June 26, 2015
Carl Chamblee, Sr.
Paul Duncan and Deborah Ann Duncan
for Publication May 4, 2016.
from Etowah Circuit Court. (CV-07-131.01). William B.
Ogletree, Trial Judge.
Judge. Thompson, P.J., and Pittman, Thomas, and Donaldson,
Chamblee, Sr., an attorney, appeals from a judgment entered
by the Etowah Circuit Court (" the trial court" )
in favor of Paul Duncan and Deborah Ann Duncan. We affirm.
January 2007, Chamblee, on behalf of four minor children
(" the children" ), by and through their mother,
Kelly Bynum (" Kelly" ), filed a complaint against
Paul Duncan (" Paul" ) and Lurey Jeffery Bynum
(" Lurey" ) in the trial court (" the original
complaint" ), which initiated civil-action no.
CV-07-131 (" the original action" ). According to
the Duncans' brief on appeal, the original complaint
alleged that Paul and Lurey had improperly cut timber from
land that was owned by the children. At the time Chamblee
filed the original complaint, he also filed two lis pendens
notices on " any and all" real property owned by
Paul in St. Clair County and in Etowah County, respectively.
a series of filings and amendments, the Duncans asserted a
counterclaim against Kelly and the children and added
Chamblee as a counterclaim defendant. In their second amended
counterclaim, the Duncans alleged that the filing of the lis
pendens notices had rendered the Duncans' real property
unmarketable and that, based on a variety of legal theories,
they were entitled to damages. It is undisputed that the
Duncans paid a fee of $297 in the original action for the
filing of their counterclaim.
Eventually, the trial court dismissed the counterclaim
against Kelly and the children, leaving Chamblee as the only
remaining counterclaim defendant. On January 24, 2014,
Chamblee filed a " motion to sever" the
Duncans' counterclaim against him from the original
action. In his motion, Chamblee argued that the counterclaim
should be tried separately from the claims in the original
complaint because the claims asserted in the original
complaint were to be tried before a jury, while the
counterclaim was to be tried without a jury. The Duncans
consented to the motion on the condition that " Chamblee
is assessed any and all court costs resulting from his motion
to sever and obtaining a new docket number." On February
7, 2014, the trial court granted the motion. The trial court
later entered an order in the original action stating that
the Duncans' counterclaim against Chamblee had been
" severed from the remainder of [the original
action]," directing the trial-court clerk " to
establish a separate civil action number and file for the
severed claim," setting that claim for a nonjury trial,
and setting " the remainder of [the original
action]" for a jury trial. The clerk assigned the
Duncans' counterclaim against Chamblee a new civil-action
number, CV-07-131.01 (" the severed action" ).
October 12, 2014, Chamblee filed, in the severed action, a
third-party complaint, mislabeled as a "
cross-claim," against Kelly and the children, one of
whom, Jeffery Hunter Bynum (" Jeffery" ), had
reached the age of majority. In his third-party complaint,
Chamblee asserted that, because he had acted as the attorney
for Kelly and the children when he had filed the original
complaint and the referenced lis pendens notices, Chamblee
was entitled to common-law indemnification from Kelly and the
children in the event he was held liable to the Duncans in
the severed action. Chamblee did not serve Kelly and the
children with a summons and the third-party complaint, but he
did certify that he had served the third-party complaint on
various attorneys, including attorneys that had represented
or acted as guardians ad litem for the children in the
original action, by United States Mail. Contemporaneously
with the filing of the third-party complaint, Chamblee filed
a motion asserting that " the typical procedures"
for adding a new party as a " cross-defendant" did
not apply because, he said, Kelly and the children were
parties to the original action. Nevertheless, Chamblee
asserted that Kelly and the children " need[ed] to be
brought into th[e severed action] by order of court,"
and he requested the trial court to enter an order " to
bring the aforesaid five persons into th[e severed] action so
that they might be required to respond, according to law, to
[Chamblee's] cross-claim."  The Duncans opposed
Chamblee's motion requesting that the trial court add
Kelly and the children as " cross-defendants"
because, the Duncans asserted, Chamblee's "
cross-claims" were untimely. The trial court denied
the trial court's refusal to enter an order expressly
making Kelly and the children parties in the severed action,
guardians ad litem for the three children who were still
minors appeared in the severed action and moved the trial
court to dismiss Chamblee's claims against the minor
children. The trial court granted the minor children's
motion to dismiss. Neither Kelly nor Jeffery ever appeared in
the severed action.
