Rel: 10/17/2014
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SUPREME COURT OF ALABAMA
OCTOBER TERM, 2014-2015
____________________
1130385
____________________
Bessie Kirksey
v.
Iris Johnson et al.
____________________
1130403
____________________
Ex parte Iris Johnson et al.
PETITION FOR WRIT OF MANDAMUS
(In re: Bessie Kirksey et al.
v.
Iris Johnson et al.)
Appellate Proceedings from Jefferson Probate Court
(Case No.: 44653)
PARKER, Justice.
Bessie Kirksey appeals an order of the Jefferson Probate
Court ("the probate court") vacating its order discharging
Kirksey as administrator ad litem of the estate of Kirksey's
sister, Willie Mae Graves, deceased. Iris Johnson, Darryl
Thomas, Dorothy McLemore, John McLemore, Jr., Jerrick
McLemore, Frederick Pryor, Jr., Rafeal Santece Powell, Nyya
Nicole Marshall, Brandon LeMar Marshall, and Jeffrey Sams
(alleged heirs of Graves hereinafter collectively referred to
as "the omitted heirs") filed a cross-appeal from the probate
court's order insofar as it denied the omitted heirs' motion
to transfer the case to the Jefferson Circuit Court based on
the alleged lack of subject-matter jurisdiction in the probate
court. For the reasons stated herein, we treat the cross-
appeal as a petition for a writ of mandamus, and we have
styled the case accordingly. We dismiss the appeal, and we
grant the petition and issue the writ.
Facts and Procedural History
2
1130385, 1130403
On June 3, 2011, Graves died intestate. On June 21,
2011, Kirksey filed a petition in the probate court requesting
appointment as administrator ad litem for the purpose of
bringing a wrongful-death claim. On June 30, 2011, Kirksey
sent the probate court a letter via facsimile stating: "Below
is the information you needed regarding the next of kin for
Willie Mae Graves." The letter then listed Kirksey's name and
address and the names and addresses of Margaret Thompson and
Sonya Gardner, whom the letter identified as Graves's sisters.
Kirksey's letter to the probate court also stated that, "[a]t
the time of death, Willie Mae Graves had no spouse or
children." On July 11, 2011, the probate court issued an
order granting Kirksey's petition and stating:
"Kirksey is appointed as administratrix ad litem in
the matter of the estate of Willie Mae Graves,
deceased, [to gather] information to investigate a
wrongful death claim, with the express order that
any settlement of the case must first be approved by
[the probate court]. In addition, [Kirksey] must
immediately deposit the recovery of any funds into
the Jefferson County Probate Court Trust Fund for
proper distribution."
Subsequently, Kirksey filed a wrongful-death action in
the Jefferson Circuit Court. On March 21, 2012, Kirksey filed
a motion in the probate court stating that a proposed
3
1130385, 1130403
confidential settlement had been reached with the defendant in
the wrongful-death action. However, instead of asking the
probate court to approve the proposed settlement of the
wrongful-death action, as the probate court required in its
July 11, 2011, order, Kirksey requested that she be relieved
of that condition to her appointment as administrator ad
litem. Kirksey also requested that the probate court not
require her to deposit the funds with the probate court for
distribution. In support of her motion, Kirksey attached a
copy of Alabama's wrongful-death statute, § 6-5-410, Ala. Code
1975, which states, in pertinent part: "The damages recovered
are not subject to the payment of the debts or liabilities of
the testator or intestate, but must be distributed according
to the statute of distributions."
On May 1, 2012, the probate court held a hearing on
Kirksey's motion. On May 4, 2012, the probate court issued an
order stating, in pertinent part:
"(2) The court approves the wrongful death
settlement of $2,250,000 on behalf of the estate of
Willie Mae Graves.
"(3) Pursuant to [the] Wrongful Death Act
codified in [Ala. Code 1975,] § 6-5-410(c), the
proceeds 'are not subject to the payment of the
debts or liabilities of the testator or intestate,
4
1130385, 1130403
but must be distributed according to the statute of
distributions.'
"(4) According to [Kirksey], the deceased leaves
three lawful heirs:
"Sister. Bessie Kirksey (adult of
sound mind)
"Sister. Margaret Thompson (adult of
sound mind)
"Sister. Sonya Gardner (adult of sound
mind)
"(5) The court orders [Kirksey's attorney] to
distribute the proceeds in accordance with [Ala.
Code 1975,] § 43-8-42(3).
"(6) The court approves the distribution of
these proceeds via the trust account of [Kirksey's
attorney]. Said proceeds are not to be paid into
the [probate court]."1
Although the probate court did not require Kirksey to deposit
the wrongful-death-settlement proceeds with the probate court,
the probate court purported to approve the settlement of the
1
We note that, in its May 4, 2012, order, the probate
court stated that the settlement of the wrongful-death action
was "on behalf of the estate of Willie Mae Graves." However,
as discussed more thoroughly below, a wrongful-death action is
not brought by, or on behalf of, the estate of a decedent.
Instead, Kirksey was appointed to bring the wrongful-death
action on behalf of those entitled to receive any damages from
such an action under the statute of distributions. See Ex
parte Taylor, 93 So. 3d 118, 119 (Ala. 2012)(Murdock, J.,
concurring specially).
5
1130385, 1130403
wrongful-death action and the distribution of the wrongful-
death-settlement proceeds to Kirksey, Thompson, and Gardner.
The record includes an affidavit of Kirksey, which lists
Kirksey, Thompson, and Gardner as a "full and exhaustive list"
of Graves's siblings. The affidavit further states:
"6. I understand that a settlement was reached
in the [wrongful-death action] in the Circuit Court
of Jefferson County (Bessemer Division), Alabama.
This case was brought pursuant to [Ala. Code 1975,]
§ 6-5-410, which is the Wrongful Death Statute of
Alabama. According to the Wrongful Death Act, any
damages recovered must be distributed according to
the Statute of Distributions. Because my sister was
not married at the time of her death and had no
children, I understand that all of the proceeds from
the wrongful death case pass to her heirs pursuant
to [Ala. Code 1975,] § 43-8-42(1). Pursuant to this
statute, all proceeds will pass to the heirs as long
as they are of the same degree of kinship and then
they take equally.
"7. Therefore, all siblings of Willie Mae Graves
would share equally in the proceeds. I understand
and agree that the list of heirs above is a complete
and final list. I affirm that I do not have any
knowledge of any other spouse, children, siblings or
heirs of Willie Mae Graves. I further attest and
affirm that all of the listed heirs are true and
accurate heirs of Willie Mae Graves, pursuant to
[Ala. Code 1975,] § 43-8-48. Therefore, by signing
this declaration, I attest and affirm that I agree
to this distribution, I agree with the accuracy of
the list of heirs, I have no knowledge of any
additional heirs, and I would waive any potential
legal claim based on any assertion that any of the
listed heirs are not legal heirs entitled to a share
of these wrongful death proceeds."
6
1130385, 1130403
On June 28, 2012, Kirksey, Thompson, and Gardner filed
acknowledgments of the receipt of a distributive share of the
wrongful-death-settlement proceeds. On the same day, the
probate court issued a certificate of discharge stating that
Kirksey "is hereby discharged and is released, in so far as
her liability appears from her account, evidences and reports
filed in this court."
Sometime thereafter, the omitted heirs learned about the
distribution of the wrongful-death-settlement proceeds and
filed in the probate court an "emergency petition to reopen
estate, set aside discharge, appoint county administrator to
handle estate and for other relief." In their petition, the
omitted heirs challenged Kirksey's distribution of the
wrongful-death-settlement proceeds. Specifically, the omitted
heirs argued that they are heirs of Graves, known to Kirksey
at the time of her appointment as administrator ad litem, and
that, therefore, they are entitled to a share of the wrongful-
death-settlement proceeds along with Kirksey, Thompson, and
Gardner. The omitted heirs argued that the "estate need[ed]
to be reopened to set aside the discharge that was entered,"
pursuant to Rule 60(b), Ala. R. Civ. P., but they did not
7
1130385, 1130403
specify which subpart of Rule 60(b) applied to their petition.
