# Ala. R. App. P. 5: Rule 5. Appeal by permission

> Alabama · Court rules · In force

URL: https://www.frixlaw.com/law-library/statutes/SRULES_AL_ARAP_R5

## Section

- **Citation:** Ala. R. App. P. 5
- **Heading:** Rule 5. Appeal by permission
- **Jurisdiction:** Alabama
- **Kind:** Court rules
- **Status:** In force
- **Text as of:** August 14, 2026
- **Source:** Compiled text
- **Location:** Alabama Rules of Court / Alabama Rules of Appellate Procedure / Ala. R. App. P. 5

## Text

Alabama Rules of Appellate Procedure

Rule 5.

Appeal by permission.

(a) Petition for permission to appeal. A party may request permission to
appeal from an interlocutory order in civil actions under limited circumstances.
Appeals of interlocutory orders are limited to those civil cases that are within the
original appellate jurisdiction of the Supreme Court. A petition to appeal from an
interlocutory order must contain a certification by the trial judge that, in the judge’s
opinion, the interlocutory order involves a controlling question of law as to which
there is substantial ground for difference of opinion, that an immediate appeal from
the order would materially advance the ultimate termination of the litigation, and
that the appeal would avoid protracted and expensive litigation. The trial judge
must include in the certification a statement of the controlling question of law.

(1)
PRESUMPTIVELY REASONABLE TIME FOR TRIAL JUDGE’S CERTIFICATION
FOR PERMISSIVE REVIEW. The presumptively reasonable time for the trial
judge to enter the certification required in subdivision (a) is within 28 days
of the entry of the interlocutory order sought to be appealed. If a certification
is made outside this presumptively reasonable time, the petition shall
include a statement of circumstances constituting good cause for the
Supreme Court to consider the petition, notwithstanding that the certification
was entered beyond the presumptively reasonable time of 28 days.

(2)
TIME FOR FILING THE PETITION WITH THE SUPREME COURT. The petition
for permission to appeal shall be filed with the clerk of the Supreme Court
within 14 days (2 weeks) after the entry of the certification by the trial judge
under Rule 5(a). The petition shall include a certificate of service on all other
parties to the action in the trial court.
resumptively reasonable time of 28 days.

(2)
TIME FOR FILING THE PETITION WITH THE SUPREME COURT. The petition
for permission to appeal shall be filed with the clerk of the Supreme Court
within 14 days (2 weeks) after the entry of the certification by the trial judge
under Rule 5(a). The petition shall include a certificate of service on all other
parties to the action in the trial court.

(b) Content of petition; Answer.

(1)
PETITION. The petition shall contain a statement of the facts
necessary to an understanding of the controlling question of law determined
by the order of the trial court, supported by reference to the appendix
accompanying the petition; a statement of the question itself, as stated by
the trial court in its certification; and a statement of the reasons why a
substantial basis exists for a difference of opinion on the question, why an
immediate appeal would materially advance the termination of the litigation,
and why the appeal would avoid protracted and expensive litigation.

(2)
APPENDIX. The petition shall have annexed thereto an appendix
including (i) a copy of the order or orders from which appeal is sought and
of any findings of fact, conclusions of law, and opinion or opinions relating
thereto, (ii) a copy of the certification required by Rule 5(a), (iii) all other
orders, opinions, and parts of the record that are essential to understanding
the matters set forth in the petition, such as all court filings (by any party)
directly connected to the order or orders for which permissive appeal is
sought, and any transcripts of proceedings that resulted in the order or
orders, and (iv) an index listing separately each document in the appendix.
The supreme court may, in its discretion, direct any deficiency in documents
included in the appendix to be corrected or the petition dismissed
court filings (by any party)
directly connected to the order or orders for which permissive appeal is
sought, and any transcripts of proceedings that resulted in the order or
orders, and (iv) an index listing separately each document in the appendix.
The supreme court may, in its discretion, direct any deficiency in documents
included in the appendix to be corrected or the petition dismissed. The
appendix shall be separated from the petition by a divider or a tab, and each
document within the appendix shall be separated by a numbered cover
sheet and an appropriate tab to identify and assist in locating the
documents.

