Rel: July 10, 2026
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections may be made before the opinion is published in Southern Reporter.
ALABAMA COURT OF CIVIL APPEALS
SPECIAL TERM, 2026
CL-2025-0041
Norman Horton
v.
David Colvin
Appeal from Dale Circuit Court
(CV-24-3)
On Application for Rehearing
EDWARDS, Judge.
This court's opinion of February 27, 2026, is withdrawn, and the
following is substituted therefor.
In February 2024, Norman Horton filed in the Dale Circuit Court
("the trial court") a complaint against David Colvin in which Horton
CL-2025-0041
alleged that Colvin had defamed him by posting certain comments on
various social-media accounts -- specifically stating: "When are you going
to do something about the METH HOUSE that you sponsor!!!!" -- and by
making comments at a political meeting indicating that Horton was
associated with a prostitution ring.1 In the complaint, Horton further
alleged that Colvin's defamatory comments had resulted in "election
interference" in a state senate race in which Horton had been a
candidate. Horton also alleged that Colvin had interfered with his
business relationships and had harassed certain persons by discharging
a firearm during their visit to tour Horton's business premises for the
purpose of considering whether to lease the premises, which adjoins
property owned by Colvin.2 Finally, Horton averred that Colvin had
1Horton properly categorized the statements made in comments on
various social-media accounts as libel and the statements made at the
political meeting as slander. Blevins v. W.F. Barnes Corp., 768 So. 2d
386, 390 (Ala. Civ. App. 1999) (explaining that "[t]here are two types of
defamation: libel, which involves the use of print media to publish the
defamatory comment, and slander, which involves the oral expression of
a defamatory comment").
2We note that the act alleged to have been committed by Colvin --discharging a firearm -- was not directed at Horton; in fact, based on the
complaint and the affidavits appended to the complaint, Horton was not
present at the time of the alleged act.
2
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converted to his own use a driveway that Horton had allegedly been using
pursuant to an agreement Horton had with another property owner,
Buddy Skelton.
In March 2024, Colvin filed a handwritten answer generally
denying the allegations of the complaint; once he secured counsel, Colvin
amended his answer. In his amended answer, Colvin admitted to having
made the social-media comments. He also asserted the affirmative
defenses of truth, "substantial truth," "fair comment," and consent.
Colvin further asserted a "qualified privilege" and alleged that Horton
was a public figure and, therefore, that Horton must prove that the
statements were made with "actual malice."3
Horton filed a motion in which he sought to add his wife, Roslyn, as
a plaintiff, but, after Colvin objected, the trial court denied that motion.
3Technically, a public figure must establish "constitutional malice,"
not "actual malice." See Wiggins v. Mallard, 905 So. 2d 776 (Ala. 2004)
(discussing the two types of malice and stating that the evidence required
to prove them often overlaps). To prove "constitutional malice," a
plaintiff must establish that the defendant made his or her statement
" 'with actual knowledge of its falsity or ... with reckless disregard of its
truth or falsity.' " Wiggins, 905 So. 2d at 786 (quoting Mobile Press
Register, Inc. v. Faulkner, 372 So. 2d 1282, 1284 (Ala. 1979), disapproved
of on other grounds by Nelson v. Lapeyrouse Grain Corp., 534 So. 2d
1085, 1092 (Ala. 1988)).
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CL-2025-0041
Horton also moved to compel Colvin to answer certain of his discovery
requests. Although Colvin responded and Horton replied to that
response, the trial court did not rule on Horton's motion.
On July 17, 2024, well after he had filed his answer to the
complaint, Colvin filed a document that he titled "Motion to Dismiss." In
that motion, regarding the defamation claims, Colvin argued that Horton
was a "limited public figure" and therefore that he was required to prove
actual malice; that the "meth house" statement was "hyperbolic and
constitute[d] an opinion"; that the allegedly slanderous statement
regarding the "prostitution ring" did not actually accuse Horton of any
connection to such activity; and that Horton had not provided evidence
that Colvin's allegedly defamatory statements had impacted the election.
Regarding Horton's other claims, the motion to dismiss argued that
Horton could not maintain an action against Colvin arising out of the
erection of a barrier across the driveway because, he said, Skelton, the
owner of the property over which the driveway runs, had erected the
barrier. Colvin disavowed knowledge of any incident involving
discharging a firearm and also contended that Horton lacked standing to
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bring the "harassment with display of deadly force" claim.4 Colvin
appended several documentary exhibits to his motion. The trial court set
the motion to dismiss for a hearing to be held on August 12, 2024, but, on
Horton's motion, the trial court continued that hearing to October 15,
2024.
After the hearing, the trial court entered an order on November 8,
2024, dismissing Horton's complaint without stating its reasoning. On
December 9, 2024, Horton filed a timely postjudgment motion and a
separate motion seeking leave to amend his complaint. The trial court
4In
his motion to dismiss, Colvin referred to a lack of standing;
however, his argument appears to be that, because other persons and not
Horton had endured the alleged harassment, Horton cannot maintain an
action arising from any such harassment, which is, instead, an argument
that Horton is not the real party in interest. State v. Property at 2018
Rainbow Drive, 740 So. 2d 1025, 1027 (Ala. 1999) (quoting Dennis v.
Magic City Dodge, Inc., 524 So. 2d 616, 618 (Ala. 1988), quoting in turn
6 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal
Practice and Procedure § 1542 (1971)) (" ' "[T]he real party in interest
principle is a means to identify the person who possesses the right sought
to be enforced. Therefore, the term directs attention to whether [the]
plaintiff has a significant interest in the particular action he has
instituted." ' "). Rule 17(a), Ala. R. Civ. P., provides, in pertinent part,
that "[n]o action shall be dismissed on the ground that it is not prosecuted
in the name of the real party in interest until a reasonable time has been
allowed after objection for ratification of commencement of the action by,
or joinder or substitution of, the real party in interest."
5
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denied those motions by separate orders entered on December 10, 2024.
Horton filed a timely notice of appeal.
On appeal, Horton argues that the trial court erred by dismissing
his complaint. He argues that, because Colvin attached documentary
evidence to his motion to dismiss, the motion was converted to a motion
for a summary judgment and that the trial court committed error by
failing to grant him leave to amend his complaint, by dismissing the
complaint without prejudice after the applicable statute-of-limitations
periods had run, by failing to compel discovery as requested, and by
granting the motion to dismiss while discovery was still pending. He
further contends that the facts that he alleged regarding his defamation
claims were sufficient to withstand a motion to dismiss filed pursuant to
Rule 12(b)(6), Ala. R. Civ. P. He also argues that he adequately stated
claims of "election interference," tortious interference with his business
relationships, harassment, and conversion. Finally, he contends that the
trial court was required to afford him "nonprejudicial treatment" as a pro
se litigant, that he was denied due process because of "procedural
6
CL-2025-0041
irregularities," and that the trial court was required to enter a "reasoned
order" on the dispositive motion to dismiss.5
Before considering the propriety of the trial court's dismissal of
Horton's claims, we will first consider Horton's procedural arguments in
support of reversal. Initially, we must reject Horton's contention that the
trial court was required to afford him "nonprejudicial treatment" and
construe his pro se pleadings under "less stringent standards" than
pleadings drafted by counsel. Horton relies on federal caselaw, like
Estelle v. Gamble, 429 U.S. 97, 106 (1976), to support his argument.
