author: HARWOOD, Justice.

text:
    Melissa Dawn PIRTLE and Anna Dell Prchal v. John Wayne TUCKER.
    1050907.
    Supreme Court of Alabama.
    Dec. 15, 2006.

      James P. Hess of Hess & McMurtrie, P.C., Huntsville, for appellants.
    P. Scott Arnston and Jeffrey T. Kelly of Lanier Ford Shaver & Payne, P.C., Huntsville, for appellee.
   HARWOOD, Justice.

Melissa Dawn Pirtle and Anna Dell Prchal, contestants in a will contest involving a document purported to be the will of their grandfather, James F. Miller, appeal from the summary judgment entered in favor of the proponent and sole beneficiary of the will, John Wayne Tucker. Pirtle and Prchal contend that the will was the product of Tucker’s undue influence over Miller, that Miller lacked testamentary capacity, and that the will was, for those and for additional reasons, invalid. They argue that the circuit court erred in entering the summary judgment for Tucker because, they say, there existed several questions of material fact. We affirm in part, reverse in part, and remand.

This Court’s standard for reviewing a summary judgment is settled:

“This Court reviews a summary judgment de novo. Turner v. Westhampton Court, L.L.C., 903 So.2d 82, 87 (Ala.2004). We seek to determine whether the movant has made a prima facie showing that there exists no genuine issue of material fact and has demonstrated that the movant is entitled to a judgment as a matter of law. Turner, supra. In reviewing a summary judgment, this Court reviews the evidence in the light most favorable to the nonmov-ant. Turner, supra. Once the movant makes a prima facie showing that he is entitled to a summary judgment, the burden shifts to the nonmovant to produce ‘substantial evidence’ creating a genuine issue of material fact. Ala.Code 1975, § 12-21-12; Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). ‘Substantial evidence’ is ‘evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ West v. Founders Life Assurance Co. of Fla., 547 So.2d 870, 871 (Ala.1989).”

Muller v. Seeds, 919 So.2d 1174, 1176-77 (Ala.2005). We apply that same standard in reviewing a summary judgment entered in a will contest. See Allen v. Sconyers, 669 So.2d 113, 115 (Ala.1995). Because Pirtle and Prchal do not argue on appeal that Tucker failed to meet his prima facie burden, we are concerned only with whether the elements of their claims were supported by substantial evidence.

The undisputed record, viewed in the light most favorable to Pirtle and Prchal, the nonmovants, shows the following facts. The testator, James F. Miller, died on September 11, 2004. Twice widowed and once divorced, Miller lived alone for several years immediately preceding his death. Miller’s relationships with his surviving relatives, two sisters and his granddaughters, Pirtle and Prchal, were limited. Pir-tle and Prchal both lived in Tennessee, approximately 30 miles from Miller’s house in Madison County. Prchal testified that she had a good relationship with Miller and that her visits to Miller’s house varied in number between one and several times each year, although she usually did not see him during holidays. When his health began to fail during the last year of his life, Prchal visited him more frequently, and except for a two-month period during which she underwent and recovered from surgery, she saw him several times each month at his house, in the hospital when he was hospitalized, and at the nursing home after he was admitted there. Prchal was with Miller the day before he died. Pirtle saw Miller a couple of times each year and had only a limited knowledge of his daily life. Pirtle did not attempt to contact the hospital or nursing home to check on Miller’s condition. Tucker testified that in early 2004, Miller did not know exactly where his granddaughters lived.

Miller and Tucker had been neighbors since approximately 1977. Tucker testified that he “adopted” Miller as a father figure after his own father died and that, during the last 10 years of Miller’s life, he and Miller spent time together nearly every day. Pirtle testified that Miller did not talk to her about Tucker until approximately two years before he died. Miller’s friend, Patrick Meagher, stated in an affidavit that at some point during his 16-year friendship with Miller, Miller had referred to Tucker as “a g.. d... leach,” and, referring to Tucker, had once remarked, “He’s always wanting something,” or words to that effect. Meagher did not specify when Miller made these statements.

Miller was described by his pastor as eccentric. He had no telephone and spent much of his time collecting items and making things out of odd items he found. A motorcycle was Miller’s primary means of transportation until he could no longer drive it, approximately one year before his death. The evidence showed that Miller spent much time in a shed in his backyard. Pirtle and Prchal testified that during the last year of his life, Miller moved into the shed. Tucker testified that Miller would work in the shed until he fell asleep and would then move into the house when he woke up in the middle of the night. Prchal described Miller as a “pack rat” who, at times, spent time in jail rather than pay fines for violating certain rules or ordinances regarding the trash and other items in his yard. Pirtle testified that Miller’s neighbors complained to her that he would urinate and defecate in his backyard.

Miller had a history of diabetes and heart problems. During the last year of his life, Miller’s health had declined, particularly during the last six months. Additionally, Miller’s eyesight grew bad, to the point that he had difficulty reading. In early 2004, when Miller could no longer drive his motorcycle, he became dependent upon Tucker for transportation. Tucker often took Miller with him while he attended to his own business. Miller came to depend on Tucker for at least two of his meals each day, and beginning in March 2004 Tucker made sure that Miller took his medications. Tucker frequently checked on Miller late at night. Pirtle and Prchal did not complain about Tucker’s increasing care of Miller; they were grateful for his help because they did not live nearby.

Miller’s accountant, Brooks Gentle, who had prepared Miller’s income tax returns for approximately 15 years, testified that when he prepared Miller’s 2003 tax returns in mid-March 2004, Miller was “an average person like everyone else” and acted the same way as he had in previous years. Gentle testified that Tucker did accompany Miller to the office on that occasion.

In February 2004, when Miller and Tucker were at an office-supply store, Miller purchased a “will kit.” Tucker testified that in March 2004, Miller asked if Tucker’s wife would type his will. She did so on a computer at her and Tucker’s house. Miller did not execute the will when it was prepared. Tucker further testified that he never talked with Miller about the will before Miller executed it, and never saw it when his wife prepared it or before it was executed.

The will consists of one page of text and a separate signature page. The size and style of the font on the signature page is different from the size and style of the font of the text of the will. When questioned about the discrepancy, Tucker explained that his wife had typed the page of text and that Miller had used a form from the will kit for the signature page.

The will appoints Tucker as Miller’s personal representative and gives Miller’s entire estate to Tucker. The will also contains the following statements: “Should either of the granddaughters contest this will they shall be automatically removed as a legal heir,” and “I hereby declare that this Will and Testament is not made as the result of a contract of understanding with any other person but solely of my own free will.” Tucker testified that Miller discussed with him his appointment as personal representative of Miller’s estate but not the disposition of his property; Miller told Tucker only that he did not want his sisters to have anything and that he did not want Pirtle and Prchal to be in his house or to see how he had “collected things.”

Tucker testified that Miller told him both before and after he executed the will that he wanted Pirtle and Prchal to each have $50,000 from one of his bank accounts. Tucker also testified that in April 2004 Miller stated that he wanted Tucker “to supply [Pirtle and Prchal] with some monies, whatever was left, over a period of five years.” Tucker understood Miller to mean that Pirtle and Prchal were to have whatever money remained after he died. Prchal testified that her grandfather was the type of person who would have told her that he was disinheriting her if he was doing so and that he never told her that.

When Tucker’s wife typed Miller’s will, she also prepared a power of attorney appointing Tucker as Miller’s attorney in fact. As with the will, the size and style of the font of the signature page for the power of attorney was different from the size and style of the font on the first page, and Tucker explained that the signature page was a form from the will kit. According to Tucker, he and Miller discussed the terms of the power of attorney, but Miller did not execute the power of attorney when it was prepared.

Tucker testified that in April 2004 Miller had a “real downfall” in health, and he was frequently “in and out of the hospital.” Miller’s medical records show that he lost 20 pounds between April 2004 and July 2004. Tucker transported Miller to and from the hospital and doctor’s offices and cared for him while he recuperated. In April 2004, Tucker began going into the doctors’ examination rooms with Miller. The record shows that Miller underwent a colonoscopy in mid-April 2004 and that he was hospitalized on April 23 for a few days and again on April 30. It is undisputed that Tucker did not always notify Miller’s family when Miller was hospitalized.

Miller was hospitalized on April 23, 2004, because of shortness of breath and weight loss; he was confused, disoriented, and noncooperative with the hospital staff to the extent that he had to be restrained. The “history and physical” records for that hospitalization noted that he had not been able to care for himself for a week before he was admitted. Prchal testified that when she visited Miller on April 25, 2004, he could carry on a conversation, but he was weak, had trouble breathing and expressing himself, would lose his train of thought, and made statements about things that were not there. Pirtle and Prchal also testified that on April 25, Miller told them that he wanted them to “have everything.” They testified that, at that time, Miller was of sound mind and competent to decide that he wanted them to “have everything.” Although she could not remember when the conversation took place, Prchal also testified that while she was subsequently visiting him at the shed in his backyard, Miller told her he wanted her and Pirtle to have everything. Miller was discharged on April 28, 2004, to care for himself at home.

Miller was readmitted to the hospital on April 30, 2004, with severe bleeding as a result of his colonoscopy. The medical records in evidence for that hospitalization do not mention the confusion, disorientation, and noncooperation mentioned in the records of the April 23 hospitalization, and they describe Miller as “alert, coherent, [and] well oriented to time.” These records, including Miller’s chart for May 3, 2004, consistently describe Miller as “Alert & oriented x3.” Miller was discharged to “self-care” on May 3, 2004.

