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