Ex parte Tuck
| Decision Date | 14 May 1993 |
| Parties | Ex parte Dan TUCK d/b/a Colony Pools. (Re Herbert D. McKAY, v. Dan TUCK d/b/a Colony Pools). 1920134. |
| Court | Alabama Supreme Court |
William W. Lawrence of Wooten, Thornton, Carpenter, O'Brien, Lazenby & Lawrence, Talladega, for petitioner.
E. Paul Jones, Alexander City, for respondent.
We granted Dan Tuck's petition for certiorari review of the judgment of the Court of Civil Appeals in McKay v. Tuck, 622 So.2d 926 (Ala.Civ.App.1992). We affirm.
Dan Tuck sued Herbert D. McKay in the District Court of Talladega County on March 4, 1991. On December 19, 1991, the district court entered a judgment in favor of Tuck and against McKay.
On January 2, 1992, McKay sent a facsimile transmittal sheet to the office of the circuit clerk of Talladega County; that transmittal included a copy of a notice of appeal from the district court to the circuit court. He also advised the circuit clerk's office that the original of the notice of appeal was being placed in the mail the same day. The clerk's office received the original notice of appeal on January 3, 1992. Tuck filed a motion to dismiss the appeal on January 23, 1992, arguing that McKay's notice of appeal was untimely--specifically, that it was not filed within the 14-day period prescribed by Ala.Code 1975, § 12-12-70(a).
The circuit court granted Tuck's motion to dismiss. The Court of Civil Appeals reversed the circuit court's judgment of dismissal. We address the following issue of first impression: Whether sending, by facsimile, a copy of a notice of appeal from district court to circuit court satisfies the Rule 5(e), A.R.Civ.P., requirement of "filing with the clerk or register of the court."
Notably, the question of whether a facsimile transmittal can be used as a form of filing raises questions of monumental public importance. Because the use of facsimile machines has become so pervasive, and because the modern world has become so technologically demanding, it is not surprising that we should have to consider this question. Although we have not previously addressed this question, courts in a few states, as well as the federal courts, have addressed it. Rule 5(e), F.R.Civ.P. provides:
See also Matter of Changes to Ark.R. of Civ.Proc., 780 S.W.2d 334 (Ark.1989), In re Amendments to the Fla. Rules of Civ. Proc., 604 So.2d 1110 (Fla.1992), Fitcher v. Board of Environmental Protection, 604 A.2d 433 (Me.1992), and Calabrese v. Springer Personnel of New York, Inc., 141 Misc.2d 566, 534 N.Y.S.2d 83 (N.Y.City Civ.Ct.1988).
Tuck argues that the focus of the issue is not on the reliability of facsimile machines and facsimile transmissions, but whether McKay complied with the Rules of Civil Procedure--specifically Rule 5(e) and Ala.Code 1975, § 12-12-70(a).
Ala.Code 1975, § 12-12-70(a), provides:
"Any party may appeal from a final judgment of the district court in a civil case by filing...
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...her postjudgment motion. On March 3, 1999, BIC filed a motion to strike Williams's motion as untimely filed, relying on Ex parte Tuck, 622 So.2d 929 (Ala. 1993), which held that Alabama courts would not accept filings by facsimile transmission. After conducting a hearing, the trial court de......
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Salvant v. Howell
...specifically authorize any `filings,' either of notices of appeal or any other documents, by facsimile transmissions." Ex parte Tuck, 622 So.2d 929, 930 (Ala.1993). The district court had no authority to grant the tenant's Rule 60 motion because the tenant alleged no ground for relief under......
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Dunning v. New England Life Ins. Co.
...the notice of appeal filed on behalf of the employees was improper because it was a faxed copy. New England and Tatum cite Ex parte Tuck, 622 So.2d 929 (Ala.1993), a case that addresses the propriety of a facsimile filing of a notice of appeal. Tuck faxed to the circuit court a copy of the ......
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