AL: Underlying criminal case
Facts: Client hired Attorney. Client, now acting pro se, sues Attorney for legal malpractice and slander. Attorney filed an answer and denied both of Client’s allegations. Attorney cross-filed for summary judgment. Client filed a request for oral argument for evidentiary hearing, a motion for declaratory judgment or in the alternative a trial by jury. Court denies client’s cross-motion for summary judgment. Client did not file an appeal; instead he filed a “motion/request to file out-of-time appeal.” He asserted that the clerk’s office did not mail his copy of the entry of judgment. The court entered summary judgment in favor of Attorney. Client now appeals.
Issue: Whether the trial court correctly entered summary judgment against Client?
Ruling: Yes. The court dismissed Client’s appeal because Client did not provide an affidavit or other notarized statement that shows the date he sent his notice of appeal in the mail. The certificate of service for the notice of appeal is not dated. It is referenced to “this day.” Therefore the court cannot determine which date he deposited his notice of appeal.
Lesson: If a prison inmate is confined in an institution and is acting pro se and files either a civil or criminal appeal, the notice will be considered as filed timely if it is placed in the institution’s internal mail system on or before the, last day for filing. If an institution processes its legal mail through USPS, then the inmate must use that system to receive the rule’s benefit. A notarized statement setting forth the date of filing can prove a timely filing. Rule 4(c), Ala. R. App. P.