November 21, 2014, after a nonjury trial in the severed
action, the trial court entered a judgment in favor of the
Duncans and against Chamblee. The trial court awarded Paul
compensatory damages in the amount of $10,000 and awarded
Deborah Duncan (" Deborah" ) compensatory damages
in the amount of $5,000. The trial court also stated that
clear and convincing evidence had been presented indicating
that Chamblee was guilty of " wanton and intentional
conduct" in the filing of and the refusal to terminate
the lis pendens notices. Accordingly, the trial court awarded
Paul punitive damages in the amount of $15,000 and awarded
Deborah punitive damages in the amount of $7,500. Chamblee
testified that, sometime in 2007, while he was cutting timber
in St. Clair County pursuant to a purported timber deed he
had been given, Chamblee approached him and claimed that
Duncan did not have a right to cut the timber. In February
2007, Chamblee sent a letter to Paul informing him that
Chamblee had filed the original complaint against Paul and
that he had, in addition, filed a lis pendens notice against
any and all of Paul's real property located in St. Clair
County. Thereafter, Paul hired an attorney, and, Paul
asserted, he decided to sell some land he owned in Etowah
County in order to pay the attorney's fees he anticipated
he would owe.
Cornett, the attorney who represented the Duncans in the
original action, testified during the trial in the severed
action that, when Paul was sued, he, as the Duncans'
counsel, had received a copy of the original complaint and
the lis pendens notice that had been filed in St. Clair
County. Cornett testified that he had suspected that the lis
pendens notice was invalid under applicable law because it
was against real property that was not the subject matter of
the original action. He testified that it had taken him only
35 minutes of researching the issue to reach that conclusion.
testified that he had sent Chamblee a letter via certified
mail on March 6, 2007, which Chamblee admitted he had
received, demanding that Chamblee terminate the lis pendens
notice directed at the Duncans' real property in St.
Clair County. According to Cornett, the letter specifically
explained in detail why the lis pendens notice was improper.
Because Cornett did not receive a response to his letter, he
sent Chamblee an additional letter on May 17, 2007, again
stating that the lis pendens notice was improper.
September or October 2007, Roscoe Johnson, a title agent for
a lender in Gadsden, performed a title search regarding real
property that the Duncans owned in Etowah County, which the
Duncans had decided to sell. According to Johnson, his title
search revealed that a lis pendens notice had been filed
" against all of the property that [the Duncans] owned
in [Etowah] county." Johnson testified that he had
informed Cornett of the additional lis pendens notice.
Because the Duncans had recently scheduled a closing on the
sale of the Etowah County property, Cornett filed an
emergency motion in the original action requesting the trial
court to quash both the lis pendens notice filed in Etowah
County and the lis pendens notice filed in St. Clair County.
Chamblee filed an opposition to the motion to quash the lis
pendens notices, he conceded in that opposition that both of
the notices were improper and
invalid. Nevertheless, Chamblee stated in his opposition that
he had decided to not terminate the lis pendens notices when
he received the letters from Cornett because, he claimed, he
had " reasoned that he was being called upon to act upon
a void or invalid document [i.e., the lis pendens
notices]" and, therefore, had " declined to act on
such futile or fruitless matter." On or about November
1, 2007, the trial court in the original action entered
orders quashing both lis pendens notices. The orders
specifically acknowledged that Chamblee had conceded that the
notices were invalid. Although the Duncans' motion to
quash the lis pendens notices was not heard before the
originally scheduled real-estate closing on the sale of the
Duncans' Etowah County property and, therefor, the
closing had to be canceled, it is undisputed that the Duncans
eventually were able to complete the sale of that property.
who, at the time of the trial in the severed action, was a
member of the Alabama State Bar's committee charged with
the enforcement of the Alabama Rules of Professional Conduct,
testified that, in his opinion, Chamblee's refusal to
terminate the lis pendens notices was an intentional and
wanton violation of the duties Chamblee owed to the court, to
opposing counsel, and to the opposing parties.
testified at trial in the severed action that he had started
to suffer chest pains when he discovered that Chamblee had
filed a lis pendens notice against the Duncans' real
property in St. Clair County. He testified that his pain had
worsened and that he had developed numbness in his left arm
after he had discovered that a lis pendens notice had been
filed regarding the Duncans' property in Etowah County.