Tucker testified that on May 4, 2004, one day following Miller’s discharge from the hospital, Miller asked Tucker to drive him to his accountant’s office to execute his will. The men went to the office of Mildred Moorehead, a local accountant who was also a notary. Brooks Gentle was an accountant in Moorehead’s office, and through his relationship with Gentle, Miller had known Moorehead for at least five years. Miller signed the will in Tucker’s presence in a small room in Moorehead’s office. Moorehead testified that Tucker did not take part in or interfere with the execution of the will. Moorehead testified that Miller seemed like “just a normal person” and that she was “sure” he was of sound mind. She stated that he did not stay long at her office. Moorehead did not question Miller about the contents of the document he executed; however, she did ask Miller if he understood what he was signing, and he responded, “[0]f course I know what I’m signing.”

Two different copies of the signature page of the will exist. One contains only Miller’s signature and Moorehead’s notarization. The other contains Miller’s signature, Moorehead’s notarization, and the signatures of two witnesses, who, the evidence showed, were Moorehead’s employees. Moorehead testified that she recalled seeing the witnesses sign the will but stated that she did not know whether they signed the will before or after Miller had signed. The witnesses’ signatures themselves are not dated, but the signature block contains the following statement: “The testator has signed this will at the end and on each other separate page, and has declared or signified in our presence that it is his/her last will and testament, and in the presence of the testator and each other we have hereunto subscribed our names this_ day of-20 —”

Tucker testified that Miller gave him a copy of the executed will in a folder and told him to keep it and that he did not open the folder until Miller had died. He testified that Miller had no will before May 4, 2004. Tucker never told Miller’s family that Miller had executed a will. Prchal testified that Miller told her in July 2004 that he did not have a will.

On the same day Miller executed the will, he signed the power of attorney Tucker’s wife had prepared, appointing Tucker as his attorney in fact. Tucker subsequently used the power of attorney to handle Miller’s financial affairs. Tucker closed bank accounts, transferred funds between accounts, and helped Miller pay bills. He also arranged for two certificates of deposit, worth $180,000 and $25,000, respectively, to be transferred from Miller’s sole ownership to ownership by him and Miller jointly with right of survivorship. Tucker stated that he had the certificates transferred to his name and Miller’s name at Miller’s instruction.

Miller was hospitalized from July 28 to August 17, 2004. His medical records from this time show that he was experiencing confusion and dementia. According to Miller’s admission records, Tucker used the power of attorney to give the hospital a “do-not-resuscitate” order, to be used if Miller’s health worsened. An August 7 physician’s consultation report included in the hospital records reveals that Miller was “incompetent to make any decision, including those related to his medical care” and that Miller’s “friend,” Tucker, “reported that he [had been] unable to make decisions for the past several months.” Although it is unclear from the testimony, the medical records reveal that Miller was released from the hospitalization to a nursing home. The report contains the following statement:

“At the time of discharge the patient was extremely weak. He [was] not able to help himself. He was being advised to go to a rehabilitation nursing home.... I talked to the patient’s granddaughter who came to see him a few times but does not want to take care of full responsibility for his placement. His caretaker Mr. Tucker who seems to have power of attorney is willing to take care of him and he is agreeable for him to go to [a] short term rehabilitation nursing home.”

The nurses in the hospital advised Pirtle that, pursuant to the power of attorney, Tucker had instructed the hospital to notify only him when Miller was admitted or discharged. The hospital and/or nursing home had refused to show Miller’s family the power of attorney, and they went to Tucker’s house in order to read it. While Miller was in the nursing home, Tucker, at the request of the nursing home administration, obtained a second power of attorney drafted by Tucker’s lawyer.

Miller was hospitalized again on August 22, 2004, presenting with malnourishment, dementia, and chronic illness. Miller died on September 11, 2004. Tucker left messages on the telephone answering machine for Pirtle or Prchal advising them that Miller had died. When he did not immediately hear back from them, he planned Miller’s funeral without the family’s involvement. Tucker testified that he also left a telephone message for either Pirtle or Prchal in which he told her Miller wanted her and her sister each to have $50,000 disbursed over a five-year period, but that he wanted to give them the full amount immediately. Pirtle testified that she actually spoke with Tucker, and he advised her that she and Prchal were each to have $100,000 paid to them over a five-year period.

Tucker subsequently filed a petition to probate the will with the Probate Court of Madison County. After several intermediate filings, Pirtle and Prchal filed a petition to remove the proceedings to the Madison Circuit Court and filed a complaint contesting the will. They asserted that the will had not been properly executed, that the will was the product of undue influence on Tucker’s part, and that Miller lacked testamentary capacity. Tucker subsequently filed a motion for a summary judgment. Pirtle and Prchal did not file a brief in response to Tucker’s motion, but they did submit additional evidence. Following a hearing the circuit court entered a summary judgment in Tucker’s favor. Pirtle and Prchal filed a Rule 59, Ala. R. Civ. P., motion and a brief in support of the motion, asking the circuit court to alter, amend, or vacate the judgment. In their Rule 59 motion, Pirtle and Prchal also raised the argument that Miller’s will did not reflect his true intent in disposing of his property. Their motion was subsequently denied by operation of law, and Pirtle and Prchal appealed.

I. Was the Will Properly Executed?

Pirtle and Prchal argue that they presented substantial evidence showing that the will is invalid because it was not properly witnessed. They assert that because there existed a copy of the signature page containing only Miller’s signature and Moorehead’s notarization, a jury could infer that the witnesses did not see Miller sign or acknowledge the will. Tucker argues that because their argument is based upon impermissible speculation, the circuit court’s judgment was proper in this regard.

In Ala.Code 1975, § 43-8-131, the legislature has stated the requirements for the execution and witnessing of a will:

“Except as provided within section 43-8-135 [not applicable here], every will shall be in writing signed by the testator or in the testator’s name by some other person in the testator’s presence and by his direction, and shall be signed by at least two persons each of whom witnessed either the signing or the testator’s acknowledgment of the signature or of the will.”

In order to overturn the summary judgment on the basis that the will was not properly executed, Pirtle and Prchal must show by substantial evidence that the witnesses did not see “the signing or [Miller’s] acknowledgment of the signature or of the will.”

The evidence showed that the notary saw Miller sign the will; that she notarized the will; that her employees signed the will as witnesses on the same day; and that Miller did not stay at the notary’s office very long. Additionally, the witnesses attested to the following statement: “The testator has signed this will at the end and on each other separate page, and has declared or signified in our presence that it is his/her last will and testament, and in the presence of the testator and each other we have hereunto subscribed our names this_day of_, 20 —” The record does not reveal whether the witnesses did or did not see Miller sign or acknowledge the will. Pirtle and Prchal offered no testimony from the witnesses themselves, and the notary was not asked during her deposition whether the witnesses were present when Miller signed the will or whether he acknowledged signing it in their presence. Pirtle and Prchal argue that a summary judgment was improper because, they argue, a jury could infer that the witnesses signed the will after Miller had left, and, .based on that inference, could infer that the witnesses did not see him sign or acknowledge it.

We have held:

“An ‘inference’ is a reasonable deduction of fact, unknown or unproved, from a fact that is known or proved. See, Malone Freight Lines, Inc. v. McCardle, 277 Ala. 100, 167 So.2d 274 (1964). ‘[A]n inference cannot be derived from another inference.’ Malone, 277 Ala. at 107, 167 So.2d at 281. An inference must be based on a known or proved fact. Id.”

Khirieh v. State Farm Mut. Auto. Ins. Co., 594 So.2d 1220, 1224 (Ala.1992); accord Systrends, Inc. v. Group 8760, L.L.C., 959 So.2d 1052 (Ala.2006). The inference upon which Pirtle and Prchal rely — that the witnesses did not see Miller sign or acknowledge the document — is not based on known or proved facts, but upon an inference that Miller left the notary’s office before the witnesses signed Miller’s will. Such an inference is not based on substantial evidence sufficient to withstand a summary-judgment motion. Furthermore, the witnesses signed a statement attesting that Miller had signed or acknowledged in their presence signing the will. Accordingly, the circuit court correctly entered a summary judgment as to this issue.

II. Was the Will the Product of Undue Influence?

Pirtle and Prchal next contend that they presented substantial evidence showing that the will was the product of Tucker’s undue influence. This Court has held:

“A presumption of undue influence arises when: (1) there is a confidential relationship between a favored beneficiary and the testator, (2) the influence of the beneficiary is dominant and controlling in that relationship, and (3) there is undue activity by the beneficiary in procuring the execution of the will.”

Hayes v. Apperson, 826 So.2d 798, 802 (Ala.2002); accord Allen v. Sconyers, 669 So.2d 113, 117 (Ala.1995). In considering these elements, this Court has recognized:

“-‘[I]t is next to impossible to produce direct evidence of the exercise of undue influence over another person. Frequently the best evidence which can be offered for either [the] proponent [of a will] or [the] contestant is circumstantial, tending only to support inferences which can be drawn therefrom.’ Smith v. Moore, 278 Ala. 173, 177, 176 So.2d 868, 871 (1965); see also Crump v. Moss, 517 So.2d at 612 (noting that the evidence required ‘to raise a presumption of undue influence’ can be either direct or circumstantial).”

Ex parte Henderson, 732 So.2d 295, 299 (Ala.1999) (bracketed language in original). Additionally, “a trial court should not look at individual facts or evidence in isolation in determining whether the evidence supports the element of undue influence.... ” Hayes, 826 So.2d at 803.

