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D.A.R. v. R.E.L.

Supreme Court of Alabama

September 7, 2018

D.A.R.
v.
R.E.L., D.H., and R.H.

          Appeal from Baldwin Circuit Court (CV-15-901410).

          PER CURIAM

         D.A.R. appeals from a judgment by the Baldwin Circuit Court dismissing his complaint against R.E.L., D.H., and R.H. We affirm.

         I. Facts and Procedural History

         On November 20, 2015, D.A.R., a licensed attorney practicing in Alabama, filed a complaint in the Baldwin Circuit Court against R.E.L., D.H., and R.H. R.E.L. is also a licensed attorney, who, at all times material to the allegations in the complaint, was employed as an assistant general counsel for the Alabama State Bar ("the ASB"). D.H. and R.H. are brothers; they are not attorneys.

         According to the complaint, at some point before December 2007, R.E.L. and D.H. began "a personal, professional and/or sexual relationship," and R.E.L. and R.H. began "a personal and/or professional relationship." D.A.R. alleged that in December 2007, at R.E.L.'s recommendation and with his assistance, D.H. and R.H. "filed a baseless complaint against [D.A.R.] with the ASB." D.A.R. alleged that the motivation for the complaint was to use it "as a means to protect [D.H. and R.H.] from liability for a debt owed by [them] to a client represented by [D.A.R.] and/or as retaliation for his role in representing that client."

         According to D.A.R., R.E.L. knew when it was filed that the complaint against D.A.R. was baseless in fact and in law. D.A.R. also alleged that R.E.L. did not reveal his relationships with D.H. and R.H. to the Disciplinary Commission of the ASB or to D.A.R., and R.E.L. did not recuse himself from the ASB proceedings against D.A.R., despite his relationships with D.H. and R.H. Instead, R.E.L. persisted in prosecuting the complaint allegedly because of his relationships with D.H. and R.H. D.A.R. alleged that, after he had spent almost two years defending himself against the groundless charges, the ASB dismissed the charges with a letter of caution that D.A.R. reluctantly accepted.

         D.A.R. alleged that on November 24, 2013, he first became aware that "[R.E.L.] and [D.H.] had an inappropriate sexual relationship which preexisted the December 2007 complaint" and that that relationship "continued throughout the pendency of the ASB proceedings against [D.A.R.]." In 2014, D.A.R. informed the ASB of the relationship between R.E.L. and D.H. and the alleged connection between that relationship and the December 2007 complaint. D.A.R. further alleged that, at some later time,

"[the] ASB, through its elected leadership representatives, ... admitted to [D.A.R.] that the complaint filed against him by [D.H. and R.H.] was baseless, that the ASB proceedings against him were inappropriate, tainted and wrongful from their inception and at all times thereafter, and that, on behalf of the ASB, [R.E.L.] improperly prosecuted [D.A.R.] and deceived and suppressed information from [D.A.R.] relating to the baseless complaint and prosecution against him."

         As noted above, on November 20, 2015, D.A.R. filed his complaint against R.E.L., D.H., and R.H.[1] D.A.R. asserted claims of abuse of process, malicious prosecution, negligence, wantonness, tort of outrage/intentional infliction of emotional distress, slander, libel, breach of fiduciary duty, fraudulent suppression/concealment, fraudulent misrepresentation, and civil conspiracy.

         On January 6, 2016, D.H. and R.H. filed a motion to dismiss the claims against them and a brief in support of their motion. D.H. and R.H. argued that they were entitled to "absolute immunity based upon the nature of the quasi-judicial function of the disciplinary process" and based on Rule 15(a), Ala. R. Disc. P. On the same date, R.E.L. filed a motion to dismiss the claims against him on the ground that he was entitled to immunity based on Rule 15(a) and (b), Ala. R. Disc. P., because at all relevant times he was acting in his capacity as an assistant general counsel for the ASB, and on the grounds of State immunity, State-agent immunity, judicial immunity, and quasi-judicial immunity. On March 14, 2016, D.A.R. filed responses in opposition to the motions to dismiss.

         The trial court held a hearing on the motions to dismiss, and, on April 5, 2016, the trial court entered an order granting the motion to dismiss filed by R.E.L. and an order granting the motion to dismiss filed by D.H. and R.H. The trial court did not state a rationale in either order for its decision.

         On April 25, 2016, D.H. and R.H. filed a motion to seal the record on the ground "'that disclosure will result in undue harm or embarrassment to an individual, '" quoting Holland v. Eads, 614 So.2d 1012, 1015 (Ala. 1993). The motion to seal further alleged that the "allegations could further pose a serious threat of harassment, exploitation, or other particularized harm to the parties in this action." The trial court granted the motion on April 27, 2016.[2]

         On May 5, 2016, D.A.R. filed a "Motion to Vacate the Order[s] of Dismissal." See Rule 59(e), Ala. R. Civ. P. In the motion, D.A.R. conceded that R.E.L., D.H., and R.H. were entitled to an absolute privilege against his slander and libel claims, but he contended that the defendants were not entitled to immunity for the other claims he asserted against them. Additionally, D.A.R. alleged that he had obtained new information, specifically information that the initial grievance against him had been referred to and denied by the County Bar Grievance Committee of the county in which D.A.R. practiced law; that R.E.L., D.H., and R.H. had fabricated false evidence to submit to the ASB Disciplinary Commission; that an independent investigator engaged by the ASB to investigate the matter had issued an independent report to the ASB but that the ASB had subsequently refused to provide a copy of that report to D.A.R., despite the ASB's assurance that the report would be provided to him; and that the ASB's then president admitted to D.A.R. that the prosecution of D.A.R. by the ASB was wrongful and baseless from its inception.

