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Feb. 27, 2026 Get Citation Alerts Download PDF Add Note

Norman Horton v. David Colvin

Court of Civil Appeals of Alabama

• Citations: None known
• Docket Number: CL-2025-0041

• Judges: Edwards, J.

• Opinion

• Authorities (67)

• Cited By (0)

• Summaries (0)

• Similar Cases (10.9K)

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Combined Opinion

Rel: February 27, 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
OCTOBER TERM, 2025-2026

---

CL-2025-0041

---

Norman Horton

v.

David Colvin

Appeal from Dale Circuit Court
(CV-24-3)

EDWARDS, Judge.

In February 2024, Norman Horton filed in the Dale Circuit Court

("the trial court") a complaint against David Colvin in which Horton

alleged that Colvin had defamed him by posting certain comments on

various social-media accounts, specifically stating: "When are you going
CL-2025-0041

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" and the loss of 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

converted to his own use a driveway that Horton had allegedly been using

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

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.

Horton also moved to compel Colvin to answer certain of his discovery

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

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 libelous 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 resulted in his losing 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) (indicating

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 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 motion may be granted when discovery

11
CL-2025-0041

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. We find such authority in

Rule 78, Ala. R. Civ. P., which provides that, "[u]nless the court orders

otherwise, an order granting a motion to dismiss shall be deemed to

permit an automatic right of amendment of the pleading to which the

motion is directed within ten (10) days from service of the order." Horton

did not file an amended complaint within 10 days of the service of the

November 8, 2024, dismissal order, and we cannot hold the trial court in

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 301 So. 2d 235; 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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error for failing to permit Horton to amend his complaint more than 10

days after the entry of that order.

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

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 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

14
CL-2025-0041

he did not request that the trial-court judge recuse herself. 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).

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,

15
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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
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

16
CL-2025-0041

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

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 that stated: "When are you going

to do something about the METH HOUSE that you sponsor!!!!," by

17
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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" 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

analyzed under 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

18
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(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)). Moreover,

"[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

19
CL-2025-0041

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." ' "

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 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 resulted in his losing 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

20
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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

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.8 Finally, Horton contended that the statement

accused him of a crime and, that, therefore, the statement was

8We 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).
21
CL-2025-0041

defamatory per se.9 The allegations contained in the complaint 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

9The 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

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

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.10 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

[he] published the question or statement … with negligence" and that

10Colvin also asserted the defense of conditional privilege regarding

statements that he admittedly had made at a political meeting that
Horton had alleged "linked" Horton to a "prostitution ring." As noted in
note 1, supra, the complaint does not contain sufficient information
regarding those alleged statements to permit analysis of the sufficiency
of the claim of slander premised upon them.
23
CL-2025-0041

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

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

24
CL-2025-0041

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 statements recklessly, despite having the ability to ascertain their

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 facts exist regarding that claim, we cannot affirm

the trial court's November 8, 2024, order dismissing Horton's libel claim,

and we therefore reverse the order insofar as it dismisses that claim.

However, we reach a contrary result regarding Horton's other

defamation allegation -- that Colvin slandered Horton when Colvin

"publicly linked [Horton] to 'prostitution rings.' " Horton did not provide

in his complaint the statements that Colvin allegedly made, thereby

preventing the trial court or this court from being able to assess whether

those statements could serve as a basis for liability. Although the alleged

statements were produced in discovery and presented as an exhibit to the

July 2024 motion, this court is precluded from considering that exhibit in

25
CL-2025-0041

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, 776 So. 2d at 83 (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"). Accordingly, we affirm the trial court's November 8, 2024,

order dismissing Horton's slander claim.

In his complaint, Horton 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."11 On appeal,

Horton argues that, although his claim is for conversion of what he

characterizes as "a right to use real property," i.e., 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

11In 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."
26
CL-2025-0041

"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

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

27
CL-2025-0041

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

which the defendant intentionally interfered; and (5) damage." White

28
CL-2025-0041

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

allegations, and therefore there is no issue of material fact regarding

29
CL-2025-0041

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

entitled "Interference with a business relationship," Horton incorporated

30
CL-2025-0041

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

appears to be premised on what he considers to be Colvin's interference

31
CL-2025-0041

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

interest in conducting business at [Horton's business premises]."12 First,

12Harassment 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
32
CL-2025-0041

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.13 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

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

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").

13The 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.

33
CL-2025-0041

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[ed] 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

entered a judgment on the pleadings pursuant to Rule 12(c).14

14We 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
34
CL-2025-0041

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

libel claim relating to the "meth house" statement or entered a judgment

on the pleadings on that claim. We therefore remand the cause for

proceedings consistent with this opinion regarding Horton's libel claim.

However, we affirm the trial court's November 8, 2024, order insofar as

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.
35
CL-2025-0041

it either dismissed Horton's other claims or entered a judgment on the

pleadings regarding those claims.

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.

36
CL-2025-0041

BOWDEN, Judge, concurring in part and dissenting in part.