(3)
ANSWER. Within 14 days (2 weeks) after service of the petition, an
adverse party may file an answer in opposition with the clerk of the Supreme
Court, with proof of service on all other parties to the action in the trial court.
No reply by the petitioner to the answer is permitted. The petition and
answer shall be submitted without oral argument unless otherwise ordered.

(c)
Grant of permission; security for costs; filing of record. If permission
to appeal is granted by the Supreme Court, the appellant shall file security for costs
as required by Rule 7 and the docket fee as required by Rule 12(a) within 14 days
(2 weeks) after entry of the order granting permission to appeal, and the record on
appeal shall be transmitted and filed and the appeal docketed in accordance with
Rules 10, 11, and 12. The time fixed by those rules for transmitting the record and
docketing the appeal shall run from the date of the entry of the order granting
permission to appeal. A notice of appeal need not be filed.
(d)
Effect on trial court proceedings. A pending petition or appeal
hereunder shall not stay proceedings in the trial court unless the trial judge or the
Supreme Court shall so order.
and 12. The time fixed by those rules for transmitting the record and
docketing the appeal shall run from the date of the entry of the order granting
permission to appeal. A notice of appeal need not be filed.
(d)
Effect on trial court proceedings. A pending petition or appeal
hereunder shall not stay proceedings in the trial court unless the trial judge or the
Supreme Court shall so order.

(e)
Form and length of petition and answer; number of copies. The
petition and any answer to the petition shall comply with the provisions of Rule
32(b)(4) governing form and shall not exceed 4,000 words (20 pages for a petition
or an answer filed pro se), as also provided in Rule 32(b)(4). When the petition or
answer is filed in the traditional paper format, one (1) additional hard copy of the
petition or answer, including any supporting briefs or attachments, shall be
provided to the clerk of the Supreme Court. When the petition or answer is efiled
in accordance with Rule 57, two (2) additional hard copies of the petition or answer,
including any supporting briefs or attachments, shall be provided to the clerk.
However, the Court may direct that additional hard copies be furnished.

[Amended 2-9-82; Amended 11-19-96, eff. 1-1-97; Amended 11-20-2001, eff. 61-
2002; Amended 10-13-2015; Amended 10-19-2017, eff. 1-1-2018; Amended 1-
30-2020, eff. 4-1-2020; amended 7-24-2020, eff. 10-1-2020; Amended 11-302020,
eff. 1-1-2021; Amended 10-20-2023, eff. 01-01-2024.]

Committee Comments

Rule 5 is a composite of FRAP Rule 5 and 28 U.S.C. § 1292(b). It
supersedes Title 7, § 755. Alabama Rule 5, however, extends the time from the 7
days provided by FRAP Rule 5 to 14 days for the adverse party to file an answer
in opposition. Such answer is filed with the clerk of the Supreme Court, and the
answer must be served on all other parties to the action in the trial court. The
number of copies is to be one for each justice of the Supreme Court, unless the
Court directs that additional copies be filed
extends the time from the 7
days provided by FRAP Rule 5 to 14 days for the adverse party to file an answer
in opposition. Such answer is filed with the clerk of the Supreme Court, and the
answer must be served on all other parties to the action in the trial court. The
number of copies is to be one for each justice of the Supreme Court, unless the
Court directs that additional copies be filed. See Form 16 for petition and Form 17
for certificate of trial judge.

The rule does not apply to criminal cases, since it was felt that the
potentiality for abuse in criminal cases on such matters as search warrants, etc.,
was extremely great. Neither does the rule apply to cases appealable to the Court
of Civil Appeals.

Court Comment to Amendment to Rule 5(a)
Effective January 1, 1997

The amendment to Rule 5(a) removes gender specific pronouns.

