Appellate Law

Faxed Notice of Appeal Not "Filed," Not Effective

A notice of appeal is not “filed” and effective if it is only faxed to the court clerk. L.M. v. Shelby County Dept. of Human Resources, No. 2060860 (Ala. Civ. App. Feb. 15, 2008). The Court of Civil Appeals ruled that a faxed notice of appeal, that was otherwise timely, did not invoke its jurisdiction, and dismissed the appeal.

The mother in L.M. filed a post-judgment motion challenging the juvenile court’s termination of her parental rights.  As an initial matter, the Court of Civil Appeals noted that her motion, though styled under Rule 59(e) (to alter, amend, or vacate) and Rule 60(b) (for relief from judgment), was effectively only a Rule 59(e) motion.  Because the motion was “filed within the time for filing a motion to alter, amend, or vacate the juvenile court’s termination judgment, and because it both sought and stated grounds for an alteration, amendment or vacation of the judgment rather than for relief from the judgment,” the motion was “properly deemed a Rule 59(e) postjudgment motion.”

The motion, in any case, was denied by operation of law.  Thirteen days after this denial — and thus within the time permitted by the juvenile rules for taking an appeal — the mother faxed the juvenile clerk a notice of appeal.  The deadline for taking an appeal passed the next day, and the mother had filed no other paper.  Following some uncertainty over the effectiveness of the faxed notice, the parties submitted “letter briefs” (apparently to the Court of Civil Appeals), and “the appeal was thereafter allowed to proceed.”  The Court of Civil Appeals emphasized that this “permission” did not preclude it from reconsidering the question after it had “had an opportunity to review the record.”  The efficacy of the notice implicated appellate jurisdiction and such questions may be addressed “at any time, even ex mero motu.”

The appellate court then determined that faxing did not constitute effectively “filing” a notice of appeal.  The Alabama Supreme Court had held years ago that, after July 31, 1993, faxes would not be deemed “filings” under Alabama's rules of court or statutes, unless a rule or statute specifically authorized that mode of filing.  Documents faxed to “third parties” can be effective, the court noted — if the fax is printed out and then normally filed with the clerk.  But a document faxed directly to the clerk is not a recognized “filing.”  The mother’s pro se status did not excuse her from this rule.

The mother thus had not timely filed an appeal; the Court of Civil Appeals lacked jurisdiction to hear the case; and the mother’s appeal was dismissed.

Full post as published by Alabama Appellate Watch on February 19, 2008 (boomark / email).