Although federal authorities require the federal courts to take a more
5In his brief on appeal, Horton also raises an argument relating to
the assessment of attorney fees against a pro se party; however, the
record does not contain any order of the trial court directing Horton to
pay any or all of Colvin's attorney fees. See Rule 28(a)(5), Ala. R. App. P.
(stating, in pertinent part, that, "[i]n civil cases, a statement of the case
[in a parties' brief on appeal] should also identify the adverse ruling or
rulings from which the appeal is taken and asserted as error on appeal
.…"). We therefore decline to consider Horton's attorney-fee argument.
See Ramer v. Ramer, 289 So. 3d 819, 823 (Ala. Civ. App. 2019) (quoting
Lewis v. Providence Hosp., 483 So. 2d 398, 398 (Ala. 1986)) (" 'Only
adverse rulings by the trial court are reviewable on appeal.' ").
7
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lenient approach to the evaluation of pro se pleadings, Alabama law
treats pro se parties no differently than those represented by counsel.6
"While we are not unsympathetic to pro se litigants …,
a pro se litigant must nonetheless comply with legal
procedure and court rules. Jones v. Seibert, 624 So. 2d 639
(Ala. Civ. App. 1993). '[T]he operation of the courts of this
state is governed by rules which are no more forgiving to a pro
se litigant than to one represented by counsel.' Black v. Allen,
587 So. 2d 349, 349 (Ala. Civ. App. 1991). See also Lockett v.
A.L. Sandlin Lumber Co., 588 So. 2d 889 (Ala. Civ. App.
1991)."
Overy v. Murphy, 827 So. 2d 804, 806 (Ala. Civ. App. 2001); see also
Bowman v. Pat's Auto Parts, 504 So. 2d 736, 737 (Ala. Civ. App. 1987)
("The rules of procedure which govern the operation of the trial courts
thereby leading to the orderly transaction of its business are no more
6In Estelle, the United States Supreme Court held that "a pro se
complaint, 'however inartfully pleaded,' must be held to 'less stringent
standards than formal pleadings drafted by lawyers.' " 429 U.S. at 106
(quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)). In addition, the
Estelle Court stated that pro se complaints "can only be dismissed for
failure to state a claim if it appears ' "beyond doubt that the plaintiff can
prove no set of facts in support of his claim which would entitle him to
relief." ' " Id. (quoting Haines, 404 U.S. at 521, quoting in turn Conley v.
Gibson, 355 U.S. 41, 45-46 (1957)). As discussed infra, Alabama courts
use the "no set of facts" standard when evaluating any Rule 12(b)(6), Ala.
R. Civ. P., motion to dismiss. See Nance v. Matthews, 622 So. 2d 297,
299 (Ala. 1993) (stating that "a Rule 12(b)(6)[, Ala. R. Civ. P.,] dismissal
is proper only when it appears beyond doubt that the plaintiff can prove
no set of facts in support of the claim that would entitle the plaintiff to
relief").
8
CL-2025-0041
forgiving to a pro se litigant than to one represented by counsel."). We
find no error in the trial court's alleged failure to have treated Horton
more leniently based on his status as a pro se plaintiff.
Similarly, we reject Horton's contention that the trial court was
required to enter a detailed or "reasoned" dismissal order. Although
findings of facts and conclusions of law are required to be included in
certain judgments or orders in limited instances under particular
statutes, see, e.g., Ala. Code 1975, § 25-5-88 (requiring that a judgment
in a workers' compensation case contain findings of facts and conclusions
of law), a trial court is not required to state its reasoning for entering a
dispositive order or judgment in every action. In fact, Rule 52(a), Ala. R.
Civ. P., specifically states that "[f]indings of fact and conclusions of law
are unnecessary on decisions of motions under Rule[] 12[, Ala. R. Civ.
P.]." See Ex parte Williamson, 329 So. 3d 664, 672 (Ala. Civ. App. 2020)
(explaining that Rule 52(a) indicates that a trial court need not state its
reasoning in an order dismissing a party's claims).
Horton's argument that Colvin's motion to dismiss was converted
into a motion for a summary judgment is also unavailing. Although
Colvin appended materials outside the pleadings to his July 2024 motion,
9
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under current supreme-court precedent, this court is not permitted to
presume that the trial court considered the materials that were appended
to Colvin's July 2024 motion in deciding whether to dismiss the
complaint. See Ex parte Price, 244 So. 3d 949, 955 (Ala. 2017) (holding
that, unless the trial court indicates that it considered materials
submitted outside the pleadings in deciding a Rule 12(b)(6), Ala. R. Civ.
P., motion, an appellate court must presume that the trial court did not
consider those materials and that the motion was therefore not converted
to a Rule 56, Ala. R. Civ. P., motion for a summary judgment); Ray v.
Ray, 413 So. 3d 733, 736 (Ala. Civ. App. 2024) (explaining that, "for a
motion to dismiss to be converted to a motion for a summary judgment[,]
the record must affirmatively reflect that the trial court, when making
its decision to grant a motion to dismiss, considered matters outside the
pleadings"); but see Newman's Med. Servs., Inc. v. Mobile Cnty., 370 So.
3d 228, 231 (Ala. 2022) (treating a Rule 12(b)(6) motion to dismiss as
having been converted to a Rule 56 motion for a summary judgment when
"[n]othing in the record … indicate[d] that the trial court specifically
excluded any [submitted] evidence from its consideration"). The record
does not definitively establish that the trial court considered the
10
CL-2025-0041
materials appended to Colvin's motion to dismiss, and we therefore
cannot consider the motion to dismiss to have been converted to a motion
for a summary judgment.
Although Horton argues that "the [t]rial court [e]rred by allowing a
[Rule] 12(b)(6)[, Ala. R. Civ. P., motion after discovery had commenced
and before it's [sic] completion," Horton's brief, p. 44, he cites no authority
indicating that a trial court may not consider a motion to dismiss while
discovery is pending. See Rule 28(a)(10), Ala. R. App. P. (requiring that
an appellant support his or her arguments with appropriate legal
authorities); White Sands Grp., L.L.C. v. PRS II, LLC, 998 So. 2d 1042,
1058 (Ala. 2008) ("Rule 28(a)(10)[, Ala. R. App. P.,] requires that
arguments in briefs contain discussions of facts and relevant legal
authorities that support the party's position."). Neither of the two
Alabama authorities Horton provides for the stated proposition --Hornsby v. Sessions, 703 So. 2d 932, 938 (Ala. 1997), and Ex parte
Harrington, 450 So. 2d 99, 100 (Ala. 1984) -- address any issue regarding
pending discovery. To the extent that he relies on Reeves v. Porter, 521
So. 2d 963, 965 (Ala. 1988), and Hope v. Brannan, 557 So. 2d 1208, 1212
(Ala. 1989), which both address the issue whether a summary-judgment
11
CL-2025-0041
motion may be granted when discovery remains pending, his reliance is
misplaced because, as we have explained, Colvin's motion to dismiss was
not converted to a motion for a summary judgment. Thus, Horton has
failed to present a legally supported argument on this issue, and we
decline to further consider this basis for his challenge to the trial court's
November 8, 2024, dismissal order. See Walden v. Hutchinson, 987 So.