Court Comment to Amendment to Rule 5
Effective June 1, 2002

The amendment to Rule 5(a) is intended to provide a limited window of
opportunity for the filing of a petition pursuant to this section. In adopting the time
limits set forth in Rule 5(a), the Supreme Court contemplated that, on occasion,
orders containing the required certification may be issued subsequent to the trial
court’s substantive ruling on the legal issues that form the basis of the controlling
question of law over which there is a substantial difference of opinion. The Court
has noted, however, that in some instances the second prong of this process— the
issuance of the order by the trial court setting forth its findings and its certification
that the matter is appropriate for interlocutory review—is not done in a timely
manner. For this reason, the Supreme Court has determined that a presumptively
ver which there is a substantial difference of opinion. The Court
has noted, however, that in some instances the second prong of this process— the
issuance of the order by the trial court setting forth its findings and its certification
that the matter is appropriate for interlocutory review—is not done in a timely
manner. For this reason, the Supreme Court has determined that a presumptively

reasonable time limit between the issuance of the substantive order and the
issuance of the certification order is desirable, and that 28 days is a reasonable
time limit within which the trial court must certify the previously issued substantive
ruling for permissive appeal. Rule 5 has been amended to include this
presumptively reasonable time period in which the trial judge’s certification must
be made. While this time limit is not a jurisdictional requirement, if a certification is
made outside the presumptively reasonable time, the rule now requires that the
petition include a statement of circumstances constituting good cause for the
Supreme Court to consider the petition, notwithstanding that it was certified beyond
the presumptively reasonable time.

Committee Comments to Amendment to Rule 5(b)
Effective January 1, 2018

Rule 5(b) was modified to require that a separate appendix be filed with all
petitions for permissive appeal. The purpose of the appendix is to permit the parties
to prepare and transmit copies of those portions of the record deemed necessary
to an understanding of the issues presented. The Committee suggests that the
documents in the appendix be separated into volumes of no more than 200 pages.
The appendix should include an index to the documents contained in the appendix
and should be divided to identify and assist in locating a specific document. The
hard copy of any appendix and documents should be divided with tabs
necessary
to an understanding of the issues presented. The Committee suggests that the
documents in the appendix be separated into volumes of no more than 200 pages.
The appendix should include an index to the documents contained in the appendix
and should be divided to identify and assist in locating a specific document. The
hard copy of any appendix and documents should be divided with tabs. In lieu of
tabs, any appendix filed electronically should be demarcated by cover sheets that
clearly identify the particular document that follows (e.g., "Exhibit ____" or "Tab
____").

Committee Comments to Amendment to Rule 5(b)(2)
Effective April 1, 2020

The amendment requires that an appendix to a petition filed pursuant to
Rule 5(a) have both a numbered cover sheet and a tab for each document. For
paper copies, the tab should protrude from the side of the paper so that a reader
may easily access the document under that tab. For electronic copies, each tab
should be reflected as a "bookmark" so that the reader may click on the bookmark
to access the document under that bookmark.

Committee Comment to Amendment to Rule 5(e)
Effective October 1, 2020

Rule 5(e) has been amended to provide a word limit for most petitions and
answers consistent with the amendment to Rule 32, but to retain a page limit for
petitions and answers filed pro se.

Committee Comment to Amendment to Rule 5(b)(2)
Effective January 1, 2021

Consistent with the amendment to Rule 21(a)(1)(F), Rule 5(b)(2) has been
amended to clarify that the documents from the trial court's record to be made part
of the appendix to the petition include the order or orders for which the petitioner
seeks review and all filings by any party directly connected to that order or those
orders. The amendment also clarifies that the supreme court may direct that any
deficiency in the inclusion of documents in the appendix be remedied or the petition
will be dismissed
om the trial court's record to be made part
of the appendix to the petition include the order or orders for which the petitioner
seeks review and all filings by any party directly connected to that order or those
orders. The amendment also clarifies that the supreme court may direct that any
deficiency in the inclusion of documents in the appendix be remedied or the petition
will be dismissed.

Note from the reporter of decisions: The order amending Rule 5, Rule
21(d), Rule 27(d), Rule 28, Rule 32, Rule 39(d), Rule 39(f), Rule 39(h), and Rule
40(g), effective June 1, 2002, is published in that volume of Alabama Reporter that
contains Alabama cases from 798 So.2d.

Note from the reporter of decisions: The order amending Rule 32(b)(4),
Rule 5(b), Rule 5(d), and Rule 39(e), Ala. R. App. P., effective October 13, 2015, is
published in that volume of Alabama Reporter that contains Alabama cases from
173 So. 3d.

Note from the reporter of decisions: The order amending Rule 5(b) and
adopting the Committee Comments thereto and adopting Rule 21(f) and the
Committee Comments thereto effective January 1, 2018, is published in that
volume of Alabama Reporter that contains Alabama cases from 227 So. 3d.