The omitted heirs' petition asked the probate court to: 1)
reopen the case, 2) set aside the certificate of discharge of
Kirksey from her duties as administrator ad litem, 3) require
Kirksey to make an accounting of the receipts and
disbursements of the wrongful-death-settlement proceeds, 4)
order Kirksey to refund all sums overpaid, whether to her or
to others, 5) appoint the county administrator to represent
Graves's estate, 6) order Gardner and Thompson to immediately
repay any overpayment, and 7) order other appropriate relief.
On February 4, 2013, Gardner filed an objection to the
omitted heirs' petition. Gardner argued that the petition was
untimely and improper for failing to allege an applicable
reason for relief under Rule 60(b), Ala. R. Civ. P. Gardner
also argued that the petition should be denied because, she
argued, the omitted heirs provided no evidence to substantiate
their claim that the are heirs of Graves.
On February 5, 2013, the omitted heirs amended their
petition and alleged that Kirksey had perpetrated a fraud on
the probate court by swearing to the probate court that she,
Thompson, and Gardner constituted Graves's heirs and that she
8
1130385, 1130403
had, therefore, distributed the wrongful-death-settlement
proceeds in accordance with the statute of distributions, when
Kirksey had actually deprived the omitted heirs of their
portion of the wrongful-death-settlement proceeds.
Accordingly, the omitted heirs alleged that they were entitled
to relief pursuant to § 43-8-5, Ala. Code 1975, which states:
"Whenever fraud has been perpetrated in
connection with any proceeding or in any statement
filed under this chapter or if fraud is used to
avoid or circumvent the provisions or purposes of
this chapter, any person injured thereby may obtain
appropriate relief against the perpetrator of the
fraud or restitution from any person (other than a
bona fide purchaser) benefitting from the fraud,
whether innocent or not. Any proceeding must be
commenced within one year after the discovery of the
fraud or from the time when the fraud should have
been discovered, but no proceeding may be brought
against one not a perpetrator of the fraud later
than five years after the time of the commission of
the fraud. This section has no bearing on remedies
relating to fraud practiced on a decedent during his
lifetime which affects the succession of his
estate."
On February 25, 2013, Keith T. Belt, Jr., and the Belt
Law Firm, P.C. (hereinafter collectively referred to as
"Belt"), who had formerly represented Kirksey in this matter,2
filed a complaint interpleading a portion of the wrongful-
2
Belt represented Kirksey through her discharge as
administrator ad litem. On February 14, 2013, Kirksey
retained current counsel.
9
1130385, 1130403
death-settlement proceeds and seeking declaratory relief,
naming Kirksey, Thompson, Gardner, and the omitted heirs as
defendants.3 Belt alleged that he learned of the omitted
heirs on November 26, 2012, after the wrongful-death-
settlement proceeds had been distributed to Kirksey, Thompson,
and Gardner. Belt alleged that Kirksey, Thompson, and Gardner
had received twice as much of the wrongful-death-settlement
proceeds as they should have and that he had taken immediate
steps to obtain repayment of the distributed funds upon
learning of the existence of the omitted heirs. Belt alleged
that Kirksey returned $233,903.17, half of the amount of the
wrongful-death-settlement proceeds she had received, and that
Gardner returned $10,000, which sums Belt held in trust; Belt
did not state that Thompson returned any of the funds
distributed to her. Belt deposited with the probate court the
$243,903.17 of the wrongful-death-settlement proceeds he had
received from Kirksey and Gardner and requested that the
probate court accept the interpleaded funds, enter a judgment
declaring the rights and obligations as between and among the
3
Belt alleged that Graves's brother John McLemore, Sr.,
had a son named Jeremy, last name unknown, whom Belt named as
a defendant. However, the omitted heirs denied that John
McLemore, Sr., had a son named Jeremy.
10
1130385, 1130403
defendants; order that Belt be released and discharged from
any and all liability, duty, or other obligation to Kirksey,
Thompson, Gardner, and the omitted heirs; and award Belt
attorney fees and costs associated with the complaint from the
interpleaded funds. Kirksey, Thompson, Gardner, and the
omitted heirs separately answered Belt's interpleader
complaint and objected to Belt's requested relief on numerous
grounds –- including the probate court's alleged lack of
subject-matter jurisdiction over Belt's complaint.
Subsequently, Belt filed a motion for a discharge from the
interpleader action. Belt's motion has been held in abeyance
pursuant to an agreement of the parties.
On February 28, 2013, Gardner filed an objection to the
omitted heirs' petition, arguing that § 43-8-5 was not
applicable because, she argued, any false representation made
to the probate court concerning the number and identity of
Graves's heirs was not the product of fraud on the probate
court.
On April 12, 2013, Thompson filed a response to the
omitted heirs' petition and raised the same objections Gardner
had raised in her responses to the omitted heirs' original and
11
1130385, 1130403
amended petitions. On June 17, 2013, Thompson filed a motion
to dismiss the omitted heirs' petition under Rule 60(b), Ala.
R. Civ. P., as being untimely; she also alleged that § 43-8-5
was inapplicable because, Thompson said, there had been no
fraud on the probate court.
On June 17, 2013, Kirksey filed a response to the omitted
heir's petition and made the same arguments as those made by
Gardner and Thompson; she additionally argued that the probate
court had "lost jurisdiction over the parties and subject
matter."
On June 18, 2013, the probate court conducted a hearing
on the omitted heirs' petition.
On July 8, 2013, the omitted heirs filed a complaint
against Kirksey, Gardner, and Thompson in the Jefferson
Circuit Court, asserting various claims related to Kirksey's
alleged improper distribution of the wrongful-death-settlement
proceeds.4
4
We note that by filing their action, the omitted heirs
essentially sought the same relief in the Jefferson Circuit
Court they are seeking in the probate court. Mainly, the
omitted heirs have sought to hold Kirksey liable for her
alleged improper distribution of the wrongful-death-settlement
proceeds.
12
1130385, 1130403
On August 26, 2013, the probate court issued an order
granting the omitted heirs' motion to "reopen" Graves's
estate, setting aside its order discharging Kirksey as
administrator ad litem, and appointing the county
administrator to preside over future proceedings –- which the
probate court identified as a redistribution of the wrongful-
death-settlement proceeds; the probate court also denied
Kirksey's motion to dismiss Belt's interpleader complaint for
lack of subject-matter jurisdiction.
On September 25, 2013, the omitted heirs filed a motion
challenging the probate court's subject-matter jurisdiction
over the distribution of the wrongful-death-settlement
proceeds, requesting that the probate court vacate its August
26, 2013, order insofar as it "reopened" Graves's estate and
appointed the county administrator to preside over the
proceedings, because letters of administration had never been
issued to initially open Graves's estate, and requesting that
the probate court transfer the interpleaded funds to the
Jefferson Circuit Court pending a determination in the action
in that court that had been filed by the omitted heirs.
13
1130385, 1130403
On September 26, 2013, Kirksey filed a motion asking the
probate court to reconsider its August 26, 2013, order and to
enter a new order finding that she had not committed a fraud
on the probate court.
On November 1, 2013, Belt filed a response to the omitted
heirs' September 25, 2013, motion and argued that the probate
court had jurisdiction over the interpleader action.
On November 25, 2013, the probate court entered the
following order:
"This matter comes before the Court on two
separate motions. On November 5, 2013, the Court
heard oral argument on the motion of Defendant
Bessie Kirksey, seeking to have the Court reconsider
its Order of August 26, 2013, reopening the Estate
of Willie Mae Graves, as well as the motion of the
[omitted heirs] seeking to have the Court determine
whether ... it has jurisdiction to continue to
preside over this matter. A third Motion filed by
Interpleader Plaintiffs Keith T. Belt, Jr. and the
Belt Law Firm, P.C. seeking a discharge will be held
in abeyance per the agreement of all counsel.
"The motions now before the court raise issues
of whether the appointment of an Administrator ad
Litem granted such AAL the authority to maintain and
settle a wrongful death case citing the concurring
opinion of Justice Bolin in Golden Gate Nat. Senior
Care, LLC v. Roser, 94 So. 3d 365 (Ala. 2012). The
cited opinion is admitted to be mere dicta and this
court is compelled to follow the law as stated in the
controlling case of Affinity Hospital, LLC v.