“[T]he facts shown by the evidence are not considered in a vacuum; rather, ‘each fact should be considered in the context of the entire situation and in light of the other two criteria for determining undue influence.’ Crump [v. Moss], 517 So.2d [609] at 613 [ (Ala.1987) ].”

Henderson, 732 So.2d at 299. Keeping in mind these principles, we review each element to determine whether Pirtle and Prchal presented substantial evidence creating a genuine issue of material fact as to whether Tucker exerted undue influence over Miller.

A. A confidential relationship between a favored beneficiary and the testator

The parties stipulated that Tucker and Miller had a confidential relationship. They dispute whether there was substantial evidence showing that Tucker was a favored beneficiary under Miller’s will. This Court has defined a favored beneficiary as

“[o]ne who, in the circumstances of the particular case, has been favored over others having equal claim to the testator’s bounty. An unnatural discrimination, leading to a natural inference that advantage has been taken by one in position so to do; and shown to have been busy in getting such will executed.”

Cook v. Morton, 241 Ala. 188, 192, 1 So.2d 890, 892 (1941).

Citing Clifton v. Clifton, 529 So.2d 980, 983 (Ala.1988), in which this Court stated that the “ ‘equal claim’ of others refers not to the laws of descent and distribution, but to the facts of the particular case,” and Windham v. Pope, 474 So.2d 1075 (Ala.1985), Tucker asserts that there is no evidence indicating that Pirtle and Prchal had an equal claim to Miller’s bounty or that any discrimination in Tucker’s favor was unnatural. According to Tucker, under the particular facts of this case, Pirtle and Prchal’s claim was not equal because they had had only minimal contacts with their grandfather, they had not been involved in his daily life, and they had left Miller to Tucker’s care. (Tucker’s brief at 31-32.)

The statement from Clifton originated from this Court’s explanation in Cook, supra, that the fact that a wife received more under a will than she would have under dower and homestead laws was not a determinative test of whether she was a favored beneficiary. Cook, 241 Ala. at 192, 1 So.2d at 892. Instead, the Court reviewed the evidence to see whether the wife “had dominating power over her husband.” 241 Ala. at 192, 1 So.2d at 892. In light of its original context, this statement does not require us to ignore wholly the fact that Pirtle and Prchal were Miller’s closest living issue.

In Windham, this Court reversed a judgment entered on a jury verdict in favor of a will contestant. 474 So.2d at 1076. The testator, a widower with no children, executed a will leaving one parcel of property to the daughter of his brother-in-law. Although the evidence showed that the brother-in-law was present when the testator signed the will and that both he and his daughter had helped the testator with his financial affairs, this Court found that

“there was no evidence indicating that others had a claim to the testator’s sympathy or benevolence which was equal to or greater than the devisee’s.... The record is devoid of evidence as to who the natural objects of the testator’s bounty might have been. He was a widower without children. There was no evidence tending to show that he was closer to some other person or persons than he was to [his brother-in-law’s daughter].”

474 So.2d at 1077. Furthermore, because the will devised only one. portion of the testator’s estate and there was no evidence showing the value of the remaining estate or how it would be distributed, it was “mere speculation to conclude that [the devisee] was to receive a disproportionate share of the estate under the will.” 474 So.2d at 1077.

The facts underlying this Court’s decision in Windham differ materially from those of this case. Unlike the testator in Windham, Miller had blood descendants— his granddaughters, Pirtle and Prchal— who would have inherited Miller’s entire estate under Alabama’s laws of intestacy. Ala.Code 1975, § 43-8-42. Furthermore, Miller’s will devises his entire estate to Tucker, not just one part. We can, therefore, determine that the will significantly favors Tucker over Pirtle and Prchal. Pir-tle and Prchal presented evidence indicating that Miller wanted them to have either his entire estate, whatever money was left in his estate, or $100,000. This evidence shows that Pirtle and Prchal were objects of his bounty and raises an inference that their claim to Miller’s bounty was equal to Tucker’s, whereas in Windham, there existed no evidence on which to make a similar determination. Finally, although it is clear that Tucker helped Miller in the latter stages of Miller’s life, the evidence does not show that he helped Miller so much that the “the testamentary disposition [of Miller’s entire estate to Tucker] is proper as a matter of law.” Armstrong v. McGee, 579 So.2d 1310, 1314 (Ala.1991).

As stated in the definition of favored beneficiary, whether one is a favored beneficiary depends upon the circumstances of the particular case. See also Cleveland v. Central Bank of the South, 574 So.2d 741, 744 (Ala.1990) (finding sufficient evidence that proponent “was a favored beneficiary, particularly when this issue is viewed in the light of the totality of the evidence”). Under the circumstances of this case as revealed in the evidence discussed above, Pirtle and Prchal have presented substantial evidence indicating that they had a claim to Miller’s bounty equal to Tucker’s and that the will favors Tucker over them. Therefore, there exists a genuine issue of material fact as to whether Tucker was a favored beneficiary.

B. A dominant and controlling relationship

For Pirtle and Prchal to survive a summary-judgment motion, there must be substantial evidence indicating that Tucker’s influence over Miller was dominant and controlling in the relationship. In considering what evidence satisfies this requirement, this “Court has held on numerous occasions that the fact that a beneficiary controls the personal, business, and household affairs of a testator is evidence of a dominant and controlling influence.” Hayes v. Apperson, 826 So.2d at 804 (reversing judgment for proponent of will).

The evidence shows that Tucker provided Miller’s sole means of transportation at the end of his life and that Miller was dependent on Tucker for two meals and his medicine each day. Tucker helped Miller pay his bills, ultimately gained power over Miller’s financial affairs, and used that power to transfer certificates of deposit worth over $200,000, which benefited himself. Tucker accompanied Miller into his doctors’ examination rooms and cared for Miller when he was released from the hospital. During the month preceding the execution of his will, Miller was hospitalized twice; during the first hospitalization, he exhibited signs of confusion, disorientation, and an unwillingness to comply with the hospital staff. Miller had poor eyesight in the months preceding his death. and had difficulty reading. Tucker’s wife prepared Miller’s will and a power of attorney for Miller in Tucker’s favor. Tucker did not always inform Miller’s family members when he was hospitalized, and after the will was executed, Tucker used the power of attorney to issue a do-not-resuscitate order and to instruct the hospital staff to notify only him when Miller was admitted or released.

The evidence thus shows Tucker’s control over Miller’s financial and numerous of his personal affairs. When that evidence is coupled with the evidence of Miller’s diminished mental state during his hospitalization the month preceding the execution of the will, a jury could determine that Tucker’s influence in the relationship was dominant and controlling. See, e.g., Hayes, 826 So.2d at 804; Allen v. Sconyers, 669 So.2d at 117. Furthermore, although the events occurred after Miller signed the will, we note that the transfer of the certificates of deposit and the do-not-resuscitate order certainly show a controlling influence by Tucker.

This Court has recognized that whether “the beneficiary was the dominant party in the relationship is usually a question of fact for the jury, and the jury may review the often circumstantial evidence as to whether there were controlling influences over the testator’s behavior.” Sconyers, 669 So.2d at 117; see also Ex parte Helms, 873 So.2d 1139, 1148 (Ala.2003). Accordingly, although no single piece of evidence in this case is alone sufficient to withstand summary judgment, when taken together the evidence constitutes substantial evidence creating a genuine issue of material fact as to whether Tucker had a dominant and controlling influence in his relationship with Miller. Thus, summary judgment was not appropriate.

C. Undue activity in procuring the execution of the will

Finally, to survive the summary-judgment motion as to their undue-influence claim, Pirtle and Prchal must present substantial evidence of undue activity by Tucker in procuring the execution of Miller’s will. “Undue activity in the procurement or execution of a will may ... be proved by circumstantial evidence.” Sconyers, 669 So.2d at 117. This Court has

“described this sort of activity in the procurement of a will as being where the primary beneficiary
“ ‘[is] active in and about the execution and preparation of said will, such as the initiation of the proceedings for the preparation of the will, or participation in such preparation, employing the draftsman, selecting the witness, excluding persons from the testat[or] at or about the time of the execution of the will, concealing the making of the will after it was made, and the like....’”

Hayes, 826 So.2d at 803 (quoting Reed v. Shipp, 293 Ala. 632, 636, 308 So.2d 705, 708 (1975)).

In Hayes, the evidence showed that the proponent had drafted the testator’s will; had employed someone whom he had provided with specially lined paper to type the will; had arranged for the execution of the will and had selected the witnesses; and had excluded the testator’s friend from the execution of the will. The notary testified that she did not know the nature of the documents being signed, and the testator’s brother, who executed a will prepared by the proponent on the same day, stated the same. The proponent was present in the room when the documents were handled and executed and left only when the notary asked the testator if she understood what she was doing. Also, the proponent had previously attempted to have a will prepared and signed by the testator. Under these facts, this Court reversed the trial court’s judgment in favor of the proponent, finding that the judgment, which followed a bench trial and had been based on ore tenus evidence, was against the great weight of evidence. 826 So.2d at 804.