2d 1109, 1120 (Ala. 2007) (indicating that a legally unsupported
argument results in a failure of the appellant to effectively challenge a
judgment based on that argument).
Likewise, Horton's arguments that the trial court erred by failing
to compel discovery and by dismissing his action without prejudice after
the applicable statute-of-limitations periods on his claims had run are
unconvincing. Certainly, Rule 26, Ala. R. Civ. P., "contemplates a broad
right of discovery," Ex parte AMI West Alabama Gen. Hosp., 582 So. 2d
484, 485 (Ala. 1991), but Horton has not presented a legally supported
argument that the trial court's decision to withhold a ruling on Horton's
motion to compel discovery pending resolution of the motion to dismiss
was error. He has also failed to provide authority to support his
contention that a trial court may not dismiss an action if the applicable
12
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statute-of-limitations periods have run on the claims asserted in that
action.7 His failure to present arguments supported by legal authority
permits us to reject those arguments. See Walden, 987 So. 2d at 1120.
We also reject Horton's argument that the trial court erred in
failing to permit him to amend his complaint. Horton relies on Rule
15(a), Ala. R. Civ. P., and the principle expressed therein that
amendments "shall be freely allowed when justice so requires." Horton
does not, however, cite any authority requiring that a trial court allow an
amendment after the dismissal of an action or explain how Rule 15(a)
requires reversal of the trial court's judgment under the circumstances
present in this case. Our court has long cautioned that an appellant
should "present his [or her] issues 'with clarity and without ambiguity' "
and "fully express his [or her] position on the enumerated issues" in the
argument section of his or her brief. Bishop v. Robinson, 516 So. 2d 723,
724 (Ala. Civ. App. 1987) (quoting Thoman Eng'g, Inc. v. McDonald, 57
7The citation that Horton includes in his brief -- Jones v. City of
Decatur, 53 So. 3d 885 (Ala. 2010) -- is an incorrect citation for that case,
which is reported at 53 Ala. App. 470, 301 So. 2d 235 (Crim. App. 1974);
in any event, Jones, which addresses an appeal from a criminal
conviction for driving while intoxicated, is not authority for any
proposition relating to dismissals without prejudice or the expiration of
statute-of-limitations periods.
13
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Ala. App. 287, 290, 328 So. 2d 293, 294 (Civ. App. 1976)); accord United
States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("It is not enough merely
to mention a possible argument in the most skeletal way, leaving the
court to do counsel's work, create the ossature for the argument, and put
flesh on its bones."). We have similarly admonished that "mere citation
to general propositions without developed arguments applying applicable
legal principles to the facts of the case on appeal does not satisfy an
appellant's duty under Rule 28(a)(10), Ala. R. App. P." D.I. v. I.G., 262
So. 3d 651, 660 (Ala. Civ. App. 2018). Horton failed to present in his brief
on original submission a well-developed argument for reversal;
accordingly, we need not consider his argument.8
Finally, we reject Horton's arguments that he was deprived of due
process by not being notified of witness subpoenas and by "procedural
irregularities" allegedly committed by the trial court. Horton's
allegations of procedural irregularities include allegations that the trial
8In his application for a rehearing, Horton presents for the first
time legal authority regarding postdismissal amendments. That
argument comes too late. See Riscorp, Inc. v. Norman, 915 So. 2d 1142,
1155 (Ala. 2005) (indicating that the presentation of an argument with
additional authority for the first time on rehearing was not a sufficient
basis to grant a rehearing).
14
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court applied the incorrect standard to evaluate his complaint, that the
trial court improperly considered matters outside the pleadings, and that
the trial court failed to compel discovery. He also complains that the trial
court denied his postjudgment motion too quickly. We have already
addressed Horton's complaints regarding the motion to compel discovery
and the trial court's alleged consideration of extraneous materials. Our
discussion of the merits of the dismissal of Horton's complaint, infra, will
adequately address any concerns about the appropriate standard for
reviewing his complaint. The trial court's swift ruling on Horton's
postjudgment motion is, as far as we know, not a basis for finding error.
To the extent that Horton further complains that these "procedural
irregularities," coupled with the fact that Colvin's wife works at the
courthouse, creates an "appearance of impropriety," Horton admits that
he did not request that the trial-court judge recuse himself. Thus, we
need not further consider Horton's argument relating to any appearance
of impropriety. See Ross v. Luton, 456 So. 2d 249, 255 (Ala. 1984)
(indicating that "disqualification of a trial judge for interest or prejudice
may be waived" if not asserted before entry of a particular order or
judgment).
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Before we begin our review of Horton's arguments that his
complaint adequately stated claims of defamation, "election
interference," tortious interference with his business relationships,
harassment, and conversion, we must first determine the proper
standard of review of the November 8, 2024, order. Our supreme court
has explained that a "[Rule] 12(b)(6)[, Ala. R. Civ. P.,] motion should not
be used to test the sufficiency of a complaint after a responsive pleading
has been filed"; this is so because "Rule 12(b) provides that a motion
asserting the defense of failure to state a claim 'shall be made before
pleading if a further pleading is permitted.' " Sims v. Lewis, 374 So. 2d
298, 301 (Ala. 1979). Thus, Colvin's July 2024 motion was not a timely
filed Rule 12(b)(6) motion. Instead, as our supreme court has explained,
"a defense of failure to state a claim upon which relief can be granted,
although typically raised pursuant to Rule 12(b)(6), can be raised after
an answer has been filed by moving for a judgment on the pleadings,"
pursuant to Rule 12(c), Ala. R. Civ. P. Pontius v. State Farm Mut. Auto.
Ins. Co., 915 So. 2d 557, 562 (Ala. 2005). Our supreme court has further
observed that,
" 'often times, after a responsive pleading has been filed, a
defendant will move to dismiss for failure to state a claim
16
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under Rule 12(c), even though there may be no need to refer
to the responsive pleading, such that it would have been
proper to move for dismissal under Rule 12(b)(6). In such an
instance, it is proper to treat the motion in the manner as one
brought pursuant to Rule 12(b)(6). See [5A Charles Alan
Wright & Arthur R. Miller, Federal Practice and Procedure §
1368] at 515 [(2d ed. 1990)]. Moreover, where the pleadings
are closed but a defendant mistakenly moves to dismiss under
Rule 12(b)(6), instead of Rule 12(c), the Sixth Circuit has held
that "where the substance of the motion is plain," it is proper
to treat a motion styled as one under Rule 12(b)(6) as if it were
brought under Rule 12(c). See Wagner v. Higgins, 754 F.2d
186, 188 (6th Cir. 1985).' "
Pontius, 915 So.2d at 562 (quoting Reed Elsevier, Inc. v. TheLaw.net
Corp., 269 F. Supp. 2d 942, 947 (S.D. Ohio 2003)).
