, Ala. R. App. P., and the committee

comments, including the comments to Rule 25, effective January 1, 2017, is

published in that volume of Alabama Reporter that contains Alabama cases from

199 So. 3d.

peals and to the Court of Criminal Appeals in non-death-penalty cases.

Note from the reporter of decisions: The order amending Rule 2(c) and

Rule 3(c) and adopting Rule 28A and Rule 28B, Ala. R. App. P., and the committee

comments, including the comments to Rule 25, effective January 1, 2017, is

published in that volume of Alabama Reporter that contains Alabama cases from

199 So. 3d.

Note from the reporter of decisions: The order amending Rule 2(b), Rule

5(b)(2), Rule 21(a)(1)(F), and Rule 28B and adopting the Committee Comments to

those amendments, effective January 1, 2021, is published in that volume of

Alabama Reporter that contains Alabama cases from __ So. 3d.