         Along with his motion to vacate, D.A.R. filed a first amended complaint, omitting his claims alleging slander and libel and realleging the other claims. The first amended complaint also changed certain allegations to assert that R.E.L.'s misconduct was not within the scope of his authority as an assistant general counsel for the ASB.[3]

         On May 8, 2016, D.H. and R.H. filed a motion to dismiss the first amended complaint on the ground that the trial court's orders dismissing the original complaint were final judgments that deprived the trial court of further jurisdiction to consider the amended complaint. On May 10, 2016, R.E.L. filed a response to the first amended complaint in which he adopted and incorporated the arguments made by the D.H. and R.H. in their motion to dismiss the first amended complaint.

         On May 13, 2016, D.A.R. filed a motion requesting that the trial court unseal the record and requesting that the trial court "set aside the April 25 order, conduct a hearing, ... take evidence as necessary, and enter an order denying [D.H.] and [R.H.'s] motion to seal."

         On June 7, 2016, the trial court entered an order denying D.A.R.'s motion to vacate the April 2016 orders dismissing the original complaint. On the same date, the trial court entered an order denying D.A.R.'s motion to unseal the record, and it entered respective orders declaring moot D.H. and R.H.'s motion to dismiss the first amended complaint and R.E.L.'s response to the first amended complaint.

         D.A.R. appeals. We note that, on appeal, D.H. and R.H. filed a motion to seal the record. D.A.R. did not respond to that motion, and the motion was granted. D.A.R. has presented no argument that the trial court erred as to the sealing of the record or that the record should be unsealed on appeal. See Muhammad v. Ford, 986 So.2d 1158, 1165 (Ala. 2007) ("An argument not made on appeal is abandoned or waived." (quoting Avis Rent A Car Sys., Inc. v. Heilman, 876 So.2d 1111, 1124 n. 8 (Ala. 2003))). We therefore do not consider that issue in our analysis.

         II. Standard of Review

As this Court has noted,
"immunity issues should be decided as early as possible once raised. See, e.g., Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991)('One of the purposes of immunity, absolute or qualified, is to spare a defendant not only unwarranted liability, but unwarranted demands customarily imposed upon those defending a long drawn out lawsuit.')."

Vandenberg v. Aramark Educ. Servs., Inc., 81 So.3d 326, 338-39 (Ala. 2011).

"The standard of review applicable to motions to dismiss is set forth in Ex parte City of Birmingham, 624 So.2d 1018, 1020 (Ala. 1993), quoting Seals v. City of Columbia, 575 So.2d 1061, 1063 (Ala. 1991):
"'It is a well-established principle of law in this state that a complaint, like all other pleadings, should be liberally construed, Rule 8(f), Ala. R. Civ. P., and that a dismissal for failure to state a claim is properly granted only when it appears beyond a doubt that the plaintiff can prove no set of facts entitling him to relief. Winn-Dixie Montgomery, Inc. v. Henderson, 371 So.2d 899 (Ala. 1979). Stated another way, if under a provable set of facts, upon any cognizable theory of law, a complaint states a claim upon which relief could be granted, the complaint should not be dismissed. Childs v. Mississippi Valley Title Insurance Co., 359 So.2d 1146 (Ala. 1978).
"'Where a [Rule] 12(b)(6) motion has been granted and this Court is called upon to review the dismissal of the complaint, we must examine the allegations contained therein and construe them so as to resolve all doubts concerning the sufficiency of the complaint in favor of the plaintiff. First National Bank v. Gilbert Imported Hardwoods, Inc., 398 So.2d 258 (Ala. 1981). In so doing, this Court does not consider whether the plaintiff will ultimately prevail, only whether he has stated a claim under which he may possibly prevail. Karagan v. City of Mobile, 420 So.2d 57 (Ala. 1982).'"

Patton v. Black, 646 So.2d 8, 9-10 (Ala. 1994) (emphasis omitted).

         III. Analysis

         D.A.R. argues that the trial court erred in dismissing his complaint because, he says, R.E.L., D.H., and R.H. have not established that they are entitled to immunity for the actions he alleges they committed in connection with the Bar complaint filed against him.[4]

         Rule 15(a), Ala. R. Disc. P., states: "Complaints and petitions submitted pursuant to these Rules or testimony with respect thereto shall be absolutely privileged, and no lawsuit predicated thereon may be instituted." This Court has not decided a case applying Rule 15(a). A number of other states, however, have statutes or disciplinary rules that contain nearly identical language to Rule 15(a) -- "no lawsuit predicated [on a Bar complaint and a petition] may be instituted."[5] One probable reason for this broad uniformity is that the American Bar Association Model Rules of Disciplinary Enforcement, Rule 12, titled "Immunity," states, in part:

"A. From Civil Suits. Communications to the board, hearing committees, or disciplinary counsel relating to lawyer misconduct or disability and testimony given in the proceedings shall be absolutely privileged, and no lawsuit predicated thereon may be instituted against any complainant or witness."

         In its commentary to this rule, the American Bar Association states:

"The Rule recommends absolute privilege rather than qualified privilege; qualified privilege may not protect against harassment made possible by simply alleging malice in a lawsuit. ...
"A policy of conferring absolute immunity on the complainant encourages those who have some doubt about a lawyer's conduct to submit the matter to the proper agency, where it may be examined and determined. Without immunity, some valid complaints will not be filed. The individual lawyer may suffer some hardship as the result of the occasional filing of a malicious complaint, but a profession that wants to retain ...

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