Additionally, this Court has found substantial evidence of undue activity in the following cases. In Helms, supra, this Court held that the contestants to the will had presented substantial evidence precluding a judgment as a matter of law on the basis that the proponent had engaged in undue activity to procure the execution of the will; the evidence showed that “the proponents obtained money and property” from the testator; one proponent “suggested the lawyer who drafted the ... will”; one proponent “must have driven [the testator] to the office where the will was executed”; and “both proponents falsely denied any knowledge of the ... will.... ” 873 So.2d at 1149. Similarly, in Sconyers, supra, this Court reversed a summary judgment despite testimony that the testator was “alert” and “intelligent,” when the evidence also showed that the testator exhibited signs of Alzheimer’s disease days before the execution of the will, the testator’s affairs were solely in the hands of the proponent, and the will radically deviated from the testator’s previous will. This Court stated: “In light of the circumstances of this case, a jury could infer that the 1992 will’s radical deviation from the bequests made in the 1990 will was the product of undue influence.” 669 So.2d at 117.

Keeping these precedents in mind, we turn to the evidence presented in this case by Pirtle and Prchal. That evidence shows that Tucker was with Miller when Miller purchased the “will kit.” Tucker’s wife, whose testimony neither side presented, typed the will, which left Miller’s entire estate to Tucker. The will was a radical departure from Miller’s statements to Pirtle and Prchal that he wanted them to “have everything” and his statements to Tucker that he wanted Pirtle and Prchal to have “whatever was left.” Tucker disclaimed knowledge of the contents of the will and failed to advise Miller’s family that he had executed a will. Tucker drove Miller to the notary’s office to have the will executed and was present during the execution. Although the notary asked Miller whether he knew what he was signing and he responded that he did, she did not question him about the contents of the document. After it was executed, Miller gave the signed will to Tucker. Additionally, Tucker’s wife prepared a power of attorney for Miller appointing Tucker his attorney in fact, which Tucker subsequently used for his own financial gain.

A court does “not look at individual facts or evidence in isolation in determining whether the evidence supports the element of undue influence....” Hayes, 826 So.2d at 803. A jury could reasonably infer from the evidence, when viewed in its totality, that Tucker was unduly active in procuring the execution of the will, which left the entirety of Miller’s estate to Tucker. A jury could also reasonably infer that Tucker merely acted in accordance with Miller’s wishes. Because the evidence, therefore, gives rise to a genuine issue of material fact regarding undue activity, it is a matter to be determined by a jury. Accordingly, Pirtle and Prchal presented substantial evidence supporting each element of their undue-influence claim, and there existed genuine issues of material fact that precluded a summary judgment as to this claim.

III. Did Miller Have Testamentary Capacity?

Pirtle and Prchal next argue that they presented substantial evidence indicating that Miller did not have testamentary capacity at the time he executed the will. We have held that “[e]very person is presumed to have the capacity to make a will.” Burns v. Marshall, 767 So.2d 347, 353 (Ala.2000). The “burden is on the contestant to prove the lack of testamentary capacity.” Allen v. Sconyers, 669 So.2d at 117.

“In order to execute a valid will, one must possess
“ ‘mind and memory sufficient to recall and remember the property she was about to bequeath, and the objects of her bounty, and the disposition which she wished to make — to know and understand the nature and consequences of the business to be performed, and to discern the simple and obvious relation of its elements to each other.’ ”

Bolan v. Bolan, 611 So.2d 1051, 1057 (Ala.1993) (quoting Knox v. Knox, 95 Ala. 495, 503, 11 So. 125, 128 (1892)). A “broad evidentiary inquiry” must be made to determine testamentary capacity. Helms, 873 So.2d at 1147. This Court has explained:

“ ‘ “Evidence is competent to prove conduct and language at various times and places indicating an unhealthy mental condition, and the more extensive the view the safer is the determination reached.”
“ ‘Thus, evidence offered as to the mental and physical condition of the tes-tatfor], either before or immediately after execution of the will, is admissible since it tends to indicate [his] condition when the will was signed. Likewise, testimony regarding the testat[or’s] “conversations, deportment, acts, and appearance” has been found to be competent on the issue of testamentary capacity.’ ”

Sconyers, 669 So.2d at 118 (citations omitted) (quoting Fletcher v. DeLoach, 360 So.2d 316, 318 (Ala.1978), quoting in turn Tucker v. Tucker, 248 Ala. 602, 610, 28 So.2d 637, 644 (1946)).

Pirtle and Prchal rely heavily on Miller’s living conditions, including his tendency to collect things, the unkept condition of his home, the fact that he apparently lived in a shed in his backyard, and their testimony regarding neighbors’ complaints that he urinated and defecated in his yard. Pirtle and Prchal likewise rely heavily on the records of Miller’s April 23, 2004, hospitalization, which show that during the two weeks before Miller executed the will, he exhibited signs of confusion and disorientation and was unwilling to comply with health-care workers. They testified that when they visited him on April 25, 2004, Miller was extremely weak and made statements that indicated that he saw things that were not actually there. However, they both testified that, on this same day, when Miller told them he wanted them to “have everything,” he was of sound mind and competent to make that decision.

Notably, records from Miller’s April 30, 2004, hospitalization immediately preceding his execution of the will show no disorientation or confusion and describe Miller as “[a]lert, coherent, [and] well oriented to time.” The records of this hospitalization consistently describe Miller as “alert and oriented x3.” Miller was released to his own care just one day before he signed the will. Additionally, the accountant who notarized the will, and who had known Miller for at least five years, testified that on the day he executed the will he seemed “like a normal person.”

The evidence regarding Miller’s living conditions does not specifically show that he lacked mind and memory sufficient to recall and remember the property he was about to bequeath, the objects of his bounty, and the disposition he wished to make. Bolan, 611 So.2d at 1057. The evidence of Miller’s confusion, disorientation, and noncompliance during his hospital stay beginning on April 23, 2004, is undermined both by the medical records immediately preceding the execution of the will, which show Miller as being alert, coherent, and well-oriented, and by Pirtle and Prchal’s own testimony that on April 25, 2004, Miller was competent to decide that he wanted them to have all of his property.

Medical records that postdate Miller’s execution of the will show that by July and August 2004 he was experiencing dementia and was unable to make decisions, including decisions regarding his medical care. These records, however, do not reflect Miller’s mental condition “immediately after execution of the will,” and therefore do not tend “to indicate [his] condition when the will was signed.” Sconyers, 669 So.2d at 118. Additionally, these records do not specify that Miller lacked mind and memory sufficient to recall and remember the property he was about to bequeath, the objects of his bounty, and the disposition he wished to make. Bolan, 611 So.2d at 1057. Perhaps the strongest evidence of record indicating a lack of testamentary capacity are physician’s consultation notes from early August 2004, which show that Tucker advised hospital staff that Miller “was unable to make decisions for the past several months.” However, given the ambiguity of the term “several,” defined in Black’s Law Dictionary 1406 (8th ed.2004) as “more than one or two but not a lot,” and the evidence tending to show that Miller was of sound mind when he executed the will, this statement is not substantial evidence indicating that Miller lacked testamentary capacity.

Based on the foregoing, Pirtle and Prchal failed to present substantial evidence indicating that at the time he executed the will Miller lacked mind and memory sufficient to recall and remember the property he was about to bequeath, the objects of his bounty, and the disposition which he wished to make. The circuit court correctly entered a summary judgment as to this claim.

IV. What was Miller’s Intent?

Finally, Pirtle and Prchal argue that the will is invalid because, they say, it does not reflect Miller’s true intent. They did not raise this assertion in their complaint or at the hearing before the circuit court, but they did assert it in a Rule 59, Ala. R. Civ. P., motion. They argue that because Miller stated that he wanted them to “have everything” and because Tucker admitted that Miller wanted them to have “whatever was left” or $100,000, the will does not reflect Miller’s testamentary intent, and should be “deemed invalid” under Thurlow v. Berry, 249 Ala. 597, 604, 32 So.2d 526, 532-33 (1947), which states:

“ ‘ “The fundamental and cardinal rule in the interpretation of wills is that the intention of the testator, if not inconsistent with some established rule of law or with public policy, must control, and it is the duty of the courts to ascertain such intention and to give force and effect to the scheme that he had in mind for the disposition of his estate.” 30 Am. & Eng. Ency. Law, (2d Ed.) p. 661.’ ”

(quoting Castleberry v. Stringer, 176 Ala. 250, 254, 57 So. 849, 850 (1912)). Tucker, citing Kershaw v. Kershaw, 848 So.2d 942 (Ala.2002), and deGraaf v. Owen, 598 So.2d 892 (Ala.1992), argues that the will should be presumed valid and the exclusive evidence of Miller’s intent absent some ambiguity requiring reference to extrinsic evidence.

Pirtle and Prchal did not properly present their argument regarding intent to the circuit court. Moreover, the rules stated in Thurlow, Kershaw, and deGraaf relate to the construction and interpretation of a will, not its validity. See Thurlow and deGraaf, supra; Parker v. Bozian, 859 So.2d 427, 434-35 (Ala.2003); Cottingham v. McKee, 821 So.2d 169, 171-72 (Ala.2001). Because Pirtle and Prchal challenge the validity of the will, their reliance on such a rule is misplaced. Furthermore, we cannot find any case invalidating a will solely in the face of evidence indicating that a testator’s intent conflicts with the provisions of a will. As a result, Tucker was entitled to a summary judgment as to this issue.

Accordingly, we affirm the circuit court’s summary judgment as to the claims alleging lack of testamentary capacity and improper execution. We also affirm the circuit court’s judgment as to Pirtle and Prchal’s argument that the will should be invalidated based solely upon conflicting evidence of Miller’s intent. We reverse the circuit court’s summary judgment as to the undue-influence claim, and we remand the cause for further proceedings as to that claim.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

NABERS, C.J., and SEE, STUART, and BOLIN, JJ., concur.

