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How to add evidence to a hearing

Discussion in 'Civil Court, Procedure & Litigation' started by boomer613, Apr 10, 2018.

  1. army judge

    army judge Super Moderator

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    What is the other party seeking to recover?

    In other words, try to cut your losses.

    How much will it cost you TODAY to make this go away?

    Have you tried to settle this in an effort to avoid a costly court battle?

    A lawyer might run you about $5,000 to $7,500.

    If the other party has counsel and you don't, you're likely to lose anyway.

    Time to negotiate, mate.
     
  2. boomer613

    boomer613 Law Topic Starter Member

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    That is the problem. The other party has not stated how damages they are seeking. They are asking the courts to determine.
     
  3. boomer613

    boomer613 Law Topic Starter Member

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    Can you force the courts to make the other party state an amount they are seeking for damages.
     
  4. army judge

    army judge Super Moderator

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    Okay, I'm going to make an exception and see if I can coach you.

    First of all, in what county do you reside in AL?

    In what county did this alleged trespass occur?

    In what county has the lawsuit bee filed?

    Please provide me the name of the court in which this action has been filed, the caption (Joan Jones vs Jerry Jukes), the docket number, the court's designation (Circuit Court, or a court of limited jurisdiction = municipal court, small claims court, district court)?

    Alabama offers litigants (ADR) alternative dispute resolution.

    Okay, now you need to read this pamphlet published by your state bar association.
    You'll find it quite informative.

    https://www.alabar.org/assets/uploads/2014/08/court-system.pdf

    Here is a guide to small claims in AL, take alook:

    http://www.alabamaatj.org/wp-conten...ng-in-Small-Claims-Court-in-Alabama-Color.pdf

    With a few exceptions, small claims courts in Alabama can only award monetary damages up to $6,000.

    That is why I'm surprised the plaintiff listed no amount for damages.

    Absent damages, you might be able to file for summary dismissal.

    We're not there yet, so let's keep plugging away.

    I'll review your answers, and see if I can be of more assistance to you.
     
  5. zddoodah

    zddoodah Well-Known Member

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    Well...you told us that this is a hearing on a motion to dismiss. Assuming you're talking about a motion made pursuant to Rule 12(b) of the Alabama Rules of Civil Procedure, the court should not consider any evidence beyond the four corners of the complaint or which the court can judicially notice.

    For the reason mentioned above, not likely. The court should not consider any extrinsic evidence and particularly should not hear testimony from witnesses.
     
  6. boomer613

    boomer613 Law Topic Starter Member

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    Thank you Army Judge! Any help is sincerely appreciated.
     
  7. boomer613

    boomer613 Law Topic Starter Member

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    Thank you, I will take your suggestion and not subpoena a witness for the hearing. Even though the police report is not normally admissible evidence, can I still use it to persuade the judge against the trespassing accusation?
     
  8. army judge

    army judge Super Moderator

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    If mediation is being requested, I suggest you agree.

    I've practiced law for decades, and before I became a judge, I would suggest to my clients mediation or negotiation.

    Generally the parties can often avoid the hassle and expense of a trial by compromising.

    You appear to have become embroiled in a domestic dispute.

    Now that the squabbling parties have made up, you're the outlaw.

    I suspect husband told you to whack the tree because wife loved the tree.

    You unwittingly (I hope) whacked the tree, now husband must appear to be NEUTRAL to keep wife happy.

    As the tree whacker, wife is taking out her anger on you.

    This is nonsense, as are many civil disputes, meaning its best if you negotiate this damn thing away.

    To make things worse, wife has a hired a lawyer, and you've been abandoned by husband.

    Make this go away.

    Go to mediation, find out what would make her happy, and agree to to it.

    If she has no clue, find out what a nursery would charge you to replant a similar tree on the property.

    In fact, once you determine what you will do to buy your freedom, reach out to her lawyer and see if the fish will bite.

    These things can snowball out of control and cost you far more in aggravation and angst than just dropping a few bucks to buy your freedom from the slavery you're about to be thrust into.

    Good luck.
     
  9. boomer613

    boomer613 Law Topic Starter Member

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    To be honest, it was about 2 dozen trees. We both live on farm and my wife wanted to see the mountain view so she asked the husband with my children present if he had any problems if we cut down the tree line blocking our view -- along with cleaning up a tree that had fallen on the fence line.

    I do not have a problem with mediation. I have yet to hear from the other lawyer. Perhaps at the hearing or shortly after the lawyer will reach out to me. He requested it on his summons against me.
     
  10. army judge

    army judge Super Moderator

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    That is a BIG difference from whacking one tree to harvesting a forest. LOL

    You might be in big trouble financially, if husband fails to fess up.

    At this late date I suspect husband will remain MUM, and if you were to request the judge to summons him to appear, I doubt his recitation of events would align with what your son's recitation of events would be.

    However, you can also testify as to what transpired om that fateful day, too.

    Factually speaking, whacking TWO dozen trees (or more) would require an hour or so, and another couple of hours to remove the logs and debris.

    Depending on whether the trees were hardwoods or other types, this could become a very expensive misadventure.

    I suggest you visit with at least two local attorneys about this fiasco.

    If husband would tell the truth, this would immediately disappear.