Hemant Sinha, Paul's physician, testified during the
trial that Paul had been hospitalized for two days in
November 2007 because of chest and arm pain. Dr. Sinha
testified that, in his opinion, Paul's medical problems
were caused by stress stemming from Chamblee's filing of
the lis pendens notices and the trouble the Duncans had had
in selling the Etowah County property. Evidence of medical
expenses incurred by Paul was submitted to the trial court.
testified at trial in the severed action that Paul's
reputation in the community had been diminished because of
the problems resulting from the filing of the lis pendens
notices. She testified that, like her husband, she also had
suffered stress and embarrassment from the fact that the lis
pendens notices had been filed against her property. Deborah
also testified that she had suffered anxiety because of
Paul's medical problems.
testified that he had billed the Duncans a total of $3,315.80
in fees and expenses for his efforts in having the lis
pendens notices quashed.
" '" '[W]hen a trial court hears ore tenus
testimony, its findings on disputed facts are presumed
correct and its judgment based on those findings will not be
reversed unless the judgment is palpably erroneous or
manifestly unjust.'" ' Water Works &
Sanitary Sewer Bd. v. Parks, 977 So.2d 440, 443 (Ala.
2007) (quoting Fadalla v. Fadalla, 929 So.2d 429,
433 (Ala. 2005), quoting in turn Philpot v. State,
843 So.2d 122, 125 (Ala. 2002)). '" The presumption
of correctness, however, is rebuttable and may be overcome
where there is insufficient evidence presented to the trial
court to sustain its judgment." ' Waltman v.
Rowell, 913 So.2d 1083, 1086 (Ala. 2005) (quoting
Dennis v. Dobbs, 474 So.2d 77, 79 (Ala. 1985)).
'Additionally, the ore tenus rule does not extend to
cloak with a presumption of correctness a trial judge's
conclusions of law or the incorrect
application of law to the facts.' Waltman v.
Rowell, 913 So.2d at 1086."
Retail Developers of Alabama, LLC v. East Gadsden Golf
Club, Inc., 985 So.2d 924, 929 (Ala. 2007).
Failure to Pay an Additional Filing Fee
appeal, Chamblee first asserts that the trial court's
judgment is void. In support of that assertion, Chamblee
points out that the trial-court clerk did not collect a
filing fee when the severed action was docketed and assigned
a new civil-action number. He argues that, " [i]f no
filing fee was paid, then the act of the [trial-court clerk]
in establishing [the severed action], that is,
CV-2007-131.01, was contrary to law and [the] same is null
and void as a matter of law." The Duncans, on the other
hand, point out that they paid a filing fee when they filed
their counterclaim in the original action, and they argue
that no additional fee was owed when their counterclaim was
severed. We agree with the Duncans.
initial matter, we conclude that, in his " motion to
sever," Chamblee requested only a separate trial of the
counterclaim under Rule 42(b), Ala. R. Civ. P., and not a
complete severance of the counterclaim under Rule 21, Ala. R.
Civ. P. See Key v. Robert M. Duke Ins.
Agency, 340 So.2d 781, 783 (Ala. 1976) (discussing
distinction between a motion for a separate trial and a
motion for a severance). However, the parties elected to
treat the motion as one seeking a Rule 21 severance, and they
acquiesced in the trial court's orders severing the
counterclaim and assigning the counterclaim a new
civil-action number. See Stephens v. Fines Recycling,
Inc., 84 So.3d 867, 874 n.4 (Ala. 2011) ( " [W]hen
a valid severance under Rule 21[, Ala. R. Civ. P.,] occurs,
the clerk of the trial court then dockets those severed
claims as a separate case with a new civil-action
" Of course, '[p]arties may agree to try their case
upon a theory of their own choosing and their agreements will
be binding.' Cotton v. Terry, 495 So.2d 1077,
1080 (Ala. 1986). In our role as an appellate court, we
review a case based exclusively on the record as compiled in
the trial court, and we will not fault or overrule a trial
judge based on matters not placed of record before the trial
judge. 'It is well established that this Court will not
consider a case on a theory different from that on which it
was tried below.' Kmart Corp. v. Bassett, 769
So.2d 282, 284 n.2 (Ala. 2000). Accordingly, our review, and
resulting rulings, in this case are limited to the record as
the parties chose to constitute it."
Lewis v. Oakley, 847 So.2d 307, 311 (Ala. 2002).
Accordingly, for the purposes of our analysis of the
filing-fee issue, we assume
that the trial court properly severed the counterclaim under
the Duncans filed their counterclaim in the original action,
they were assessed a filing fee pursuant to §
12-19-71(a)(8), Ala. Code 1975, although the payment of that
filing fee was not a prerequisite to the trial court's
exercise of jurisdiction. See Espinoza v. Rudolph,
46 So.3d 403, 414 (Ala. 2010) (holding that a trial court
obtains jurisdiction over a counterclaim when it is filed,
regardless of whether the applicable filing fee has been
paid). No statute or rule expressly states that, when a
counterclaim is severed from an original action, an
additional filing fee is owed. We note that Rule 7, Ala. R.
