How to submit evidence for Hearing.

[boomer613]

What is the name of your state (only U.S. law)? Al

I am doing a Pro Se as a defendant. I filed a motion to dismiss. I have a hearing date set by the judge. In the letter its states I must submit all evidence to prove my Motion request 7 days prior to the hearing date. How do I do this? An Affidavit summary?

 

[doucar]

First of all what is your evidence?

 

[boomer613]

First of all what is your evidence?

A subpoena police report. Plaintiff was the victim and I was the suspect. No charges were brought upon me.

 

[PayrollHRGuy]

So Boomer, can we assume the land owner is suing you in civil court for the value of the tree(s) that you were not charged with gutting down?

You should understand that the standard of proof is lower in civil court than it would have been in criminal court.

 

[boomer613]

So Boomer, can we assume the land owner is suing you in civil court for the value of the tree(s) that you were not charged with gutting down?

You should understand that the standard of proof is lower in civil court than it would have been in criminal court.

Yes, the land owner is suing for devaluation of the property due to the trees being removed and trespassing. Yes, I understand the burden of proof is lowered for the Plaintiff to prove his case. Here is my other question. I was asked to keep this to one posting:

I am being sued by my neighbor concerning removal of tree(s) and trespassing. I filed a Motion to Dismissed as the one year statue of limitation has passed. Plaintiff has filed a rebuttal to my Motion to Dismiss stating that the Alabama Code does not bar against "adding" trespassing, which carries a 6 year statue of limitation. How is this Alabama code interpreted when it says "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? See Alabama code statues below:


Al 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.

Al 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.
(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.

Thanks in advanced.

 

[quincy]

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

 

[boomer613]

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

Yes, in my motion I used Property 35-14-3 which has a 1 year statute of limitation. The Plaintiff did a rebuttal to my dismissal motion and stated this does not bar against adding trespassing which has a statute of limitation of 6 years. The judge has set a hearing date for this motion.

 

[Zigner]

Yes, in my motion I used Property 35-14-3 which has a 1 year statute of limitation. The Plaintiff did a rebuttal to my dismissal motion and stated this does not bar against adding trespassing which has a statute of limitation of 6 years. The judge has set a hearing date for this motion.

Why do you feel that a police report is going to help you?

 

[quincy]

Why do you feel that a police report is going to help you?

It would have the date of the original complaint, supporting that one year passed before the filing of the suit.

 

[Zigner]

It would have the date of the original complaint, supporting that one year passed before the filing of the suit.

The contention by the plaintiff(s) is that they are suing based on a 6-year SOL, not 1-year.

 

[quincy]

The contention by the plaintiff(s) is that they are suing based on a 6-year SOL, not 1-year.

Right. But the one year statute of limitations is the basis for the motion to dismiss. It will be up to the plaintiff to support his claim that the 6 year limit should apply.

 

[boomer613]

Right. But the one year statute of limitations is the basis for the motion to dismiss. It will be up to the plaintiff to support his claim that the 6 year limit should apply.

Thank you quincy. I have a police report stating that the Plaintiff called her husband and asked if I had permission to cut down a tree, in which she told the officer, the husband said he (myself) was allowed to chop down only one tree and not several. My 2 son was a witnessed that the husband told my wife that we could chop down more than 1 tree. Since a police report is not admissible in court, would it be wise to subpoena the police officer to a hearing to determine the motion to dismiss?

 

[Zigner]

Thank you quincy. I have a police report stating that the Plaintiff called her husband and asked if I had permission to cut down a tree, in which she told the officer, the husband said he (myself) was allowed to chop down only one tree and not several. My 2 son was a witnessed that the husband told my wife that we could chop down more than 1 tree. Since a police report is not admissible in court, would it be wise to subpoena the police officer to a hearing to determine the motion to dismiss?

If you do not understand how the statute of limitation(s) may apply in your case, then you need to consult with an attorney. Specific advice in that regard borders on (and likely crosses in to) the realm of the practice of law, which we are not allowed to do on this forum.

 

[latigo]

Yes, the land owner is suing for devaluation of the property due to the trees being removed and trespassing. Yes, I understand the burden of proof is lowered for the Plaintiff to prove his case. Here is my other question. I was asked to keep this to one posting:
I am being sued by my neighbor concerning removal of tree(s) and trespassing. I filed a Motion to Dismissed as the one year statue of limitation has passed. Plaintiff has filed a rebuttal to my Motion to Dismiss stating that the Alabama Code does not bar against "adding" trespassing, which carries a 6 year statue of limitation. How is this Alabama code interpreted when it says "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? See Alabama code statues below:


Al 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.

Al 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.
(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.

Thanks in advanced.

You are asking how is Alabama Code Section 34-14-3 to be interpreted when it says "bar to any action for further damages" ?

First of all that is not how it reads. What the Code clearly states is that NEITHER an action for "specific penalties" under Section 35-24-1 (a), or penalties so incurred SHALL BAR an action for further damages!

Furthermore, the Code contemplates that an action for additional damages to the land can be joined with one seeking specific penalties.

In sum you are not going to wiggle out of any lawsuit seeking "further damages" to the land by claiming the action is time barred because of a one year period of limitations.

________________________

Perhaps a sorcerer can help you with this question: "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?"

 

[boomer613]

________________________

Perhaps a sorcerer can help you with this question: "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?"

Okay - I am confused. I guess it would help if someone can clarified the rephrased question you proposed. Thanks again for your help.