text:
    Ann Louise WHITTY et al. v. MONTGOMERY COUNTY et al.
    1091762.
    Supreme Court of Alabama.
    Sept. 20, 2013.
    W. Lewis Garrison, Gayle L. Douglas, and Ann M. Brady of Heninger Garrison Davis, LLC, Birmingham; and David R. Donaldson and Tammy McClendon Stokes of Donaldson & Guin, LLC, Birmingham, for appellants.
    Thomas T. Gallion III and Constance C. Walker of Haskell Slaughter Young & Gal-lion, LLC, Montgomery, for appellees.
   MURDOCK, Justice.

Ann Louise Whitty, Tratillia T. McCall, and other plaintiffs in this class action filed against Montgomery County (“the County”) and Janet Buskey, in her official capacity as Montgomery County Revenue Commissioner (“the revenue commissioner”), appeal from a dismissal of their action by the Montgomery Circuit Court. We affirm in part and reverse in part.

I. Facts and Procedural History

Whitty and McCall, on behalf of themselves and a purported class of similarly situated property owners, filed this action seeking certification of a class of

“all similarly situated persons who own property in Montgomery County, Alabama, which was sold to pay delinquent ad valorem taxes and which sale produced an excess over the taxes, interest, penalties and costs due and which excess is either still being held by Montgomery County or which excess has generated interest that is still being held by Montgomery County.”

Section 40-10-28, Ala.Code 1975, governs the disposition of excess funds paid to redeem property sold for nonpayment of taxes. It provides, in pertinent part:

“The excess arising from the sale of any real estate remaining after paying the amount of the decree of sale, and costs and expenses subsequently accruing, shall be paid over to the owner, or his agent, or to the person legally representing such owner, or into the county treasury, and it may be paid therefrom to such owner, agent or representative in the same manner as to the excess arising from the sale of personal property sold for taxes is paid.”

Section 40-10-28 further provides that if the excess amount is not claimed by the person entitled to receive it within three years, the county commission can order the excess placed in the general fund of the county in which the property is located. In that event, if a person provides proof to the county commission within 10 years thereafter that he or she is the rightful owner of the excess funds, the county commission may order the funds paid to the owner or to his or her heir or legal representative. If the funds are not paid within that 10-year period, they become the property of the county.

When a purchaser bids an excess amount at a tax sale and that bid is accepted, the revenue commissioner’s office deducts the amount of the delinquent taxes, late fees, and penalties from that amount and sends the remaining excess funds to the county commission. If the property sold at a tax sale is redeemed, the practice of the County is to pay the excess funds from the sale of the property to the party redeeming it. Pursuant to § 40-10-122(a), Ala.Code 1975, the redeeming party must pay the purchase price of the property, 12% interest per annum on the delinquent taxes, and 12% interest per annum on the excess portion of the bid (up to 15% of the value of the property). When the party redeeming the property pays the amount necessary to redeem, the County then reimburses the purchaser of the property at the tax sale. The practice of the County also is to retain the interest that accrues on the excess funds while it is holding those funds. If the property sold at a tax sale is not redeemed, then the excess funds can be claimed from the County with the appropriate proof of the right to the funds as provided in § 40-10-28.

In the original complaint, Whitty alleged that she

“owns property located at — E. Woodland Drive, Montgomery, Alabama 36105. Ms. Whitty’s Woodland Drive property was sold for an overbid at a tax sale in May of 2005 for past-due 2004 property taxes. Ms. Whitty redeemed her Woodland Drive property on March 30, 2006. The property was sold again for taxes in May of 2007. Ms. Whitty has not yet redeemed her property from the 2007 tax sale.”

Whitty also alleged that she “owns property located at — Collinwood [Avenue] in Montgomery County, which was sold for an overbid at a tax sale in May of 2007. Whitty has not yet redeemed her Collin-wood [Avenue] property.” The complaint contained no allegation regarding any tax sale of the Collinwood Avenue property prior to 2007.

In the original complaint, McCall alleged that she “owns property at-Old Powder Springs Road, Montgomery, Alabama 36116” and that “Ms. McCall’s property was sold for an overbid in May of 2006. McCall redeemed her property on September 18, 2006.”

After Whitty and McCall filed their complaint, the trial court scheduled a hearing as to the issue of class certification. In the course of discovery, the defendants produced documents inconsistent with some of the facts alleged by Whitty. Specifically, regarding the Whitty property on East Woodland Drive, tax records indicated that there was no excess bid on the tax sale of the property in either of the tax sales referred to in the complaint. As to the Whitty property on Collinwood Avenue, there was an excess bid in the tax sale of 2007, but not in any pertinent year prior to that.

Doubt as to Whitty’s ability to assert a claim in her name as to the excess bid and interest thereon resulting from the 2007 tax sale of the Collinwood Avenue property, however, arises from the presence in the record of a quitclaim deed appearing to show that, before that tax sale, Whitty conveyed her interest in the property to Riley Leon Smith. Presumably because of this fact, Whitty does not take the position on appeal that the trial court erred in dismissing her claims in relation to the 2007 tax sale of the Collinwood Avenue property.

Regarding the McCall property on Old Powder Springs Road, however, the Montgomery County records showed that an excess amount had been paid in the May 2006 tax sale; the records also indicated that the property was redeemed on September 18, 2006, by Pioneer Land Title Company (“Pioneer”), not by McCall. Subsequently, the County paid the excess amount (although not the interest) to Pioneer.

After defendants’ counsel presented documentation showing the above-related information to plaintiffs’ counsel, plaintiffs’ counsel informed defendants’ counsel that Whitty and McCall would be dismissed as plaintiffs and that new plaintiffs would be substituted as class representatives in an amended complaint. After a couple of months passed, Whitty and McCall remained in the case, and no new plaintiffs had been added. The County and the revenue commissioner filed a motion to dismiss, arguing that Whitty and McCall had failed to comply with the court’s scheduling order and had failed to prosecute the case.

A week after the County and the revenue commissioner filed their motion to dismiss, Whitty and McCall filed their first amended complaint naming new plaintiffs and responding to the motion to dismiss; they argued that because they had amended the complaint, the motion to dismiss should be denied or deemed moot. Ten days later, they filed their second amended complaint naming additional plaintiffs.

The County and the revenue commissioner moved to dismiss and/or to strike the amended complaints, arguing that Whitty and McCall lacked “standing” to pursue the claims in the original complaint and, therefore, that the trial court lacked subject-matter jurisdiction over the action at its outset. The County and the revenue commissioner also contended that the original complaint filed by Whitty and McCall should be dismissed. (They also argued that the new plaintiffs could attempt to file their own action.) The trial court denied the motion to dismiss and/or to strike.

Whitty and McCall filed three additional amended complaints naming additional plaintiffs. Eventually, the plaintiffs did file a motion to voluntarily dismiss Whitty and McCall and to substitute new class representatives. The motion stated:

“COME NOW THE PLAINTIFFS and move this Honorable Court to dismiss Plaintiffs Annie Louise Whitty and Tratillia T. McCall and substitute Jake Williams, Mary Berry, Lisa Rone, Patrick Bozeman, George Jones, Vanessa Jones, and Aleda M. Bozeman as Plaintiffs and Class Representatives as set forth in Plaintiffs’ First Amendment to Complaint, Plaintiffs’ Second Amendment to Complaint, and Plaintiffs’ Fourth Amendment to Complaint.”

(Capitalization in original; emphasis added.) The trial court granted this motion.

Subsequently, another amended complaint was filed seeking a writ of mandamus against the county commission and the revenue commissioner. On the same day, however, the defendants filed a “Motion to Dismiss this Action in its Entirety Pursuant to [Ala. R. Civ. P.] 12(b)(1) and 12(h)(3) for lack of Subject Matter Jurisdiction.” In the motion, the defendants argued that because Whitty and McCall never had “standing” to assert the claims in the original complaint, they could not have amended the complaint to add additional plaintiffs who purportedly did have standing.