Williford, 21 So. 3d 712 (Ala. 2009).
14
1130385, 1130403
"The motions raise the issue of this court's
jurisdiction to act in this case relying principally
upon Ex parte Rodgers, [141 So. 3d 1038 (Ala. 2013),]
and Justice Murdock's special concurring opinion in
Ex parte Taylor, 93 So. 3d 118 (Ala. 2012). Neither
of these opinions is controlling in this case. The
Rodgers case holds that an administrator, in his or
her capacity as administrator, may not be compensated
from wrongful death proceeds based upon the statutory
formula for compensation of personal representatives
because the proceeds from the wrongful death recovery
are not assets of the estate. It was not a
jurisdiction case and the appeal in that case was
from the Circuit Court for Jefferson County and
raised no jurisdictional issue. In fact, Justice
Bolin wrote a specially concurring opinion suggesting
that while the personal representative may not be
compensated in his or her capacity as personal
representative of the decedent's estate, he or she
may and should be compensated as a trustee.
"The movants next rely upon the special
concurring opinion of Justice Murdock in Ex parte
Taylor, supra, in which Justice Bolin concurred. The
issue of probate jurisdiction was not before the
court in that case and it should be emphasized that
the rationale in the special concurring opinion,
while well stated, is one side of the issue, and is
not a holding of the Supreme Court nor does it
necessarily state the opinion of a majority of the
justices. In that opinion, after citing 12-13-1 [et
seq., Ala. Code 1975,] Justice Murdock states,
"'The foregoing categories of
jurisdiction concern matters relating to
the administration of a decedent's estate;
they do not authorize the probate court to
entertain a motion concerning the approval
of the settlement of a wrongful-death claim
by a personal representative or to enter an
order concerning the distribution of the
proceeds from a settlement in such an
15
1130385, 1130403
action as part of the final settlement of
the estate. Likewise, matters concerning
the personal representative's settlement of
a wrongful-death claim and the distribution
of the proceeds therefrom do not fall
within the Mobile Probate Court's general
equity jurisdiction, which is limited to
matters of equity "in the administration of
the estates," Act No. 91-131, Ala. Acts
1991, and to "any proceeding involving a
testamentary or inter vivos trust." Ala.
Code 1975, § 19-3B-203.'
"However, the reference to Ala. Code 1975, §
19-3B-203 makes no reference to the interpretation of
that code section construed by the full Court in
Regions v. Reed, 60 So. 3d 868 (Ala. 2010), in an
opinion also authored by Justice Murdock:
"'Thus, the probate courts of
Jefferson, Mobile, and Shelby Counties have
concurrent jurisdiction with the circuit
courts of those counties to hear any
proceeding brought by a trustee or
beneficiary concerning the administration
of a trust. In other words, the reference
in subsection (b) of § 19-3B-203 to probate
courts that have been granted "statutory
equitable jurisdiction" is an identifying
reference, not a limitation on the
jurisdiction of the courts so identified.
It is those probate courts to which
subsection (b) grants "concurrent
jurisdiction" with the circuit courts to
hear actions concerning the administration
of a trust brought by a trustee or
beneficiary.'
"60 So. 3d at 880.
"There is a limitation in 19-3B-203(b) to inter
vivos and testamentary trusts. While the concurring
16
1130385, 1130403
opinion in Ex parte Taylor concludes that the trust
or quasi trust formed for the proceeds of a wrongful
death recovery is neither, it may also be argued that
the trust is an inter vivos trust.
"But the jurisdiction of this court in this case
is not dependant upon the Uniform Trust Code. Ala.
Code 1975, § 43-2-111 is a part of the probate code
of this state. It is contained in Article 5 of Title
43 which is titled 'Liability of Executors and
Administrators' and states, 'The personal
representative and the sureties on his bond are
liable to the parties in interest for the due and
legal distribution of all damages recovered by such
representative under sections ... 6-5-410[, Ala. Code
1975, the wrongful-death act]... and are subject to
all remedies which may be pursued against such
representative and sureties for the due
administration of personal assets.' (Emphasis
supplied). The sureties on the bond are bound to the
probate court and no other court. The probate court
has jurisdiction over the administrator and is the
only party in interest who can call upon the surety
for the payment of the penal sum of the bond. One of
the remedies referred to in the code section which is
available to the persons of interest who are wronged
by the improper distribution of funds held by the
administrator is to obtain an order from the probate
court directing the proper administration of the
funds and calling in the bond for failure to do so.
It is clear that this court has original general
jurisdiction to enforce this section of the code.
"With regard to the motion to reconsider, the
Court holds that its previous finding of fraud on the
Court is properly supported by the Court's record.
There is no question that the Court's prior orders
regarding the Estate of Willie Mae Graves relied upon
information supplied by the Administrator ad Litem,
Bessie Kirksey, in open court which has now been
proven to be inaccurate. Regardless of her position
that she did not intend to cause harm while making
17
1130385, 1130403
those statements, the statements were nonetheless
relied upon by the Court thereby creating a fraud on
the Court as a matter of law. This court has now
heard the arguments of counsel on its motion to
reconsider but has heard no evidence controverting
the evidence taken in open court which induced this
court to close the estate. The information then
presented has been proven in open court to be untrue
and this court has ruled that the order discharging
the administrator ad litem is due to be and has been
set aside and the estate has been reopened. There
being no new or additional evidence presented to this
court, the motion to reconsider is hereby denied.
"For the foregoing reasons, and the Court's
finding that it does have jurisdiction to continue to
preside over the matters which are currently before
the Court, the motion to construe jurisdiction is
hereby denied. The Court finds that jurisdiction will
be maintained in the Probate Court.
"There being no just cause for delay, this is
determined to be a final order under [Rule 54(b),
Ala. R. Civ. P.]."
Kirksey appealed; the omitted heirs cross-appealed, which
cross-appeal we are treating as a petition for a writ of
mandamus.
Discussion
Initially, we note:
"Not every order has the requisite element of
finality that can trigger the operation of Rule
54(b)[, Ala. R. Civ. P.]. Moss v. Williams, 747 So.
2d 905 (Ala. Civ. App. 1999). Therefore, a trial
court should certify a nonfinal order as final
pursuant to Rule 54(b) only 'where the failure to do
so might have a harsh effect.' Brown v. Whitaker
18
1130385, 1130403
Contracting Corp., 681 So. 2d 226, 229 (Ala. Civ.
App. 1996) (overruled on other grounds, Schneider
Nat'l Carriers, Inc. v. Tinney, 776 So. 2d 753 (Ala.
2000)). Rule 54(b) certifications are not to be
entered routinely and should be made only in
exceptional cases. Parrish v. Blazer Fin. Servs.,
Inc., 682 So. 2d 1383 (Ala. Civ. App. 1996).
'"Appellate review in a piecemeal fashion is not
favored."' Harper Sales Co. v. Brown, Stagner,
Richardson, Inc., 742 So. 2d 190, 192 (Ala. Civ. App.
1999) (quoting Brown v. Whitaker Contracting Corp.,
681 So. 2d at 229)."
Goldome Credit Corp. v. Player, 869 So. 2d 1146, 1148 (Ala.
2003).
"For an order to be susceptible to Rule 54(b)
certification, the order must dispose of at least one
of a number of claims or one of multiple parties,
must make an express determination that there is no
just reason for delay, and must expressly direct the
entry of a judgment as to that claim or that party.
Jakeman v. Lawrence Group Mgmt. Co., 82 So. 3d 655,
659 (Ala. 2011) (citing Committee Comments on 1973
Adoption of Rule 54(b), Ala. R. Civ. P.). ...
"'Pursuant to Rule 54(b), a trial court
may direct "the entry of a final judgment
as to one or more but fewer than all of the
claims or parties." But Rule 54(b) makes an
order final –- and therefore appealable –-
"only where the trial court 'has completely
disposed of one of a number of claims, or
one of multiple parties.'" Tanner v.
Alabama Power Co., 617 So. 2d 656, 656
(Ala. 1993) (quoting Committee Comments on
the 1973 adoption of Rule 54(b)) (emphasis
added in Tanner). In other words, for a
Rule 54(b) certification of finality to be
effective, it must fully adjudicate at
least one claim or fully dispose of the
19
1130385, 1130403
claims as they relate to at least one
party.'
