from Elmore Circuit Court (CV-17-57)
THOMPSON, PRESIDING JUDGE.
December 29, 2016, Louis Cohen filed a complaint in the
Elmore District Court ("the district court")
against Arlene Durham, seeking to recover damages for a fence
damaged by fire in March 2015. Cohen had constructed the
fence between the parties' properties. He alleged that
Durham had caused the fire. Durham answered and denied
liability. Durham later moved to dismiss the complaint or, in
the alternative, for a more definite statement of Cohen's
claims. The district court did not rule on Durham's
motion, and, instead, it scheduled the matter for trial.
Thereafter, Durham amended her answer to the complaint.
district court conducted an ore tenus hearing. On July 20,
2017, the district court entered a judgment finding that
Cohen's fence had been damaged as a result of
Durham's reckless conduct and awarding Cohen $6, 630 in
August 1, 2017, Durham filed an appeal in the Elmore Circuit
Court ("the trial court") from the district
court's July 20, 2017, judgment; in her appeal, Durham
requested a trial by jury. See § 12-12-71, Ala.
Code 1975 ("[A]ll appeals from final judgments of the
district court shall be to the circuit court for trial de
novo," and "[a]n appellant shall not be entitled to
a jury trial in circuit court unless it is demanded in the
notice of appeal ...."). On August 23, 2017, Durham also
filed in the trial court a counterclaim against Cohen. In
that counterclaim, Durham alleged that the parties had been
involved in a previous litigation that had been settled in
December 2014. Durham alleged that, since that settlement,
Cohen had taken actions against Durham, and, based on those
actions, she asserted claims of malicious prosecution,
conversion or theft, and the tort of outrage or stalking.
Among other things, Durham alleged that Cohen had made false
allegations related to the March 2015 fence fire that was the
subject of the district-court action and that those
allegations had resulted in her being arrested and criminally
charged in connection with the fire. In her counterclaim,
Durham sought awards of compensatory and punitive damages.
August 30, 2017, Cohen, proceeding pro se, filed a motion
pursuant to Rule 12(b)(6), Ala. R. Civ. P., seeking to
dismiss the August 23, 2017, counterclaim, alleging that
Durham's allegations in her counterclaim were false. The
trial court conducted a hearing on the motion to dismiss. On
September 27, 2017, the trial court entered an order
dismissing Durham's counterclaim without stating a reason
for doing so; no transcript of that hearing is contained in
the record on appeal.
later sought orders requiring the production of certain
discovery, and the trial court denied those requests.
trial court conducted a jury trial on Cohen's claims
against Durham. The jury returned a verdict in favor of Cohen
and awarded him $2, 750 in damages. On June 18, 2018, the
trial court entered a judgment on the jury's verdict.
Both parties filed postjudgment motions, and the trial court
denied those motions. Durham timely appealed.
first argues that the trial court erred in dismissing her
counterclaim. The applicable standard of review for a Rule
12(b)(6), Ala. R. Civ. P., dismissal is as follows:
"On appeal, a dismissal is not entitled to a presumption
of correctness. Jones v. Lee County Commission, 394
So.2d 928, 930 (Ala. 1981); Allen v. Johnny Baker
Hauling, Inc., 545 So.2d 771, 772 (Ala. Civ. App. 1989).
The appropriate standard of review under Rule 12(b)(6)[, Ala.
R. Civ. P., ] is whether, when the allegations of the
complaint [(or counterclaim)] are viewed most strongly in the
pleader's favor, it appears that the pleader could prove
any set of circumstances that would entitle her to relief.
Raley v. Citibanc of Alabama/Andalusia, 474 So.2d
640, 641 (Ala. 1985); Hill v. Falletta, 589 So.2d
746 (Ala. Civ. App. 1991). In making this determination, this
Court does not consider whether the plaintiff [(or
counterclaimant)] will ultimately prevail, but only whether
she may possibly prevail. Fontenot v. Bramlett, 470
So.2d 669, 671 (Ala. 1985); Rice v. United Ins. Co. of
America, 465 So.2d 1100, 1101 (Ala. 1984). We note that
a Rule 12(b)(6) dismissal is proper only when it appears
beyond doubt that the plaintiff [(or counterclaimant)] can
prove no set of facts in support of the claim that would
entitle [her] to relief. Garrett v. Hadden, 495
So.2d 616, 617 (Ala. 1986); Hill v. Kraft, Inc., 496
So.2d 768, 769 (Ala. 1986)."
Nance v. Matthews, 622 So.2d 297, 299 (Ala. 1993).
See also Hightower & Co. v. United States
Fid. & Guar. Co., 527 So.2d 698, 702 (Ala. 1988)
("When the trial court is called upon to consider a Rule
12(b)(6) motion, it must examine the allegations in the
complaint, or, as in the instant case, the counterclaim, and
construe it so as to 'resolve all doubts concerning [its]
sufficiency in favor of the [claimant].' In so doing, the
court does not consider whether the claimant will ultimately
prevail, only whether he has stated a claim under which he
may possibly prevail.").
13, Ala. R. Civ. P., governs the assertion of counterclaims
and cross-claims, and, with regard to counterclaims asserted
in a circuit court on appeal of a district-court judgment, it
"(j) Appealed Actions. Where an action is commenced in a
court from which an appeal lies to the circuit court for a
trial de novo any counterclaim made compulsory by subdivision
(a) of this rule shall be stated as an amendment to the
pleading within thirty (30) days after the appeal has been
perfected to the circuit court or within such further time as
the court may allow; and other counterclaims and cross-claims
shall be permitted as in an original action. When a
counterclaim or cross-claim is asserted by a defendant in an
appealed case, the defendant shall not be limited in amount
to the jurisdiction of the lower court but shall be permitted
to claim and recover the full amount of its claim
irrespective of the jurisdiction of the lower court. If the
plaintiff appeals a case to the circuit court from a lower
court and obtains a trial de novo in the circuit court, the
plaintiff shall be limited in the amount of his recovery to
the jurisdictional amount that could have been claimed and
recovered in the lower court, unless the defendant asserts a
counterclaim in excess of the jurisdictional amount of the
lower court. If a defendant appeals to the circuit court from
a judgment rendered by a lower court, the plaintiff in the
circuit court on a trial de novo shall be permitted to claim
and recover the full amount of its claim even though the
amount might exceed the jurisdiction of the lower court. For
purposes of this Rule 13(j), the word 'appeal'
includes petition for writ of certiorari.
"(dc) District Court Rule. Rule 13 applies in the
district court except that, (1) Rule 13(a) is modified so
as to excuse the pleader from asserting a compulsory
counterclaim when the claim is beyond the jurisdiction of the
district courts and, (2) Rule 13(j), Appealed
Actions, is deleted."
case with facts similar to those of this case, this court
discussed the application of Rule 13(j), Ala. R. Civ. P. In
Brewer v. Bradley, 431 So.2d 544 (Ala. Civ. App.
1983), Maudrean Bradley sued Waylon Brewer in the district
court, seeking to recover past-due rent. In the district
court, Brewer announced his intention to assert counterclaims
in excess of the jurisdictional limits of the district court,
and the district court entered a judgment in favor of Bradley
on her claims. Brewer appealed that district-court judgment
to the circuit court; in addition, he filed counterclaims
alleging conversion and seeking an order awarding him
possession of certain personal property. Bradley moved to
strike Brewer's counterclaims, and the circuit court
granted that motion. The circuit court later entered a
judgment on a jury verdict in ...