The plaintiffs filed a response in opposition to the motion to dismiss in which they contended that McCall had “standing” to bring this action when it was commenced because (a) she was the property owner and (b) an excess amount had been paid in the May 2006 tax sale of her property. The plaintiffs contended that Pioneer was acting as McCall’s agent when it redeemed the property on Old Powder Springs Road. The response noted that even if the County returned the original excess amount on the tax sale to Pioneer, it did not return the interest earned on that amount and that, therefore, McCall had been injured by the defendants’ actions under § 40-10-28. In support of this contention, McCall cited the “Certificate of Redemption” for the property that the defendants had submitted in support of their motion to dismiss, which stated, in part:

“NOW, THEREFORE, I SARAH G. SPEAR,[] REVENUE COMMISSIONER OF THE SAID COUNTY OF MONTGOMERY BEING SATISFIED THAT THE SAID TRATILLIA MCCALL BY ATTY IS THE OWNER OF SAID PROPERTY, AND HAS A RIGHT TO REDEEM THE SAME, DO HEREBY CERTIFY THAT THE SAID TRATILLIA MCCALL BY ATTY HAS DEPOSITED WITH ME, ON THIS 20 DAY OF SEPTEMBER 06, $10876.97 DOLLARS FOR THE REDEMPTION OF THE FOLLOWING REAL ESTATE: ....”

(Emphasis added.) The plaintiffs made no argument in their response concerning Whitty’s “standing.”

In their reply to the plaintiffs’ response, the defendants admitted that Pioneer was McCall’s agent, but they argued that

“[a]fter redemption, and in accordance with 40-10-28, the Revenue Commissioner paid the excess funds from the sale of the McCall property over to Pioneer Land Title, (who McCall admits was her agent). This was permissible and perfectly legal and appropriate pursuant to § 40-10-28 which gives the Revenue Commissioner discretion to pay the excess funds to the owner, the agent for the owner, or place the funds in the county treasury.”

In a hearing on the motion to dismiss, counsel for the plaintiffs contended that Whitty had “standing” at the outset of the action because (a) there had been a tax sale on the Collinwood Avenue property in May 2005 and (b) an excess of over $4,000 was paid in the sale. Counsel contended that Whitty redeemed the property in April 2006 through her brother acting as her agent but that the County never returned the interest on the excess to Whitty.

In the same hearing, counsel for the defendants objected that the allegations in the complaint did not mention the 2005 tax sale of the Collinwood Avenue property and so that sale should not be considered. The trial court agreed. At the conclusion of the hearing, the trial court stated: “Well, my conclusion is that Ms. Whitty didn’t have standing to start with from at least what I have seen today. McCall may have, but it may be the County has satisfied its obligation. So I am going to take a look at that.” The same day, the trial court entered a short order granting the motion to dismiss as to both Whitty and McCall without further explanation.

The plaintiffs filed a “Motion to Reconsider,” which solely argued that McCall had “standing” at the outset of the litigation. In the motion, the plaintiffs argued that “as the undisputed documents from Montgomery County demonstrate, Ms. McCall satisfied all of the criteria necessary to pursue a claim for interest that should have been paid to her resulting from the overbid paid on her specific piece of property.” The plaintiffs added that “[t]he issue of whether or not Ms. McCall was entitled to interest goes to the merits of the case. It has nothing to do with whether or not Ms. McCall had standing to bring the claim.” (Emphasis in original.) In the hearing oh the motion to reconsider, counsel for the plaintiffs stated that they were not making an argument with regard to Whitty, only with regard to the standing of McCall as a plaintiff. The trial court denied the motion, stating that it was “denied after review of all the pleadings.”

II. Analysis

At the outset, the plaintiffs contend that Whitty and McCall were dismissed from the action below solely as class representatives and not as plaintiffs. The motion they filed with the trial court, however, was styled as a “Motion to Voluntarily Dismiss Plaintiffs Whitty and McCall and Substitute New Plaintiffs and Class Representatives.” Further, the text of the motion stated that the new plaintiffs moved “to dismiss Plaintiffs Annie Louise Whitty and Tratillia T. McCall and substitute Jake Williams, Mary Berry, Lisa Rone, Patrick Bozeman, George Jones, Vanessa Jones, and Aleda M. Bozeman as Plaintiffs and Class Representatives as set forth in Plaintiffs’ First Amendment to Complaint. ...” (Emphasis added.) The trial court granted the motion. The motion is unequivocal in seeking the dismissal of Whitty and McCall both as plaintiffs and as class representatives. Therefore, we find no merit to the plaintiffs’ argument that those two individuals were dismissed only as class representatives.

The plaintiffs further contend that both Whitty and McCall had standing at the outset of this action. Specifically, they argue that Whitty and McCall satisfied the criteria necessary to pursue their claims for excess funds and related interest on tax sales of properties they owned. They contend that for each one it was alleged and demonstrated that there was ownership of one or more particular properties, that Whitty and McCall became delinquent in paying property taxes on those properties, that the County sold the properties in tax sales and obtained excess bids on those sales, that Whitty and McCall redeemed those properties, and that the County failed to return the “excess” on those tax sales to Whitty and McCall.

Specifically with regard to Whitty, however, the plaintiffs make no argument on appeal challenging the dismissal of the complaint insofar as it asserted a claim by Whitty concerning the Woodland Drive property (presumably because there was no excess bid in the tax sales of that property). They do challenge the dismissal of the complaint in relation to the Collin-wood Avenue property; however, their contention in this regard is that an excess amount had been paid in a tax sale in 2005 with respect to that property. We find no basis for reversal of the judgment of the trial court on this ground, however, given the absence of any allegation in the complaint regarding the 2005 tax sale of the Collinwood Avenue property.

Presumably because of the prior conveyance of the Collinwood Avenue property to a third party, the plaintiffs do not take the position on appeal that the trial court erred in dismissing Whitty’s claims in relation to the 2007 tax sale of the Collinwood Avenue property, the only tax sale of the Collinwood Avenue property referenced in her complaint. We decline to take that position for the plaintiffs; accordingly, we decline to reverse the trial court’s dismissal of the action insofar as its continued viability depends in any way on the claims originally asserted by Whitty.

With regard to whether McCall had “standing” at the outset of the litigation (and whether, therefore, the complaint filed by McCall could be amended to add additional plaintiffs), the plaintiffs argue that McCall had “standing” because (a) she was the property owner and (b) an excess amount had been paid in the May 2006 tax sale. The defendants contend, however, that McCall was “not injured by the alleged wrong[ ] set forth in the Complaint because Montgomery County showed that there [was] no excess bid[ ] being held” with respect to her property. In making this argument, the defendants presume an answer to the central legal question that is the subject of the claim originally alleged by McCall — whether interest is owed her on the excess under Alabama law. Put differently, the defendants presume an answer to a legal question bearing on whether McCall alleged a claim upon which relief could be granted under Alabama law. Admittedly, the defendants take the position that they returned the principal amount of the excess to Pioneer when it redeemed the property and that no further moneys are owed. For present purposes, however, the essential point of McCall’s claim was that § 40-10-28 should be construed to require the payment to her of “interest” collected by the County on that excess.

That said, the aforesaid questions as to McCall’s claims simply were not questions of “standing” on her part to assert those claims, but rather were questions as to the legal merits of those claims. That is, they were questions concerning whether McCall’s complaint stated claims upon which relief could be granted under Alabama law. We have previously observed that “our courts too often have fallen into the trap of treating as an issue of ‘standing’ that which is merely a failure to state a cognizable cause of action or legal theory, or a failure to satisfy the injury element of a cause of action.” Wyeth, Inc. v. Blue Cross & Blue Shield of Alabama, 42 So.3d 1216, 1219 (Ala.2010). See also Steele v. Federal Nat’l Mortg. Ass’n, 69 So.3d 89 (Ala.2010) (quoting and relying upon Wyeth for the above-stated principle); Ex parte Kohlberg Kravis Roberts & Co., 78 So.3d 959, 979 (Ala.2011) (quoting at length from Wyeth with approval). In Ex parte BAC Home Loans Servicing, LP, [Ms. 1110373, Sept. 13, 2013] — So.3d - (Ala.2013), this Court rejected the notion that questions such as those raised by the defendants in the present case as to McCall’s claims present a “standing” issue rather than a “cause of action” issue. Accordingly, we hold that the trial court erred in dismissing the plaintiffs’ claims on the ground that McCall lacked “standing” and, therefore, that the trial court lacked subject-matter jurisdiction over her complaint so as to foreclose any amendments to that complaint adding other plaintiffs. Any question as to merit of the plaintiffs’ claim for interest (both individually and on behalf of the purported class they seek to represent) is not before us.