I respectfully dissent from this court's decision to reverse judgment

of the Dale Circuit Court insofar as it dismissed Norman Horton's libel

claim against David Colvin; I concur in all other respects. The main

opinion holds that Horton sufficiently pleaded a claim of libel; however,

Horton failed to meet his burden of presentation on appeal. Horton's

appellate arguments concerning his libel claim are therefore waived, and

this court cannot make those arguments for him.

This court applies a de novo standard of review to a judgment

granting a motion to dismiss. See Williams v. Dodd, [Ms. SC-2024-0704,

Sept. 26, 2025] ___ So. 3d __, __ (Ala. 2025)(" 'On appeal, a dismissal

[under Rule 12(b)(6), Ala. R. Civ. P.,] is not entitled to a presumption of

correctness.' " (quoting Nance v. Matthews, 622 So. 2d 297, 299 (Ala.

1993))). However,

"[t]he de novo standard of review does not relieve an appellant
of her burden of demonstrating that the trial court erred.
Under the precedent and the Rules of Appellate Procedure, an
appellant -- even one seeking de novo review -- must make
reasoned and particularized arguments in support of reversal.
See, e.g., Archer ex rel. Archer v. Estate of Archer, 45 So. 3d
1259, 1266 (Ala. 2010)(applying a de novo standard of review,
yet refusing to entertain an argument unsupported by specific
citations to the record and to authority, explaining that ' " ' " 'it
is neither our duty nor function to perform all the legal

37
CL-2025-0041

research for an appellant' " ' " ' (citations omitted)); White
Sands Grp., L.L.C. v. PRS II, LLC, 998 So. 2d 1042, 1058 (Ala.
2008) .... After an appellant has fulfilled that threshold
obligation, this Court will review the relevant aspects of the
trial court's decision de novo …. But an 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."

Lay v. Destafino, 385 So. 3d 15, 23-24 (Ala. 2023). Therefore, on appeal,

Horton must meet his initial burden of presentation. Specifically, he

must present arguments and relevant legal authority, with a discussion

of the relevant facts, to demonstrate that he sufficiently pleaded all the

elements required to prevail on his libel claim.

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 libel claim in his brief, leaving

this court to perform the legal research into the elements of that species

of claim for him.

38
CL-2025-0041

"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)."

Nelson v. Lapeyrouse Grain Corp., 534 So. 2d 1085, 1091 (Ala. 1988)

(citations omitted).15 Furthermore, when a public figure asserts a

defamation action, the public figure must demonstrate actual malice, if

the alleged defamatory comments related to his conduct as a public

official. See Smith v. Huntsville Times Co., 888 So. 2d 492, 496 (Ala.

2004)("The threshold question whether the actual-malice standard

applies in a defamation action involves a two-pronged inquiry -- whether

the defendant is a public official and, if so, whether the allegedly

defamatory comments related to his conduct as a public official."). Actual

malice has at least two subcategories, "common-law malice" and

"constitutional malice." Wiggins v. Mallard, 905 So. 2d 776, 787 (Ala.

2004).

15Horton cites to Nelson v. Lapeyrouse, 534 So. 2d 1085 (Ala. 1988),

but that citation is to support the definition of slander per se, not to
establish the elements of defamation. Slander, like libel, is a branch of
defamation. Case v. McConnell, 975 So. 2d 384 (Ala. Civ. App. 2007).
39
CL-2025-0041

" 'Constitutional malice' refers to the standard set forth in
New York Times Co. v. Sullivan, [376 U.S. 254 (1964)], 'This
standard is satisfied by proof that a false statement was made
" 'with knowledge that it was false or with reckless disregard
of whether it was false or not.' " ' Smith[ v. Huntsville Times
Co.], 888 So. 2d [492,] 499 (Ala. 2004)."

Little v. Consolidated Publ'g Co., 83 So. 3d 517, 522 (Ala. Civ. App. 2011).

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" 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). Thus, to meet his burden of

presentation, Horton must argue on appeal, with citations to relevant

legal authority and the record, that he sufficiently pleaded facts

necessary to establish constitutional malice.

Horton does not make that argument. Instead, he argues the

opposite, asserting that actual malice is not an element that must be

specifically alleged in the complaint. Horton's brief, p. 40 ("However, as

a matter of pleading, malice is not an element that must be specifically

40
CL-2025-0041

alleged in the complaint.")(emphasis omitted); Horton's brief, p. 41

("Importantly, any dispute over actual malice or privilege is a matter for

discovery and trial, not for the sufficiency of the pleadings."). But see Ex

parte Blue Cross & Blue Shield of Alabama, 773 So. 2d 475, 478 (Ala.

2000)("[T]he plaintiff must plead defamation with actual malice ….").

Horton 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 an element of defamation.

The circuit court found that Horton's complaint failed to state a

libel claim. It is incumbent upon Horton to show on appeal that his

complaint did, in fact, sufficiently plead a libel claim, and the arguments

in his brief fell well short of this requirement. The main opinion argues

that Horton did sufficiently plead defamation; however, whether he did

or did not is not the relevant inquiry regarding whether Horton met his

initial burden of presentation. 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

41
CL-2025-0041

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)."

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 libel claim, 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 libel claim.

42