    I don't see that happening now, as his memory has suddenly failed.

    My guess, as a landowner and rancher, she'll want between $5,000 to $25,000 for trees and trespass.

    I suspect you'll also hear the argument about beauty and nature!

    However, the police report does contain some evidentiary value contemporary with the events.

    The police officer can always be summoned to court to testify in support of the police report.

    However, you need to find out what is at stake hers, as far as damages.

    The consultations with the lawyers will help you prepare for a big lawsuit, as contrasted with a merely annoying lawsuit.

    When you speak with the lawyers, tell the entire story, good and bad.

    In this case it doesn't matter, because I don't matter.

    However, when a client lies to me, I immediately request the court to withdraw.

    In this matter, one tree versus a couple dozen (or so) trees is a very important fact.

    Don't ever mislead your lawyer.
     
  11. boomer613

    boomer613 Law Topic Starter Member

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    Thank you Army Judge. I didn't want to mislead you, I just felt uncomfortable give all fact to a stranger on the web.
     
  12. army judge

    army judge Super Moderator

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    No one knows you, mate.
    You posted everything, yet left out one of the fundamental facts (if not the FUNDAMENTAL fact) of the case, one tree versus two dozen trees.
    When you meet with the lawyers, tell them everything.
    A civil case is unlike a criminal case where no lawyer will ask you if you are guilty.
    Why?
    Because you are INNOCENT until the government proves you to be guilty before a jury.

    In a civil case, facts matter.
    You have a valid defense, even if husband lies.
    You have your son witnessing the conversation, yourself, and a police officer who investigated and memorialized the event contemporary with the alleged trespass and cutting.
     
  13. boomer613

    boomer613 Law Topic Starter Member

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    Thank you for the advice. I really appreciate your insight. If I can ask for one more advice, could this Alabama Code apply in this can?

    Alabama Code Title 35. Property § 35-14-1

    (a) Any person who cuts down, deadens, girdles, boxes, destroys, or takes away, if already cut down or fallen, any cypress, pecan, oak, pine, cedar, poplar, walnut, hickory, or wild cherry tree, or sapling of that kind, on land not his own, willfully and knowingly, without the consent of the owner of the land, must pay to the owner $20.00 for every such tree or sapling;  and for every other tree or sapling, not hereinbefore described, so cut down, deadened, girdled, boxed, destroyed, or taken away by any person, he must pay to such owner the sum of $10.00.


    Alabama Code Title 35. Property § 35-14-3

    Any action for the specific penalties given by this chapter may be brought in any court of competent jurisdiction and must be brought within one year from the time the injury was committed and not after; and neither action brought, nor penalty incurred under any of the provisions of this chapter, is a bar to any action for further damages or to any criminal proceeding for any offense included in the acts for which such penalties are herein imposed or connected therewith.


    (b) When one person owns the land and another person owns the trees standing thereon, the owner of the trees is the owner of the land within the meaning of subsection (a) of this section.

    (c) Actions under this section may be joined with actions for trespass, for cutting, injuring, or removing timber.
     
  14. zddoodah

    zddoodah Well-Known Member

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    Sigh...all I can tell you is what the law says. I cannot predict whether some unknown judge in Alabama will rigidly follow the law or deviate from it.

    I would submit to you that there are no mountains in Alabama. :)

    I don't think you told us what sort of trees were involved, so we cannot determine if this law is applicable. Note, however, that this law does not appear to impose a cap on damages.

    If the action against you is an "action for the specific penalties given by this chapter," then this section certainly should apply.
     
  15. army judge

    army judge Super Moderator

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    Yes, that might apply.

    The good news, it could cap damages insofar as the trees are concerned at about $500!

    That could get you back into settlement mode to make this annoyance disappear.

    However, you were given permission by the landowner to whack the trees.

    That is an affirmative defense available to you, supported by witnesses (you and your son), plus memorialized and investigated by a police officer.

    You might be able to add attorney's fees as your damages and counterclaim in circuit court.

    That is why you should retain counsel.

    Had I known more about a key factual matter, I'd have advised that originally.

    By the way, a 13 year old child is certainly competent to testify under oath in court.
     
  16. army judge

    army judge Super Moderator

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    As much as I have enjoyed my adventures throughout AL, I would concur.
     
  17. mightymoose

    mightymoose Moderator

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    The first law you posted appears applicable only if you acted without permission. Permission is apparently something that must be resolved in court.

    The second you posted is a statute of limitations. If this tree incident occurred more than one year before any action was filed against you then this should bring a quick and to the matter for timeliness. It is up to you to assert the statute of limitations.

    You need to resolve the matter of the statute of limitations before you agree or take part in any mediation.
     
    Last edited: Apr 11, 2018
    army judge likes this.
  18. army judge

    army judge Super Moderator

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    Great catch and precisely on point!
     
  19. boomer613

    boomer613 Law Topic Starter Member

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    Thank you.
    As stated in my earlier posting, it was my wife that asked permission to chop down the trees. I actually had 2 sons who witnessed the husband telling my wife that It was ok to chop down the trees. I was only going use one of them to testify as the other son was only eleven at the time.
     
  20. boomer613

    boomer613 Law Topic Starter Member

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    I am originally from Florida and the hills in Alabama are mountains to me.
     

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