      . Unlike the previous version of the statute, repealed in 1982, § 43-8-131 does not expressly require that the witnesses sign in the testator’s presence. See § 43-1-30 (repealed 1982)(requiring that wills be "attested by at least two witnesses, who must subscribe their names thereto in the presence of the testator”)(as quoted in Anderson v. Griggs, 402 So.2d 904, 907 (Ala.1981)).


source: Caselaw Access Project

author: NABERS, Chief Justice.

license: Public Domain

text:
    Ex parte ORKIN, INC. (In re Larry Touart and Sandra Touart v. Orkin, Inc., d/b/a Orkin Pest Control, a foreign corporation, and Howard Holmes).
    1050981.
    Supreme Court of Alabama.
    Dec. 15, 2006.
    Rehearing Denied Jan. 12, 2007.

      Michael L. Bell, Stephen J. Roy, and S. Andrew Kelly of Lightfoot, Franklin & White, L.L.C., Birmingham; and Robert L. Minor of Church, Seay & Minor, Pell City, for petitioner.
    Alexander M. Weisskopf of Weathington & Moore, P.C., Moody, for respondents.
   NABERS, Chief Justice.

Orkin, Inc., d/b/a Orkin Pest Control, petitions for a writ of mandamus directing the trial court to vacate those portions of its orders of January 25, 2006, and April 3, 2006, directing Orkin to produce (a) all depositions of Orkin’s corporate representatives in actions involving fraud and termite treatment, and (b) its Alabama customer files for the years 1978 to 2002 (hereinafter referred to collectively as “the contested items”). For the reasons stated below, we grant the petition.

Procedural History

In March 2004 Larry Touart and Sandra Touart sued Orkin and Howard Holmes in the St. Clair Circuit Court. The action arose from a contract the Touarts had entered into with Orkin for the inspection, prevention, and repair of damage for a termite infestation at the Touarts’ house in Ashville. That contract was entered into in 1978 and was thereafter renewed annually. In their action, the Touarts asserted claims of breach of contract, negligence, wantonness, breach of fiduciary duty, fraud, and suppression. The Touarts contend that the defendants failed to perform the termite services called for in the contract in a workmanlike manner, misrepresented that the Touarts’ house had been inspected annually, and falsified inspection reports (including purportedly forging Mr. Touart’s signature).

During 2004 the Touarts served Orkin with a set of requests for production. Items 4 and 20 requested:

“[DJocuments ... of any kind that [show] the names and addresses of any and all people that [the defendants] provided repair work for termites in the last 10 years; and
“[C]opies of all deposition testimony given by any agent or employee of Orkin in lawsuits involving negligence, breach of contract, or fraud within the last 10 years.”

On January 24, 2006, the Touarts filed a motion to compel Orkin to supplement its responses to items 4 and 20. Following a hearing the next day, the trial court granted that motion in a January 25, 2006, order that stated:

“It is further ORDERED, ADJUDGED, AND DECREED that [Orkin] shall make available to [the Touarts] all files for homes inspected in the same district as [the Touarts] for the years 1994-2004 within 30 days from the date of this order.
“It is further ORDERED, ADJUDGED, AND DECREED that [Orkin] shall provide [the Touarts] with all corporate representative depositions in cases regarding fraud and termite treatment within 30 days from the date of this order.”

On February 24, 2006, Orkin filed a motion entitled “Defendant Orkin Inc.’s Motion for Reconsideration and Motion for Protective Order” seeking a reconsideration of the January 25, 2006, order or a protective order as to the items the trial court was ordering Orkin to produce. In that motion, Orkin requested an order “providing that Plaintiffs are not entitled to the discovery sought.” On March 8, 2006, following a hearing, the trial court announced from the bench that it would deny Orkin’s motion for a protective order. Furthermore, on March 30, 2006, an entry was made on the docket sheet stating that the Touarts’ counsel should prepare a proposed order denying Orkin’s motion for a protective order. On April 3, 2006, the trial court signed the order drafted by the Touarts’ counsel; that order stated:

“[Orkin’s] Motion for Reconsideration and Motion for Protective Order having been heard on March 8, 2006, and after due consideration thereof, the Court finds as follows:
“2. In summary, the [Touarts’] claim that, between the years 1978 to 2002, that the defendants forged the [To-uarts’] names on various documents within their customer service file with the defendants and that inspections and repairs that were to be made by the defendants were not made and/or not made properly.
“THEREFORE.... IT IS ORDERED AS FOLLOWS:
“In light of the [Touarts’] claims, and the filing procedures of [Orkin], [the To-uarts] have the right to go to the location of, and review the Alabama customer files of Orkin from the years 1978 to 2002. All other requests within [Or-kin’s] motion not herein addressed are denied.”

On April 19, 2006, Orkin filed this petition to challenge those portions of the trial court’s January 25, 2006, and April 3, 2006, orders that required production of the contested items.

Standard of Review

In Ex parte Norfolk Southern Ry., 897 So.2d 290 (Ala.2004), this Court delineated the limited circumstances under which review of a discovery order is available by a petition for a writ of mandamus and the standard for that review in light of Ex parte Ocwen Federal Bank, FSB, 872 So.2d 810 (Ala.2003):

“ ‘Mandamus is an extraordinary remedy and will be granted only when 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 Alfab, Inc., 586 So.2d 889, 891 (Ala.1991). In Ex parte Ocwen Federal Bank, FSB, 872 So.2d 810 (Ala.2003), this Court announced that it would no longer review discovery orders pursuant to extraordinary writs. However, we did identify four circumstances in which a discovery order may be reviewed by a petition for a writ of mandamus. Such circumstances arise (a) when a privilege is disregarded, see Ex parte Miltope Corp., 823 So.2d 640, 644-45 (Ala.2001); (b) when a discovery order compels the production of patently irrelevant or duplicative documents the production of which clearly constitutes harassment or imposes a burden on the producing party far out of proportion to any benefit received by the requesting party, see, e.g., Ex parte Compass Bank, 686 So.2d 1135, 1138 (Ala.1996); (c) when the trial court either imposes sanctions effectively precluding a decision on the merits or denies discovery going to a party’s entire action or defense so that, in either event, the outcome of the case has been all but determined and the petitioner would be merely going through the motions of a trial to obtain an appeal; or (d) when the trial court impermissibly prevents the petitioner from making a record on the discovery issue so that an appellate court cannot review the effect of the trial court’s alleged error. The burden rests on the petitioner to demonstrate that its petition presents such an exceptional case— that is, one in which an appeal is not an adequate remedy. See Ex parte Consolidated Publ’g Co., 601 So.2d 423, 426 (Ala.1992).”

897 So.2d at 291-92 (quoting Ex parte Dillard Dep’t Stores, Inc., 879 So.2d 1134, 1136-37 (Ala.2003)). The orders here contested are reviewable under category (b) above (i.e., the burden upon Orkin of producing the documents is purportedly out of proportion to the benefit of those documents to the Touarts).

Analysis

Three questions are presented by this petition: (1) What discovery actions are under review? (2) Did Orkin timely file its petition? and (3) Did the trial court exceed its discretion when it ordered production?

1. What discovery actions are under review?

The January 25 and April 3 orders required the production of deposition testimony and customer files. As to deposition testimony, on January 25 the trial court ordered Orkin to produce “all corporate representative depositions in cases regarding fraud and termite treatment.” The April 3 order was silent as to deposition testimony.

With respect to customer files, the To-uarts initially requested the names and addresses of all Orkin customers to whom Orkin had provided termite service in the last 10 years. The January 25 order directed Orkin to produce “all files for homes inspected in the same district as [the Touarts] for the years 1994-2004.” The April 3 order, however, varied from the January 25 order to the extent that it directed Orkin to produce its “Alabama customer files ... from the years 1978 to 2002.” The April 3 order does not reference the January-25 order.

Reading the two orders in concert, we note that the April 3 order modified the January 25 order to the extent its provisions were inconsistent with the prior order. When these orders are so construed, the directive in the January 25 order concerning production of depositions was unchanged. As to customer files, however, the April 3 order changed the directive in the January 25 order. Because of that change, the contested items under review here are production of (a) “all corporate representative depositions in cases regarding fraud and termite treatment,” and (b) the “Alabama customer files of Orkin from the years 1978 to 2002.”

2. Was the petition timely?

Rule 21(a)(3), Ala. R.App. P., provides:

“The petition [for the writ of mandamus] shall be filed within a reasonable time. The presumptively reasonable time for filing a petition seeking review of an order of the trial court or of a lower appellate court shall be the same as the time for taking an appeal. If a petition is filed outside this presumptively reasonable time, it shall include a statement of circumstances constituting good cause for the appellate court to consider the petition, notwithstanding that it was filed beyond the presumptively reasonable time.”

Rule 4(a)(1), Ala. R.App. P., states that appeals as of right shall be filed within 42 days of the judgment or order from which relief is sought.

As noted above, on January 25, 2006, the trial court ordered Orkin to produce the disputed records. Orkin filed its petition for the writ of mandamus on April 19, 2006. The Touarts argue that the “presumptively reasonable time” for filing the petition began to run on January 25 and that Orkin’s petition, filed more than 42 days thereafter, was untimely. Orkin argues that March 8, 2006 — the date the trial court announced in open court that it would deny Orkin’s motion for reconsideration — is the earliest possible date for calculating the presumptively reasonable time for filing a petition for a writ of mandamus. If March 8 is the commencement date for determining the presumptively reasonable time for purposes of Rule 21(a)(3), Orkin’s petition was timely.