III. Conclusion

For the reasons explained above, we affirm the trial court’s dismissal of the complaint insofar as it relates to the claims alleged by Whitty and McCall. We reverse the judgment of the trial court, however, insofar as it also includes a dismissal of the claims of the additional plaintiffs added by amendments to the original complaint. The trial court was not without subject-matter jurisdiction over the claims originally alleged by McCall; therefore, the various amendments to the complaint adding additional plaintiffs were viable. The cause is remanded for further proceedings.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

MOORE, C.J., and STUART, BOLIN, PARKER, SHAW, WISE, and BRYAN, JJ., concur.

MAIN, J., dissents.

      . At the time the original complaint was filed in this case, Sarah G. Spear was serving as revenue commissioner in Montgomery County and was named as a defendant. Thereafter, Janet Buskey assumed the position of Montgomery County Revenue Commissioner, and she was automatically substituted for Spear as a defendant. See Rule 25(d), Ala. R. Civ. P.

      . As noted, Sarah G. Spear preceded Janet Buskey as revenue commissioner for Montgomery County. See supra note 1.

      . On appeal, the defendants acknowledge that McCall, not Pioneer, was the "owner” of the property in question under § 41-10-28 because she was "the person against whom taxes on the property are assessed.” Nonetheless, they assert that, if Alabama law recognizes a claim to interest on excess funds, it is a claim that belonged to Pioneer as the redeeming party rather than to McCall as the "owner" of the property. Of course, Pioneer has brought no action to assert such a claim. Whether this was a "cause of action” issue or a “real party in interest” issue, and the ramifications of that choice, is an issue not before us. Clearly, however, it was not a "standing” issue that supported a dismissal of the complaint under Rule 12(b)(1), Ala. R. Civ. P. See Ex parte BAC Home Loans Servicing, LP, supra; see also Ex parte McKinney, 87 So.3d 502, 509 n. 7 (Ala.2011) (acknowledging the appellate courts have occasionally been guilty of " ' "blurr[ing]” ' the lines between the distinct concepts of standing and real party in interest”).


source: Caselaw Access Project

author: MURDOCK, Justice.

license: Public Domain

text:
    Donald E. HUGHES and John H. Hughes v. Robbie Jean BRANTON and Billy Joe Hughes.
    1101051.
    Supreme Court of Alabama.
    Sept. 20, 2013.

      David K. Hogg, Dothan, for appellants.
    Deborah S. Seagle, Dothan, for appel-lees.
   MURDOCK, Justice.

Donald E. Hughes (“Don”) and John H. Hughes (“John”) appeal from a judgment of the Houston Circuit Court vacating a deed and imposing a constructive trust upon real property formerly owned by Henry C. Hughes (“Henry”) and Emma Lucille Hughes (“Emma”), both of whom are deceased. Because we conclude that the circuit court never acquired jurisdiction of the claim at issue, we vacate the judgment and dismiss the appeal.

I. Facts and Procedural History

Henry and Emma, who was born in December 1918, had five children: daughters Robbie Jean Branton (“Robbie”) and Sarah Spears (“Sarah”) and sons Billy Joe Hughes (“Billy Joe”), Don, and John. Emma and Henry owned approximately 100 acres of real property in Dothan, which they farmed (“the farm”). At the time of trial, the farm had a value of $582,500 according to a recent ad valorem tax assessment.

In 1988, Henry died and Emma became the sole owner of the farm. After Henry’s death, Emma executed a purported will (“the 1988 will”). The 1988 will provided that Emma’s estate would pass upon her death to her five children “to be divided equally, agreeably and peaceably.” The 1988 will named Don as personal representative of the estate, and it named John as successor personal representative.

In 1995, Emma executed a second purported will (“the 1995 will”). The 1995 will revoked all earlier wills and provided that Emma’s estate would pass upon her death to her five children “to be divided among them in such a manner as my Co-[personal representatives] may determine and such divisions need not be equal.” The 1995 will named Don and John as co-personal representatives of the estate. At the same time she executed the 1995 will, Emma also executed a durable power of attorney naming Don and John as co-attorneys-in-fact.

In February 1997, Emma executed a deed that transferred the farm to Don and John, subject to a life estate in favor of Emma (“the 1997 deed”).

In 1998, after Emma sustained a fall in her home, Don moved Emma into an assisted-living facility. Later that year, she was moved into a nursing home.

In November 1999, Don and John, as co-attorneys-in-fact for Emma, executed a deed transferring Emma’s life estate in the farm to Don (“the 1999 deed”).

Emma died in 2008, after which Don met with Emma’s other children. In the meeting, Don gave each sibling a copy of the power of attorney, the 1995 will, and the 1997 deed. At the meeting, Don stated that he and John owned the farm and that they were not going to give any portion of the farm to Robbie, Billy Joe, or Sarah.

In January 2005, Robbie and Billy Joe filed in the Houston Probate Court a petition to probate the 1995 will for the purpose of contesting it. See Hooper v. Huey, 293 Ala. 63, 68, 300 So.2d 100, 104-05 (1974) (noting that the same person may both initiate a proceeding to probate a will and contest the will at issue), overruled in part on other grounds, Bardin v. Jones, 371 So.2d 23, 26 (Ala.1979). The petition also included a claim to set aside the 1997 deed. Robbie and Billy Joe attached a copy of the 1995 will to their petition, and they requested that the probate court order Don and John to produce the original of Emma’s 1995 will.

In regard to the will contest, Robbie and Billy Joe alleged that the 1995 will was ambiguous, that Emma lacked testamentary capacity when she executed the 1995 will, and that she was the subject of fraud or undue influence by Don and John. Robbie and Billy Joe requested that, upon receipt of an answer from Don and John, the probate court transfer “this entire matter” to the Houston Circuit Court. Robbie and Billy Joe also requested that either the probate court or the circuit court require an inventory as to the real and personal property composing Emma’s estate. Further, they requested that “the appropriate Court remove [Don and John] as the administrators of the estate,” though the record does not reflect the appointment of any “administrators of the estate.”

In regard to the 1997 deed, Robbie and Billy Joe alleged that Emma lacked the capacity to execute the 1997 deed or that she was the subject of undue influence by Don and John in regard to the 1997 deed. Robbie and Billy Joe also alleged that Don and John

“committed a fraud on [Robbie and Billy Joe] in this matter ... by concealing the [1997 deed], and by continually indicating, both prior to, and upon the death of [Emma], that [Robbie and Billy Joe] ... were due a proprietary disposition in accordance with the [1995 will].”

Robbie and Billy Joe requested that the 1997 deed be set aside and that “any encumbrance or collateralization of [the farm] which may have already occurred, due to actions taken by [Don and John] since the execution of the [1995 will], ... be satisfied immediately.”

In addition to their petition, Robbie and Billy Joe also filed in the probate court a “Request for Removal to Circuit Court.” The removal request alleged that Robbie and Billy Joe had filed a petition contesting the 1995 will and that,

“pursuant to the provisions of law, the Petitioners/Contestants demand that the probate proceeding be transferred and removed from the Probate Court of Houston County to the Circuit Court of Houston County, Alabama, in order that this matter may be fully adjudicated.”