"Haynes v. Alfa Fin. Corp., 730 So. 2d 178, 181 (Ala.
1999). 'An appeal will not lie from a nonfinal
judgment.' Baugus v. City of Florence, 968 So. 2d
529, 531 (Ala. 2007)."
Ex parte Noland Hosp. Montgomery, LLC, 127 So. 3d 1160, 1165-
66 (Ala. 2012).
The probate court's November 25, 2013, order did not
completely adjudicate a claim. Accordingly, the probate
court's order was not a final judgment, and the probate
court's Rule 54(b), Ala. R. Civ. P., certification of that
nonfinal order was improper. "An appeal will not lie from a
nonfinal judgment." Baugus v. City of Florence, 968 So. 2d
529, 531 (Ala. 2007). We therefore dismiss Kirksey's appeal
(case no. 1130385).
Although an appeal will not lie from a nonfinal judgment,
in certain instances a party can challenge a nonfinal order by
a petition for a writ of mandamus. This Court has treated a
notice of appeal as a petition for a writ of mandamus,
Morrison Rests., Inc. v. Homestead Vill. of Fairhope, Ltd.,
710 So. 2d 905 (Ala. 1998), and, conversely, treated a
petition for a writ of mandamus as a notice of appeal, Ex
20
1130385, 1130403
parte Burch, 730 So. 2d 13 (Ala. 1999). As noted in F.L.
Crane & Sons, Inc. v. Malouf Construction Corp., 953 So. 2d
366 (Ala. 2006), this Court's actions in the above cases is
consistent with Rule 1, Ala. R. App. P., which provides:
"[These rules] shall be shall be construed so as to assure the
just, speedy, and inexpensive determination of every appellate
proceeding on its merits." Likewise, Rule 2(b), Ala. R. App.
P., also calls for the suspension of the requirements or
provisions of any of the Rules of Appellate Procedure "[i]n
the interest of expediting decision." In F.L. Crane & Sons,
this Court explained the reasoning for using the flexibility
afforded by Rules 1 and 2 in the situations presented in that
case and in Morrison Restaurants, Ex parte Burch, and the
present case:
"In Ex parte Burch, we treated a petition for
the writ of mandamus addressed to a trial court's
denial of a motion in limine as a notice of appeal.
We stated in Burch that there is 'no bright-line test
for determining when this Court will treat a
particular filing as a mandamus petition and when it
will treat it as a notice of appeal.' 730 So. 2d at
146. Instead, we consider the facts of the particular
case in deciding whether to treat the filing as a
petition or as an appeal:
"'The question we come to, then is this: Do
the circumstances of this case make it such
that the policies set forth in Rule 1[,
21
1130385, 1130403
Ala. R. App. P.,] will be served by
resolving the matter presented to us? Or,
will those policies be better served by
requiring, as we do in the normal case,
strict compliance with our appellate rules
and thus not reviewing the trial court's
interlocutory ruling?'
"730 So. 2d at 147.
"In Burch, we treated the petition as a petition
for a permissive appeal under Rule 5, Ala. R. App.
P., because the hearing transcript revealed the trial
court's belief that this Court's resolution of the
motion in limine was 'important to materially
advancing th[e] litigation.' 730 So. 2d at 147–48.
Similarly, we believe that deciding the issue of the
enforceability of this forum-selection clause on its
merits will further the 'just, speedy, and
inexpensive determination ... on [the] merits' of the
case favored by Rule 1, Ala. R. App. P."
953 So. 2d at 372.
As in Ex parte Burch, consideration of the subject-matter
jurisdiction of the probate court –- an issue raised by the
omitted heirs in their cross-appeal –- is important to
materially advancing this litigation. Therefore, although we
are dismissing Kirksey's appeal, we treat the omitted heirs'
cross-appeal as a petition for a writ of mandamus requesting
this Court to direct the probate court to dismiss this case on
the basis that that court lacks subject-matter jurisdiction
22
1130385, 1130403
over the distribution of the wrongful-death-settlement
proceeds.
We review the omitted heirs' petition according to the
following standard of review:
"'Mandamus is a drastic and extraordinary writ,
to be issued only where there is (1) a clear legal
right in the petitioner to the order sought; (2) an
imperative duty upon the respondent to perform,
accompanied by a refusal to do so; (3) the lack of
another adequate remedy; and (4) properly invoked
jurisdiction of the court.' Ex parte Integon Corp.,
672 So. 2d 497, 499 (Ala. 1995). The question of
subject-matter jurisdiction is reviewable by a
petition for a writ of mandamus. Ex parte Flint
Constr. Co., 775 So. 2d 805 (Ala. 2000)."
Ex parte Liberty Nat'l Life Ins. Co., 888 So. 2d 478, 480
(Ala. 2003).
In its November 25, 2013, order, the probate court
concluded that "it does have jurisdiction to continue to
preside over the matters which are ... before" it. The
matters that were before the probate court when it entered
that order were Kirksey's motion to reconsider the probate
court's August 26, 2013, order –- which "reopened" Graves's
estate, set aside its order discharging Kirksey as
administrator ad litem, appointed the county administrator to
preside over future proceedings, and denied Kirksey's motion
23
1130385, 1130403
to dismiss Belt's interpleader complaint for lack of subject-
matter jurisdiction –- as well as the omitted heirs' September
25, 2013, motion –- which challenged the probate court's
subject-matter jurisdiction over the distribution of the
wrongful-death-settlement proceeds. The nucleus of each of
those matters is the same: the alleged improper distribution
of the wrongful-death-settlement proceeds. As explained
below, the probate court's conclusion that the settlement of
the wrongful-death action was on behalf of the estate of the
decedent led it to believe that it had jurisdiction over the
distribution of the wrongful-death-settlement proceeds.5
A wrongful-death action is not brought by the estate of
the decedent; accordingly, the proceeds from a wrongful-death
action are not part of the decedent's estate. As Justice
5
We note that the question of Kirksey's capacity, as
administrator ad litem, to bring the wrongful-death action is
not before this Court. In Affinity Hospital, LLC v.
Williford, 21 So. 3d 712, 718 (Ala. 2009), this Court held
that, in maintaining a wrongful-death action, a plaintiff was
"acting in her capacity as an administrator ad litem, was a
'personal representative' within the meaning of Ala. Code
1975, § 6-5-410, and was, therefore, vested with the authority
conferred by that section to file a wrongful-death action."
Accordingly, we limit our analysis to the narrow issue
involving the subject-matter jurisdiction of the probate court
to oversee the distribution of the wrongful-death-settlement
proceeds received by Kirksey as the personal representative of
the decedent.
24
1130385, 1130403
Murdock noted in his special concurrence to Ex parte Taylor,
93 So. 3d 118, 118 (Ala. 2012)(Murdock, J., concurring
specially):
"[A]n estate cannot file a wrongful-death action. See
Ala. Code 1975, § 6–5–410; Downtown Nursing Home,
Inc. v. Pool, 375 So. 2d 465, 466 (Ala. 1979) (noting
that the 'right' to file a wrongful-death action is
'vested in the personal representative alone').1 As
a corollary, the proceeds from the settlement of the
wrongful-death claim that arose out of Newman's death
are not a part of Newman's estate. See, e.g., Steele
v. Steele, 623 So. 2d 1140, 1141 (Ala. 1993)
('[D]amages awarded pursuant to [§ 6–5–410] ... are
not part of the decedent's estate.').
"This Court has long recognized that,
"'[i]n prosecuting [wrongful-death]
actions, the personal representative does
not act strictly in his capacity as
administrator of the estate of his
decedent, because he is not proceeding to
reduce to possession the estate of his
decedent, but rather he is asserting a
right arising after his death, and because
the damages recovered are not subject to
the payment of the debts or liabilities of
the decedent. He acts rather as an agent of
legislative appointment for the
effectuation of the legislative policy....'
"Hatas v. Partin, 278 Ala. 65, 68, 175 So. 2d 759,
761 (1965); see also Steele, 623 So. 2d at 1141
(noting that the 'personal representative ... act[s]
as agent by legislative appointment for the
effectuation of a legislative policy of the
prevention of homicides through the deterrent value
of the infliction of punitive damages'). 'Upon a
recovery, [the personal representative] acts as a
25
1130385, 1130403
quasi trustee for those who are entitled thereto
under the statute of distribution. Such damages are
not subject to administration and do not become part
of the deceased's estate.' United States Fid. & Guar.
