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Donald v. Kimberley

Alabama Court of Civil Appeals

March 8, 2019

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          The opinion of this court issued on January 11, 2019, is withdrawn, and the following is substituted therefor.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 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

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 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," ...


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