Upon receipt of the petition, the probate court entered an order directing Don and John to produce the 1995 will. Thereafter, the attorney for Don and John filed an appearance in the probate court, and the original will was delivered to that court. In conjunction with the delivery of the 1995 will, Don and John filed a petition for letters testamentary and an answer to the petition filed by Robbie and Billy Joe. Don and John denied the allegations in the Robbie and Billy Joe’s petition as to their alleged wrongful acts regarding the procurement of the 1995 will and the 1997 deed.

In February 2005, the probate court entered an order transferring “the proceeding” to the circuit court. According to an index in the record before us, the probate court’s “file” that was transferred to the circuit court consisted of the following:

“1. Copy of Last Will and Testament of [Emma] Lucille Crutchfield Hughes[;]
“2. Petition to Probate Will, Contest Will and Vacate Deed w/Exhibit ‘A’, ‘B’, ‘C’, ‘D’, ‘E’, & ‘F’[;]
“3. Request for Removal to Circuit Court[;]
“4. Order to Produce Will w/proof of service on Donald E. Hughes & John H. Hughes[;]
“5. Entry of Appearance of Reginald A. Rhodes[, the attorney for Don and John;]
“6. Original Will of [Emma] Lucille Crutchfield Hughes[;]
“7. Petition for Letters Testamentary and Answer to Petition to Contest Will and Vacate Deed[;]
“8. Alabama Certificate of Death[;]
“9. Order (to Transfer to Circuit Court).”

After the probate court transferred its file to the circuit court, Robbie and Billy Joe filed an answer in that court alleging that the issuance of letters testamentary to Don and John would be premature. Also, Robbie and Billy Joe filed a motion requesting that the circuit court stay the issuance of letters testamentary pending resolution of the issues raised in the petition.

In March 2005, based on an agreement of the parties, the circuit court stayed the case “until further notice.” Approximately one year later, the parties began to engage in discovery, which continued sporadically over the next several years.

In February 2010, Don and John filed a motion for a summary judgment and Robbie and Billy Joe filed a response to the motion. In April 2010, the circuit court entered an order denying the motion for a summary judgment and bifurcating, for purposes of trial, the will contest and the request to vacate the 1997 deed. Reasoning that “[i]f the deed is valid, the decedent would not own any real property subject to the will,” the circuit court set the claim to set aside the 1997 deed for a nonjury trial and set the will contest for a jury trial.

In October 2010, Robbie and Billy Joe filed a motion to amend their petition. The circuit court granted the motion. The amended petition added allegations that Emma had conveyed the farm to Don and John “in order save the property from being surrendered to Medicaid should the necessity to enter a nursing home arise.” Robbie and Billy Joe further alleged that Don and John held the farm “as trustees for [Emma] and other members of the family” and that after Emma’s death Don and John “claimed the property for themselves outright without regard for the trust interest of the remaining family members.” Robbie and Billy Joe requested that the circuit court “declare the deed to [Don and John] to be a Deed in Trust and [Don and John] trustees of the property for all the natural heirs.”

The circuit court subsequently held a nonjury trial concerning the claim to set aside the 1997 deed. After the trial, the court ordered the respective attorneys “to brief the issue of a constructive trust.” After receiving the requested briefs, the circuit court entered an order that concludes as follows:

“It is stated in Brothers v. Moore, 349 So.2d 1107, 1108 (Ala.1977):
“ ‘A constructive trust is a creature of equity which operates to prevent unjust enrichment. A constructive trust will be found when property has been either acquired by fraud, or where in the absence of fraud it would not be equitable to allow it to be retained by him who holds it. (Emphasis supplied.)’
“Additionally, a constructive trust has been imposed where a confidential relation exists. In Cole v. Adkins, 358 So.2d 447, 450 (Ala.1978) the Court opined:
“ ‘A constructive trust will also be imposed upon property whenever the circumstances under which it was acquired make it inequitable that it should be retained by the holder of legal title provided some confidential relationship exists between the grant- or and grantee; and provided the imposition of a trust is necessary to prevent a failure of justice. “... However, actual or intentional fraud is not an essential element of a constructive trust ... a constructive trust may be imposed to prevent unjust enrichment, without regard to actual fraud ...” 89 C.J.S. Trusts § 139.’
“This Court finds a confidential relationship existed between [Emma] and her two sons — Don[ ] and John.... This finding is based on [Emma’s] advanced age, questions raised about her diminished capacity, her frailty and her reliance on her two sons to conduct her business affairs. Two other facts are pivotal. The fact she had to get the property out of her estate for Medicaid purposes and the fact that as late as 1995 she still bequeathed all her property to her five children although not in equal shares.
“[Don and John] failed to rebut this presumption which arises from this confidential relationship....
“Based on the foregoing this Court finds as follows:
“1. That a constructive trust exists in favor of all five children as to the property in question; and
“2. That the Petitioners may go forward on their will contest for a jury to decide.”

Don and John filed a motion requesting that the circuit court certify this order as a final judgment pursuant to Rule 54(b), Ala. R. Civ. P. The circuit court granted the motion, and Don and John appealed. Because we conclude that the circuit court did not acquire jurisdiction over the claims concerning the 1997 deed, we pretermit any discussion of the arguments made by Don and John on appeal.

II. Analysis

Matters of subject-matter jurisdiction are subject to de novo review. Solomon v. Liberty Nat’l Life Ins. Co., 953 So.2d 1211, 1218 (Ala.2006). “Lack of subject matter jurisdiction may not be waived by the parties” and may be raised ex mero motu. Ex parte Smith, 438 So.2d 766, 768 (Ala.1983).

Robbie and Billy Joe filed their will-contest petition in the probate court pursuant to § 43-8-190, Ala.Code 1975. Section 43-8-190 states:

“A will, before the probate thereof, may be contested by any person interested therein, or by any person, who, if the testator had died intestate, would have been an heir or distributee of his estate, by filing in the court where it is offered for probate allegations in writing that the will was not duly executed, or of the unsoundness of mind of the testator, or of any other valid objections thereto; and thereupon an issue must be made up, under the direction of the court, between the person making the application, as plaintiff, and the person contesting the validity of the will, as defendant; and such issue must, on application of either party, be tried by a jury.”

Included in Robbie and Billy Joe’s will-contest petition, however, was a separate claim requesting that the probate court set aside the 1997 deed. The judgment as to this latter claim, not the will contest, is the only matter before us.

As a preliminary matter, we note that a claim to set aside a deed for lack of mental capacity or undue influence is equitable in nature. See, e.g., Anderson v. Anderson, 399 So.2d 831, 833 (Ala.1981). Likewise, the declaration of a constructive trust, which was the relief granted by the circuit court, is an equitable remedy. See, e.g., Seals v. Seals, 423 So.2d 222, 224 (Ala.1982).

Although the legislature has clothed a few probate courts with equity jurisdiction as to certain proceedings, see, e.g., Regions Bank v. Reed, 60 So.3d 868, 878 & n. 8 (Ala.2010); Jett v. Carter, 758 So.2d 526, 529 & 530 n. 5 (Ala.1999), the Houston Probate Court is not among those courts. Accordingly, the probate court had no jurisdiction to adjudicate the claim to set aside the 1997 deed. A probate court “cannot take jurisdiction of a cause or administer remedies except as provided by statute.” Lappan v. Lovette, 577 So.2d 893, 896 (Ala.1991); see Ala.Code 1975, § 12-13-1 (specifying the subject-matter jurisdiction of probate courts generally).

Furthermore, it is well established that “ ‘ “[ujnless expressly authorized so to do, a court has no authority to transfer a cause from itself to another court, and thereby give the other court possession of the case to hear and determine it, although the other court would have had jurisdiction of the cause if it had come to it by due process.” 21 C.J.S. Courts § 502, p. 769....’” Ex parte Boykin, 611 So.2d 322, 326 (Ala.1992) (quoting Allen v. Zickos, 37 Ala.App. 361, 364, 68 So.2d 841, 843 (1953)). Although the probate court purported to transfer the entire proceeding, i.e., both the will contest and the claim to set aside the 1997 deed, to the circuit court, § 43-8-198, Ala.Code 1975, authorizes only the transfer of the will contest. Accordingly, the probate court could not properly transfer the claim contesting the 1997 deed to the circuit court.

