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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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    A little different fact pattern, but it all keeps getting better for you.

    You now have THREE witnesses, a police officer, and a police report.

    As Mighty Moose correctly identified, if it has been more than ONE year from the date of the alleged whacking, the SOL might be another affirmative defense you possess.

    The truth usually sets one free.
     
  2. boomer613

    boomer613 Law Topic Starter Member

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    This is what my hearing is for. I filed a Motion to Dismiss based upon the 1 year statue of limitation. The Plaintiff's attorney did a Rebuttal to the Motion to Dismiss as section C: says, " Actions under this section may be joined with actions for trespass, for cutting, injuring, or removing timber." He added trespassing and said this adds six years. I am confused on the terminology that states, "is a bar to any action for further damages." Does this excluded the damages for the tree in which only damages outside of the trees can be claimed or does trespassing allow for the damages of the trees to continue for six years?

    Here is the code again:

    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.
     
  3. army judge

    army judge Super Moderator

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    If trespass is now claimed, that's where your three witnesses, the police officer, and the police report come back into play.

    I also suspect that is why no damages have been mentioned, which makes it all the better for you.
     
  4. boomer613

    boomer613 Law Topic Starter Member

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    My hearing is set for 27 Jun to discuss the Motion to Dismiss. I have the police report stating that I had permission. I understand this is not admissible and considered hearsay for the trial - what about the hearing, can I use this to disprove the trespassing allegation? If it goes to trial, I will no doubt subpoena the reporting police officer to support his police report.
     
  5. army judge

    army judge Super Moderator

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    Whether a police report will be admitted into evidence depends on whether the report contains hearsay.

    Courts dislike “he-said-she-said” scenarios.

    A litigant can overcome these hurdles securing admission into evidence of a police report.

    You can seek a qualified exception.

    Alabama and federal rules of evidence allow such exceptions.

    You must prove the report was prepared in the regular course of official business and contemporary with the events in question.

    I would see that as no problem in your proceeding.

    I suggest you obtain at least THREE certified copies of the police report.

    I think it is necessary to have the author of the report, the police officer – testify at the hearing and at trial.

    The requirements and precedent for this issue in Alabama were laid out in a car collision lawsuit captioned as Crusoe v. Davis, Crusoe v. Davis and subsequently approved by the Alabama Supreme Court.

    Crusoe v Davis differs from your case in that the officer was on scene contemporaneous to the events in question. His conclusions were arrived at by investigation and observations. He then memorialized those observations and conclusions into a police report, an everyday tool in the course of police operations.

    Again, an AL lawyer should be consulted as to the precise steps to achieve what you wish.
     
  6. boomer613

    boomer613 Law Topic Starter Member

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    I subpoenaed a copy from the police department. I only have one copy and I am unsure if they are certified. Do I have to subpoenaed to get two additional ones? Can I appear at the police department and use my old subpoena to obtain more? Would it be wise to reach out to the police officer before I subpoena him to the hearing?
     
  7. army judge

    army judge Super Moderator

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    Yes, you can go in person to order copies.

    Some departments allow you to do this online.

    If the department doesn't certify them, you could probably use your original and simply photocopy extras for all parties involved.

    You betcha. In many cases, the other party will agree to appear without necessitating a court order.
    Some people request an order anyway, and inform the other party its done to make sure nothing slips between the cracks.

    In this case, I suspect the officer will not resist, as these folks do this all the time.

    You also want to get a handle on just what he or she recalls and how the testimony will be heard by others.

    A summons might be needed to ensure the officer gets paid by the department, another reason to use a summons.
     
  8. boomer613

    boomer613 Law Topic Starter Member

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    I am lost on what it means to certify them. Is this the same as having them notarized? I asked the county clerk about subpoenaing the officer to the hearing last week and she told me watch out as lawyers like to motion the date to be moved. Should I reach out to the officer now (incase he has a vacation during the time)?
     
  9. KatDini

    KatDini Well-Known Member

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    And I, as a Bama native (having lived outside the state, including in AJ's beloved Texas) almost concur. My Mother (of blessed memory, maysherestinpeace) called Bama's valleys and ridges the 'foothills of the foothills' of the Appalachian chain; she was from the Dothan area.
     