The timeliness issue hinges on the effect given the filing of Orkin’s motion for a protective order. Orkin filed that motion on February 24, 2006. The Touarts argue that the filing of that motion did not toll Orkin’s obligation to file its petition with this Court within 42 days of January 25, 2006. They cite Ex parte Troutman Sanders, LLP, 866 So.2d 547, 550 (Ala.2003), in support of their position. This Court held in Troutman Sanders that a motion for reconsideration of a trial court’s order denying a motion to dismiss did not toll the time for filing a petition for the writ of mandamus under Rule 21(a)(3), Ala. R.App. P. 866 So.2d. at 550.

Orkin argues that Troutman Sanders did not involve a discovery dispute and that it is therefore inapplicable here. Or-kin states that in Ex parte Reynolds Metals Co., 710 So.2d 897 (Ala.1998), this Court held that a party seeking relief from a discovery order must ask the trial court for a protective order under Rule 26(c), Ala. R. Civ. P., before filing a mandamus petition. Because it sought a protective order on February 24 and did not file a mandamus petition until that request was denied on March 8, Orkin argues that its petition was timely. Based on the authority of Ex parte Reynolds Metals Co., Orkin further argues that its mandamus petition would have been premature had Orkin filed it before the trial court ruled on its motion for protective order. We agree with Orkin.

Orkin complied with its procedural obligations to contest the trial court’s discovery orders. Orkin moved for a protective order within the 30-day period in which the contested production was compelled. It filed this petition after the trial court denied that motion. We reaffirm the principle that “the party seeking a writ of mandamus in a discovery dispute must properly move for a protective order under Rule 26(c), Ala. R. Civ. P.[, before petitioning for the writ].” Ex parte CIT Communication Fin. Corp., 897 So.2d 296, 298 (Ala.2004); Ex parte Sargent Indus., Inc., 466 So.2d 961, 963 (AJa.1985) (a party’s failure to seek a protective order from the trial court bars mandamus relief because a protective order is the appropriate “procedural device for limiting or prohibiting discovery”). This sequencing promotes the sound policy of “afford[ing] the trial court the opportunity to address its alleged error before a party seeks mandamus relief from an appellate court to correct the alleged error.” Ex parte Reynolds Metals Co., 710 So.2d at 900. Furthermore, in a petition challenging a discovery ruling, the petitioner cannot demonstrate the “lack of another adequate remedy” — one of the prerequisites for the extraordinary relief of the writ of mandamus — without first filing a motion for a protective order. Because Orkin filed a motion for a protective order with the trial court and filed its mandamus petition within 42 days from March 8, the date the trial court entered a ruling on the motion, Orkin’s filing was made within a “presumptively reasonable time” within the meaning of Rule 21(a)(3), Ala. R.App. P.

3. Did the trial court exceed its discretion?

As we concluded in section 1 above, the trial court ordered Orkin to produce depositions of its corporate representative in fraud cases and Orkin’s Alabama customer files for 1978 to 2002. The Touarts allege that Orkin misrepresented that it had performed termite-repair services at their house and that it had falsified inspection reports. Because of the nature of those allegations, the Touarts contend that the contested discovery is warranted because evidence of similar misrepresentations by Orkin to other customers would be admissible in their cause. See Ex parte Allstate Ins. Co., 401 So.2d 749, 751 (Ala.1981). Further, the Touarts argue that Orkin has not shown that the trial court exceeded its discretion in ordering the production of the contested items.

Orkin principally contests the trial court’s directive that it produce its files for customers in Alabama. Orkin acknowledges that discovery in a fraud case necessarily must be broader than in other cases because of the heavy burden of proof imposed on one alleging fraud. Ex parte Union Sec. Life Ins. Co., 723 So.2d 34, 39 (Ala.1998); Ex parte Horton, 711 So.2d 979, 983-84 (Ala.1998). Orkin also recognizes that this Court has permitted the discovery of names and addresses of non-party customers in other fraud cases. See, e.g., Ex parte First Nat’l Bank of Pulaski, 730 So.2d 1160 (Ala.1999) (bank loan transactions of other customers over a two-year period discoverable); Ex parte Clarke, 582 So.2d 1064 (Ala.1991)(plaintiff entitled to meaningful contact with other purchasers of conversion policies like the one it purchased). Orkin notes, however, that “even in a fraud case, discovery is not unlimited.” Ex parte Union Sec. Life Ins. Co., 723 So.2d at 38. Orkin complains that the trial court did not tailor the discovery requests here with respect to time, geography, and the Touarts’ claims. See Ex parte National Sec. Ins. Co., 773 So.2d 461, 465 (Ala.2000)(discovery allowed if “closely tailored” to the fraud allegations). Because the trial court’s order compelled Orkin to produce thousands of customer files from 1978 to 2002 that may be unrelated to the Touarts’ claims, Orkin argues, the trial court exceeded its discretion. See Ex parte Compass Bank, 686 So.2d 1135, 1137-38 (Ala.1996) (trial court erred in ordering discovery that was unrelated to the product purchased by the claimants and required the defendant to review 35,000 transactions).

Additionally, Orkin presented evidence to the trial court concerning the logistics of producing its Alabama customer files for the 24-year period. Orkin attested that it had approximately 23,000 active termite-service customers in Alabama; that the active Alabama customer files were not stored in a central location; that, because of Orkin’s regional structure, the production of active customer files for Alabama would require review of records at 12 locations in 5 states; that additional files for former Alabama customers may have been stored at locations off Orkin’s sites; and that the Alabama customer files were not organized by date of service. Under these circumstances, Orkin contends, the production of its customer files would be oppressive and “unduly burdensome.” Rule 26(b)(1), Ala. R. Civ. P. The parties argue the precedential value of two fraud cases in which this Court has allowed the discovery of the defendant’s transactions with nonparty customers. In Ex parte Allstate Insurance Co., 401 So.2d 749 (Ala.1981), the plaintiff sued Allstate alleging misrepresentation after the insurer underpaid on a claim for uninsured-motorist coverage. The plaintiff crafted an interrogatory asking Allstate to disclose the identities of its other policyholders in Alabama to whom, during a two-year period, it had paid a $10,000 uninsured-motorist benefit (the benefit payable for one vehicle) when more than one vehicle was covered. This Court held that the trial court did not exceed its discretion when it ordered the insurer to answer that interrogatory. Allstate, 401 So.2d at 750.

Further, in Ex parte State Farm Mutual Automobile Insurance Co., 452 So.2d 861 (Ala.1984), the plaintiff alleged that State Farm had defrauded him by including an unenforceable, anti-stacking clause in his automobile insurance policies. The plaintiff asked for the identities of other State Farm customers who, like him, had more than one policy but had received a reduced uninsured-motorist benefit. The State Farm Court allowed that discovery, but limited it to customers who were located in Alabama. State Farm, 452 So.2d at 864.

The discovery related to nonparty customers in both Allstate and State Farm was clearly tailored to the fraud claims in those cases. However, the production ordered by the trial court in this case — all Orkin’s Alabama customer files from 1978 to 2002 — does not correlate to the Touarts’ fraud issues. The trial court authorized the Touarts to review approximately 23,-000 files of active Alabama customers that were stored in five states. While the To-uarts are entitled to discovery of materials necessary to their fraud claims, such a broad request should not be sanctioned on the unsubstantiated hypothesis that a search of records related to nonparties might uncover fact patterns similar to their own. Accordingly, we agree with Orkin. that the trial court exceeded its discretion when it ordered Orkin to produce customer files without regard to the specific fraud claims alleged by the To-uarts.

Further, the trial court exceeded its discretion because the production it ordered was not limited to periods in which discovery was reasonably calculated to lead to admissible evidence. The trial court ordered Orkin to produce nonparty customer files covering a 24-year period, and its order concerning depositions of corporate representatives was unlimited as to time. No bright line exists concerning the maximum period over which a litigant should be required to search for records. The length of that period depends on whether the records being searched are “relevant to the subject matter involved in the dispute.” Rule 26(b)(1), Ala. R. Civ. P.; 8 Wright, Miller & Marcus, Federal Practice and Procedure § 2008 (1994). Even then, a litigant in a fraud action must show a substantial need for discovery of records that concern transactions with nonparties, that are older than five years, and that do not directly relate to the litigant’s own claim or defense. See, e.g., Ex parte National Sec. Ins. Co., supra (search sanctioned in fraud case for documents covering five years); Ex parte Union Sec. Life Ins. Co., 723 So.2d at 37 (plaintiff could discover records concerning other customers within a five-year period). The discovery of Orkin’s customer files here ordered by the trial court falls outside those parameters, and, absent a showing by the Touarts of a substantial need, the trial exceeded its discretion in so ordering.

Conclusion

Orkin’s petition for the writ of mandamus was timely filed. When Orkin challenged the adverse rulings on discovery, the presumptively reasonable time for filing its petition did not begin to run until the trial court ruled on its motion for a protective order. Moreover, the trial court here exceeded its discretion in the management of discovery because the production it ordered was not tailored to the Touarts’ claims and covered extraordinary time periods (i.e., a 24-year period for customer files and an unlimited period for corporate-representative depositions) in which discovery could not reasonably be expected to lead to admissible evidence.

PETITION GRANTED; WRIT ISSUED.

LYONS, WOODALL, SMITH, and PARKER, JJ., concur.

      . While Orkin’s initial response to the To-uarts’ request is not in the record, Orkin apparently objected to items 4 and 20 in that response.