Although circuit courts have equity jurisdiction, a party must invoke that jurisdiction by filing an action in that court, see Rule 8(a), Ala. R. Civ. P., or by obtaining a proper transfer of an action from another court, see, e.g., DuBose v. Weaver, 68 So.3d 814, 821 (Ala.2011). Neither occurred as to the claim to set aside the 1997 deed.

Nor can we consider Robbie and Billy Joe’s amendment to their petition, which was filed in the circuit court, as effective to invoke the equity jurisdiction of the circuit court over the claim to set aside the 1997 deed. Based on settled precedent, a circuit court may not include with its adjudication of a transferred will contest an adjudication of claims that are not part of that contest. When a will contest has been transferred from the probate court to the circuit court, “ ‘the jurisdiction conferred on the circuit court is statutory and limited,’ ” and “ ‘[t]he jurisdiction and authority of the circuit court is limited to the trial of the issues presented by the contest after which the case must be certified back to the probate court.’” Bardin v. Jones, 371 So.2d 23, 26 (Ala.1979) (quoting Thigpen v. Walker, 251 Ala. 426, 429, 37 So.2d 923, 925-26 (1948)); see also § 43-8-198; Nottage v. Jones, 388 So.2d 923, 925 (Ala.1980) (as to will contests transferred to circuit court, “grant of jurisdiction is limited”). In exercising its jurisdiction over a will contest, the circuit court may consider those issues that are “presented in an appropriate pleading under the Rules of Civil Procedure, provided those issues can properly be raised in a will contest.” Bardin, 371 So.2d at 26; see also Allen v. Pugh, 206 Ala. 10, 12, 89 So. 470, 472 (1921) (will contest in the circuit court, formerly the chancery court, is “an extension of the right to contest in the probate court”).

Because the circuit court’s jurisdiction has not been properly invoked as to the claim to set aside the 1997 deed, its judgment as to that claim is void. See Johnson v. Hetzel, 100 So.3d 1056, 1057 (Ala.2012) (holding that failure to satisfy a jurisdictional prerequisite renders a judgment void). A void judgment will not support an appeal. Id. It is this Court’s obligation to vacate such a judgment and dismiss the appeal. Ex parte Alabama Dep’t of Human Res., 999 So.2d 891, 898 (Ala.2008).

Based on the foregoing, the circuit court’s judgment is hereby vacated and the appeal dismissed.

JUDGMENT VACATED; APPEAL DISMISSED.

STUART, BOLIN, PARKER, SHAW, MAIN, WISE, and BRYAN, JJ., concur.

MOORE, C.J., dissents.

      . According to the circuit court’s judgment, the evidence reflected that "the family needed to get the [farm] out of [Emma’s] name because of Medicaid requirements.”

      . Sarah was not made a party to the case. During the trial, one of the attorneys for Don and John informed the trial court that Sarah, who had allegedly received substantial gifts from Emma, “didn't want to participate" in the litigation. Robbie also testified that Sarah "didn’t wish to join in” the litigation.

      . Don and John had mortgaged the property to pay for Emma’s nursing-home expenses until such time as she might qualify for Medicaid benefits. See generally Hugh M. Lee & Jo Alison Taylor, Alabama Elder Law § 13:34 (2008) (discussing the restrictions on an institutionalized person's giving away of assets in an effort to qualify for Medicaid benefits).

      . In an order denying a motion for a summary judgment filed by Don and John, the circuit court stated: “The Plaintiffs filed a petition to probate will, contest will and vacate deed in the probate court of Houston County, Alabama on January 5, 2005. The case was transferred to the circuit court.”

      . As this Court stated in Lappan v. Lovette, 577 So.2d 893, 896 (Ala.1991): "The probate court is a court of law and, therefore, generally does not possess jurisdiction to determine equitable issues.”

      . Also, we note that the probate court did not initiate an estate administration as to Emma’s estate, and, even if it had done so, the estate administration was not removed from the probate court by the circuit court. See DuBose v. Weaver, 68 So.3d 814, 821 (Ala.2011) (“[T]he administration of an estate does not begin merely upon the filing in the probate court of a petition for letters of administration or of a petition for probate of a will and for letters testamentary.... ‘[T]he probate court must act upon the petition and thereby activate the proceedings, which may thereafter be subject to removal to the circuit court.’ ” (quoting Ex parte Smith, 619 So.2d 1374, 1376 (Ala.1993))).
      Even if an estate administration had been initiated and properly removed, the claim to set aside the 1997 deed, as pleaded, would not have been a part of the estate administration itself because that claim does not concern any actions that Don and John took or failed to take in regard to the administration of Emma’s estate. Don and John have not been appointed to administer Emma’s estate, and the only wrongdoing alleged against them involves actions they took during Emma’s lifetime.

      ."Upon the demand of any party to the contest, made in writing at the time of filing the initial pleading, the probate court, or the judge thereof, must enter an order transferring the contest to the circuit court of the county in which the contest is made, and must certify all papers and documents pertaining to the contest to the clerk of the circuit court, and the case shall be docketed by the clerk of the circuit court and a special session of said court may be called for the trial of said contest or, said contest may be tried by said circuit court at any special or regular session of said court. The issues must be made up in the circuit court as if the trial were to be had in the probate court, and the trial had in all other respects as trials in other civil cases in the circuit court.... After a final determination of the contest, the clerk of the circuit court shall certify the transcript of all judgments of the circuit court in such proceedings, together with all of the papers and documents theretofore certified to the circuit court by the probate court, back to the probate court from which they were first certified to the circuit court, and thereafter shall be recorded in the probate court as all other contested wills are recorded in the probate court.”
      § 43-8-198, Ala.Code 1975.


author: PARKER, Justice. MOORE, Chief Justice

text:
    Ex parte Carlos HERNANDEZ. (In re Carlos Hernandez v. State of Alabama).
    1120958.
    Supreme Court of Alabama.
    Sept. 27, 2013.
    J. Stephen Salter, Gulf Shores; and Sam Heldman of The Gardner Firm, PC, Washington, D.C., for petitioner.
   PARKER, Justice.

WRIT DENIED. NO OPINION.

STUART, BOLIN, MURDOCK, SHAW, MAIN, WISE, and BRYAN, JJ., concur.

MOORE, C.J., dissents.

MOORE, Chief Justice

(dissenting).

I respectfully dissent from the denial of Carlos Hernandez’s petition for a writ of certiorari. Having reviewed the unpublished memorandum of the Court of Criminal Appeals upholding Hernandez’s conviction, Hernandez v. State (No. CR-11-1732, April 26, 2013), — So.3d - (Ala.Crim.App.2013) (table), and the facts presented in Hernandez’s petition, I am not convinced that the State presented sufficient evidence from which a rational jury could find Hernandez guilty beyond a reasonable doubt of knowingly trafficking in 10 or more kilograms of cocaine.

The federal Drug Enforcement Administration arranged for an informant to deliver 15 kilograms of cocaine to Hernandez in the parking lot of the Flying J truck stop in Birmingham. Federal agents recorded video and audio of the delivery. Hernandez received a closed suitcase from the informant, which he put unopened into the trunk of his car. Several blocks away local police stopped Hernandez, seized the suit-ease, and arrested him. A jury convicted him of trafficking in 10 or more kilograms of cocaine. The trial court imposed a mandatory sentence of life imprisonment without parole.

Section 13A-12-23R2), Ala.Code 1975, provides that a person knowingly in possession of 10 kilograms or more of cocaine “shall be sentenced to a mandatory term of imprisonment of life without parole.” The audio transcript (translated from Spanish) of the controlled delivery does not contain any dialogue with Hernandez referring to cocaine or using a code word for cocaine. The only passage about quantity is the following dialogue between Hernandez and the informant or confidential source:

“CS: Here. There is the f[_] luggage.
“CARLOS: Yes, How much is it?
“CS: Uh, he said that it was 15.”