Co. v. Birmingham Oxygen Serv., Inc., 290 Ala. 149,
155, 274 So. 2d 615, 621 (1973). Indeed, commenting
on an earlier version of Alabama's wrongful-death
statute, this Court noted that the legislature has
"'impose[d] upon the administrator a trust
separate and distinct from the
administration. The trust is not for the
benefit of the estate, but of the widow,
children, or next of kin of the deceased.
The administrator fills this trust, but he
does not do it in the capacity of
representative of the estate. It is
altogether distinct from the
administration, notwithstanding it is
filled by the administrator.'
"Hicks v. Barrett, 40 Ala. 291, 293 (1866)
(discussing Ala. Code of 1852, § 1938).
"____________________
"1Because we do not have the record on appeal
before us, however, I cannot confirm whether the
wrongful-death action was filed by Jerry, as personal
representative of Newman's estate, or by the estate
itself, as the Court of Civil Appeals states in its
opinion. Concomitantly, in reference to the Court of
Civil Appeals' description of
litigation-settlement-restriction language contained
in Jerry's letters of administration, the probate
court has no power to issue such a restriction as to
the settlement of litigation in which the estate has
no interest, i.e., a wrongful-death action. ..."
93 So. 3d at 119.
26
1130385, 1130403
With these principles in mind, we now address whether the
probate court had the authority to oversee the distribution of
the wrongful-death-settlement proceeds received by Kirksey and
to condition her discharge as administrator ad litem on the
probate court's approval of Kirksey's distribution of the
wrongful-death-settlement proceeds –- funds that were never
part of Graves's estate and in which the probate court has no
interest; we hold that it did not.
The legislature established the subject-matter
jurisdiction of the probate courts in § 12-13-1, Ala. Code
1975, which states:
"(a) The probate court shall have original and
general jurisdiction as to all matters mentioned in
this section and shall have original and general
jurisdiction as to all other matters which may be
conferred upon them by statute, unless the statute so
conferring jurisdiction expressly makes the
jurisdiction special or limited.
"(b) The probate court shall have original and
general jurisdiction over the following matters:
"(1) The probate of wills.
"(2) The granting of letters
testamentary and of administration and the
repeal or revocation of the same.
"(3) All controversies in relation to
the right of executorship or of
administration.
27
1130385, 1130403
"(4) The settlement of accounts of
executors and administrators.
"(5) The sale and disposition of the
real and personal property belonging to and
the distribution of intestate's estates.
"(6) The appointment and removal of
guardians for minors and persons of unsound
mind.
"(7) All controversies as to the right
of guardianship and the settlement of
guardians' accounts.
"(8) The allotment of dower in land in
the cases provided by law.
"(9) The partition of lands within
their counties.
"(10) The change of the name of any
person residing in their county, upon his
filing a declaration in writing, signed by
him, stating the name by which he is known
and the name to which he wishes it to be
changed.
"(11) Such other cases as jurisdiction
is or may be given to such courts by law in
all cases to be exercised in the manner
prescribed by law.
"(c) All orders, judgments and decrees of
probate courts shall be accorded the same validity
and presumptions which are accorded to judgments and
orders of other courts of general jurisdiction."
Additionally, the Jefferson Probate Court "has concurrent
jurisdiction with the circuit court in any proceeding
28
1130385, 1130403
involving a testamentary or inter vivos trust." § 19-3B-203,
Ala. Code 1975. See Jett v. Carter, 758 So. 2d 526, 529 (Ala.
1999)("Act No. 1144, Ala. Acts 1971 (Reg. Session), a local
act, applies to cases originating in the Jefferson Probate
Court. It grants to the Jefferson Probate Court 'general
jurisdiction concurrent with that of the Circuit Courts of
this State, in equity, in the administration of the estates of
deceased persons, minors and insane or non compos mentis
persons, including testamentary trust estates.' (§ 1.)"
(emphasis added)).
As Justice Murdock noted in his special concurrence in Ex
parte Taylor in relation to the subject-matter jurisdiction of
the Mobile Probate Court in a similar situation:
"The foregoing categories of jurisdiction[, §§
12-13-1(b)(3)-(5), Ala. Code 1975,] concern matters
relating to the administration of a decedent's
estate; they do not authorize the probate court to
entertain a motion concerning the approval of the
settlement of a wrongful-death claim by a personal
representative or to enter an order concerning the
distribution of the proceeds from a settlement in
such an action as part of the final settlement of the
estate. Likewise, matters concerning the personal
representative's settlement of a wrongful-death claim
and the distribution of the proceeds therefrom do not
fall within the Mobile Probate Court's general equity
jurisdiction, which is limited to matters of equity
'in the administration of the estates,' Act No.
91–131, Ala. Acts 1991, and to 'any proceeding
29
1130385, 1130403
involving a testamentary or inter vivos trust.' Ala.
Code 1975, § 19–3B–203."
93 So. 3d at 122.
However, in the present case, the probate court did not
hold that it had subject-matter jurisdiction over the
distribution of the wrongful-death-settlement proceeds
pursuant to the legislature's general grant of jurisdiction
under § 12-13-1. Rather, as set forth above, the probate
court stated the following in regard to whether it had
subject-matter jurisdiction over the distribution of the
wrongful-death-settlement proceeds:
"There is a limitation in 19-3B-203(b) to inter
vivos and testamentary trusts. While the concurring
opinion in Ex parte Taylor concludes that the trust
or quasi trust formed for the proceeds of a wrongful
death recovery is neither, it may also be argued that
the trust is an inter vivos trust."
Although the probate court did not address the question
whether it had subject-matter jurisdiction under § 19-3B-203,
Ala. Code 1975, a trust formed by the receipt of the proceeds
in a wrongful-death action cannot be construed as an inter
vivos trust, which is a "[t]rust created during lifetime of
settlor and to become effective in his lifetime as contrasted
with a testamentary trust which takes effect at death of
30
1130385, 1130403
settlor or testator." Black's Law Dictionary 821 (6th ed.
1990).
Regardless, the probate court further stated that it had
subject-matter jurisdiction over the distribution of the
wrongful-death-settlement proceeds pursuant to § 43-2-111,
Ala. Code 1975, which provides:
"The personal representative and the sureties on
his bond are liable to the parties in interest for
the due and legal distribution of all damages
recovered by such representative under sections ...
6-5-410 ... and are subject to all remedies which may
be pursued against such representative and sureties
for the due administration of personal assets."
Section 43-2-111 authorizes an action against a personal
representative regarding the distribution of proceeds of a
wrongful-death action; it does not vest the probate court with
subject-matter jurisdiction to oversee the distribution of the
proceeds of a wrongful-death action, in which the estate of
the decedent has no interest. Accordingly, the probate court
did not have subject-matter jurisdiction under § 12-13-1, §
43-2-111, or § 19-3B-203 over the settlement of the wrongful-
death action and Kirksey's distribution of the wrongful-death-
settlement proceeds. Rather, subject-matter jurisdiction lies
with the circuit court.
31
1130385, 1130403
Therefore, the probate court does not have subject-matter
jurisdiction over the interpleader action because the
interpleaded funds are not part of Graves's estate but are the
proceeds of the settlement of the wrongful-death action.
Accordingly, Belt's interpleader action is due to be
dismissed.
Further, although a probate court has subject-matter
jurisdiction over a petition to vacate its discharge of an
administrator ad litem, in this case we note that the only
basis for doing so was to attempt to correct Kirksey's alleged
improper distribution of the wrongful-death-settlement
proceeds. Likewise, the probate court's appointment of the
county administrator and its "reopening" of Graves's estate –-
when no letters of administration have been issued –- were
also based on its attempt to oversee the distribution of the
wrongful-death-settlement proceeds, which the probate court
has no authority to do. Accordingly, the probate court acted
beyond its authority in taking those actions. Therefore, the
omitted heirs have a clear legal right to the relief they seek
–- dismissal of the case for lack of subject-matter
jurisdiction.
