How to submit evidence for Hearing.

[quincy]

How many trees did you cut down? What is the amount of damages being claimed by the plaintiff in his suit against you?

You would benefit from speaking to an attorney in your area for a personal review of defenses that may be available to you, should your motion to dismiss be denied.

Good luck.

 

[boomer613]

How many trees did you cut down? What is the amount of damages being claimed by the plaintiff in his suit against you?

You would benefit from speaking to an attorney in your area for a personal review of defenses that may be available to you, should your motion to dismiss be denied.

Good luck.

The plaintiff stated in the affidavit for the courts to determine the damages. He requested mitigation.

 

[latigo]

The plaintiff stated in the affidavit for the courts to determine the damages. He requested mitigation. (?)

The plaintiff requested "mitigation"?! No way! Check with a dictionary as the term has to be "mediation"!

 

[boomer613]

The plaintiff requested "mitigation"?! No way! Check with a dictionary as the term has to be "mediation"!

Sorry, you are right, I meant mediation.

 

[latigo]

Sorry, you are right, I meant mediation.

That is understood. What we have yet to understand is whether or not you are now satisfied of the uselessness of the filing of the motion to dismiss.

Because if your motion is based on the expiration of the one year statute of limitation as per Section 35-14-3 it will surely fail and it is time to start preparing to defend the plaintiff's cause of action for devaluation of his land.

 

[boomer613]

That is understood. What we have yet to understand is whether or not you are now satisfied of the uselessness of the filing of the motion to dismiss.

Because if your motion is based on the expiration of the one year statute of limitation as per Section 35-14-3 it will surely fail and it is time to start preparing to defend the plaintiff's cause of action for devaluation of his land.

Yes, thank you. I now understand the my motion of dismissal was futile. Since the hearing is already set for a date, is there any value I can obtain with the hearing?

 

[latigo]

Yes, thank you. I now understand the my motion of dismissal was futile. Since the hearing is already set for a date, is there any value I can obtain with the hearing?

Why would you think there is anything to be gained by wasting the judge's daylight? Withdraw your ill-advised motion and vacate the hearing! Sheesh!

 

[quincy]

Why would you think there is anything to be gained by wasting the judge's daylight? Withdraw your ill-advised motion and vacate the hearing! Sheesh!

I disagree.

If boomer was given permission by the neighbor-husband to cut down the neighbor's tree(s), he was not trespassing on the neighbor's land. The 6 year statute of limitations would not apply.

Because the property damage occurred over a year ago, it appears to me that the neighbor's civil claim is time barred.

The judge could grant the motion to dismiss.

 

[latigo]

I disagree.

If boomer was given permission by the neighbor-husband to cut down the neighbor's tree(s), he was not trespassing on the neighbor's land. The 6 year statute of limitations would not apply.

Because the property damage occurred over a year ago, it appears to me that the neighbor's civil claim is time barred.

The judge could grant the motion to dismiss. (?)

Please excuse me but the state of the court record (as it is presented here) is such that the judge WILL NOT and CANNOT properly grant Boomer's Rule 12(b)(6) motion to dismiss!

Boomer admits that asking that the court dismiss the lawsuit as not stating a claim upon which relief can be granted was due to his mistaken belief that the cause of action was governed by Alabama Code Section 35-14-3 which carries a one year period of limitations.

Quincy: "Your motion to dismiss was based on the statute of limitations?

Boomer: "Yes, in my motion I used Property 35-14-3 which has a 1 year statute of limitation."

Secondly, the issue of whether or not Boomer had permission to enter upon the plaintiff's land and remove the trees is one of fact and cannot be resolved under a Rule 12(b)(6) motion. Not unless the motion is treated as one for summary judgment (Rule 56) of which there is not indication that it is to be treated as such.

 

[quincy]

... Secondly, the issue of whether or not Boomer had permission to enter upon the plaintiff's land and remove the trees is one of fact ...

^^^ Agreed.