Jud. Admin., provides that " [a]ny filing for which
there is no express cost under the consolidated fee structure
[set out in § 12-19-71, Ala. Code 1975,] shall be
treated as an original filing for cost purposes unless the
payment of a docket fee is specifically waived by law."
According to the Comment to Rule 7, " [t]he words
'any filing' in this rule have reference to the words
'cases filed' in Ala. Code 1975, [§ ] 12-19-71,
and should be read in conjunction with that Code
section." See also Rule 5(e), Ala. R. Civ. P. ("
The filing of papers with the court as required by these
rules shall be made by filing them with the clerk of the
court ...." ); and Rubin v. Department of Indus.
Relations, 469 So.2d 657, 658 (Ala.Civ.App. 1985)
(" '[A] pleading or other paper may be said to have
been duly filed when it is delivered to the proper filing
officer.'" (quoting Covington Bros. Motor Co. v.
Robinson, 239 Ala. 226, 229, 194 So. 663, 667 (1940))).
We consider the filing of the counterclaim to be the
operative " filing" in this case and not the later
severance of that counterclaim, which did not require or
constitute another " filing" within the
contemplation of Rule 7. Accordingly, we conclude that Rule 7
did not require the Duncans to pay an additional filing fee
when their counterclaim against Chamblee was severed from the
Opinion of the Clerk No. 45, 526 So.2d 584 (Ala. 1988), the
clerk of our supreme court answered two inquiries submitted
by the Administrative Director of Courts regarding filing
fees. The first question was as follows:
" [The Administrative Director's] first question
arises in the situation where a defendant in district court
files a counterclaim seeking relief beyond the jurisdictional
limits of the district court. If the district judge orders
that the counterclaim should properly be tried separately in
the circuit court, is the circuit clerk authorized to collect
the filing fee otherwise prescribed for circuit court civil
cases by § 12-19-71[, Ala. Code 1975]?"
526 So.2d at 585. The clerk of the supreme court answered the
question in the affirmative:
" My opinion is that the filing fee is due to be prepaid
by the party who filed the counterclaim in district court.
That is, before the circuit clerk dockets the circuit court
case, the filing fee should be paid just as if the district
court counterclaimant had filed, as plaintiff, an original
complaint in circuit court. If the district judge had ordered
the counterclaim stricken for lack of subject matter
jurisdiction in the district court, the counterclaimant would
have had to file a new complaint in circuit court, and such a
filing would obviously have required a circuit court filing
526 So.2d at 585-86.
second question considered in Opinion of the Clerk No. 45 was
" In the second situation posed by [the Administrative
Director], a judge orders one or more parties or claims
severed pursuant to Rule 21, [Ala.] R. Civ. P.
Where a 'true' severance under Rule 21 is ordered and
the clerk dockets a separate case with a new civil action
number, is an additional filing fee required?"
526 So.2d at 586. The clerk also answered this question in
" [A] filing fee should be prepaid by the party
proceeding as plaintiff in the severed action when a party or
claim is validly severed pursuant to Rule 21, [Ala.] R. Civ.
" ... Because severed claims become entirely independent
actions, it is my opinion that an additional filing fee is
required when a party or claim is severed pursuant to Rule
21. Regardless of whether the court acts on its own
initiative or on motion of a party, the filing fee should be
prepaid by the party proceeding as plaintiff in the separate
action. Since a severed claim becomes a separate and
independent case for purposes of finality of judgment and
appellate review, there is no logical reason to view the
claim as part of the original case for filing fee
Id. (footnote omitted).
that, when Opinion of the Clerk No. 45 was issued in 1988,
there was no fee for the filing of a counterclaim set out in
the consolidated fee structure in § 12-19-71. It was not
until 2004, when the legislature amended § 12-19-71,
that clerks were specifically statutorily authorized to
collect fees for the filing of counterclaims. See Ala. Acts
2004, Act No. 2004-636. Although not expressly stated in
Opinion of the Clerk No. 45, it appears that, because there
was no specific fee in the consolidated fee structure
applicable to the transfer of a counterclaim from district
court to circuit court or to a Rule 21 severance of a
counterclaim, the supreme-court clerk concluded that Rule 7,
Ala. R. Jud. Admin., called for the payment of the fee
typically applicable to cases originally filed in the circuit
courts. See generally Opinion of the Clerk No. 35, 397 So.2d
545, 546 (Ala. 1981) (opining that, based on Rule 7, Ala. R.
