Dempsey v. Denman

Decision Date02 December 1983
Citation442 So.2d 63
PartiesJerome V. DEMPSEY v. Robert R. DENMAN. 82-485.
CourtAlabama Supreme Court

Jack W. Smith of Smith & Smith, Dothan, for appellant.

James F. Martin of Martin & Brackin, Dothan, for appellee.

FAULKNER, Justice.

Dempsey appeals from a judgment of the circuit court dismissing his counterclaim. We affirm.

The facts of this case are that on July 30, 1982, the plaintiff, Robert R. Denman, filed a complaint in the Circuit Court of Houston County, Alabama, alleging malicious prosecution arising out of the arrest of Denman on or about the 28th day of October, 1981, on a warrant obtained by the defendant, Jerome V. Dempsey.

Dempsey filed an answer to the complaint and a counterclaim alleging abuse of legal process. This counterclaim stated, in part:

"1. That for some two years, the Counter defendant, Robert Denman, has used the courts for the purposes of harassment and the creating of legal expenses to the counter claimant and not for legitimate and proper processes. That [by] the complaint filed herein and previously the prosecution of the counter claimant's children, and other processes that were without foundation and by other legal abuses he continues by such improper processes to harass and embarrass the plaintiff [counterclaimant] and his family."

Denman moved to dismiss Dempsey's counterclaim for failure to state a claim upon which relief could be granted. The court dismissed the counterclaim. Dempsey then filed an amended counterclaim based on abuse of legal process, which averred, in part:

"(1) For that, in the month of May, 1981, the Counter-Defendant did file charges with the Juvenile Court of Houston County, Alabama, against Counter-Claimant's children, having for their sole and only purpose the harassment of this Counter-claimant. That the Court's Probation Officer investigated the charges and found said children to be exemplary students and good citizens. The Counter-Defendant did this knowing that it would cause these students to be called from their classes during final examination and would be an expense and financial burden to the Counter-Claimant and would humiliate him.


"That upon the hearing, the charges against the children were dismissed.

"(2) That to the governing body of Houston County, i.e., the Board of Commissioners of Houston County, and through Counter-claimant's Commissioner, the Counter-Defendant falsely charged the Counter-Claimant's wife of carrying a concealed weapon, i.e., a pistol, with the intent to do harm. That after Commissioner's conference with the Counter-Claimant, said Board took no action or steps to prosecute the matter. The charge was false and was made solely and only for the purpose of harassing, humiliating, and embarrassing the Counter-Claimant and his family.

"(3) That the Counter-Defendant brought an action for damages against the Counter-Claimant in this Court also claiming a multiplicity of relief knowing at all times that the only relief available was a property right-of-way over a course that the Counter-Claimant had at all times agreed and was always willing to give. That said right-of-way was the only relief granted by the Court to Counter-Defendant and that said suit claiming damages and all other relief was again only a harassing tactic to embarrass, humiliate, and cause Counter-claimant great expense."

Denman moved to dismiss each count of Dempsey's amended counterclaim on the grounds that none of the statements of the counterclaims stated a cause of action upon which relief would be granted; that in the juvenile proceedings Dempsey was not involved as a party; that no legal process was instigated concerning the carrying of a pistol by Dempsey's wife; and, on the matter of the suit for a right of way, that an action is described that does not say any more about the bringing of that action than that it was brought to harass, embarrass, humiliate and cause Dempsey great expense.

The circuit court entered a final order dismissing each count of the counterclaim on June 24, 1983. Dempsey appealed to this court from that order, alleging that the amended counterclaim did state a good and valid cause of action within the meaning of A.R.C.P. 8(a) and, further, that the court erred in dismissing the amended counterclaim without a hearing on the motion to dismiss and without considering affidavits or other verified evidence. We do not agree.

A.R.C.P. 8(a)(1) requires that a pleading set forth "a short and plain statement of the claim showing that the pleader is entitled to relief." Under this rule the prime purpose of pleadings is to give notice. Fraternal Order of Police, Strawberry Lodge # 40 v. Entrekin, 294 Ala. 201, 314 So.2d 663 (1975). A.R.C.P. 8(a)(1) interacts with A.R.C.P. 12(b)(6), which permits dismissal of a complaint, or counterclaim, for "failure to state a claim upon which relief can be granted."

The classic statement of the proper test of the sufficiency of a complaint, under 12(b)(6), appears in Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). In that case, the Supreme Court of the United States stated:

"In appraising the sufficiency of the complaint we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the...

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30 cases
  • Segrest v. Segrest
    • United States
    • Alabama Supreme Court
    • December 4, 2020
    ...Civil Procedure: to provide fair notice to adverse parties of the claim against them and the grounds upon which it rests. Dempsey v. Denman, 442 So. 2d 63 (Ala. 1983) ; Carter v. Calhoun County Board of Education, 345 So. 2d 1351 (Ala. 1977). The liberality with which the Rules are construe......
  • Nolin v. Town of Springville
    • United States
    • U.S. District Court — Northern District of Alabama
    • March 22, 1999
    ...which has been duly and properly issued, whereby a result not lawfully or properly attainable under it is secured." Dempsey v. Denman, 442 So.2d 63, 65 (Ala.1983). "An abuse of process action `presupposes an originally valid and regular process, duly and properly issued, and the validity of......
  • Daniel v. Moye, 1140819 1140820.
    • United States
    • Alabama Supreme Court
    • November 10, 2016
    ...Civil Procedure: to provide fair notice to adverse parties of the claim against them and the grounds upon which it rests. Dempsey v. Denman, 442 So.2d 63 (Ala. 1983) ; Carter v. Calhoun County Board of Education, 345 So.2d 1351 (Ala. 1977). The liberality with which the Rules are construed,......
  • Haynes v. Coleman, 2070959.
    • United States
    • Alabama Court of Civil Appeals
    • September 4, 2009
    ...of the process by perverting it to a use to obtain a result which the process was not intended by law to effect...."' Dempsey v. Denman, 442 So.2d 63, 65 (Ala.1983) (quoting 72 C.J.S. Process § 120, pp. 1190-91 (1951)) (emphasis added). `"If the action is confined to its regular and legitim......
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