R.E.L., D.H., and R.H.
from Baldwin Circuit Court (CV-15-901410).
appeals from a judgment by the Baldwin Circuit Court
dismissing his complaint against R.E.L., D.H., and R.H. We
Facts and Procedural History
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.
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."
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.
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."
noted above, on November 20, 2015, D.A.R. filed his complaint
against R.E.L., D.H., and R.H. 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
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.
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.
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.
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.
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.
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.
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."
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
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.
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
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)
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
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." 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
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 ...