Rule 5. INTERLOCUTORY APPEAL BY PERMISSION

(a) Petition for Permission to Appeal. An appeal from an interlocutory order may

be sought if a substantial basis exists for a difference of opinion on a question of law as to

which appellate resolution may:

(1) Materially advance the termination of the litigation and avoid exceptional expense

to the parties; or

(2) Protect a party from substantial and irreparable injury; or

(3) Resolve an issue of general importance in the administration of justice.

Appeal from such an order may be sought by filing a petition for permission to appeal

with the clerk of the Supreme Court within 21 days after the entry of such order in the trial

court with proof of service on the trial judge and all other parties to the action in the trial

court.

(b) Content of Petition; Answer. The petition shall contain a statement of the facts

necessary to an understanding of the question of law determined by the order of the trial

court; a statement of the question itself; a statement of the current status of the case; and a

statement as to why the petition for interlocutory appeal is timely. The petition shall further

identify all other cases or petitions for interlocutory appeal pending before the appellate court

and known to the petitioner which are related to the matter for which interlocutory review

is sought. The petition shall include or have annexed a copy of the order from which appeal

is sought and of any related findings of fact, conclusions of law or opinion. Within 14 days

after service of the petition, the trial judge may file a statement informing the appellate court

of any reasons why that judge believes that the petition should or should not be granted, and

any adverse party may file an answer in opposition with the clerk of the Supreme Court, with

proof of service on the trial judge and all other parties to the action in the trial court. The

petition with any statement by the trial judge and answers of all parties responding shall be

submitted without oral argument unless otherwise ordered.

eves that the petition should or should not be granted, and

any adverse party may file an answer in opposition with the clerk of the Supreme Court, with

proof of service on the trial judge and all other parties to the action in the trial court. The

petition with any statement by the trial judge and answers of all parties responding shall be

submitted without oral argument unless otherwise ordered.

(c) Form of Papers; Number of Copies. Four (4) copies of the petition and answer,

if any, shall be filed with the original, but the Court may require that additional copies be

furnished. The provisions of Rule 27 concerning motions shall govern the filing and

consideration of the petition and answer, except that no petition or answer, including its

supporting brief, shall exceed 15 pages in length.

(d) Grant of Permission; Prepayment of Costs; Filing of Record. If permission

to appeal is granted by the Supreme Court, the appellant shall pay the docket fee as required

by Rule 3(e) within 14 days 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 13. The time fixed by those rules for transmitting the record and docketing

the appeal shall run from the date of entry of the order granting permission to appeal. A

notice of appeal need not be filed.

(e) Expedited Proceedings. The Court may in its discretion expedite the appeal and

give it preference over ordinary civil cases. If the Court determines that the issues presented

can be fairly decided on the petition, response and exhibits presented, the Court may decide

those issues simultaneously with the granting of the petition, without awaiting preparation

of a record or further briefing.

ed.

(e) Expedited Proceedings. The Court may in its discretion expedite the appeal and

give it preference over ordinary civil cases. If the Court determines that the issues presented

can be fairly decided on the petition, response and exhibits presented, the Court may decide

those issues simultaneously with the granting of the petition, without awaiting preparation

of a record or further briefing.

(f) Effect on Trial Court Proceedings. The petition for appeal shall not stay

proceedings in the trial court unless the trial judge or the Supreme Court shall so order.

Advisory Committee Historical Note

Effective April 15, 2004, the Comment was amended to note that Rule 5 does not

alter the applicability of Miss. Code Ann. § 99-35-103 (Rev. 2000) regarding appeals by the

government in criminal cases.

Effective January 1, 1995, Miss.R.App.P. 5 replaced Miss.Sup.Ct.R. 5, 644-647 So.2d

XXX-XXXIII (West Miss.Cases 1994).

Effective July 1, 1994, the Comment to Miss.Sup.Ct.R. 5 was amended to delete a

reference to a repealed statute. 632-635 So.2d LI (West Miss.Cases 1994).

Comment

This rule is a composite of Fed. R. App. P. 5, 28 U.S.C. § 1292(b) and American Bar

Ass'n. Standards Relating to Appellate Courts § 3.12 (1977). See also, Ala. R. App. P. 5;

Comment, 88 Harv. L. Rev. 607 (1975). It provides for interlocutory appeal from Circuit,

Chancery and County Courts. See Sonford Products Corp. v. Freels, 495 So. 2d 468, 471

(Miss. 1986); Kilgore v. Barnes, 490 So. 2d 895, 896 (Miss. 1986); Southern Farm Bureau

Cas. Ins. v. Holland, 469 So. 2d 55, 62-64 (Miss. 1985) (Anderson, J., concurring). It applies

3.12 (1977). See also, Ala. R. App. P. 5;

Comment, 88 Harv. L. Rev. 607 (1975). It provides for interlocutory appeal from Circuit,

Chancery and County Courts. See Sonford Products Corp. v. Freels, 495 So. 2d 468, 471

(Miss. 1986); Kilgore v. Barnes, 490 So. 2d 895, 896 (Miss. 1986); Southern Farm Bureau

Cas. Ins. v. Holland, 469 So. 2d 55, 62-64 (Miss. 1985) (Anderson, J., concurring). It applies

to both civil and criminal cases. Cf. State v. Caldwell, 492 So. 2d 575, 576-577 (Miss. 1986)

(remedial writ granted where constitutional rights violated prior to criminal trial).