Note from the reporter of decisions: The order amending Rule 5(b)(2)
and Rule 21(a)(1) and adopting the Committee Comments thereto, effective April
1, 2020, is published in that volume of Alabama Reporter that contains Alabama
cases from __ So. 3d.

Note from the reporter of decisions: The order amending Rule 5(e), Rule
21(d), Rule 27(d), Rule 28(a), Rule 28(j), Rule 28A(c), Rule 28B, Rule 32,
Rule 39(d), Rule 40(f), and Rule 40(g), effective October 1, 2020, and adopting
Committee Comments to those amendments is published in that volume of
Alabama Reporter that contains Alabama cases from __ So. 3d
tains Alabama
cases from __ So. 3d.

Note from the reporter of decisions: The order amending Rule 5(e), Rule
21(d), Rule 27(d), Rule 28(a), Rule 28(j), Rule 28A(c), Rule 28B, Rule 32,
Rule 39(d), Rule 40(f), and Rule 40(g), effective October 1, 2020, and adopting
Committee Comments to those amendments is published in that volume of
Alabama Reporter that contains Alabama cases from __ 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.

Note from the reporter of decisions: The order amending Rule
5(e), Rule 21(d), Rule 27(d), Rule 31(b), Rule 39(e), and Rule 57, Alabama
Rules of Appellate Procedure, and adopting the Court Comment to the
amendment of Rule 57, effective January 1, 2024, is published in that
volume of Alabama Reporter that contains Alabama cases from __ So. 3d.

## Nearby sections

- [Ala. R. App. P. 1 Rule 1. Scope of rules](https://www.frixlaw.com/law-library/statutes/SRULES_AL_ARAP_R1.md)
- [Ala. R. App. P. 2 Rule 2. Penalties for noncompliance with these rules; suspension of rules](https://www.frixlaw.com/law-library/statutes/SRULES_AL_ARAP_R2.md)
- [Ala. R. App. P. 3 Rule 3. Appeal as of right - How taken](https://www.frixlaw.com/law-library/statutes/SRULES_AL_ARAP_R3.md)
- [Ala. R. App. P. 4 Rule 4. Appeal as of right - When taken](https://www.frixlaw.com/law-library/statutes/SRULES_AL_ARAP_R4.md)
- [Ala. R. App. P. 5 Rule 5. Appeal by permission](https://www.frixlaw.com/law-library/statutes/SRULES_AL_ARAP_R5.md)
- [Ala. R. App. P. 6 Rule 6. Omitted](https://www.frixlaw.com/law-library/statutes/SRULES_AL_ARAP_R6.md)
- [Ala. R. App. P. 7 Rule 7. Security for costs on appeal in civil cases](https://www.frixlaw.com/law-library/statutes/SRULES_AL_ARAP_R7.md)
- [Ala. R. App. P. 8 Rule 8. Stay or injunction pending appeal](https://www.frixlaw.com/law-library/statutes/SRULES_AL_ARAP_R8.md)
- [Ala. R. App. P. 9 Rule 9. Release in criminal cases](https://www.frixlaw.com/law-library/statutes/SRULES_AL_ARAP_R9.md)
- [Ala. R. App. P. 10 Rule 10. The record on appeal](https://www.frixlaw.com/law-library/statutes/SRULES_AL_ARAP_R10.md)
- [Ala. R. App. P. 11 Rule 11. Completion and transmission of the record](https://www.frixlaw.com/law-library/statutes/SRULES_AL_ARAP_R11.md)
- [Ala. R. App. P. 12 Rule 12. Docketing of the appeal; docket fee; filing of the record](https://www.frixlaw.com/law-library/statutes/SRULES_AL_ARAP_R12.md)
- [Ala. R. App. P. 13 Rule 13. Transmission of original item from the trial court](https://www.frixlaw.com/law-library/statutes/SRULES_AL_ARAP_R13.md)
- [Ala. R. App. P. 14 Rule 14. Use of recording devices](https://www.frixlaw.com/law-library/statutes/SRULES_AL_ARAP_R14.md)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/statutes/SRULES_AL_ARAP_R5. Check the current official text before relying on it. Not legal advice.