Jud. Admin., a filing fee is due when a case is transferred
from small-claims court to district court and stating that
" [t]here is no express cost under the consolidated fee
structure for a filing which is effectuated in the district
court by the transfer of a case from the small claims
docket" ). Nothing in the clerk's opinion could be
read as intending that a court should collect two fees for
administering the same counterclaim just because that
counterclaim is later severed from the original action.
Opinion of the Clerk No. 54, 982 So.2d 1059 (Ala. 2007), the
clerk of the supreme court relied on Opinion of the Clerk No.
45 in opining that an additional filing fee should be
assessed when a court severs a retaliatory-discharge claim
from a workers' compensation action for which a filing
fee had already been collected. That case did not involve a
counterclaim, but, to the extent that it is analogous to the
present situation in that it involves the collection of two
filing fees, we note that the clerk did not consider the
ramifications of the 2004 amendments to § 12-19-71 on
the reasoning employed in Opinion of the Clerk No. 45.
Moreover, we are not required to follow opinions of the clerk
of our supreme court, which are merely advisory in nature.
See 12-2-19(d), Ala. Code 1975 (authorizing the Clerk of the
Alabama Supreme Court to give " advisory" opinions
to state officials regarding the interpretation of rules
promulgated by the supreme court); compare § 36-15-9,
Ala. Code 1975 (authorizing advisory opinions by attorney
general), and Alabama Dep't of Pub. Safety v.
Barbour, 5 So.3d 601, 609 (Ala.Civ.App. 2008) (following
long-established rule that advisory opinions of attorney
general are not binding
upon the courts). Given our own interpretation of Rule 7, and
its interplay with § 12-19-71 as amended, we decline to
follow Opinion of the Clerk No. 45.
2011 case, Stephens v. Fines Recycling, Inc., supra,
our supreme court also stated in a footnote:
" [A]s noted in Opinion of the Clerk No. 54, [982 So.2d
1059 (Ala. 2007),] when a valid severance under Rule 21[,
Ala. R. Civ. P.,] occurs, the clerk of the trial court then
dockets those severed claims as a separate case with a new
civil-action number, which requires an additional filing fee
by the plaintiff in the severed action. 982 So.2d at 1061
(citing Opinion of the Clerk No. 45, [526 So.2d 584 (Ala.
1988)], as referenced in the Committee Comments Adopted
February 13, 2004, to Rule 21, Ala. R. Civ. P.). The record
before us does not suggest, and [the plaintiffs] do not
allege, that the clerk of the trial court docketed the
allegedly severed equitable counterclaims with a new
civil-action number or that [the defendant] was required to
pay a separate filing fee as to those claims."
84 So.3d at 874 n.4 (emphasis added). However, our supreme
court did not consider the context in which Opinion of the
Clerk No. 45 and Opinion of the Clerk No. 54 had been decided
or that the assumptions upon which Opinion of the Clerk No.
45 had been based no longer applied. Regardless, in Stephens,
the supreme court determined that the counterclaims had not
been severed, so the suggestion in Stephens that an
additional filing fee could be owed when a counterclaim is
severed from an original action was only dicta, which this
court would be bound to follow only if it were plainly
indicative of how the supreme court would rule in the instant
case. See United States Steel Corp. v. Wood, 40
Ala.App. 431, 438-39, 114 So.2d 533, 540 (1959), reversed on
other grounds, 269 Ala. 5, 114 So.2d 551 (1959). In
consideration of the foregoing analysis, we do not believe
our supreme court would hold that an additional filing fee
must be paid upon severance of a counterclaim.
we conclude that, even if an additional filing fee had been
required, its nonpayment would not have deprived the trial
court of subject-matter jurisdiction. In Espinoza, supra, our
supreme court explained that the language of §
12-19-70(a), Ala. Code 1975, provides for the payment of a
filing fee " 'at the time a complaint is filed in
circuit court,'" thus making payment of a filing fee
with a complaint a prerequisite jurisdictional act. 46 So.3d
at 413 (emphasis omitted). However, no language in §
12-19-70(a) or § 12-19-71 dictates that a filing fee
must be paid upon the filing of a counterclaim, which, once
delivered to the clerk, becomes a part of the action over
which the court already has jurisdiction. 46 So.3d at 414.
Likewise, § 12-19-70(a) and § 12-19-71 do not
address severance of a counterclaim, much less provide that a
filing fee should be paid at the time of the severance as a
jurisdictional act. In the absence of specific statutory
language to the contrary, the severance of the counterclaim
did not divest the trial court of the subject-matter
jurisdiction it was already exercising over the counterclaim.
that the Duncans were not required to pay an additional
filing fee in the severed action and that the alleged failure
to pay such a fee did not deprive the trial court of
subject-matter jurisdiction to adjudicate the severed action.