Prior to March 1, 2005, Rule 5(a) required the petitioner to seek certification for an

interlocutory appeal first from the trial court. Denial of certification did not limit the right

of the petitioner to seek interlocutory review, but submitting the matter to the trial judge was

a prerequisite to proceeding in the Supreme Court. This requirement has been eliminated by

the amendment as to trial court orders entered from and after March 1, 2005. Under the rule

prior to the amendment, the 14 day time limit ran from the time of entry of the judge’s order

ruling on a motion to amend the order which was the subject of the petition. With the

elimination of the requirement of trial court certification or denial of certification as to orders

entered after March 1, 2005, the petition must be filed within 21 days following the entry

of the order which the petitioner submits for interlocutory review. While an interlocutory

appeal may be sought at any time, the timeliness of the petition decreases as trial approaches.

The practice of seeking belated reconsideration of the trial court’s ruling for the purpose of

renewing the time allowed for seeking interlocutory review is condemned. The rule is unlike

federal practice in which both courts must agree before an interlocutory appeal will be heard

under 28 U.S.C. § 1292(b)

eal may be sought at any time, the timeliness of the petition decreases as trial approaches.

The practice of seeking belated reconsideration of the trial court’s ruling for the purpose of

renewing the time allowed for seeking interlocutory review is condemned. The rule is unlike

federal practice in which both courts must agree before an interlocutory appeal will be heard

under 28 U.S.C. § 1292(b).

The March 1, 2005 amendment recognizes that the trial court’s views as to whether

interlocutory review should be granted are often helpful. The amendment requires that the

petition be served on the trial judge and invites that judge’s statement as to the reasons why

the petition should or should not be granted.

The standards for granting interlocutory appeal are based on existing law. Appeal will

not be permitted except to resolve a question of law, and this includes the application of law

to fact. There must be a substantial basis for a difference of opinion with the trial court. See

Fed. R. App. P. 5(b); 28 U.S.C. § 1292(b). A question of law need not control the entire

case, but must be sufficiently important to the litigation to merit interlocutory appeal. In this

latter respect, the rule departs from the standards set forth in § 1292(b) and adopts the

language followed by other state courts. See, e.g., Ill. Sup. Ct. R. 308. Rule 5 does not alter

the applicability of Miss. Code Ann. § 99-35-103 (Rev. 2000) regarding appeals by the

government in criminal cases. State v. Hicks, 806 So. 2d 261 (Miss. 2002).

Rule 5(a)(1) begins with the federal requirement that interlocutory review will be

permitted when such review will "materially advance the termination of the litigation." See

Fed. R. App. P. 5(b); 28 U.S.C. § 1292(b). It adds the requirement of the now-repealed

Miss. Code Ann. § 11-51-7 (Supp. 1986) that the appellant must show that the appeal may

avoid expense as well as delay.

Rule 5(a)(2) permits interlocutory appeal where review will protect a party from

substantial and irreparable injury

such review will "materially advance the termination of the litigation." See

Fed. R. App. P. 5(b); 28 U.S.C. § 1292(b). It adds the requirement of the now-repealed

Miss. Code Ann. § 11-51-7 (Supp. 1986) that the appellant must show that the appeal may

avoid expense as well as delay.

Rule 5(a)(2) permits interlocutory appeal where review will protect a party from

substantial and irreparable injury. This category would permit interlocutory review of rulings

on injunctions and receivership matters allowed as of right under 28 U.S.C. § 1292(a)(1).

It would continue present state practice of interlocutory review of chancery orders requiring

money to be paid or the possession of property changed, but only if compliance with such an

order threatened the opposite party with irreparable injury.

Rule 5(a)(3) provides the Court with flexible authority to grant interlocutory review

in situations in which the pertinent interest is the administration of justice. The interest "is

that of the proper administration of justice generally--for example, when an order involves

a question of procedure that would likely become moot by the time final judgment was

entered but should be authoritatively resolved for the purposes of future guidance of courts

below." American Bar Ass'n, Standards Relating to Appellate Courts § 3.12, at 29. See also

Wisc. Stat. Ann. § 809.50(c) (1986). By permitting review to resolve conflicts among trial

courts in such cases, the rule promotes uniformity and fairness to litigants.

Rule 5(b) provides only for the petition and the answer. A reply to the answer is not

permitted and will not be considered.

Rule 5(c) contemplates that the petition and answer will be treated as motions and so

must be supported by a brief. In order to expedite judicial consideration, however, the total

length of a petition and brief are limited to 15 pages, and a similar restriction applies to the

answer and its supporting brief. This limitation does not include pages in exhibits required

to be annexed to the petition

Rule 5(c) contemplates that the petition and answer will be treated as motions and so

must be supported by a brief. In order to expedite judicial consideration, however, the total

length of a petition and brief are limited to 15 pages, and a similar restriction applies to the

answer and its supporting brief. This limitation does not include pages in exhibits required

to be annexed to the petition.

Rule 5 review is separate from the interlocutory review available by certification

under M.R.C.P. 54(b) when a final judgment is entered as to fewer than all parties or claims,

and that available under Rule 9 governing release in criminal cases.

Rule 5(e) was added by amendment effective July29, 2004 in recognition of the need

for expedited disposition of interlocutory appeals. On occasions when the Court is presented

in the petition with a pure question of law or otherwise has before it sufficient information

to do so, the Court may in its discretion address and dispose of the issue presented

simultaneously with the grant of permission to file the interlocutory appeal and without

further record preparation or briefing.

[Comment amended effective April 15, 2004; amended effective July 29, 2004; amended

effective December 9, 2004; Comment amended effective January 11, 2007; Comment

amended effective July 1, 2008.]