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Chamblee v. Duncan

Alabama Court of Civil Appeals

June 26, 2015

Carl Chamblee, Sr.
v.
Paul Duncan and Deborah Ann Duncan

         Released for Publication May 4, 2016.

          Appeal from Etowah Circuit Court. (CV-07-131.01). William B. Ogletree, Trial Judge.

         MOORE, Judge. Thompson, P.J., and Pittman, Thomas, and Donaldson, JJ., concur.

          OPINION

Page 683

          MOORE, Judge.

         Carl 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.

         Procedural History

         In 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" ),[1] 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.

         Through 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.

Page 684

          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" ).

         On 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.[2] 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." [3] 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 Chamblee's motion.

         Notwithstanding 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

Page 685

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.

         On 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 timely appealed.

         Facts

         Paul 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.

         Brad 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.

         Cornett 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.

         In 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.

         Although 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

Page 686

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.

         Cornett, 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.

         Paul 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.

         Deborah 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.

         Cornett 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.

         Standard of Review

" '" '[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

Page 687

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).

         Analysis

         I. Jurisdiction

         A. Failure to Pay an Additional Filing Fee

         On 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 ...


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