Ex parte Lamar OCI South, LLC, [Ms. CL-2023-0191, May 5, 2023] __ So. 3d __ (Ala. Civ. App. 2023). The court (Fridy, J.; Thompson, P.J., and Moore, Edwards, and Hanson, JJ., concur) denies a mandamus petition filed by Lamar OCI South, LLC (“Lamar”), seeking to vacate the Talladega Circuit Court’s order permitting Emmanuel M. Chijioke’s appeal of a Talladega District Court judgment in favor of Lamar to go forward.
In allowing Chijioke’s untimely appeal to go forward, the circuit court noted Chijioke’s testimony that he had been unable to timely file the notice of appeal based on statements a district-clerk’s employee made to him. The circuit court found that “‘it would be unfair and unjust to dismiss [Chijioke’s] appeal based on the action taken by [him] in his good-faith attempt to perfect the appeal.’” Ms. *3.
The court affirms:
…[O]n the day Chijioke initially attempted to file his notice of appeal, the filing would have been timely. The district clerk’s office directed him to the district-court judge’s office to obtain a waiver of the costs of appeal, but, because the judge was not in the office that day, Chijioke was unable to obtain the waiver. Chijioke obtained the necessary waiver the next business day and filed the notice of appeal then. As the circuit court pointed out when it deemed the appeal as having been timely filed, it would have been “unfair and unjust” to dismiss Chijioke’s appeal when he had made a good-faith effort to perfect the appeal and was unable to do so merely because the judge who could authorize the waiver of costs was not available that day. Ex parte G.L.C.[, 281 So. 3d 401, 407 (Ala. 2018)] supports the circuit court’s ruling.