Hence, the judgment of the trial court in the severed action
is not void.
Finality of the Trial Court's Judgment
next argues that this court does not have jurisdiction over
his appeal because, he claims, the trial court's judgment
was not final. See generally Ex parte Wharfhouse Rest. &
Oyster Bar, Inc., 796 So.2d 316, 320 (Ala. 2001)
(indicating that, without a final judgment, an appellate
court does not have jurisdiction to consider an appeal).
" A final judgment that will support an appeal is one
that puts an end to the proceedings between the parties to a
case and leaves nothing for further adjudication."
to Chamblee, the trial court's judgment in favor of the
Duncans was not final because, he claims, his "
cross-claims" against Kelly and Jeffery are still
pending. It has long been the law that substance, not
nomenclature, is " the determining factor regarding the
nature of a party's pleadings or motions."
Eddins v. State, 160 So.3d 18, 20 (Ala.Civ.App.
2014). Rule 13(g), Ala. R. Civ. P., provides:
" A pleading may state as a cross-claim any claim by one
party against a co-party arising out of the transaction or
occurrence that is the subject matter either of the original
action or of a counterclaim therein or relating to any
property that is the subject matter of the original action.
Such cross-claim may include a claim that the party against
whom it is asserted is or may be liable to the cross-claimant
for all or part of a claim asserted in the action against the
Rule 13(g) did not apply in this case because, once the
counterclaim was severed under Rule 21, the only parties to
the severed action were the Duncans and Chamblee. See Key
v. Robert M. Duke Ins. Agency, 340 So.2d 781, 783 (Ala.
1976) ( " When, however, a claim is severed from the
original action, as authorized by Rule 21, [Ala. R. Civ. P.],
a new action is created, just as if it had never been a part
of the original action." ). After the severance, Kelly
and the children were not " co-parties" against
whom Chamblee could file a cross-claim under Rule 13(g).
operative pleading, Chamblee sought indemnification from
Kelly and the children, strangers to the severed action,
asserting that they should pay any damages recovered by the
Duncans against Chamblee. Rule 14(a), Ala. R. Civ. P.,
provides, in pertinent part:
" At any time after commencement of the action a
defending party, as a third-party plaintiff, may cause a
summons and complaint to be served upon a person not a party
to the action who is or may be liable to the third-party
plaintiff for all or part of the plaintiff's claim
against the third-party plaintiff."
The province of a third party claim is therefore limited to
instances of contractual indemnification from a claim or the
indemnification that flows from circumstances where the
defending party is entitled to stand in the shoes of claimant
if the defending party is liable to the claimant." 1
Champ Lyons, Jr., and Ally Windsor Howell, Alabama Rules of
Civil Procedure Annotated § 14.1 (4th ed. 2004). By the
above definitions, Chamblee filed a third-party complaint
against Kelly and the children.
14(a) specifically provides that a third-party plaintiff must
serve a summons, along with the third-party complaint, upon
any third-party defendant who is " not a party to the
action." Because Kelly and Jeffery were not parties to
the severed action, unless they voluntarily appeared and
thereby waived service, Chamblee had to serve them with a
summons and the third-party complaint " as required by
Rule 4, [Ala. R. Civ. P.]." Gray v. Gray, 359
So.2d 414, 415 (Ala.Civ.App. 1978); see also E.H. Smith &
Son Elec. Contractors, Inc. v. Springdale Mall Joint
Venture, 592 So.2d 574 (Ala. 1992). Chamblee does not
dispute that he did not satisfy the service-of-process
requirements for bringing in third parties pursuant to Rule
in Satterwhite v. Rodney Byrd Millennium Properties, Inc.,
[Ms. 2140148, April 24, 2015] 180 So.3d 890,
(Ala.Civ.App. 2015), this court held that the failure to
adjudicate claims against defendants who have not been served
does not affect the finality of a judgment, stating as
" One of the requisites of personal jurisdiction over a
defendant is 'perfected service of process giving notice
to [the] defendant of the suit being brought.' Ex
parte Volkswagenwerk Aktiengesellschaft, 443 So.2d 880,
884 (Ala. 1983). See also Rule 4(f), Ala. R. Civ. P.