This brief dialogue in my view is insufficient to prove beyond a reasonable doubt that Hernandez knowingly possessed 10 or more kilograms of cocaine. Notably, he never opened the suitcase. Because the informant did not testify at the trial nor was the informant’s identity disclosed to the defense, the only evidence of Hernandez’s knowledge of the contents of the suitcase is the audiotape of the controlled delivery. “The test to be applied [in reviewing a conviction based on circumstantial evidence] is whether the jury might reasonably find that the evidence excluded every reasonable hypothesis except that of guilt....” Cumbo v. State, 368 So.2d 871, 874 (Ala.Crim.App.1978). From the evidence presented, the jury would have to speculate that Hernandez knew the suitcase contained cocaine without having any evidence before it to that effect. “[M]ere speculation, conjecture, or surmise that the accused is guilty of the offense charged does not authorize a conviction.” Thomas v. State, 363 So.2d 1020, 1022 (Ala.Crim.App.1978).

For the above reasons, I would grant the petition for a writ of certiorari to examine the record on the question of whether a rational jury could conclude beyond a reasonable doubt from the evidence presented at trial that Hernandez knew that the suitcase he had received from the informant contained 10 or more kilograms of cocaine.


author: THOMPSON, Presiding Judge. MOORE, Judge,

text:
    Samuel RODGERS v. Elizabeth McELROY.
    2110364.
    Court of Civil Appeals of Alabama.
    Aug. 10, 2012.

      Stewart E. Burns of Burns, Burns & Garner, Gadsden, for appellant.
    Carol Ann Smith and A. Mark Bahakel of Smith & Pace, P.C., Birmingham, for appellee.
    Duane A. Graham of Armbrecht Jackson LLP, Mobile, for amicus curiae Frank H. Kruse, in support of the appellee.
    Algert S. Agrícola, Jr., of Ryals, Plum-mer, Donaldson, Agrícola & Smith, P.C., Montgomery, for amicus curiae Alabama Probate Judges Association, in support of the appellee.
   THOMPSON, Presiding Judge.

Samuel Rodgers appeals from a judgment awarding Elizabeth MeElroy a fee to compensate her for serving as the personal representative of the estate of Ron’Dre-quez Cortez White.

The record indicates the following. In July 2009, White was killed in a motor-vehicle accident caused by a drunk driver. White, who was 20 years old at the time of the accident, died intestate. On February 4, 2010, MeElroy, the county administrator for Jefferson County, filed a petition in the Jefferson County Probate Court (“the probate court”) seeking to administer White’s estate. The probate court appointed MeElroy to serve as personal representative of White’s estate, and it granted her letters of administration. MeElroy posted the $50,000 bond required by law. On April 7, 2010, MeElroy filed an inventory of White’s estate, which she determined had no assets. She also identified White’s mother, Sandey Greene, as White’s only known heir.

As part of her duties as personal representative, MeElroy hired John Stamps, an attorney who already represented Greene, to pursue a wrongful-death action in connection with White’s death. Stamps was able to reach a settlement of $150,000 with White’s underinsured-motorist insurance carrier without having to file a lawsuit. He did, however, file a wrongful-death action against Tony Ferrell and Edna Ferrell. The Ferrells’ liability-insurance carrier settled for $25,000. Ultimately, a judgment of $300,000 was entered against Tony Ferrell.

Meanwhile, on June 18, 2010, Samuel Rodgers filed a petition in the probate court seeking an order establishing that he had the right to inherit from White because, Rodgers said, he was White’s father. Greene contested Rodgers’s petition, and the matter was moved to the Jefferson Circuit Court (“the trial court”). After a jury trial in October 2011, the jury returned a verdict finding that Rodgers was White’s father and, therefore, that he was entitled to inherit from White. On October 13, 2011, the trial court entered a judgment on the verdict and ruled that, in addition to being entitled to inherit from White under the laws of intestate succession, Rodgers also was entitled to a distribution of the wrongful-death proceeds.

Rodgers immediately filed a motion asking that the trial court order McElroy to release the wrongful-death proceeds that had been collected. In his motion, Rodgers contended that McElroy was not entitled to be compensated for her services as personal representative from the wrongful-death proceeds. McElroy objected, and the matter was litigated. After a hearing, the trial court entered an order finding that McElroy was entitled to compensation for her services as personal representative and awarded her $15,750, which equaled 9% of the total of $175,000 in wrongful-death proceeds that had been collected. The balance of the proceeds was divided evenly between Greene and Rodgers. Rodgers appealed.

Rodgers contends that the trial court had no discretion to award McElroy a fee in this case. Specifically, he argues that White’s estate had no value and that because, he says, wrongful-death proceeds are not part of the estate and cannot be used to pay estate-administration fees, there was no money from which the trial court could have awarded McElroy fees for her work as the personal representative in this case.

This issue presents this court with a question of law, which we review de novo.

“ ‘[Wjhere the facts before the trial court are essentially undisputed and the controversy involves questions of law for the court to consider, the court’s judgment carries no presumption of correctness.’ Allstate Ins. Co. v. Skelton, 675 So.2d 377, 379 (Ala.1996). Questions of law are reviewed de novo. BT Sec. Corp. v. W.R. Huff Asset Mgmt. Co., 891 So.2d 310 (Ala.2004).’
“Alabama Republican Party v. McGinley, 893 So.2d 337, 342 (Ala.2004).”

Ex parte Terry, 957 So.2d 455, 457 (Ala.2006).

Section 6-5-410, Ala.Code 1975, provides, in part:

“(a) A personal representative may commence an action and recover such damages as the jury may assess in a court of competent jurisdiction within the State of Alabama where provided for in subsection (e), and not elsewhere, for the wrongful act, omission, or negligence of any person, persons, or corporation, his or her or their servants or agents, whereby the death of the testator or intestate was caused, provided the testator or intestate could have commenced an action for the wrongful act, omission, or negligence if it had not caused death.
“(c) 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.”

In addition to § 6-5-410(c), Rodgers relies on caselaw that, he says, supports his position that the costs of administration of an estate — including compensation for the services provided by a personal representative — cannot be paid from money recovered in a wrongful-death action. However, none of the cases he cites directly addresses the issue whether a personal representative can be compensated from damages recovered in a wrongful-death action when the estate has no assets.

Indeed, Alabama’s appellate courts rarely have been called upon to address the issue whether a personal representative who initiates a wrongful-death action is entitled to a fee paid from the proceeds collected from that action. More than a century ago, in Louisville & Nashville R.R. Co. v. Perkins, 1 Ala.App. 376, 56 So. 105 (1911), the Alabama Court of Appeals, the predecessor to this court, analyzed the language of Section 2486 of the Alabama Code of 1907, the statute then authorizing a personal representative to bring a wrongful-death action. The court concluded that, in cases in which the estate of the deceased has no other assets, the proceeds from a wrongful-death action can be used to pay the reasonable fees and costs of the personal representative. 1 Ala.App. at 381, 56 So. at 107. However, in his brief, Rodgers asserts that Perkins stands for the proposition that the attorney fee and court costs incurred from the prosecution of a wrongful-death case can be paid from the proceeds of money recovered in the case. In support of his assertion, Rodgers quotes from Perkins:

“In the above opinion, we have confined ourselves to the issues presented by the facts and the pleadings contained in the record. We intimate no opinion as to whether damages recovered under the ‘Homicide Act’ above quoted [§ 2486] are not subject to all costs of administration in cases where the intestate left no estate. That question is not before us, and we express no opinion on it.”

