Thomas C. Donald
v.
James P. Kimberley and Carol J. Kimberley
Appeal
from DeKalb Circuit Court (CV-17-900198)
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withdrawn, and the following is substituted therefor.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 James's 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
Donald's 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, attorney's fees in the amount of $7, 500, and
costs. James asserted, among other things, that Donald had
"trespassed on [James's] 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 James's 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 Donald's summary-judgment
motion on January 23, 2018, at which time the absence of an
indispensable party, i.e., James's wife, Carol J.
Kimberley ("Carol"), was suggested. The trial court
entered an order denying Donald's 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 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 Donald's 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 Donald's 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
Donald's objections to the Kimberleys' affidavit,
denying Donald's motion to strike, denying Donald's
motion for a more definite statement, and denying
Donald's renewed summary-judgment motion. Donald
unsuccessfully sought reconsideration of the trial
court's order, and he then sought review of the trial
court's April 12, 2018, order via a petition for the writ
of mandamus. However, the record reveals that our supreme
court denied by order Donald's mandamus petition seeking
review of the trial court's order. Ex parte
Donald (No. 1170721, May 31, 2018).
On June
6, 2018, the trial court entered an order stating that
Donald's 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 court's 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 court's 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
Donald's 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," Donald intimated that the trial court had
indicated its intent that the June 21, 2018, order be treated
as a final judgment; he requested that the trial court
instead expressly state that the June 21, 2018, order was not
a final judgment. In response to the "motion to
clarify," the trial court issued an order denying the
motion, but opining that Rule 4(a)(3), Ala. R. App. P., which
pertains to the tolling of time for taking an appeal during
the pendency of a postjudgment motion under Rules 50, 52, 55,
or 59, Ala. R. Civ. P., was "applicable to the issue
raised" in the "motion to clarify." Donald
filed a notice of appeal from the June 21, 2018, order on
July 31, 2018. Thereafter, the trial court entered an order
on August 9, 2018, modifying its June 21, 2018, order in some
respects but denying Donald's motion to reconsider.
Donald's appeal from the trial court's June 21, 2018,
order (as amended on August 9, 2018) was transferred from our
supreme court to this court, pursuant to Ala. Code 1975,
§ 12-2-7(6).
The
parties to this appeal do not address in their briefs the
matter of this court's appellate jurisdiction to consider
the correctness of the trial court's June 21, 2018, order
as amended. Regardless, "we must consider whether we
have jurisdiction over this appeal, because
'"jurisdictional matters are of such magnitude that
we take notice of them at any time and do so even ex mero
motu."'" Spradlin v. Lovvorn, 891
So.2d 351, 353 (Ala. Civ. App. 2004) (quoting Nobles v.
Alabama Christian Acad., 724 So.2d 527, 529 (Ala. Civ.
App. 1998), quoting in turn Nunn v. Baker, 518 So.2d
711, 712 (Ala. 1987)). In Spradlin, this court
considered the question of appellate jurisdiction as to an
order entered in a civil action involving two sets of
coterminous landowners: one set of landowners, the Lovvorns,
sought in their complaint a judgment quieting title in their
favor as to certain real property, whereas their opponents,
the Spradlins, asserted a counterclaim alleging, among other
things, that the Lovvorns had trespassed upon the
Spradlins' property and sought damages based on that
claim, among other claims sounding in tort. After the trial
court had entered an order establishing the parties'
common boundary, the Spradlins appealed. This court
determined, however, that the Spradlins' appeal was due
to be dismissed:
"This
court has stated:
"'"It is a well established rule that, with
limited exceptions, an appeal will lie only from a final
judgment which determines the issues before the court and
ascertains and declares the rights of the parties
involved." Taylor v. Taylor, 398 So.2d 267, 269
(Ala. 1981). A ruling that relates to fewer than all the
parties in a case, or that determines fewer than all the
claims, is ordinarily not final as to any of the parties or
as to any of the claims. Rule 54(b), Ala. R. Civ. P.; see
McGlothlin v. First Alabama Bank, 599 So.2d 1137 (Ala.
1992). However, pursuant to Rule 54(b), a court may direct
the entry of a final judgment as to fewer than all of the
claims presented in a particular case. See Bean v.
Craig, 557 So.2d 1249 (Ala. 1990). Furthermore,
"when the trial court grants separate trials of single
claims under Rule 42(b), [Ala. R. Civ. P., ] a judgment
entered ...