DREES v. TURNER

• Decision Date: 26 February 2010
• Docket Number: 2080742.
• Citation: 45 So.3d 350
• Parties: Hajo DREES v. Kile T. TURNER, Richard L. Vincent, and Sara Turner.
• Court: Alabama Court of Civil Appeals

45 So.3d 350

Hajo DREES

v.Kile T. TURNER, Richard L. Vincent, and Sara Turner.

2080742.

Court of Civil Appeals of Alabama.

Feb. 26, 2010.

COPYRIGHT MATERIAL OMITTED.

Angela Turner Drees, Birmingham, for appellant.

Lisa W. Borden of Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C., Birmingham; and Thomas A. Kendrick of Norman, Wood, Kendrick & Turner, Birmingham, for appellees Kile Turner and Sara Turner.

Lee R. Benton and Brenton K. Morris of Benton & Centeno, LLP, Birmingham, for appellee Richard Vincent.

On Application for Rehearing

MOORE, Judge.

This court's opinion of December 18, 2009, is withdrawn, and the following is substituted therefor.

This is the second time these parties have been before this court. See Drees v. Turner, 10 So.3d 601 (Ala.Civ.App.2008). In the first appeal, Hajo Drees argued to this court that the Jefferson Circuit Court had erred in entering orders dismissing his action against Kile T. Turner, Richard L. Vincent, and Sara Turner (“the defendants”) based on the doctrine of judicial immunity. This court did not address the substance of that argument but, instead, concluded that the trial court had impermissibly converted the defendants' motions to dismiss to motions for a summary judgment by considering matters outside the pleadings. 10 So.3d at 602-03. Relying on Poston v. Smith, 666 So.2d 833 (Ala.Civ.App.1995), this court held that the trial court should have given the parties an opportunity to submit evidence outside the pleadings to bolster their respective positions, and we reversed the orders of dismissal and remanded “the cause for further proceedings consistent with this [court's] opinion.” 10 So.3d at 603.

On remand, the trial court ordered the parties to attend a status conference, at which the parties were to apprise the trial court of “the path this litigation will take in consonance [with the Court of Civil Appeals' opinion].” Following that conference, the parties submitted briefs to the trial court regarding their interpretation of this court's mandate. On March 20, 2009, the trial court entered a judgment in which it explained that it had reviewed material outside the pleadings, which Drees had submitted in response to the defendants' motions to dismiss, but that it had done so only because it “was necessary to read everything to determine what was included in [Drees's] Complaint and what was not.” The trial court stated that it had not based its initial decision to dismiss the action on that material. The trial court acknowledged that it had quoted a portion of that material in its original orders granting the motions to dismiss, but, it stated, the language was merely dicta and it had not considered the language in its decision-making process. The trial court thereafter reentered a judgment dismissing the action without affording Drees any opportunity to conduct discovery or to submit additional evidence in support of his position that the case should be considered on summary judgment. Drees appealed to the Alabama Supreme Court; that court determined that the appeal fell within this court's appellate jurisdiction and, accordingly, transferred the appeal to this court.

In this appeal, Drees initially argues that the trial court erred in failing to follow this court's mandate.

“ ‘It is the duty of the trial court, on remand, to comply strictly with the mandate of the appellate court according to its true intent and meaning, as determined by the directions given by the reviewing court. No judgment other than that directed or permitted by the reviewing court may be entered.... The appellate court's decision is final as to all matters before it, becomes the law of the case, and must be executed according to the mandate....’ ”

Ex parte Alabama Power Co., 431 So.2d 151, 155 (Ala.1983) (quoting 5 Am.Jur.2d Appeal and Error § 991 (1962)).

Pursuant to Alabama Power, our conclusion in the first appeal that the trial court had considered evidence outside the pleadings became the law of the case.

“ ‘ “Under the doctrine of the ‘law of the case,’ whatever is once established between the same parties in the same case continues to be the law of that case, whether or not correct on general principles, so long as the facts on which the decision was predicated continue to be the facts of the case.” ' Stockton v. CKPD Dev. Co., LLC, 982 So.2d 1061, 1066 (Ala.2007) (quoting Blumberg v. Touche Ross & Co., 514 So.2d 922, 924 (Ala.1987)). ‘ [U]nless the facts upon which the holding of the Court of Civil Appeals was predicated have changed, the holding of the Court of Civil Appeals is the law of the case.’ Stockton, 982 So.2d at 1066-67.”