32
1130385, 1130403
Conclusion
For the reasons explained above, the probate court did not
have subject-matter jurisdiction to oversee either the
settlement of the wrongful-death action or Kirksey's
distribution of the wrongful-death-settlement proceeds
pursuant to the statute of distributions. Accordingly, the
actions of the probate court regarding the settlement of the
wrongful-death action and Kirksey's distribution of the
proceeds of the wrongful-death action are void. Therefore, we
grant the omitted heirs' petition for a writ of mandamus and
direct the probate court to vacate its August 26, 2013, and
November 25, 2013, orders and to dismiss Belt's interpleader
action. Furthermore, we direct the probate court to vacate
its May 4, 2012, order insofar as it purported to approve the
wrongful-death settlement and order the distribution of the
funds to Kirksey, Thompson, and Gardner.
1130385 –- APPEAL DISMISSED.
Bolin, Shaw, Main, Wise, and Bryan, JJ., concur.
Murdock, J., concurs specially.
Moore, C.J., and Stuart, J., concur in the result.
1130403 –- PETITION GRANTED; WRIT ISSUED.
33
1130385, 1130403
Main, Wise, and Bryan, JJ., concur.
Bolin, Murdock, and Shaw, JJ., concur specially.
Stuart, J., concurs in the result.
Moore, C.J., dissents.
34
1130385, 1130403
BOLIN, Justice (concurring specially in case no. 1130403).
I note initially that I concur with this Court's main
opinion, including its conclusion that the omitted heirs'
cross-appeal be treated as a petition for a writ of mandamus
because the probate court's November 25, 2013, order was not
a judgment subject to certification of finality under Rule
54(b), Ala. R. Civ. P.; the question of a court's subject-
matter jurisdiction is reviewable by a petition for a writ of
mandamus.
Moreover, as a former probate judge, I am experienced and
familiar with the interplay of opening a decedent's estate in
the probate court for the primary purpose of allowing a
personal representative to file a wrongful-death claim in the
circuit court. Although I concur fully with this Court's main
opinion--vacating the probate court's orders based on that
court's lack of subject-matter jurisdiction to oversee the
distribution of the wrongful-death-settlement proceeds--I
write specially to note that on July 11, 2011, when the
learned probate judge appointed Bessie Kirksey as the
administrator ad litem for the purpose of gathering
"information to investigate a wrongful death claim," the judge
35
1130385, 1130403
was informed generally by this Court's decision in Affinity
Hospital, L.L.C. v. Williford, 21 So. 3d 712 (Ala.
2009)(holding that the probate court's order appointing an
administrator ad litem to investigate a possible wrongful-
death action on behalf of the deceased patient's estate also
granted administrator ad litem the authority to file such an
action). As demonstrated in the present opinion, this Court
has subsequently, and more narrowly, construed the plain
wording of § 6-5-410, Ala. Code 1975, to recognize a personal
representative as the proper party to initiate a wrongful-
death action. It is my judgment that Affinity Hospital, by
improperly allowing an administrator ad litem (again,
appointed by the probate court for a specific purpose) to
pursue a wrongful-death action, blurred the distinction
between the probate court's role and the circuit court's role
in wrongful-death actions, because it is the probate court
that generally monitors the actions of its own appointees. The
confusion created was exacerbated by the fact that it is the
probate court where heirship is usually determined, although
the beneficiary recipients (heirs at law of the decedent
pursuant to the statute of distributions) of damages as a
36
1130385, 1130403
result of a circuit court wrongful-death action are one and
the same. It is my judgment that the above combined to
substantially create much of the ensuing uncertainty as to
whether the probate court here had any oversight of, or, put
a better way, jurisdiction to judicially supervise the
safeguarding and proper disbursement of, the corpus created by
a successful wrongful-death action.
Whether justified or not, the confusion in this area of
estate/wrongful-death law has caused this Court to ultimately
remove any doubt by delineating that a probate court's
jurisdiction, in overseeing matters concerning the
administration of an estate, does not include those matters
pertaining to the settlement or the distribution of the
proceeds of a wrongful-death action, because such proceeds are
not part of the decedent's estate. See, e.g., Ex parte Taylor,
93 So. 3d 118 (Ala. 2012), in which Justice Murdock wrote
specially to discuss the role delegated to a personal
representative by § 6–5–410, Ala. Code 1975, and the proper
distribution of proceeds derived from a wrongful-death action,
when the probate court has issued an order concerning the
distribution of those proceeds; Golden Gate Nat'l Senior Care,
37
1130385, 1130403
LLC v. Roser, 94 So. 3d 365 (Ala. 2012), a case in which I
concurred specially to express my judgment that a wrongful-
death action may be instituted only by a personal
representative, and not by an administrator ad litem,
referencing Justice Murdock's special writing in Ex parte
Taylor explaining the role of a personal representative in the
context of a wrongful-death action; Ex parte Rodgers, 141 So.
3d 1038, 1042 (Ala. 2013), another case in which I concurred
specially and referenced Justice Murdock's special writing in
Ex parte Taylor; and, finally, Ex parte Wilson, 139 So. 3d 161
(Ala. 2013), in which I concurred specially regarding the
inability of an administrator ad litem to initiate a
wrongful-death action when the question of the capacity of the
administrator ad litem to bring such an action is properly and
timely presented to the trial court.
It is always easy to state what the law is, or what a
trial court should or should not have properly done, with the
cool reflection afforded an appellate court. I write specially
to note, however, that when the probate judge appointed an
administrator ad litem on July 11, 2011, he was acting in
conformity with this Court's precedent in Affinity Hospital,
38
1130385, 1130403
which empowered a probate court appointee to institute a
wrongful-death proceeding without there being in existence a
decedent's estate or a properly appointed personal
representative. Although the subsequent responsibility for
the proper conduct of a wrongful-death action should have been
borne by the circuit court, the probate judge in this
proceeding did not have the benefit of the above-cited and
later released special writings, none of which was controlling
precedent, as the probate court noted in its November 25,
2013, order.
In conclusion, it is no surprise to me that the probate
court cautiously intervened and the instant scenario occurred,
given (1) that the probate court, in appointing the
administrator ad litem, was guided by this Court's decision in
Affinity Hospital; (2) that the administrator ad litem
appointed by the probate court was empowered to litigate a
wrongful-death action to a jury verdict or effectuate a
settlement of potentially a large corpus of funds, despite the
fact that there was no estate proceeding determining heirship
and, in contravention of § 6-5-410, Ala. Code 1975, had been
no appointment of a personal representative; and (3) that,
39
1130385, 1130403
most importantly, the probate judge was bound by section C of
the Compliance provision of the Canons of Judicial Ethics
pertaining to probate judges, which states that "[a] probate
judge should consider himself the conservator of all estates
under his jurisdiction." "Compliance with the Canons of
Judicial Ethics," following Canon 7, Canons of Judicial
Ethics. Although there was no "estate" before the probate
judge as referred to in the Canon, there was certainly the
appointment of a party who, given the state of the law, could
create a corpus of funds payable to heirs –- as close to a
decedent's intestate estate as is possible without the actual
creation thereof.
40
1130385, 1130403
MURDOCK, Justice (concurring specially).
The main opinion concludes its review of the propriety of
the probate court's Rule 54(b), Ala. R. Civ. P., certification
of its November 25, 2013, order by reasoning that the probate
court's order was not properly certifiable as a final,
appealable judgment under Rule 54(b) because that order did
not "completely adjudicate" a claim. ___ So. 3d at ___. To
be clear, not only did the probate court's order not
"completely" adjudicate a claim, it did not even "partially"
adjudicate a claim. Indeed, to the contrary, it "undid" an
otherwise final adjudication of a claim, thereby leaving that
claim open for further consideration by the probate court.
Our precedents specifically hold that, except in unique
circumstances not present here, the grant of a Rule 60(b),
Ala. R. Civ. P., motion is not appealable for this very
reason, i.e., it vacates a final judgment and contemplates
further proceedings in the trial court. See, e.g., Washington
Mut. Bank, F.A. v. Campbell, 24 So. 3d 435, 439 (Ala. 2009)
(noting that "[a]n order granting a Rule 60(b), Ala. R. Civ.