1 Ala.App. at 385, 56 So. at 108.

In fact, the holding in Perkins is not clear as to whether the “reasonable counsel fees” a personal representative may receive from the proceeds recovered in a wrongful-death action applies only to the personal representative’s services in connection with the wrongful-death action or all the personal representative’s services, including administration of the estate. Even if we were to assume for purposes of this opinion that Rodgers’s position is correct and that the Perkins court did not expressly allow a personal representative to be paid for his or her services on behalf of the estate from the proceeds recovered in a wrongful-death action, even in cases in which the estate has no assets, the Perkins court also did not prohibit such a payment. Indeed, the court “expressed] no opinion” as to whether “all costs of administration” of the estate were payable from the wrongful-death proceeds.

Like § 6-5^410 — the current statute Rodgers relies on to support his contention that McElroy is not entitled to be paid fees out of the proceeds obtained from the wrongful-death action — § 2486 provided that “the damages recovered [in the wrongful-death action] 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.” § 2486, Ala.Code of 1907. Because the language of § 2486 is so similar to that of § 6-5-410, we find that the Perkins court’s analysis regarding the payment of a fee to a personal representative with funds collected in an action brought pursuant to § 2486 is instructive in this case. In reaching its holding that the personal representative could be paid from the proceeds obtained from the wrongful-death action, the Perkins court reasoned as follows:

“As the personal representative of the deceased only can sue for the damages recoverable under the [wrongful-death] act, and as it is an act which was adopted by the state as a part of its public policy in the prevention of homicides, it was, manifestly, not the purpose of the Legislature to require the personal representative to bear the expenses incident to a suit brought for the recovery of damages under the statute out of his personal funds. While the statute exempts the recovery from the payment of the debts of the decedent and directs that it shall be distributed according to the statute of distribution, it does not exempt it from administration as in the case of exemptions allowed the widow and minor children out of the estate of a deceased person. When this act was passed by the Legislature, its members knew that they were providing a remedy for ‘the prevention of homicides’ applicable to all persons, those possessing estates and those without property, and to hold that the party named in the act, ‘the personal representative of the deceased,’ must, out of his own funds, if the deceased left no estate, bear the burden and expenses of a suit to enforce the penalty recoverable under and by virtue of the act, would be to so burden the act and so narrow it as to defeat the purposes for which it was called into existence.
“ ‘The costs, fees, and expenses attending a litigation for the benefit of particular heirs, legatees, next of kin, or other persons, should be allowed, if at all, as against their own particular funds or interests, proportionately or wholly, as the case may be, rather than out of the general estate.’ 18 Cyc. p. 280(c), and authorities cited.
“ ‘The costs and expenses of litigation respecting a particular fund in the hands of an executor, between the specific legatee, the residuary legatee, and the heir at law, and also the commissions of the executor for receiving and disbursing the money, are properly payable out of the fund, and not out of the estate generally.’ Johnson v. Holifield, 82 Ala. 123, 2 South. [7]53 [(1887)].
“It is therefore apparent that, certainly in cases where the estate of the deceased has no other assets, the personal representative is entitled to his reasonable counsel fees and costs out of the sum recovered by him in a suit brought under and by virtue of the statute, and which were incurred by him in said suit.”

1 AlaApp. at 380-81, 56 So. at 106-07. However, although Perkins clearly allows for a personal representative to be compensated for counsel fees and costs in curred by the personal representative in a wrongful-death action, the opinion does not make clear that its holding extends to a personal representative who is not the attorney prosecuting the wrongful-death action. Therefore, our analysis continues.

Rodgers correctly states that, under Alabama law, the proceeds collected as a result of a wrongful-death claim are not part of the decedent’s estate. Steele v. Steele, 623 So.2d 1140, 1141 (Ala.1993) (“[D]amages awarded pursuant to [the Wrongful Death Act, § 6-5-410,] ... are not part of the decedent’s estate.”). However, the law does not necessarily prohibit compensation to the personal representative for the services the personal representative provides in pursuit of a wrongful-death action. The Alabama legislature has established that a personal representative is entitled to compensation as follows:

“(a) A personal representative is entitled to reasonable compensation for services as may appear to the court to be fair considering such factors that may include, but are not limited to, the novelty and difficulty of the administrative process, the skill requisite to perform the service, the likelihood that the acceptance of the particular employment will preclude other employment, the fee customarily charged in the locality for similar services, the amount involved and the results obtained, the requirements imposed by the circumstances and condition of the estate, the nature and length of the professional relationship with the decedent, the experience, reputation, diligence, and ability of the person performing the services, the liability, financial or otherwise, of the personal representative, or the risk and responsibility involved, which shall not exceed two and one-half percent of the value of all property received and under the possession and control of the personal representative and two and one-half percent of all disbursements.
“(b) In addition the court may allow a reasonable compensation for extraordinary services performed for the estate.”

§ 43-2-848(a) and (b), Ala.Code 1975 (emphasis added).

The term “extraordinary services” is not defined in the statute or within Title 43 of the Code of Alabama of 1975, and our research has revealed no caselaw defining the term. However, in a recent special writing, Justice Murdock outlined the role of a personal representative in a wrongful-death action.

“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 [v. Steele ], 623 So.2d [1140] at 1141 [ (Ala.1993) ] (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 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).”

Ex parte Taylor, 93 So.3d 118, 119 (Ala.2012) (Murdock, J., concurring specially) (emphasis added).

In this case, McElroy’s role as the personal representative pursuing a wrongful-death claim as a result of White’s death was not done for the benefit of White’s estate, but for his next of kin, including Rodgers. Therefore, Rodgers’s assertion that McElroy is not entitled to compensation for pursuing the wrongful-death action because the estate had no assets does not withstand scrutiny. Because the work performed by a personal representative in a wrongful-death action goes beyond marshaling and distributing assets on behalf of a decedent’s estate and actually benefits the decedent’s next of kin, that work constitutes an “extraordinary service” as contemplated by § 43-2-848(b). Accordingly, we conclude that McElroy was entitled to compensation even though White’s estate had no assets. Furthermore, because her role as the personal representative in the wrongful-death action was carried out on behalf of White’s next of kin and not for the benefit of his estate, compensating McElroy from the proceeds recovered in the wrongful-death action does not constitute a payment of White’s liabilities or debts and, therefore, does not run afoul of § 6-5-410(c), as Rodgers argues. Accordingly, we conclude that the trial court did not err in awarding McElroy a fee from the proceeds derived from the wrongful-death claim.

Rodgers also argues that the fee of $15,750 that the trial court awarded to McElroy was excessive. The fee is 9% of the $175,000 in wrongful-death proceeds collected. Rodgers did not file a post-judgment motion challenging the amount of the award.

“The long-established precedent in Alabama caselaw is that an appellate court cannot reverse a trial court’s judgment on an argument that was not first presented to the trial court. See Belcher v. Belcher, 18 So.3d 946, 948 (Ala.Civ.App.2009) (holding that a party had failed to preserve an argument for appellate review when that party had failed to argue the issue to the trial court ‘either at trial or in his post-judgment motion’); Smith v. Equifax Servs., Inc., 537 So.2d 463, 465 (Ala.1988) (‘[T]his Court will not reverse the trial court’s judgment on a ground raised for the first time on appeal.’); and Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala.1992) (citing Rodriguez-Ramos v. J. Thomas Williams, Jr., M.D., P.C., 580 So.2d 1326 (Ala.1991)) (‘This Court cannot consider arguments raised for the first time on appeal; rather, our review is restricted to the evidence and arguments considered by the trial court.’). As our supreme court has stated:
“ ““ “[I]t is a necessary corollary of our adversary system in which issues are framed by the litigants and presented to a court; ... fairness to all parties requires a litigant to advance his contentions at a time when there is an opportunity to respond to them factually, if his opponent chooses to; ... the rule promotes efficient trial proceedings; ... reversing for error not preserved permits the losing side to second-guess its tactical decisions after they do not produce the desired result; and ... there is something unseemly about telling a lower court it was wrong when it never was presented with the opportunity to be right....
“Birmingham Hockey Club, Inc. v. National Council On Comp. Ins., Inc., 827 So.2d 73, 80 (Ala.2002) (quoting Ex parte Elba Gen. Hosp., 828 So.2d 308, 314 (Ala.2001), quoting in turn Cantu v. State, 660 So.2d 1026, 1031-32 (Ala.1995) (Maddox, J., concurring in part and dissenting in part), quoting in turn State v. Applegate, 39 Or.App. 17, 21, 591 P.2d 371, 373 (1979)).”