('When there are multiple defendants and the summons (or
other document to be served) and the complaint have been
served on one or more, but not all, of the defendants, the
plaintiff may proceed to judgment as to the defendant or
defendants on whom process has been served and, if the
judgment as to the defendant or defendants who have been
served is final in all other respects, it shall be a final
180 So.3d at 895, Id. at *11n.4. Because Kelly and
Jeffery were never served in the severed action, the trial
court's alleged failure to adjudicate Chamblee's
claims against those individuals does not render the trial
court's judgment nonfinal.
Chamblee, the Duncans alleged claims of abuse of process,
malicious prosecution, negligence, wantonness, slander of
title, and civil conspiracy. All of the Duncans' claims
were based on their assertion that Chamblee had improperly
filed, and had refused to withdraw, the lis pendens notices.
clear from the language of § 35-4-131(a), Ala. Code
1975, that lis pendens notices can be filed regarding real
property that is the subject of litigation:
" When any civil action or proceeding shall be brought
in any court to enforce any lien upon, right to or interest
in, or to recover any land, ... the person ... commencing
such action or proceeding ... shall file with the judge of
probate of each county where the land or any part thereof is
situated a notice containing the names of all of the parties
to the action or proceeding, ... a description of the real
estate and a brief statement of the nature of the lien, writ,
application, or action sought to be enforced."
(Emphasis added.) See also Willis v. Lewis, 25
Ala.App. 369, 370, 148 So. 330, 331 (1933) (" The
doctrine of lis pendens is for the purpose of preserving the
property involved in the suit ...." ); and Ex parte
State Dep't of Revenue, 886 So.2d 817, 821
(Ala.Civ.App. 2003) (" 'The sole purpose of a lis
pendens notice is to afford notice to a bona fide purchaser
who might purchase the property during the pendency of the
action.' Although a lis pendens is only a notice of the
pending litigation affecting title to real property, 'it
renders title unmarketable and therefor[e] effectively
prevents the property's transfer until the litigation is
resolved or the lis pendens is expunged.'"
undisputed that title to the Duncans' real property in
St. Clair County and in Etowah County was not the subject of
the original action. It is clear that Chamblee filed the lis
pendens notices not because his clients claimed an interest
in the Duncans' property, but because they desired to
enforce, via execution on the Duncans' property, any
possible future judgment they might recover in the original
action. Indeed, the lis pendens notices themselves state that
they were intended " [f]or the enforcement and
collection of any judgment which may be rendered in
[the original action]." Accordingly, Chamblee candidly
acknowledges in his brief to this court that the lis pendens
notices were not valid under § 35-4-131(a).
Chamblee acknowledges that the Duncans asserted against him
claims of abuse of process, malicious prosecution,
negligence, wantonness, and slander of title, Chamblee offers
significant argument only with respect to the
slander-of-title claim and only limited and legally
unsupported arguments as to the malicious-prosecution and
negligence claims. See Rule 28(a)(10), Ala. R. App. P.;
and K.D.H. v. T.L.H., 3 So.3d 894, 898 (Ala.Civ.App.
2008) (failure to comply with Rule 28 constitutes waiver of
argument on appeal). Chamblee essentially ignores the
Duncans' other claims because, according to Chamblee, the
Duncans' counterclaim was " basically a
'slander-of-title' claim or action." Relying
exclusively on that premise, Chamblee does not provide this
court with any authority for the proposition that the Duncans
could not base their other theories of liability on
Chamblee's actions. Cf. Folmar v. Empire Fire &
Marine Ins. Co., 856 So.2d 807, 811 (Ala. 2003)
(Harwood, J., concurring specially) (implying that party
placing cloud on title to real property could be liable under
alternative legal theories other than slander of title).
the trial court awarded the Duncans punitive damages based,
in part, on its finding that Chamblee had acted wantonly, the
trial court did not specify any basis for its liability
determination. " When an appellant confronts an issue
below that the appellee contends warrants a judgment in its
favor and the trial court's order does not specify a
basis for its ruling, the omission of any argument on appeal
as to that issue in the appellant's principal brief
constitutes a waiver with respect to the issue."
Fogarty v. Southworth, 953 So.2d 1225, 1232 (Ala.
2006). " This waiver, namely, the failure of the
appellant to discuss in the opening brief an issue on which
the trial court might have relied as a basis for its
judgment, results in an affirmance of that judgment."
Soutullo v. Mobile Cnty., 58 So.3d 733, 739 (Ala.
