Norman Horton v. David Colvin

Opinion

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This court's opinion of February 27, 2026, is withdrawn, and the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 CL-2025-0041

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)). 3 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

4 CL-2025-0041

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 CL-2025-0041

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 CL-2025-0041

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 CL-2025-0041

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 CL-2025-0041

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 CL-2025-0041

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 CL-2025-0041

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).

15 CL-2025-0041

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 CL-2025-0041

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

17 CL-2025-0041

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

21 CL-2025-0041

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 CL-2025-0041

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 CL-2025-0041

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 CL-2025-0041

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 CL-2025-0041

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.