P., motion generally is not appealable because 'further
41
1130385 and 1130403
proceedings are contemplated by the trial court.' Ex parte
Overton, 985 So. 2d 423, 424 (Ala. 2007).").
The "claims" to which Rule 54(b) refers are the claims for
substantive relief asserted by plaintiffs that create
lawsuits. See Rule 54, Ala. R. Civ. P. (addressing "claims
for relief ..., whether ... a claim, counterclaim, cross-
claim, or third-party claim"). Rule 54(b) addresses orders
that conclusively or finally dispose of such "claims," not
orders that reject defenses asserted by defendants and thereby
leave the plaintiff's claims that are the subject of the Rule
54(b) certification pending for further proceedings.
In the present case, the omitted heirs effectively
occupied the position of defendants in relation to Bessie
Kirksey's claims; they "defended" against Kirksey's claims, in
part, by seeking to persuade the probate court to dismiss
those claims for lack of subject-matter jurisdiction. The
probate court did not do that. Although it did choose on the
merits to undo its prior adjudication of Kirksey's claims, it
denied the defendant's motion to dismiss Kirksey's claims on
the ground, asserted by the omitted heirs, that the probate
court lacked subject-matter jurisdiction over those claims.
42
1130385 and 1130403
Thus, the probate court entered an order rejecting the defense
of lack of jurisdiction asserted by the omitted heirs, thereby
keeping Kirksey's claims alive for further proceedings. Such
an order is not an order otherwise subject to a certification
of finality under Rule 54(b); it did not settle the parties'
substantive rights in relation to one another. See, e.g.,
Banyan Corp. v. Leithead, 41 So. 3d 51, 54 (Ala. 2009)
(holding that the trial court erred in certifying an order as
a final, appealable judgment under Rule 54(b) because "the
order ... did not completely dispose of any of the substantive
claims in this case, nor did the order fully dispose of the
claims as they relate to at least one party"). See also,
e.g., State v. Brantley Land, L.L.C., 976 So. 2d 996, 999
(Ala. 2007) ("'"Only a fully adjudicated whole claim against
a party may be certified under Rule 54(b)."'" (quoting James
v. Alabama Coalition for Equity, Inc., 713 So. 2d 937, 942
(Ala. 1997), quoting in turn Sidag Aktiengesellschaft v.
Smoked Foods Prods. Co., 813 F.2d 81, 84 (5th Cir. 1987)
(emphasis omitted))); and Haynes v. Alfa Fin. Corp., 730 So.
2d 178, 181 (Ala. 1999) ("[F]or a Rule 54(b) certification of
finality to be effective, it must fully adjudicate at least
43
1130385 and 1130403
one claim or fully dispose of the claims as they relate to at
least one party.").
The Chief Justice, in his special writing, expresses a
reluctance to accept a petition for a writ of mandamus as the
appropriate vehicle for seeking relief from this Court. He
points to § 12-22-20, Ala. Code 1975, which he reads as
permitting an appeal to this Court of the probate court's
order. The language of § 12-22-20 quoted by the Chief
Justice, however, expressly permits an appeal only as to a
"final judgment, order or decree."
Nor does the decision of this Court in Watts v. Town of
Green Valley, 282 Ala. 555, 213 So. 2d 398 (1968), support the
notion that an appeal is available in this case. The judgment
appealed in Watts, which the trial court there had refused to
vacate, was a final judgment. That is, the judgment appealed
in Watts had conclusively adjudicated the rights of the
parties; the judgment had provided the plaintiffs the
substantive relief requested in their complaint, i.e., an
order requiring an election regarding the possible
incorporation of a new town. Similarly, the appeal in
McDonald v. Lyle, 270 Ala. 715, 121 So. 2d 885 (1960), was
44
1130385 and 1130403
from a judgment that had conclusively adjudicated the claims
at issue in that case -- salary claims brought by county
employees against various county commissioners.6 The fact that
the defenses asserted, but rejected by the trial court, in
both Watts and McDonald happened to be jurisdictional defenses
does not change the fact that the judgments entered by the
trial courts in those cases and appealed to this Court were in
and of themselves final judgments that finally decided the
claims asserted by the plaintiffs in those cases. The order
of the probate court here vacating its otherwise final
judgment adjudicating the claims of certain heirs and
requiring further proceedings as to those claims is the
opposite.
6
Both Watts and McDonald were decided by this Court prior
to the promulgation of Rule 54.
45
1130385 and 1130403
SHAW, Justice (concurring specially in case no. 1130403).
The issue in these cases is whether the probate court
possessed jurisdiction to oversee the actions of the "personal
representative" pursuing a wrongful-death action in the
circuit court. As the main opinion holds, it does not. I
agree.
Justice Bolin, in his special writing, expresses, among
other things, concern that this Court's holding in Affinity
Hospital, L.L.C. v. Williford, 21 So. 3d 712 (Ala. 2009), has
caused confusion as to whether an administrator ad litem may
be appointed to prosecute a wrongful-death action. I do not
believe that Affinity Hospital causes any such confusion.
That case addressed a narrow question: Did a "duly appointed"
administer ad litem have the capacity under the wrongful-death
act, § 6-5-410(a), Ala. Code 1975, to file a wrongful-death
action?7 I say "duly appointed" because the issue whether the
7
Although Affinity Hospital holds that an administrator
ad litem had the power to file a wrongful-death action, that
decision was not unprecedented, as the practice was noted in
numerous prior decisions: "There are several reported cases in
which it appears that an administrator ad litem, without
challenge, has filed a wrongful-death action. See, e.g., Ex
parte Sumter County, 953 So. 2d 1235 (Ala. 2006); Franks v.
Norfolk S. Ry., 679 So. 2d 214 (Ala. 1996); Fitts v. Minnesota
Mining & Mfg. Co., 581 So. 2d 819 (Ala. 1991); and Handley v.
Richards, 518 So. 2d 682, 683 (Ala. 1987) (Maddox, J.,
46
1130385 and 1130403
administrator ad litem had initially been properly appointed
by the probate court was not a matter before the Court in
Affinity Hospital:
"Trinity[8] also contends that an administrator
ad litem can be appointed only in connection with an
existing proceeding. Whether a proceeding must be
pending or existing before an administrator ad litem
can be appointed does not touch upon the issue
presented in this case: Whether an administrator ad
litem has the power, capacity, or authority to file
a wrongful-death action under § 6-5-410. Instead,
Trinity's argument challenges whether Williford was
properly appointed in the first place.
"However, for purposes of the question,
certified on this permissive appeal, the circuit
court assumed that Williford was properly appointed
as an administrator ad litem. Specifically, the
circuit court's order certifying the question was
based on the premise that Williford 'was duly
appointed under Ala. Code [1975,] § 42-2-250 by the
Jefferson County Probate Court as Administrator Ad
Litem,' and the question it certified asks if 'the
administrator ad litem' had 'the capacity to file
this wrongful death suit ....' Trinity's issue is
thus outside the scope of the questions certified in
this case."
concurring specially)." Affinity Hosp., 21 So. 3d at 716.
See also Golden Gate Nat'l Senior Care, LLC v. Roser, 94 So.
3d 365, 366 (Ala. 2012) (Bolin, J., concurring specially)
("The case that arguably created the practice of appointing an
administrator ad litem to file a wrongful-death action is
Franks v. Norfolk Southern Railway, 679 So. 2d 214 (1996).").
8
"Trinity" was a collective reference for Affinity
Hospital, L.L.C., d/b/a Trinity Medical Center, and David
Brittin, R.N.
47
1130385 and 1130403
Affinity Hosp., 21 So.3d at 718 n.4. Affinity Hospital cannot
be read to speak to whether an administrator ad litem can be
properly appointed under § 43-2-250, Ala. Code 1975, to pursue
a wrongful-death action in the first place; whether the
appointment in that case met the criteria of § 43-2-250,
including issues as to whether an "existing" proceeding was
required and whether the estate needed representation, was not
addressed.