      . The trial court also signed a written order dated March 8, 2006, that summarily stated that it denied Orkin’s motion for a protective order, but that order was not filed until April 10, 2006.

      . It is unclear from the record why the directive in the January 25 order to produce "all files for homes inspected in the same district as [the Touarts] for the years 1994— 2004” changed to “Alabama customer files ... from the years 1978 to 2002.”

      . As noted above, this filing was entitled “Motion for Reconsideration and Motion for Protective Order.”

      . See Wang v. Hsu, 919 F.2d 130, 131 (10th Cir.1990) (a motion for a protective order is timely if made before the date set for the discovery); United States v. International Business Machs. Corp., 70 F.R.D. 700, 701 (S.D.N.Y.1976)("motions under Rule 269(c)[, Fed.R.Civ.P.,] must be served before the date set for production”); see also 8 Wright, Miller & Marcus, Federal Practice and Procedure § 2035 (1994).

      . Our holding does not overrule Troutman Sanders. That case concerned a mandamus petition filed after the trial court had denied the petitioner’s motion for reconsideration of an order denying a motion to dismiss. Arguing that its motion to reconsider was analogous to a motion to alter, amend, or vacate a judgment under Rule 59(e), Ala. R. Civ. P., the petitioner in Troutman Sanders contended that the filing of its motion to reconsider tolled the "presumptively reasonable time” for filing its mandamus petition. Although the proper filing of a Rule 59(e) motion suspends the time for filing a notice of appeal under Rule 4(a)(3), Ala. R.App. P., the Trout-man Sanders Court rejected the petitioner's argument and held that “the tolling effect of Rule 59 is not involved with respect to motions to ‘reconsider’ interlocutory orders.” Troutman Sanders, 866 So.2d at 550. This principle remains in effect. Our procedural rules do not contemplate the review of an adverse interlocutory order by a trial court through a "motion to reconsider.” Therefore, absent the filing of a Rule 26(c) motion for a protective order or the use of another procedure expressly authorized by our rules to review a trial court's interlocutory order, the filing of a "motion to reconsider” in the trial court will not toll the presumptively reasonable time for filing a petition for the writ of mandamus under Rule 21(a)(3), Ala. R.App.. P.

      . There is no evidence in the record indicating that the production of depositions of corporate representative in fraud cases would .be unduly burdensome. Orkin's complaint about that item is that the ordered production is unlimited as to time and geography.

      . An example of “tailored” discovery would be a request that, during a relevant time period, Orkin produce lawsuits, claims, or customer complaints similar to the allegations made by the Touarts. The Touarts also could depose a corporate representative (or other Orkin management personnel) to explore Or-kin's knowledge of falsification of termite-inspection records or like instances of alleged fraud in Alabama.

      . The order to produce depositions also was infirm because it was unrestricted as to geography. See Ex parte State Farm Mutual Auto. Ins. Co., 452 So.2d at 864 (granting a writ of mandamus to the extent a trial court required the defendant in a fraud case to identify its customers outside Alabama).

      . We also note that the trial court ordered production of records that covered longer periods than the Touarts requested. Although the April 3 order restricted production to Or-kin's customers in Alabama, it expanded the time frame for customer files from 10 to 24 years. As to depositions, the Touarts requested 10 years and received an unlimited period.

      .Our holding pretermits consideration of Orkin’s argument that production of the items would be unduly burdensome and oppressive.


author: PARKER, Justice.

text:
    J.B. (Johnny) WASHINGTON v. Vanessa HILL.
    1050586.
    Supreme Court of Alabama.
    Dec. 15, 2006.

      William M. Pompey of Pompey & Pompey, P.C., Camden; Collins Pettaway, Jr., of Chestnut, Sanders, Sanders, Pettaway & Campbell, Selma; and April England-Albright of the Justice Group, Inc., Selma, for appellant.
    Walter E. Braswell, Birmingham, for ap-pellee.
   PARKER, Justice.

In this challenge to a mayoral election, brought by mayoral candidate Vanessa Hill, J.B. (Johnny) Washington appeals the decision of the Hale Circuit Court declaring Hill to have been duly elected as may- or of the Town of Greensboro. We affirm.

I. Facts and Procedural History

The Town of Greensboro held municipal elections in August 2004. A runoff election in the mayoral race was held on September 15, 2004; the candidates in the runoff election were Hill, who had received the most votes in the August election, and Washington. The certified results of the runoff election showed that Washington had prevailed; he was certified as having received 762 votes (511 poll votes and 251 absentee votes), and Hill was certified as having received 672 votes (620 poll votes and 52 absentee votes).

Hill filed an election contest on September 20, 2004. On September 22 she submitted as security for the costs of the contest a waiver of her and her heirs’ right to all personal property exemptions allowed under the laws of Alabama. The circuit clerk denied the security the same day, and the next day Hill added a cosigner for the same form of security. The clerk also rejected the second tendered security, and on September 30 Hill filed an amended election contest along with a request by counsel for direction from the clerk regarding the necessary security. On November 18, 2004, Hill paid the cash bond of $2,500 specified by the clerk.

After every circuit judge in the county recused himself or herself, the Chief Justice of the Alabama Supreme Court on October 25, 2004, appointed Judge William Shashy of the Montgomery Circuit Court to preside over the case. After considering objections based on jurisdiction and procedure to Hill’s election challenge and ordering briefing of those issues, the trial court ruled that the election contest should proceed. On June 9, 2005, the trial court ordered the office of the attorney general to take possession of the election materials, including the ballots, and appointed James H. Anderson as special master to oversee the pretrial issues; Anderson was subsequently appointed to preside over the hearing of the case as well. Washington continued to object to the conduct of the discovery as well as to the jurisdiction of the trial court and the appointment of the special master. His objections were overruled, and the case was heard in December 2005 and January 2006.

The special master released his report on January 23, 2006. It included findings that certain voters’ and witnesses’ signatures on the ballots were forged and that votes were also due to be disqualified for other reasons. In all, the special master found that at least 148 illegal absentee votes had been cast for Washington and 8 illegal absentee ballots had been cast for Hill. After subtracting the illegal votes from the total votes for each of the two candidates, the special master found that Hill had prevailed in the election by a vote of 664 to 614. The trial court adopted the findings of the special master in full, ordered that the results of the runoff election be overturned, and declared Hill to be the winner. The trial court also suspended its judgment pending the outcome of the appeal.

Washington appealed. His brief with this Court was timely filed. Counsel for Hill filed her brief four days late. The form of the brief was improper, and counsel for Hill submitted a corrected brief three days later. Washington moved this Court to strike Hill’s brief as untimely or to at least strike the portions of Hill’s brief averring facts unsupported by, or not properly citing to, the record. We grant the motion only as to those portions of Hill’s brief that lack proper citation, in order that the voters of Greensboro not be penalized by the shortcomings of Hill’s counsel.

We now consider Washington’s arguments that the trial court exceeded its discretion by (1) allowing the election contest to proceed “even though all jurisdictional requirements were not all met”; (2) allowing the hearing of the case to commence even though Hill “failed to timely file [her] discovery request” and “failed to file proper disclosures”; and (3) improperly disqualifying voters pursuant to various provisions of the Alabama Code.

II. Standard, of Review

An election contest is strictly statutory, and the statute must be strictly observed and construed. Watters v. Lyons, 188 Ala. 525, 66 So. 436 (1914). A trial court’s findings of fact in an election contest will not be disturbed unless they are plainly and palpably wrong and not supported by the evidence. Williams v. Lide, 628 So.2d 531, 534 (Ala.1993). A special master’s report in a nonjury action is accorded the same weight as a jury verdict; therefore, it is not to be disturbed by the trial court unless it is plainly and palpably wrong. Burgess Mining & Constr. Corp. v. Lees, 440 So.2d 321, 327 (Ala.1983). Furthermore, to the extent a trial court has adopted the findings of a special master, an appellate court will not disturb those findings unless they are clearly erroneous. See Rule 53(e)(2), Ala. R. Civ. P., and Committee Comments on 1973 Adoption of Rule 53.

III. Discussion

A. Jurisdictional Requirements

Washington correctly notes that if a complaint initiating an election contest is defective as to any of the jurisdictional requirements, it cannot be amended by adding the missing element after the time for commencing the contest has expired. Groom v. Taylor, 235 Ala. 247, 178 So. 33 (1937). Washington next argues that Hill’s election complaint is jurisdictionally defective because as initially filed it does not state that Hill was a qualified elector of the Town of Greensboro; it does not give the date and time of the election she is contesting; and it does not state as part of her affidavit that the statements contained in her complaint were true. These arguments are without merit.

Section ll-46-69(a), Ala.Code 1975, provides that a qualified elector has standing to contest a municipal election: “The election of any person declared elected to any office of a city or town may be contested by any person who was at the time of the election a qualified elector of such city or town....” Furthermore, “[s]uch contest shall be instituted in the manner prescribed by Section 17-15-29,” which provides:

“[T]he party contesting must file in the office of the clerk of the circuit court of the county in which the election was held, a statement in writing, verified by affidavit, of the grounds of the contest as provided in this article and must give good and sufficient security for the costs of the contest, to be approved by the clerk.”