M.M. v. D.P., 37 So.3d 179, 182 (Ala.Civ.App.2009) (emphasis added). In Ex parte Discount Foods, Inc., 789 So.2d 842 (Ala.2001), the supreme court explained the law-of-the-case doctrine as follows:

“The purpose of the doctrine is to bring an end to litigation by foreclosing the possibility of repeatedly litigating an issue already decided.... However, the law-of-the-case doctrine does not in all circumstances require rigid adherence to rulings made at an earlier stage of a case. The doctrine directs a court's discretion; it does not limit a court's power. The law-of-the-case doctrine is one of practice or court policy, not of inflexible law....”

789 So.2d at 846 n. 4.

Although this court held in the first appeal that the trial court had considered evidence outside the pleadings in rendering its orders of dismissal, the facts upon which that holding was based have now changed. The record now contains information directly from the trial court in which the trial court explains that it did not consider evidence outside the pleadings in ruling on the motions to dismiss. The whole purpose of the reversal was to assure that the court had followed proper procedures before Drees's case was summarily disposed of. That purpose would have been served by allowing Drees an opportunity to present additional evidence had the motions to dismiss been converted to motions for a summary judgment; however, that purpose has now been equally served by the trial court's ruling on the motions to dismiss without its considering any material outside the pleadings. Accordingly, based on the particular facts adduced on remand, we hold that the law-of-the-case doctrine did not prevent the trial court from reentering a judgment dismissing the case.

Drees next argues that the trial court erred in dismissing the action. General rules of pleading require only that a complainant make “a short and plain statement of the claim showing that the pleader is entitled to relief.” Rule 8(a)(1), Ala. R. Civ. P. Drees, however, elected to file an 11-page complaint with reference to 15 exhibits totaling 77 pages. In the complaint, which was filed on December 13, 2007, Drees made the following allegations: Angela Turner had been involved in a custody-modification dispute with Kile Turner, her former husband and a licensed attorney, since November 2005. During the custody proceedings, which we will refer to as “the Turner custody case,” Drees married Angela. Subsequently, Kile, Sara Turner, Kile's new wife, and Richard Vincent, Kile's attorney in the Turner custody case, separately contacted Denita Steinbach Drees, Drees's former wife, and/or Denita's attorney in an effort to gain information regarding Drees and to interfere with Drees's custody case against Denita. Through those efforts, Vincent obtained a certified copy of a protection-from-abuse order (“the PFA order”) that had been entered by a Nebraska court in 2004 against Drees; the PFA order was obtained by Denita and was in force until June 2005, when it expired without having been violated. Drees maintains that Denita had made groundless accusations of abuse against him in order to obtain the PFA order; that she had since been committed to a psychiatric facility; and that, despite the defendants' efforts to obstruct his custody case, he eventually gained custody of the couple's three children, proving that the abuse allegations were false.

On April 2, 2007, Vincent, on behalf of Kile, filed a motion in the Turner custody case asserting that Drees had been convicted of domestic violence upon Denita. During the trial of the Turner custody case in May 2007, Vincent stated on four separate occasions that Drees had been convicted of having committed domestic violence not only against Denita, but also against one of Drees's children. Kile also stated under oath that Drees had been convicted of domestic violence against Denita and against one of Drees's children. Drees asserts that, as trained and licensed attorneys, both Kile and Vincent knew that Drees had never been convicted of domestic violence. Drees maintains that Kile's and Vincent's statements were made in order for Kile to gain custody of Kile and Angela's children, to gain child support from Angela, and to avoid any child-support obligations to Angela. According to Drees, Vincent benefited from his statements by receiving over $50,000 in attorney's fees from Kile and Kile's mother.

On June 14, 2007, the judge presiding over the Turner custody case entered a judgment transferring custody of the Turner children to Kile. That judgment contained two separate, but related, findings that Drees had been convicted of domestic violence against Denita and against one of Drees's children. Angela, through her attorney, alerted the trial judge during the trial and in posttrial motions that, in fact, Drees had not been convicted of domestic violence. According to Drees, the trial judge did not grant any motion filed by Angela to correct the judgment. Subsequently, public documents recording the statements made by Kile and Vincent were “freely disseminated in the community,” including the school two of Drees's children attended.

In October 2007, Drees filed a “Third Party Motion to Expunge False Information from the Record” in the Turner custody case. At the hearing on...