Thus, the July 2024 motion filed by Colvin, in which he sought a
dismissal of Horton's complaint based on its alleged failure to state a
claim upon which relief can be granted, was untimely. However, the trial
court could properly have considered that motion in one of two ways. The
trial court could have considered the July 2024 motion as a Rule 12(c)
motion seeking dismissal of the complaint for failure to state a claim upon
which relief can be granted and could have therefore applied the standard
applicable to a Rule 12(b)(6) motion in evaluating that motion. See Hall
v. Environmental Litig. Grp., P.C., 248 So. 3d 949, 957 (Ala. 2017)
(treating a Rule 12(b)(6) motion filed after the close of the pleadings as a
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12(c) motion seeking relief based on the ground that the complaint failed
to state a claim for relief and reviewing the motion under the standard
applicable to a Rule 12(b)(6) motion). The trial court could also have
treated Colvin's motion as a Rule 12(c) motion seeking a judgment as a
matter of law based on the facts contained in the pleadings, i.e., Horton's
complaint and Colvin's answer. See Ex parte Mutual Sav. Life Ins. Co.,
765 So. 2d 649, 650 (Ala. 1998) (explaining that an appellate "[c]ourt
looks to the essence of a motion, not just to its title, to determine how the
motion should be treated under our Rules of Civil Procedure").
In his brief, Horton argues that he properly pleaded his libel claim
(see note 1, supra) by providing the following statement allegedly posted
by Colvin on various social-media pages: "When are you going to do
something about the METH HOUSE that you sponsor!!!!," by alleging
that the statement was false, and by alleging harm to his reputation. He
further asserted that Colvin's statement was either made with
knowledge of its falsity or with a reckless disregard as to its truthfulness.
Horton further explains that he alleged that Colvin had taken certain
actions that could support a determination that he was acting out of
personal ill will or malice when he made the alleged "meth house"
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statement. Moreover, Horton contends that the alleged "meth house"
statement imputed criminal conduct that would render the statement
libel per se, which would not require Horton to establish special damages.
Upon review of Horton's argument, we conclude that, whether we
analyze the trial court's order by applying the standard of review
applicable to an order granting a motion under either Rule 12(b)(6) or
Rule 12(c), the trial court could not have properly determined that
Horton's complaint, insofar as it is premised on his allegations of libel
arising from the alleged "meth house" statement, should be dismissed.
" 'To establish a prima facie case of defamation, the
plaintiff must show [1] that the defendant was at least
negligent, [2] in publishing [3] a false and defamatory
statement to another [4] concerning the plaintiff, [5] which is
either actionable without having to prove special harm
(actionable per se) or actionable upon allegations and proof of
special harm (actionable per quod).' "
Delta Health Grp., Inc. v. Stafford, 887 So. 2d 887, 895 (Ala. 2004)
(quoting Nelson v. Lapeyrouse Grain Corp., 534 So. 2d 1085, 1091 (Ala.
1988)). "Spoken words that impute to the person of whom they are
spoken the commission of an indictable criminal offense involving infamy
or moral turpitude constitute slander actionable per se." Nelson, 534 So.
2d at 1091. Moreover,
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"[t]he effect and tendency of the language used, not its
form, is the criterion determining its actionable quality. It is
not necessary to render words defamatory and actionable that
they make defamatory charges in direct terms; they are
equally actionable if the charge is made indirectly or by
necessary inference, and it matters not how artful or
disguised their meaning is concealed, if they are in fact
defamatory. In determining their actionable character, they
are to be taken in their natural meaning, and according to the
sense in which they appear to have been used, and the idea
they are adapted to convey to those who heard them. A forced
construction is not to be put upon them in order to relieve the
defendant from liability."
Marion v. Davis, 217 Ala. 16, 18-19, 114 So. 357, 359 (1927).
If the July 2024 motion is evaluated as a Rule 12(c) motion
requesting that the complaint be dismissed for failure to state a claim
under Rule 12(b)(6), this court must evaluate it under the standard
applicable to a Rule 12(b)(6) motion and may not consider anything but
the allegations of the complaint.
" ' "On appeal, a dismissal is not entitled to a
presumption of correctness. The appropriate standard of
review under Rule 12(b)(6), [Ala. R. Civ. P.,] is whether, when
the allegations of the complaint are viewed most strongly in
the pleader's favor, it appears that the pleader could prove
any set of circumstances that would entitle [him] to relief. In
making this determination, this Court does not consider
whether the plaintiff will ultimately prevail, but only whether
[he] may possibly prevail. We note that a Rule 12(b)(6)
dismissal is proper only when it appears beyond doubt that
the plaintiff can prove no set of facts in support of the claim
that would entitle the plaintiff to relief." ' "
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Flickinger v. King, 385 So. 3d 504, 511 (Ala. 2023) (quoting Lloyd Noland
Found., Inc. v. HealthSouth Corp., 979 So. 2d 784, 791 (Ala. 2007),
quoting in turn Nance v. Matthews, 622 So. 2d 297, 299 (Ala. 1993)).
Horton alleged that the "meth house" statement was published by
Colvin on several posts on Horton's own social-media page related to his
campaign for state senate and on various pages associated with other
groups, including a dog-hunting association and multiple "buy, sell, and
trade" groups. Horton alleged that the statement was false, that it had
made him the subject of "disgrace, ridicule, odium, and/or contempt," and
that it had negatively impacted the election for state senate. Moreover,
although Horton contended in his complaint that he was not required to
establish malice, he alleged that Colvin had knowledge of the falsity of
his statement or had acted with a reckless disregard as to its
truthfulness. See note 3, supra. He also alleged facts indicating that
Colvin held a possible personal animus toward him, including that Colvin
was not a constituent of the district in which Horton conducted his
campaign, that Colvin had taken steps to interfere with Horton's access
to his business property, which is located on property adjoining property
owned by Colvin, and that Colvin knew or could possibly have
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ascertained the fact that Horton did not "sponsor a meth house"; those
allegations, if proven, could be sufficient to establish malice or negligence
on the part of Colvin.9 Finally, Horton contended that the statement
accused him of a crime and, that, therefore, the "meth house" statement
was defamatory per se.10 The allegations contained in the complaint
9We note that "the determination of malice in defamation cases is
particularly in the province of the jury." Cousins v. T.G. & Y. Stores Co.,
514 So. 2d 904, 906 (Ala. 1987). Furthermore, regarding the requirement
that the defendant be negligent if the plaintiff is a private person, we
note that,
"[i]n determining whether the defendant acted as a
reasonable, prudent person under the circumstances in
publishing the defamatory communication the finder of fact
may take into account the thoroughness of the check that a
reasonable person would make before publishing the
statement, the nature of the interests that the defendant was
seeking to promote in publishing the statement, and the
extent of damage to which the statement exposed the
plaintiff's reputation."
