Thomas C. DONALD
v.
James P. KIMBERLEY and Carol J. Kimberley
Page 847
Appeal
from DeKalb Circuit Court (CV-17-900198). Randall L. Cole, J.
Thomas
C. Donald, Birmingham, appellant, pro se.
Robert
B. French, Jr., Fort Payne, for appellees.
On Rehearing Ex Mero Motu
PER
CURIAM.
The
opinion of this court issued on January 11, 2019, is
withdrawn, and the following is substituted therefor.
In
August 2017, Thomas C. Donald, acting pro se, initiated a
civil action against James P. Kimberley ("James")
in the DeKalb Circuit Court in which Donald sought
declaratory and injunctive relief, as well as damages. That
action was assigned case number CV-17-900198. In pertinent
part, Donald alleged in his complaint that he owned a tract
of land adjacent to a tract of land owned by James; that the
tracts shared a common boundary, i.e., the line between
Sections 23 and 26 of the United States Government survey of
Township 5 South, Range 10 East in DeKalb County ("the
section line"); that James had installed fence posts,
barriers, and other markers on and along the north side of a
roadway that, Donald alleged, lay within his tract; and that,
if the roadway were deemed to lie on Jamess tract, Donald
and his predecessors in title had used the roadway for a
sufficient time to warrant a determination that Donald had
gained a right to use the road by prescription. Donald
thereafter filed a number of additional papers in the trial
court, such as a motion requesting that the trial court take
judicial notice of certain matters and affidavits regarding
the location of the section line and a section corner marker.
Donald later moved for the entry of a summary judgment in his
favor as to all claims not involving requests for awards of
monetary damages.
In
October 2017, James, acting through counsel, answered
Donalds complaint, denying its material allegations, and
asserted a counterclaim against Donald seeking an award of $
10,000 in compensatory damages, $ 25,000 in punitive damages,
attorneys fees in the amount of $ 7,500, and costs. James
asserted, among other things, that Donald had
"trespassed on [Jamess] land and caused damage to the
land" and that Donald was an "inveterate litigant
involving coterminous landowners" who "knew or
should have known[ ] there is no merit to his
contentions" in his complaint. See generally
the Alabama Litigation Accountability Act ("the
ALAA"), Ala. Code 1975, § 12-19-270 et seq. Donald filed
motions seeking a more definite statement from James and to
dismiss Jamess counterclaim. While those motions were
pending, Donald filed further papers, including a brief and a
motion regarding the propriety of judicial notice of matters
such as facts shown in online mapping programs and a
surveying manual published by the United States Bureau of
Land Management, as well as an affidavit regarding section
lines depicted on county tax maps.
The
trial court held a hearing on Donalds summary-judgment
motion on January 23, 2018, at which time the absence of an
indispensable party, i.e., Jamess wife, Carol J. Kimberley
("Carol"), was suggested. The trial court entered
an order denying Donalds summary-judgment motion because of
the absence of Carol as a party, after which Donald amended
his complaint to name Carol as an additional defendant
Page 848
and filed a renewed summary-judgment motion. James and Carol
(hereinafter referred to collectively as "the
Kimberleys") moved to dismiss the amended complaint on
various grounds, including that Donalds claims were
purportedly time-barred as to Carol and that the amended
complaint had been filed without leave of court; after that
motion was denied, the Kimberleys jointly filed an answer to
the amended complaint and asserted a counterclaim that was
substantially similar to the counterclaim previously asserted
by James, i.e., seeking relief based upon theories of
trespass and initiation of allegedly baseless litigation as
described in the ALAA. The Kimberleys also filed a response
in opposition to Donalds renewed summary-judgment motion,
which response was supported by their joint affidavit. In
addition to filing a reply to the Kimberleys response to his
renewed summary-judgment motion and an objection to their
joint affidavit, Donald again moved for a more definite
statement as to the counterclaim and to strike the amended
answer and counterclaim.
On
April 12, 2018, the trial court entered an order overruling
Donalds objections to the Kimberleys affidavit, denying
Donalds motion to strike, denying Donalds motion for a more
definite statement, and denying Donalds renewed
summary-judgment motion. Donald unsuccessfully sought
reconsideration of the trial courts order, and he then
sought review of the trial courts April 12, 2018, order via
a petition for the writ of mandamus. However, the record
reveals that our supreme court denied by order Donalds
mandamus petition seeking review of the trial courts order.
Ex parte Donald (No. 1170721, May 31, 2018).
On
June 6, 2018, the trial court entered an order stating that
Donalds complaint and the Kimberleys counterclaim "are
hereby severed for trial" and providing that a trial on
the complaint would be held on June 11, 2018, and that a
trial would be held on the counterclaim at a later date.
Notably, the trial courts order did not specify that the
claims set forth in the complaint and those asserted in the
counterclaim would be treated as two separate civil actions,
and papers filed and orders entered in the trial court
thereafter list case number CV-17-900198 as a single pending
action. The trial court held an ore tenus proceeding as
scheduled on June 11, 2018, at which Donald and two land
surveyors testified and various documents were admitted into
evidence. After that trial had concluded and the parties had
filed briefs in support of their positions, the trial court
entered an order on June 21, 2018. The trial courts June 21,
2018, order stated that that court had "severed the
complaint and the counterclaim" and had held a trial as
to the issues raised in the complaint. After discussing the
general location of the parties tracts of land and the
testimony of Donald and the surveyors, the trial court
determined in its order that the true location of the section
line was "consistent with the findings of Surveyor
Johnny Croft"; that the northwest corner of the
Kimberleys property was the point Croft had determined to be
the midpoint of the section line; and that the disputed
roadway was located in Section 26 on the Kimberleys
property. The trial court denied any other relief sought by
Donald in his complaint and set a trial date for hearing the
Kimberleys counterclaim.
On July
7, 2018, Donald filed a motion seeking reconsideration of the
matters determined in the June 21, 2018, order on Donalds
complaint, which motion was set for a July 31, 2018, hearing.
Before that hearing, however, Donald filed on July 23, 2018,
what he termed a "motion to clarify" the June 21,
2018, order. In the "motion to clarify," ...