Durham v. Cohen

Page 1248

          Appeal from Elmore Circuit Court (CV-17-57). Sibley G. Reynolds, Judge

         David G. Flack, Montgomery, for appellant.

          Louis Cohen, appellee, pro se.

         OPINION

         THOMPSON, Presiding Judge.

Page 1249

          On 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.

          The 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 damages.

         On 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.

         On 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.

          Durham later sought orders requiring the production of certain discovery, and the trial court denied those requests.

          The 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.

          Durham 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

Page 1250

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.").

         Rule 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 provides:

"(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, ...