Mead Corp. v. Hicks, 448 So. 2d 308, 312 (Ala. 1983).
10The word "sponsor" connotes "one who assumes responsibility for
some other person or thing" or "a person … that pays for or plans and
carries out a project or activity." Merriam-Webster's Collegiate
Dictionary 1206 (11th ed. 2020). Thus, the statement could be read to
indicate that Horton bears some responsibility for, or is involved in some
way in, the activities of a "meth house" and therefore in the production
of methamphetamine. The production of methamphetamine is illegal.
See Ala. Code 1975, §§ 13A-12-217 and 13A-12-218.
22
CL-2025-0041
regarding the statement associating Horton with a "meth house" are
sufficient to survive a motion to dismiss reviewed under the Rule 12(b)(6)
standard. That is, his complaint alleges facts that, if proven, would
entitle Horton to relief.
If, instead, the motion is considered to be a Rule 12(c) motion for a
judgment on the pleadings, which would require this court to consider
both the complaint and the answer in our analysis, Horton's libel claim
based on the "meth house" statement still survives.
"When a motion for judgment on the pleadings is made by a
party, 'the trial court reviews the pleadings filed in the case
and, if the pleadings show that no genuine issue of material
fact is presented, the trial court will enter a judgment for the
party entitled to a judgment according to the law.' B.K.W.
Enters., Inc. v. Tractor & Equip. Co., 603 So. 2d 989, 991 (Ala.
1992). See also Deaton, Inc. v. Monroe, 762 So. 2d 840 (Ala.
2000). A judgment on the pleadings is subject to a de novo
review. Harden v. Ritter, 710 So. 2d 1254, 1255 (Ala. Civ. App.
1997). A court reviewing a judgment on the pleadings accepts
the facts stated in the complaint as true and views them in
the light most favorable to the nonmoving party. Id. at 1255-56. … [I]n deciding a motion for a judgment on the pleadings,
the trial court is bound by the pleadings. See Stockman v.
Echlin, Inc., 604 So. 2d 393, 394 (Ala. 1992)."
Universal Underwriters Ins. Co. v. Thompson, 776 So. 2d 81, 82-83 (Ala.
2000). " 'A Rule 12(c) motion for judgment on the pleadings disposes of a
case when the material facts are not in dispute.' " Harden v. Ritter, 710
23
CL-2025-0041
So. 2d 1254, 1255 (Ala. Civ. App. 1997) (quoting McCullough v. Alabama
By-Prods. Corp., 343 So. 2d 508, 510 (Ala. 1977)).
Colvin admitted in his answer that he had made the "meth house"
statement in social-media posts. However, Colvin asserted in his answer
the defenses of truth, substantial truth, "fair comment/opinion," and
consent. He also contended that Horton was a public figure and was
therefore required to show malice to succeed on his defamation claims.
Finally, Colvin asserted in his answer that Horton had "not shown that
[Colvin] published the question or statement … with negligence" and that
Colvin had not "caused or contributed to the alleged injury that [Horton]
may have sustained."
In Colvin's answer, he included factual averments that Horton
owned a rental house in Colvin's community and that the tenants of that
house "were known to local law enforcement for their illegal activities
and drug use or sale" and that Horton had "ignored or failed to respond
to [Colvin] and others in the community about their concerns [regarding]
the rental house." Colvin also asserted that, because Horton had
indicated to Colvin that "it was of no concern to [Colvin] what was
happening at the rental home," he had used the statements he published
24
CL-2025-0041
on the social-media pages to address the issue of public concern created
by the tenants of the rental house. Thus, Colvin contended that the
"meth house" statement was true, substantially true, or a matter of
public concern giving rise to a right of "fair comment."
A review of the complaint and the answer does not convince this
court that no issue of material fact exists. Horton alleges that the "meth
house" statement is false, and Colvin asserts that it is true or
"substantially true." Even if the trial court concluded that Horton was a
public figure and was required to prove constitutional malice, facts
alleged in the complaint indicate that Colvin knew that the statement
that Horton "sponsored" a "meth house" was not true or that he had made
the statement recklessly, despite having the ability to ascertain its truth
or falsity. Thus, the complaint, insofar as it alleged libel based on the
"meth house" statement, was not subject to being resolved on a motion
for a judgment on the pleadings under Rule 12(c). Having determined
that the complaint's allegations regarding the libel claim stemming from
the alleged "meth house" statement state a claim and that issues of
material fact exist regarding that claim, we cannot affirm the trial court's
25
CL-2025-0041
November 8, 2024, order dismissing Horton's libel claim, and we
therefore reverse the order insofar as it dismisses that claim.
We reach a similar result regarding Horton's other defamation
allegation -- that Colvin slandered Horton when Colvin "publicly linked
[Horton] to a 'prostitution ring' " at a political meeting. Horton did not
provide in his complaint the specific statement that Colvin allegedly
made linking Horton to a "prostitution ring."11 However, Horton alleged
in his complaint that the "prostitution ring" statement had been made
with the intent to "slander him … and [to] link [him] to illegal activities."
Horton alleged that the "prostitution ring" statement was false, that it
had resulted in the loss of respect of unnamed political leaders, that it
had cost him a political endorsement, and that it had likely negatively
11Although the alleged "prostitution ring" statement was produced
in discovery and presented as an exhibit to the July 2024 motion, this
court is precluded from considering that exhibit in reviewing the
November 8, 2024, order granting that motion under either the Rule
12(b)(6) standard or the Rule 12(c) standard. See, e.g., Universal
Underwriters Ins. Co. v. Thompson, 776 So. 2d 81, 83 (Ala. 2000) (stating
that, because the record was silent regarding whether a trial court had
considered an affidavit submitted with a motion on the pleadings, the
appellate court would not consider the affidavit and would "look only to
the pleadings in determining whether the trial court [had] erred in
granting [the] motion").
26
CL-2025-0041
impacted the election for state senate. As previously discussed, although
Horton generally contended in his complaint that he was not required to
establish malice, he alleged that Colvin had knowledge of the falsity of
the "prostitution ring" statement or had acted with a reckless disregard
as to its truthfulness. See note 3, supra. As discussed above, Horton also
alleged facts indicating that Colvin held a possible personal animus
toward him. We have already determined that those allegations, if
proven, could be sufficient to establish malice or negligence on the part
of Colvin. Finally, Horton contended that the statement accused him of
a crime and, that, therefore, the statement was defamatory per se.12
Thus, like the allegations contained in the complaint regarding the
statement associating Horton with a "meth house," the allegations that
Colvin slandered Horton by making a statement "linking" Horton to a
"prostitution ring" are sufficient to survive a motion to dismiss reviewed
under the Rule 12(b)(6) standard.