2010) (construing Fogarty). Thus, even if the trial court
erred in finding that Chamblee had slandered the Duncans'
title, an argument with which we do not necessarily agree, we
still cannot reverse the judgment on that basis.
next apparently suggests that the Duncans did not suffer any
damages because of Chamblee's filing and refusal to
terminate the lis pendens notices. The Duncans, however,
offered evidence indicating that they both had suffered
mental anguish, that Paul had incurred medical expenses as a
result of the stress caused by Chamblee's actions, that
the Duncans had incurred legal fees in having the lis pendens
notices quashed, and that Paul's reputation in the
community had been affected. With the exception of mental
anguish, Chamblee does not specifically argue that the
Duncans could not recover for those injuries. See K.D.H.
v. T.L.H., supra.
mental anguish, Chamblee argues only that the Duncans were
not entitled to damages for mental aguish because, he
asserts, they did not sustain any physical injury and were
not placed in the " zone of danger." In Brown
v. First Federal Bank, 95 So.3d 803, 818 (Ala.Civ.App.
2012), however, this court recognized that damages for mental
anguish are recoverable in wantonness cases, regardless of
whether the plaintiff has suffered a physical injury or was
placed in an immediate risk of such injury. As noted,
Chamblee has not met his burden of demonstrating that the
trial court erred if it entered a
judgment in favor of the Duncans based on their claim of
wantonness. Accordingly, we cannot reverse the trial
court's award of compensatory damages based on
Chamblee asserts on appeal that the trial court erred in
awarding the Duncans punitive damages because, Chamblee
claims, they did not satisfy their burden under §
6-11-20, Ala. Code 1975, which provides:
" (a) Punitive damages may not be awarded in any civil
action, except civil actions for wrongful death pursuant to
Sections 6-5-391 and 6-5-410, [Ala. Code 1975,] other than in
a tort action where it is proven by clear and convincing
evidence that the defendant consciously or deliberately
engaged in oppression, fraud, wantonness, or malice with
regard to the plaintiff. Nothing contained in this article
[i.e., § 6-11-20 through § 6-11-30] is to be
construed as creating any claim for punitive damages which is
not now present under the law of the State of Alabama.
" (b) As used in this article, the following definitions
" (1) Fraud. An intentional misrepresentation, deceit,
or concealment of a material fact the concealing party had a
duty to disclose, which was gross, oppressive, or malicious
and committed with the intention on the part of the defendant
of thereby depriving a person or entity of property or legal
rights or otherwise causing injury.
" (2) Malice. The intentional doing of a wrongful act
without just cause or excuse, either:
" a. With an intent to injure the person or property of
another person or entity, or
" b. Under such circumstances that the law will imply an
" (3) Wantonness. Conduct which is carried on with a
reckless or conscious disregard of the rights or safety of
" (4) Clear and convincing evidence. Evidence that, when
weighed against evidence in opposition, will produce in the
mind of the trier of fact a firm conviction as to each
essential element of the claim and a high probability as to
the correctness of the conclusion. Proof by clear and
convincing evidence requires a level of proof greater than a
preponderance of the evidence or the substantial weight of
the evidence, but less than beyond a reasonable doubt.
" (5) Oppression. Subjecting a person to cruel and
unjust hardship in conscious disregard of that person's
own admission, Chamblee consciously and intentionally refused
to withdraw the lis pendens notices after he had determined
that they had been improperly filed. Therefore, the trial
court did not err in determining that Chamblee had
consciously or deliberately engaged in malice, wantonness, or
oppression, as those terms are defined in § 6-11-20(b).
Thus, we see no basis on which to reverse the trial
court's award of punitive damages.
on the foregoing, the trial court's judgment is due to be
P.J., and Pittman, Thomas, and Donaldson, JJ., concur.
The record does not contain a copy of the
original complaint, but the parties agree that it was
Chamblee also asserted that he held a
statutory lien against property owned by Kelly and the
Chamblee's motion was styled as one
requesting the trial court to " align and/or
re-align" Kelly and the children as parties, but the
substance of that motion did not make a request to realign
any parties. Rather, Chamblee requested the trial court to
enter an order making Kelly and the children parties to the
Rule 42(b) provides:
" Separate Trials. The court, in furtherance of
convenience or to avoid prejudice, or when separate trials
will be conducive to expedition and economy, may order a
separate trial of any claim, cross-claim, counterclaim, or
third-party claim, or of any separate issue or of any
number of claims, cross-claims, counterclaims, third-party
claims, or issues, always preserving inviolate the right of
trial by jury as declared by Article 1, Section 11 of the
Alabama Constitution of 1901."
Rule 21 provides:
" Misjoinder of parties is not ground for
dismissal of an action. Parties may be dropped or added by
order of the court on motion of any party or of its own
initiative at any stage of the action and on such terms as
are just. Any claim against a party may be severed and
proceeded with separately."