Each of these statutory requirements is fundamentally one of substance rather than form. Thus a contestant to a mayoral race must possess the status of a qualified elector but need not make a specific affirmative statement in the complaint that the contestant is a qualified elector. Some statement in writing of the grounds of the contest is required, but the Code does not specify the exact wording of that statement. An affidavit is required, but no specific form is required. Similarly, provided some form of security is given, this jurisdictional requirement is met, even if the form of the security is initially rejected by the clerk. Dobbins v. City of Anniston, 469 So.2d 583, 585 (Ala.1985). In fact, provided the substance of an element necessary for jurisdiction is present and any necessary filing is timely, any deficiency in form may be cured by amendment. See, e.g., Wilson v. Duncan, 114 Ala. 659, 21 So. 1017 (1897) (recognizing the form of a timely filed bond may be amended).

Although Washington is correct in his assertion that Hill did not state in her initial complaint that she is a qualified elector of the Town of Greensboro, nothing in the record indicates that she is not a qualified elector, nor is she required specifically to so state. In fact, Washington acknowledges in his brief that Hill’s complaint was “verified,” that Hill was “duly sworn,” and that “Anne S. Bailey signed as a notary.” Consequently, the fact that Hill stated she “was a candidate for mayor of Greensboro, Alabama,” in a duly signed and notarized statement is evidence that she possessed the status of a qualified elector to meet the jurisdictional requirement; otherwise, she could not have become a candidate.

Washington nevertheless contends that mere status as a qualified elector is insufficient when challenging the outcome of a mayoral election under Ala.Code 1975, § 17-15-20, which requires that an elector “make a statement in writing setting forth specifically ... that he was a qualified voter when the election was held.” However, Ala.Code 1975, § 11-46-69, which governs municipal elections, does not reference § 17-15-20 as a source of jurisdictional requirements for a contest of a municipal election. Absent such incorporation by reference, Washington must explain why strict construction of § 17-15-20 does not require limiting its application to those offices specified in its text: “the office of senator, representative in the Legislature, judge of the circuit court or district court, any office which is filled by the vote of a single county or constable.” Washington has failed to demonstrate why this Court need go beyond the text of § 17-15-20, which, on its face, does not apply to mayoral elections. We see no other reason it must apply, and we conclude that the trial court correctly rejected Washington’s argument that Hill was not qualified to contest the election merely because she did not state in her initial complaint that she was a qualified elector of the Town of Greensboro when the election was held.

Furthermore, the applicable statute does not require the statement in an election contest to, as Washington asserts, include specific reference to the date and time of the election being contested or specific wording in an affidavit averring that the statement is true. What the text of the statute requires is language that makes sufficiently clear which election is being challenged and some form of an affidavit by the contestant that communicates the grounds of the contest. As a result, we conclude that the trial court did not err by failing to require stricter adhesion to the form of the election-contest statement than is required by the text of the statute.

Washington next argues that “[f]rom the outset of this contest ... [Hill] failed to file the necessary security required by the statute” because she did not post a security bond that was approved by the clerk of the circuit court in a timely manner. In support of his argument, Washington cites Dobbins, supra; Bowen v. Holcombe, 204 Ala. 549, 550, 87 So. 87, 88 (1919); and Ala.Code 1975, § 11-46-69(b). These authorities, however, do not support Washington’s argument.

In Dobbins, although this Court observed that the election contest must be commenced within five days after the results of the election are declared, pursuant to Ala.Code 1975, § ll-46-69(b), and that such contest should include the filing of security pursuant to the statutory requirement in Ala.Code 1975, § 17-15-29, we cited Bowen for the proposition that “as long as a contestant has complied ⅛ form at least’ with the statute, the contest should not be dismissed.” 469 So.2d at 585. The law does not require that the initial security be acceptable to the clerk in order for the election contest to proceed; rather, it requires that the contestor make a good-faith effort by timely filing some form of security, and, if the initial security is deemed unacceptable by the clerk, the contestor will be permitted to amend or substitute the security:

“[W]here an attempt was made to comply with the statute requiring bond, the fact that the bond may be insufficient, inadequate, or defective will not authorize dismissal of the contest; rather, the court should allow an amendment, and in some instances even a substitution, to be filed to correct the error.”

Dobbins, 469 So.2d at 585.

In the present case, Hill did “attempt ... to comply with the statute requiring bond” when she originally filed her security. When the clerk denied her initial security, Hill amended it by adding a cosigner. Then, when the clerk indicated that a $2,500 cash bond was required, Hill provided the bond as a substitute for her original security. Accordingly, the trial court was correct in finding that Hill did timely post a security bond pursuant to the statute and that all jurisdictional requirements were met.

B. Discovery and Disclosure

Washington next argues that because Hill failed to properly move to inspect the election materials, which were in the possession of the attorney general’s office, “within ten days of the filing of the contest with the Court” as required by Ala.Code 1975, § 17-15-7, her motion to inspect those materials was untimely. However, because Washington raises this argument for the first time on appeal, it is not properly before us. See Ex parte Coulliette, 857 So.2d 793 (Ala.2003).

Washington further argues that Hill should have been required to provide Washington notice of “the nature of the evidence as to each area of [Hillj’s allegations” before Hill was allowed to examine the sealed election materials. Washington also states that such notice should be provided “ten days before the trial,” pursuant to -Ala.Code 1975, § 17-15-21. However, these two positions either are mutually exclusive or, to harmonize them, require discovery to take place no earlier than 10 days before the date set for trial. Compressing discovery to within 10 days of the trial is not required by the statute, and Hill did provide Washington the required notice 10 days in advance of the hearing. Consequently, we do not find that the trial court erred in failing to find that Hill did not give Washington proper notice of the evidence she intended to use to challenge the ballots.

C. Voter Disqualification

Washington argues that the trial court erred in disqualifying absentee ballots under various provisions of the Alabama Code. We consider these provisions individually.

1. Missing postmarks

Washington first argues that the trial court “disqualified over 102 voters[] on the grounds that [the absentee ballots] were not postmarked by the date mandated” by Ala.Code 1975, § 17-10-23. According to Washington, “[t]his finding is not only contrary to the facts presented into evidence, but also contrary to the requirements set out in [§ 17-10-23].” In support of this contention, Washington cites testimony by the elections manager to the effect that she had retrieved some of the prospective ballots from the United States Postal Service that did not have postmarks. Washington also cited testimony by the circuit clerk of Hale County that in past elections unmetered ballots had been retrieved from the United States Post Office. Washington also argues that a strict construction of election-law requirements is contrary to Alabama policy. We are not persuaded by these arguments. Ala.Code 1975, § 17-10-23, states, in relevant part:

“No absentee ballot shall be opened or counted if received by the absentee election manager by mail, unless postmarked as of the date prior to the day of the election and received by mail not later than noon on the day of election. ...”

The statutory language is clear that unless ballots retrieved from the United States Post Office are postmarked no later than the day before the election, they may not be counted. Thus the trial court was correct to reject the ballots that had been retrieved from the Post Office without such postmark.

2. Missing or improper identification

Washington also states that the trial court erred in “disqualifying over 71 votes on the grounds that the identification did not comport with” Ala.Code 1975, § 17-llAl(b), “as further set out in Townson v. Stonicher, [933 So.2d 1062 (Ala.2005)].” According to Washington, the elections manager failed to check the identification of those voters casting absentee ballots and to notify prospective voters of any deficiencies in their identification so they could remediate the deficiency pursuant to Ala.Code 1975, § 17-10A-2(c). Although Washington states that the failure to notify the voters of deficiencies in their identification was the fault of the elections manager, he provides no authority for his contention that the requirements of Ala.Code 1975, § 17-10A-2, may be set aside to remedy the elections manager’s failure to notify voters of their errors in time for remediation. As a result, the trial court did not err by disqualifying those absentee votes that lacked the identification required by law.

3. Forgery

Washington’s contention that the trial court erred by disqualifying 17 votes on the basis of expert testimony indicating that the signatures on the ballots were forged is likewise misplaced. Washington asserted that his expert refuted the testimony of Hill’s expert, which was accepted by the trial court, but he provides no legal authority in support of his assertion that the trial court erred in finding the testimony of Hill’s expert to be more persuasive than the testimony of his expert. Because Washington offered no legal authority in support of this argument, we need not consider it. An appellate court is not required to perform legal research for a party, Spradlin v. Birmingham Airport Auth., 613 So.2d 347 (Ala.1993), or “to make and address legal arguments for a party based on undelineated general propositions not supported by sufficient authority or argument.” Dykes v. Lane Trucking, Inc., 652 So.2d 248, 251 (Ala.1994).

D. Remedy

Washington’s final argument is that the trial court erred in declaring Hill the winner of the runoff election rather than invalidating the election and ordering a new election because, he says, “[t]he voters and [Washington] should not have to suffer due to misconduct/omission by election officials.” Because Washington also presents this argument without supplying any legal authority in support, this Court will not consider it. See Spradlin and Dykes, supra.

IV. Conclusion

Washington has failed to demonstrate that the findings of the special master, adopted by the trial court, are plainly and palpably wrong and unsupported by the evidence. Instead, strict construction of the applicable statutes supports the decision of the trial court declaring Hill to be the winner of the mayoral election. Consequently, we affirm the trial court’s declaration that Hill was elected mayor of the Town of Greensboro in a runoff election held on September 14, 2004, and the trial court’s suspension is hereby lifted.

AFFIRMED.

HARWOOD, STUART, and SMITH, JJ., concur.

NABERS, C.J., and SEE, LYONS, WOODALL, and BOLIN, JJ., concur in the result.

      . Because some of the voters disqualified because of a failure to comply with a certain statutory provision were also disqualified on other grounds, the sum of the various categories of disqualification does not equal the aggregate change in total votes.