12Engaging in, promoting, and soliciting prostitution are criminal
offenses. See Ala. Code 1975, § 13A-12-111 through § 13A-12-113
(promoting prostitution), and Ala. Code 1975, § 13A-12-120 et seq.
(defining prostitution and prohibited activities relating to prostitution).
27
CL-2025-0041
Likewise, if the trial court considered Colvin's motion to be a Rule
12(c) motion for a judgment on the pleadings, we cannot agree that Colvin
was entitled to a judgment as a matter of law on Horton's slander claim
based on the "prostitution ring" statement. In his answer, Colvin did not
directly address the "prostitution ring" statement, but he initially denied
all allegations surrounding that statement except the allegation that he
had been present at the political meeting at which the statement was
allegedly made. However, Colvin later asserted in his answer that "all
statements and comments by [him] are believed to be true," and, as
previously noted, he raised the defenses of truth, substantial truth, "fair
comment/opinion," and consent regarding this "statements and
comments." He specifically asserted the defense of qualified or
conditional privilege regarding "the statements made at the town hall
meetings," i.e., the statements made at the political meeting that "linked"
Horton to a "prostitution ring." Colvin further contended, as stated
above, that Horton was a public figure and was therefore required to
show malice to succeed on any defamation claims.
As previously noted, in Colvin's answer, he included factual
averments that Horton owned a rental house in Colvin's community and
28
CL-2025-0041
that the tenants of that house "were known to local law enforcement for
their illegal activities and drug use or sale." We presume that the other
illegal activities to which Colvin generally referred included prostitution.
Colvin argued, as explained above, that Horton had "ignored or failed to
respond to [Colvin] and others in the community about their concerns
[regarding] the rental house" and that Horton had indicated to Colvin
that "it was of no concern to [Colvin] what was happening at the rental
home." Therefore, Colvin argued that he had used the statements he
made to address the issue of public concern created by the tenants of the
rental house. Thus, Colvin contended that the "prostitution ring"
statement was true, substantially true, or a matter of public concern
giving rise to a right of "fair comment."
Our review of the complaint and the answer does not convince this
court that no issue of material fact exists regarding the "prostitution
ring" statement. Horton alleges that the "prostitution ring" statement is
false, and Colvin asserts that it is true or "substantially true." Even if
the trial court concluded that Horton was a public figure and was
required to prove constitutional malice, facts alleged in the complaint
indicate that Colvin knew that his statement that Horton had some
29
CL-2025-0041
involvement with a prostitution ring was not true or that he had made
the statement recklessly, despite having the ability to ascertain its truth
or falsity. Thus, the complaint, insofar as it alleged slander based on the
"prostitution ring" statement, was not subject to being resolved on a
motion for a judgment on the pleadings under Rule 12(c). Having
determined that the complaint's allegations regarding the slander claim
stemming from the alleged "prostitution ring" statement state a claim
and that issues of material fact exist regarding that claim, we cannot
affirm the trial court's November 8, 2024, order dismissing Horton's
slander claim, and we therefore reverse the order insofar as it dismisses
that claim.
In his complaint, Horton also asserted a conversion claim against
Colvin for allegedly "convert[ing] use of [a driveway], which was
developed and used by [Horton and his former business] for over 30
years."13 On appeal, Horton argues that, although his claim is for
conversion of what he characterizes as "a right to use real property," i.e.,
13In his complaint, Horton averred that he had owned a business or
businesses that had formerly operated on the premises adjoining Colvin's
property. Those businesses were referred to as "Stormins Garage,"
"Stormins Towing Service," and "Stormins Wrecker Sales."
30
CL-2025-0041
the driveway to his business property, the trial court erred in dismissing
the claim because, he says, he alleged facts that, if proven, would
establish that Colvin had "asserted dominion over the permissive
agreement [between Horton and Skelton] granting access to the
driveway." He says that his claim is premised on his allegation that "the
permissive right of use, an agreement long recognized and acted upon,
was wrongfully interfered with and 'converted' by" Colvin. However, as
Horton admits, the tort of conversion involves exercising dominion over
someone else's personal property and not real property. See Baxter v.
SouthTrust Bank of Dothan, 584 So. 2d 801, 805 (Ala. 1991) ("An action
for conversion will not lie for the taking of real property …."). He presents
no legal authority indicating that a "permissive right of use" or an
agreement relating to the use of real property may be converted. See
Rule 28(a)(10); White Sands Grp., 998 So. 2d at 1058. We conclude
therefore that Horton's claim of conversion was properly dismissed under
either Rule 12(b)(6) or Rule 12(c).
Similarly, we affirm the trial court's November 8, 2024, order
insofar as it either dismissed Horton's "election interference" claim under
Rule 12(b)(6) or entered a judgment on the pleadings on that claim under
31
CL-2025-0041
Rule 12(c). In his brief to this court, Horton has failed to provide
authority or to present a cogent legal argument concerning the viability
of his claim that Colvin's defamatory statements had resulted in "election
interference." See Rule 28(a)(10); White Sands Grp., 998 So. 2d at 1058.
Horton attempts to incorporate arguments he made in the trial court into
his brief, but this court does not permit a party to incorporate by
reference arguments made in the trial court. See Perry v. State Pers.
Bd., 881 So. 2d 1037, 1039 (Ala. Civ. App. 2003) (rejecting an attempt by
the appellant to "incorporate by reference the brief she filed in the circuit
court" and stating that "Rule 28 does not allow such a procedure" and
that "Rule 28(i), Ala. R. App. P., provides only for incorporation of
arguments contained in other parties' appellate briefs, not for
incorporation of briefs filed in circuit courts").
We also affirm the trial court's November 8, 2024, order insofar as
it dismissed Horton's claim of interference with his business
relationships or entered a judgment on the pleadings on that claim. The
elements of an intentional interference with business relations are "(1)
the existence of a protectible business relationship; (2) of which the
defendant knew; (3) to which the defendant was a stranger; (4) with
32
CL-2025-0041
which the defendant intentionally interfered; and (5) damage." White
Sands Grp., L.L.C. v. PRS II, LLC, 32 So. 3d 5, 14 (Ala. 2009). Horton's
allegations include the following:
"[Colvin] has interfered with business relationships to
which he is not a party to [sic].
"On or about January 9, 2024, Colvin fired a large
caliber gun when [sic] prospective clients Jeremy [Bolin] and
Dhyana [Bolin] and their grandchildren preventing them
from using [the driveway] while they were touring the
Stormins shop and property. It is unclear if Colvin was firing
directly at the Bolins and/or the children."
