McKay v. Tuck

• Citation: 622 So.2d 926
• Parties: Herbert D. McKAY v. Dan TUCK d/b/a Colony Pools. 2910394.
• Decision Date: 16 October 1992
• Court: Alabama Court of Civil Appeals

Page 926

622 So.2d 926

Herbert D. McKAY v. Dan TUCK d/b/a Colony Pools.

2910394.

Court of Civil Appeals of Alabama.

Oct. 16, 1992.

E. Paul Jones, Alexander City, for appellant.

William W. Lawrence of Wooten, Thornton, Carpenter, O'Brien and Lazenby, Talladega, for appellee.

ON APPLICATION FOR REHEARING

THIGPEN, Judge.

This court's original opinion, dated August 21, 1992, is withdrawn, and the following is substituted therefor:

Dan Tuck d/b/a Colony Pools (Tuck) sued Herbert D. McKay in the District Court of Talladega County in March 1991. The case was tried before the district court on December 18, 1991. On December 19, 1991, the court entered a judgment for Tuck, and the parties were notified by mail of the entry of the judgment.

On January 2, 1992, McKay sent a facsimile machine (fax) copy of the notice of appeal and security for costs, along with a transmittal cover sheet, to the circuit clerk of Talladega County, Alabama. On the same day, McKay placed in the mail an original notice of appeal, together with the filing fee, for the appeal. The original was received by the circuit clerk on January 3, 1992.

Tuck filed a motion to dismiss the appeal on January 23, 1992, arguing that McKay's notice of appeal was filed beyond the 14-day period prescribed by Ala.Code 1975, § 12-12-70(a). On March 9, 1992, after a hearing, the circuit court granted Tuck's motion to dismiss the appeal sent by fax, holding in essence that the notice of appeal sent by fax was not a filing and that the notice of appeal received on January 3, 1992, was not timely.

Thus, the issue is whether the sending of a notice of appeal by fax from a district court to a circuit court satisfies the requirement of the Alabama Rules of Civil Procedure 5(e) of "filing ... with the clerk or register of the court."

This is a case of first impression in Alabama; however, the issue has been addressed by other states, as well as by the federal courts.

Judge Richard S. Lane, writing for the New York court in Calabrese v. Springer Personnel of New York, Inc., 141 Misc.2d 566, 534 N.Y.S.2d 83, 83 (N.Y. City Civ.Ct.1988), opined:

"These machines have been around for many years, but recently they have become so sophisticated and user-friendly that they have become overwhelmingly the method of choice for the transmission of documents in today's world. Indeed their use has become so widespread that business stationery now commonly carries a 'fax' telephone number in addition to an ordinary one, and, in common usage, 'fax' has become converted into a verb as well as an adjective and noun.

"Startling as it may seem, however, no published opinion has been found considering the applicability of fax machines to the conduct of litigation. This motion compels me to do so."

Then, Judge Lane proceeded with a discussion of the practice of "faxing" in business. He concluded that "faxing" satisfied service requirements in the case before him.

The Arkansas Supreme Court amended its Rules of Civil Procedure by amending Rule 5(b) as follows:

"Where service is permitted upon an attorney under this rule, such service may be effected by electronic transmission, provided that the attorney being served has facilities within his office to receive and reproduce verbatim electronic transmissions, or such service may be made by a commercial delivery service which maintains permanent records of actual delivery."

In addition, the Legislature of Arkansas enacted legislation permitting court clerks to accept pleadings filed by fax. Act 58 of 1989; In the Matter of Changes to the Arkansas Rules of Civil Procedure, Supreme Court of Arkansas, 780 S.W.2d 334 (Ark.1989).

Rule 5(e) of the Federal Rules of Civil Procedure has been amended as follows:

"(e) Filing With the Court Defined.... The filing of ... papers with the court as required by these rules shall be made by filing them with the clerk of the court, except that the judge may permit the papers to be filed with the judge, in which event the judge shall note thereon the filing day and forthwith transmit them to the office of the clerk.... Papers may be filed by facsimile transmission if permitted by rules of the district court, provided that the rules are authorized by and consistent with standards established by the Judicial Conference of the United States. The clerk shall not refuse to accept for filing any papers presented for that purpose solely because it is not presented in proper form as required by these rules or any local rules or practices."

Similarly, in administrative appeals within the federal system, facsimile filing is recognized and common. A regulation at 5 C.F.R. § 1201.22(d), entitled "Practices and Procedures for Merit System Protection Board," provides:

"Filing must be made with the appropriate Board office by...