  10. army judge

    army judge Super Moderator

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    Certified, as in a certified copy of a college transcript or birth certificate, as opposed to you simply making a photocopy of the documents.

    If I were in your shoes, I'd speak to a couple of lawyers first.

    Once the lawyers have assessed any potential liability, I'd make contact with the police officer.

    The officer won't be a problem, if things are as you describe.

    The officer created a police report summarizing the investigation which coincides with your understanding of events.

    If he or she were to be ordered to testify he'd simply testify to the authenticity and accuracy of the existing report.

    You have two months before the hearing to get this done, and if the officer will be unavailable in June, you could depose him/her to meet the June hearing sate, or motion the court to change it because a key witness is unavailable.




    A question for you.

    When did you begin the tree whacking project?

    On what date did the final activity (whacking and removal) occur?

    I think the lawyer is attempting to use trespass to overcome the SOL.

    So far I see that as unsuccessful.
     
  11. boomer613

    boomer613 Law Topic Starter Member

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    I cut all the trees down on the same day my wife got permission by the husband, however, it took longer to clean up the mess -- a few days over the next 2 week, as we had to cut and throw the branches over the fence on our side and burn them. We were not done with the cleanup as the police officer came over to tell us to get off the property. It was about 15 or 16 days before the police came to my house to tell us that the neighbor (who had now moved in) did not want us on her property to clean up the rest of the mess.
     
  12. army judge

    army judge Super Moderator

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    I can't intelligently comment on what a judge will do.

    If I were presiding, I'd admit the report.

    Even if the report isn't admitted, you have THREE witnesses who can testify to permission being given.

    In fact, your plaintiff wasn't present either.

    All she knows about the case is HEARSAY communicated by her husband.

    My analysis so far is she is not only out of gas in her car, her engine has three blown cylinders, her car has only one tire (which is flat), the other three are missing, and the vehicle is resting upside down engulfed in flames.

    Now, in what month and year is this alleged to have occurred?
     
  13. boomer613

    boomer613 Law Topic Starter Member

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    Thank you. I will try to contact the police officer in the next few days. He seemed like a nice officer when I spoke to him about the incident. Almost 2 years had past so hopefully he remembers.
     
  14. mightymoose

    mightymoose Moderator

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    Trespassing is typically a criminal charge. Have you been charged with trespassing? Likely not. Extending the statute to six years in this fashion defeats the purpose of the one year limit. It seems to me the attorney is trying to pull a fast one.
    Once again, if you had permission then you were not trespassing.

    One year is one year, not six years.
    Perhaps there is additional time to bring a trespass charge against you but it is extremely unlikely that will happen.

    This simply means that by bringing this civil action or if a civil penalty is imposed, further action for other related offenses is not prohibited.

    That is true, but it still must be timely. If the action for cutting the tree was not brought within one year then it is too late- although they might be able to pursue trespassing. Trespassing, however, is not likely something to be heard in a civil court, and from what you have provided here it does not sound as if any action regarding trespass has been made.
     
  15. mightymoose

    mightymoose Moderator

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    The report may be inadmissible, however at the hearing you can state your intent to call the officer to testify about the content of the report. If the judge feels the complaint is unlikely to be successful he may side with you and dismiss.
     
  16. mightymoose

    mightymoose Moderator

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    What trespassing allegation?
    Can you cite a civil statute on which this trespass complaint is based/
    Have you been charged with criminal trespass?
    It seems to me the trespass is smoke and mirrors.
     
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  17. mightymoose

    mightymoose Moderator

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    I suspect you will have a convincing argument to dismiss based on the statute of limitations. This is simply too far in the past to resurrect.
    The attempt to attach it to a trespass complaint seems incredibly weak as even the trespass hinges on the very same issue of whether permission was given.
    I think you will be successful if you are organized and present yourself well.
     
  18. zddoodah

    zddoodah Well-Known Member

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    I guess when that's your perspective, that makes sense. ;-)
     
  19. army judge

    army judge Super Moderator

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    Again, 100% correct.

    Which leads me to the topic and remedy in equity of "laches" : unreasonable delay in making an assertion or claim, such as asserting a right, claiming a privilege, or making an application for redress, which may result in refusal.
     
  20. boomer613

    boomer613 Law Topic Starter Member

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    No, I have not been charged with trespassing. The officer heard my story and believed everything I had to say.
     

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