Affidavits from Jeremy Bolin and Dhyana Bolin were attached to
Horton's complaint. Those affidavits indicate that the Bolins had gone to
the property to tour it because they were considering purchasing or
leasing the premises for their business. Even if we were to generously
construe the complaint to conclude that Horton alleged sufficiently that
he had a protectible business relationship with the Bolins, the complaint
fails to state a claim because Horton failed to allege that Colvin was
aware of the protectible business relationship between the Bolins and
Horton or that Colvin's actions were the reason that the Bolins did not
purchase or lease the property, if, in fact, they did not do so. Without
such allegations in the complaint, Colvin was not required to refute those
33
CL-2025-0041
allegations, and therefore there is no issue of material fact regarding
Colvin's knowledge of the business relationship between the Bolins and
Horton to resolve, rendering a judgment on the pleadings on this claim
proper, as well.
Horton also alleges in his brief on appeal that, even if he did not
properly assert a conversion claim arising from his allegations that
Colvin had interfered with Horton's use of the driveway, he sufficiently
stated a claim that Colvin interfered with the agreement between Horton
and Skelton regarding the use of the driveway. The factual averments in
the complaint regarding this claim include allegations that Colvin had
"slandered [Horton] to Buddy Skelton resulting in [Colvin's tortious]
interference whereby [Colvin] succeeded in securing permission, or in
the alternative, acting on his own accord, to build a gate/fence to block
access to [the] driveway," which Horton alleged had been utilized by him
for his business for over 30 years pursuant to an oral agreement between
him and Skelton to create and use the driveway. Horton also alleged
that, at times, when Horton or others had used the driveway to access
the premises, Colvin had locked the gate, purposely preventing the use
of the driveway to leave the premises. In the portion of his complaint
34
CL-2025-0041
entitled "Interference with a business relationship," Horton incorporated
the earlier paragraphs of his complaint and alleged that "[Colvin] has
constructed a barrier [across the driveway to Horton's former business
premises] on property which does not belong to Colvin."
Horton does not effectively develop an argument on appeal that he
has a claim against Colvin for interference with a contractual
relationship. See Rule 28(a)(10); White Sands Grp., 998 So. 2d at 1058.
As opposed to a claim of interference with a business relationship, a claim
of interference with a contractual relationship is premised on an existing
contract between the plaintiff and another individual. See White Sands
Grp., 32 So. 3d at 14 (quoting Orrin K. Ames III, Tortious Interference
with Business Relationships: The Changing Contours of this Commercial
Tort, 35 Cumb. L. Rev. 317, 330 (2004-2005)) (" 'The two torts are initially
distinguished by their primary elements -- one tort deals with the
interference with a fixed-term contract that is already in existence; the
other tort deals with "mere expectancies." The latter element determines
which interests along the continuum of business dealings are
protected.' "). However, as noted, Horton's complaint does not merely
claim a right to use the driveway via an agreement; instead, his claim
35
CL-2025-0041
appears to be premised on what he considers to be Colvin's interference
with a property right in the driveway, which he characterizes in his
complaint as an express easement or an easement by prescription. See
Magna, Inc. v. Catranis, 512 So. 2d 912, 913 (Ala. 1987) ("An easement
is property."). Horton has failed to present legal authority to support an
argument that Colvin's actions, which he alleges resulted in interference
with his and his customer's use of the easement, can be characterized as
interference with a contractual relationship. Thus, based on the
averments of the complaint and the lack of a developed legal argument
on appeal, we cannot conclude that the trial court erred in determining
that the complaint fails to state a claim of interference with a contractual
relationship.
Finally, we address Horton's claim of "harassment with a display of
deadly force," which is premised upon the factual allegations regarding
the incident involving the Bolins, and his request for an injunction to
prevent Colvin from "discharging weapons and a display of deadly force
in the presence of children and parties who have an interest or potential
36
CL-2025-0041
interest in conducting business at [Horton's business premises]."14 First,
we note that Alabama does not have a civil action for harassment;
instead, conduct that might be considered harassment is typically
addressed through other tort claims, including assault and the tort of
outrage.15 See, e.g., Bennett v. Dunn, 507 So. 2d 451 (Ala. 1987)
(involving a claim of assault and battery stemming from the discharge of
a weapon in an attempt to scare off an intruder); Woodley v. City of
14Harassment is a criminal act and would include conduct like that
allegedly directed toward the Bolins. See Ala. Code 1975, § 13A-11-8(a)(2) (stating that "harassment shall include a threat, verbal or
nonverbal, made with the intent to carry out the threat, that would cause
a reasonable person who is the target of the threat to fear for his or her
safety").
15The tort of outrage, or intentional infliction of emotional distress,
was recognized in American Road Service Co. v. Inmon, 394 So. 2d 361,
365 (Ala. 1980). The Inmon court stated that it
"recognize[d] that one who by extreme and outrageous
conduct intentionally or recklessly causes severe emotional
distress to another is subject to liability for such emotional
distress and for bodily harm resulting from the distress. The
emotional distress ... must be so severe that no reasonable
person could be expected to endure it. Any recovery must be
reasonable and justified under the circumstances, liability
ensuing only when the conduct is extreme."
394 So. 2d at 365.
37
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Jemison, 770 So. 2d 1093, 1096 (Ala. Civ. App. 1999) (reversing a
summary judgment in favor of a defendant accused of continuous
telephone harassment on the ground that an issue of fact existed as to
whether the harassment was "so outrageous that it goes beyond the
bounds of decency"); Harrison v. Mitchell, 391 So. 2d 1038 (Ala. Civ. App.
1980) (considering an appeal from an award of damages on an assault
claim premised on the plaintiff's having been threatened by a person
armed with a shotgun). In his brief on appeal, Horton appears to argue
that his allegations regarding the incident involving the Bolins are
intended to bolster his claim that Colvin "interfere[d] with [Horton's]
business relationships [in an attempt to] deter[] potential commercial
engagement." Horton's brief, p. 55. Because Horton has not presented a
cogent legal argument to support his contention that his claim of
"harassment with a display of deadly force" is a claim upon which relief
can be granted or that a question of fact relating to any such claim exists,
we affirm the November 8, 2024, order of the trial court regardless of
whether the trial court dismissed the claim pursuant to Rule12(b)(6) or
38
CL-2025-0041
entered a judgment on the pleadings pursuant to Rule 12(c).16
Furthermore, Horton makes no argument in his brief relating to his
request for an injunction, precluding our review of that issue. See Boshell
v. Keith, 418 So. 2d 89, 92 (Ala. 1982) ("When an appellant fails to argue
an issue in its brief, that issue is waived.").