That an administrator ad litem, properly appointed, may
file a wrongful-death action in no way confuses the issue
whether a probate court may oversee the actions of the
"personal representative" in a wrongful-death action. The
probate court's attempts in the instant case to oversee the
distribution of the proceeds of the wrongful-death action
could have occurred even if Bessie Kirksey had been an
administrator or executor. Any purported mistakes or fraud in
the distribution of the proceeds could just have easily been
committed by an administrator or executor. Nothing in the
actual holding of Affinity Hospital contributed to the conduct
in the instant case.
48
1130385, 1130403
MOORE, Chief Justice (concurring in the result in case no.
1130385 and dissenting in case no. 1130403).
I concur with the conclusion of the main opinion that the
probate court lacked subject-matter jurisdiction to oversee
the wrongful-death settlement and the distribution of the
settlement proceeds. However, I concur in the result in case
no. 1130385 and dissent in case no. 1130403 because, pursuant
to § 12-22-20, Ala. Code 1975, I believe both cases are
properly before us on appeal from a "final decree of the
probate court, or from any final judgment, order or decree of
the probate judge." In my opinion, the Court, while correctly
identifying the jurisdictional defect in the probate
proceedings, unnecessarily treats the omitted heirs' cross-
appeal as a petition for the extraordinary writ of mandamus.
The main opinion addresses as a threshold issue whether
the probate court's Rule 54(b), Ala. R. Civ. P., certification
of its November 25, 2013, order was proper. Having determined
that the order was not properly certified as a final order,
the main opinion goes on to treat the omitted heirs' cross-
appeal as a petition for a writ of mandamus. However, both
Bessie Kirksey and the omitted heirs expressly invoked this
49
1130385, 1130403
Court's jurisdiction to hear their appeals as of right
pursuant to § 12-22-20, Ala. Code 1975, not from a judgment
made final pursuant to Rule 54(b).
Section 12-22-20 is an independent source of appellate
jurisdiction that does not depend upon a trial court's
certifying the challenged order as final under Rule 54(b).
Although an appeal from a Rule 54(b) order lies only if the
order "dispose[d] of at least one of a number of claims or one
of multiple parties," Ex parte Noland Hosp. Montgomery, LLC,
127 So. 3d 1160, 1165-66 (Ala. 2012), under § 12-22-20,
"[a]n appeal lies to the circuit court or
Supreme Court from any final decree of the probate
court, or from any final judgment, order or decree of
the probate judge; and, in all cases where it may of
right be done, the appellate court shall render such
decree, order or judgment as the probate court ought
to have rendered."
(Emphasis added.) The main opinion attaches significance to
the probate court's Rule 54(b) certification of its November
25, 2013, order, when in fact, I believe the parties properly
invoked this Court's appellate jurisdiction under § 12-22-20,
Ala. Code 1975. Pursuant to that provision, I believe this
Court has jurisdiction to hear the parties' appeals, even if
50
1130385, 1130403
the probate court had not certified its order as a final
judgment.
In their September 25, 2013, motion, the omitted heirs
challenged the probate court's subject-matter jurisdiction and
asked the probate court to vacate its August 26, 2013, order
insofar as it reopened Willie May Graves's estate and
appointed the county administrator to preside over subsequent
proceedings. The procedural posture of this case closely
resembles that in Watts v. Town of Green Valley, 282 Ala. 555,
213 So. 2d 398 (1968). In Watts, a probate court exercised its
special statutory jurisdiction to order that an election be
held among residents of a town to determine whether to
incorporate the town. Watts then moved the probate court to
set aside its order on the ground that the court lacked
subject-matter jurisdiction to issue the order. The alleged
jurisdictional defect resulted from the fact that one of four
individuals who had signed the petition to incorporate the
town was not a qualified elector, as required by statute. The
probate court determined that it had jurisdiction, and Watts
appealed to this Court.
51
1130385, 1130403
This Court reversed the order of the probate court on the
ground that the disqualification of the signatory deprived the
probate court of jurisdiction over the proceeding. Our
reasoning and holding bears reiterating because I believe it
applies with equal force to the instant case:
"Here, there was a [d]irect attack on the
validity of the decrees, which direct attack
questioned the jurisdiction of the court to render
such decrees, and moved the court that they be
vacated. Such direct attack was filed in the court
that rendered the decrees. The alleged facts recited
in the decree, or decrees, as to the jurisdiction of
the court, was contradicted by primary records in the
proceeding, and disclosed the lack of jurisdiction on
the part of the court ....
"....
"The question of jurisdiction is always
fundamental and is a question of primary importance
in every case, and if there is an absence of
jurisdiction over subject matter, it is fatal. ...
"....
"...[A]n absence of jurisdiction was shown
because one of the necessary condition precedents
establishing such jurisdiction was proven to be not
existing. ...
"Here, if the subject matter before the probate
court was an ordinary power vesting in the court
without being dependent upon a special statute ...
the rule relative to jurisdictional matters before
the court may have been different. ...
52
1130385, 1130403
"However, the power vested in the probate court
... was not an ordinary or general power vested in
the court, but was a special limited or statutory
power being exercised by a court of limited
jurisdiction. ...
"Here, the judicial act of the probate court in
deciding it had jurisdiction was an erroneous
conclusion in view of the facts before the court on
direct attack of the court's decrees. Viewing the
record of the probate court proceedings, it is clear
from such record now before this court by transcript
and bill of exceptions, that the court was without
authority to enter its decrees from which rulings of
that court this appeal was taken.
"When the evidence clearly established lack of
jurisdiction over the subject matter, the proceedings
should have ended for they were void. ...
"No issue has been raised as to the propriety of
the motions to vacate the probate court's decrees
from a procedural standpoint. However, we think such
motions were proper procedure, and the court had the
power to vacate its decrees on motion. An appeal is
the proper remedy where the trial court fails to
vacate a void decree. Doby v. Carroll, 274 Ala. 273,
147 So. 2d 803 [(1962)]; McDonald v. Lyle, 270 Ala.
715, 121 So. 2d 885 [(1960)].
"It therefore follows that the probate court
should have granted the motions seeking to vacate its
decrees, such decrees being void for lack of
jurisdiction on the part of the court."
282 Ala. at 559-62, 213 So. 2d at 402-04 (all but first
emphasis added).
Additionally, in McDonald v. Lyle, 274 Ala. 273, 121 So.
2d 885 (1960), we declared that when a trial court issues a
53
1130385, 1130403
judgment that is void for lack of subject-matter jurisdiction
and fails to vacate that void judgment on motion of an
interested party, the appropriate remedy is an appeal. Thus,
under § 12-22-20, Ala. Code 1975, "an appeal is the proper
remedy where the probate court fails to vacate an allegedly
void judgment. Therefore, an appeal, not a petition for a writ
of mandamus, provides [the petitioners] the proper mode for
attacking the probate court's judgment. Mandamus is an
extraordinary writ, and [the petitioners] cannot use it as a
substitute for an appeal." Ex parte Town of Valley Grande, 885
So. 2d 768, 771 (Ala. 2003)(emphasis added).
Because the probate court's November 25, 2013, order,
like the orders in Watts and Town of Valley Grande, failed to
vacate its allegedly void order of August 26, 2013, I believe
that order was directly appealable under § 12-22-20, Ala. Code
1975. The probate court lacked subject-matter jurisdiction to
oversee the settlement of the wrongful-death action and the
distribution of the wrongful-death-settlement proceeds.
Therefore, "every order and judgment entered in this case
[with respect to that issue] was void, including the judgments
from which this appeal was taken. A void judgment will not
54
1130385, 1130403
support an appeal." Bernals, Inc. v. Kessler-Greystone, LLC,
70 So. 3d 315, 321 (Ala. 2011)(vacating a default judgment and
dismissing an appeal from that and other orders, on the ground
that the trial court lacked jurisdiction to hear the case).
Section 12-22-20 instructs us, when hearing an appeal, to
"render such ... order or judgment as the probate court ought
to have rendered." Therefore, I believe we should dismiss both
Bessie Kirksey's appeal and the omitted heirs' cross-appeal,
vacate the probate court's orders of August 26, 2013, and
November 25, 2013, direct the probate court to dismiss the
interpleader action, and hold that the language of the probate
court's May 4, 2012, order approving the wrongful-death
settlement and ordering the distribution of the proceeds is of
no effect.
55
Bessie Kirksey v. Iris Johnson
Combined Opinion