Having considered Horton's several arguments, we reverse the trial
court's November 8, 2024, order insofar as it either dismissed Horton's
16We further note that, because Horton was not present when the
alleged act took place, meaning that he could not have been placed in any
fear of harm or have suffered any emotional upset, he would lack the
ability to establish his entitlement to recovery for such causes of action
as assault or the tort of outrage. See Harris v. McDavid, 553 So. 2d 567,
570 (Ala. 1989) (explaining that, in order to succeed on a tort-of-outrage
claim, the plaintiff must establish that the defendant's actions caused the
plaintiff severe emotional distress); Harrison v. Mitchell, 391 So. 2d 1038,
1040 (Ala. Civ. App. 1980) (indicating that, once the plaintiff established
that the defendant had "unlawfully threatened to touch [the plaintiff] in
an angry manner under such circumstances as to lead [the plaintiff] to
believe that [the defendant] not only possessed an immediate ability to
carry out his threat but that he would soon do so," the jury was able to
award compensatory damages); John R. Thompson & Co. v. Vildibill, 211
Ala. 199, 202, 100 So. 139, 141 (1924) (indicating, in case involving the
wielding of a firearm, that, although "[p]hysical pain, mental suffering,
or mental anguish, or all three, may be inferred by the jury to exist" a
plaintiff must first establish "proof of fright caused by a sudden,
unprovocated, unjustifiable, assault with a pistol, accompanied with
insulting language"). As a result, the allegations in Horton's complaint
have not stated a claim for either tort; nor do the factual allegations of
the complaint and answer reveal a dispute concerning any material fact
regarding any such claim.
39
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defamation claims relating to the "meth house" statement and the
"prostitution ring" statement or entered a judgment on the pleadings on
those claims. We therefore remand the cause for proceedings consistent
with this opinion regarding Horton's defamation claims. However, we
affirm the trial court's November 8, 2024, order insofar as it either
dismissed Horton's other claims or entered a judgment on the pleadings
regarding those claims.
APPLICATION GRANTED; OPINION OF FEBRUARY 27, 2026,
WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED IN PART;
REVERSED IN PART; AND REMANDED.
Moore, P.J., and Hanson and Fridy, JJ., concur.
Bowden, J., concurs in part and dissents in part, with opinion.
40
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BOWDEN, Judge, concurring in part and dissenting in part.
Norman Horton's appellate brief does not meet his threshold
burden of presentation. "[The Alabama Supreme Court] has repeatedly
held [that] citing authority merely for the elements of a cause of action is
generally not sufficient to argue in an appellate brief that the allegations
in a complaint met the pleading standard regarding each element."
Griggs v. NHS Mgmt., LLC, 419 So. 3d 12, 18 (Ala. 2024). The main
opinion appears to conflict with that statement of the law in Griggs,
because Horton's appellate brief fails to even set out the elements of a
cause of action for his claim of slander and his claim of libel. Horton's
brief at 38-42. I therefore respectfully dissent from this court's decision
to reverse the judgment of the Dale Circuit Court insofar as it dismissed
Horton's libel and slander claims against David Colvin; I concur in all
other respects.
"[A]n appellant -- even one seeking de novo review -- must make
reasoned and particularized arguments in support of reversal." Lay v.
Destafino, 385 So. 3d 15, 23 (Ala. 2023). "[A]n appellant who has not
performed that threshold function has failed at the outset to carry her
burden of presentation and, accordingly, cannot prevail on appeal." Id. at
41
CL-2025-0041
24. To prevail on appeal, Horton must therefore have met his threshold
burden of presentation. Specifically, Horton must have presented
arguments and relevant legal authority, with a discussion of the relevant
facts, to demonstrate that he sufficiently pleaded all the elements of a
libel claim and a slander claim. See id.
Horton argues that his complaint "sets out a textbook case of
actionable defamation under Alabama law." Horton's brief, p. 38. And he
alleges that his "allegations, supported by admissions, affidavits, and a
documented pattern of conduct, are more than sufficient to state viable
claims for defamation, libel, slander, and defamation per se under
Alabama law." Horton's brief, p. 42. But Horton does not establish with
citation to legal authority the elements of a claim of libel or a claim of
slander in his brief, leaving this court to perform the legal research into
the elements of those claims for him.
Not only does Horton fail to cite the elements of the relevant claims
in his appellate brief, however, he also argues on appeal that he is not
required to have pleaded the element of malice. That argument is
incorrect. A candidate for an elected office is a public official. See, e.g.,
Camp v. Yeager, 601 So. 2d 924, 928 (Ala. 1992)(applying "actual malice"
42
CL-2025-0041
standard to defamation action brought by candidate for secretary of
state); Loveless v. Graddick, 295 Ala. 142, 147, 325 So. 2d 137, 141
(1975)(applying "actual malice" standard to defamation action brought
by candidates for district attorney). When a public figure asserts a
defamation action, the public figure must demonstrate actual malice if
the alleged defamatory comments related to his or her conduct as a public
official. Smith v. Huntsville Times Co., 888 So. 2d 492, 496 (Ala. 2004).
Thus, to meet his burden of presentation for his defamation claims,
Horton must have argued on appeal, with citations to relevant legal
authority and the record, that he sufficiently pleaded facts necessary to
establish actual malice. As noted, Horton argues that he was not required
to plead malice; therefore, through his own arguments on appeal, he has
demonstrated that he did not sufficiently plead the elements of his
defamation claims below.
He likewise makes no argument, with citation to relevant legal
authority and the record, that he sufficiently pleaded that the alleged
libelous comments were published, which is necessary to successfully
plead a claim of libel.
43
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In the proceedings below, the circuit court found that Horton's
complaint failed to state a claim of libel and a claim of slander. It is
incumbent upon Horton to show on appeal that his complaint did, in fact,
sufficiently plead those claims, and the arguments in his brief fell well
short of this requirement. The main opinion argues that Horton did
sufficiently plead a claim of libel and a claim of slander in his complaint;
however, whether he did or did not is not the relevant inquiry regarding
whether Horton met his initial burden of presentation on appeal. To
reverse the circuit court's judgment, Horton must demonstrate that point
in his brief to this court, which he failed to fully accomplish. We are not
permitted to make arguments on behalf of a party.
"A party acting pro se must comply with legal procedure
and court rules and may not avoid the effect of the rules due
to unfamiliarity. Hines v. City of Mobile, 480 So. 2d 1203 (Ala.
1985); Hubbard v. Montgomery, 372 So. 2d 315 (Ala. 1979).
Rules governing the operation of the courts of this state are
no more forgiving to a pro se litigant than to one represented
by counsel. Bowman v. Pat's Auto Parts, 504 So. 2d 736 (Ala.
Civ. App. 1987). In view of [the appellant's] failure to
substantially comply with the rules, we pretermit a discussion
of the issues he attempts to raise in this case. It is not the duty
nor the function of an appellate court to perform one's legal
research. Lokey v. State Department of Industrial Relations,
527 So. 2d 1327 (Ala. Civ. App. 1988)."
44
CL-2025-0041
Lockett v. A.L. Sandlin Lumber Co., 588 So. 2d 889, 890 (Ala. Civ. App.
1991). Because Horton has not argued that he pleaded all the elements
required to state a claim of libel and a claim of slander, with citations to
his pleadings and relevant legal authority, his argument on that issue is
waived.
Accordingly, I respectfully dissent insofar as the main opinion
reverses the circuit court's judgment dismissing Horton's claim of libel
and claim of slander. I concur in the main opinion in all other respects.
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