A.M.F. v. Tuscaloosa Cnty. Dep’t of Human Res., 75 So.3d 1206, 1210 n. 3 (Ala.Civ.App.2011). Because Rodgers failed to present this issue to the trial court, we will not address it on appeal.

For the reasons set forth above, we conclude that the trial court did not abuse its discretion in awarding McElroy a fee for her services as the personal representative in this case and that the fee was properly awarded from the proceeds derived from the wrongful-death claim that arose from White’s death. The trial court’s judgment is affirmed.

AFFIRMED.

PITTMAN, J., concurs.

BRYAN and THOMAS, JJ., concur in the result, without writings.

MOORE, J., dissents, with writing.

MOORE, Judge,

dissenting.

I respectfully dissent.

The main opinion affirms the judgment awarding Elizabeth McElroy an administrator’s fee of nine percent of the proceeds received in a wrongful-death action on the theory that she provided an “extraordinary service” within the meaning of § 43-2-848(b), Ala.Code 1975. First, I do not view an administrator’s hiring of an attorney to prosecute a wrongful-death action, the monitoring of that attorney’s actions, and the paying of that attorney as constituting “extraordinary services” because personal administrators routinely perform such services consistent with their duties as a proper plaintiff under § 6-5-410(a), Ala.Code 1975. Second, and most cogently, I read § 43-2-848(b) as allowing for increased compensation to an administrator only when the administrator performs “extraordinary services ... for the estate.” (Emphasis added.) As Samuel Rodgers argues correctly in his brief to this court, an administrator whose services result in the recovery of wrongful-death proceeds does not do so for the benefit of the decedent’s estate, but for the heirs and next of kin of the decedent. See Affinity Hosp., L.L.C. v. Williford, 21 So.3d 712, 715-16 (Ala.2009); and Board of Trustees v. Harrell, 43 Ala.App. 258, 260, 188 So.2d 555 (1965). Hence, by indirectly recovering wrongful-death proceeds, McElroy did not provide any services to the estate of Ron’Drequez Cortez White, much less “extraordinary services” within the meaning of § 43-2-848(b), which would have entitled her to compensation under that statute.

Based on the holding in Louisville & Nashville R.R. v. Perkins, 1 Ala.App. 376, 379, 56 So. 105 (1911), MeElroy could have recovered a percentage of the wrongful-death proceeds for her efforts in obtaining those proceeds; however, from the record, it appears MeElroy did not act as co-counsel or otherwise arrange contractually for a referral or for other attorney fees to compensate her for any actions she took in obtaining the wrongful-death proceeds. Instead, MeElroy sought a fee from the proceeds in a post hoc fashion on the theory that, as an administrator of White’s estate, she was entitled to such a fee. In awarding the fee, the Jefferson Circuit Court (“the trial court”), in effect, taxed White’s heirs with an additional nine percent contingency fee to which they never consented, either personally or through MeElroy. In that respect, the trial court erred to reversal. Therefore, I would reverse the judgment and instruct the trial court to vacate its fee award to MeElroy.

      . Rodgers’s attorney asserts that he mailed a petition to the probate court to probate White’s estate but that the petition was never filed. From the record, it appears that Rodgers's attorney did not pursue the matter.

      . Stamps, the attorney who McElroy hired to pursue the wrongful-death claims, had already received his fee from the wrongful-death proceeds. Rodgers does not challenge the payment of Stamps's fee from the wrongful-death proceeds.

      . Section 2486 of the Alabama Code of 1907 provided, in pertinent part, that "[a] personal representative may maintain an action, and recover such damages as the jury may assess, for the wrongful act, omission, or negligence of any person or persons, or corporation, his or their servants or agents, whereby the death of his testator or intestate was caused, ... and 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.”


author: MAIN, Justice. BOLIN, Justice

text:
    Ex parte Samuel RODGERS. (In re Samuel Rodgers v. Elizabeth McElroy, as personal representative of the estate of Ron’Drequez Cortez White, deceased).
    1111509.
    Supreme Court of Alabama.
    March 29, 2013.
    Rehearing Denied May 17, 2013.

      Stewart E. Burns of Burns, Burns & Garner, Gadsden, for petitioner.
    Carol Ann Smith and A. Mark Bahakel of Smith & Pace, P.C., Birmingham, for respondent.
    Duane A. Graham and J. Harris Oppenheimer of Ambrecht Jackson LLP, Mobile, for amicus curiae Frank H. Kruse, in support of the respondent.
    Algert S. Agrícola, Jr., of Ryals, Plum-mer, Donaldson, Agricola & Smith, P.C., Montgomery, for amicus curiae Alabama Probate Judges Association, in support of the respondent.
   MAIN, Justice.

Following an automobile accident in which Ron’Drequez Cortez White was killed by a drunk driver, Elizabeth McEl-roy, who was the county administrator for Jefferson County and who, as such, was appointed to serve as the personal representative of White’s estate, hired an attorney to file a wrongful-death action against the drunk driver, pursuant to § 6-5-410, Ala.Code 1975. The wrongful-death action resulted in a recovery, and, following litigation on the issue of the personal-representative’s fee, the Jefferson Circuit Court awarded McElroy a fee from the wrongful-death proceeds. Samuel Rodgers, White’s father, contended in the litigation below that, as personal representative, McElroy was not entitled to be compensated for her services from the recovery in the wrongful-death action. Rodgers appealed the circuit court’s judgment awarding McElroy a fee to the Court of Civil Appeals. The Court of Civil Appeals affirmed. This Court granted certiorari review to determine the narrow question whether a personal representative may be compensated out of the proceeds recovered in a wrongful-death action. We reverse and remand.

I. Facts and Procedural History

The factual background and procedural history of this case are set forth in the Court of Civil Appeals’ opinion:

“The record indicates the following. In July 2009, White was killed in a motor-vehicle accident caused by a drunk driver. White, who was 20 years old at the time of the accident, died intestate. On February 4, 2010, McElroy, the county administrator for Jefferson County, filed a petition in the Jefferson County Probate Court (‘the probate court’) seeking to administer White’s estate. The probate court appointed McElroy to serve as personal representative of White’s estate, and it granted her letters of administration. McElroy posted the $50,000 bond required by law. On April 7, 2010, McElroy filed an inventory of White’s estate, which she determined had no assets. She also identified White’s mother, Sandey Greene, as White’s only known heir.
“As part of her duties as personal representative, McElroy hired John Stamps, an attorney who already represented Greene, to pursue a wrongful-death action in connection with White’s death. Stamps was able to reach a settlement of $150,000 with White’s under-insured-motorist insurance carrier without having to file a lawsuit. He did, however, file a wrongful-death action against Tony Ferrell and Edna Ferrell. The Ferrells’ liability-insurance carrier settled for $25,000. Ultimately, a judgment of $300,000 was entered against Tony Ferrell.
“Meanwhile, on June 18, 2010, Samuel Rodgers filed a petition in the probate court seeking an order establishing that he had the right to inherit from White because, Rodgers said, he was White’s father. Greene contested Rodgers’s petition, and the matter was moved to the Jefferson Circuit Court (‘the trial court’). After a jury trial in October 2011, the jury returned a verdict finding that Rodgers was White’s father and, therefore, that he was entitled to inherit from White. On October 13, 2011, the trial court entered a judgment on the verdict and ruled that, in addition to being entitled to inherit from White under the laws of intestate succession, Rodgers also was entitled to a distribution of the wrongful-death proceeds.
“Rodgers immediately filed a motion asking that the trial court order McEl-roy to release the wrongful-death proceeds that had been collected. In his motion, Rodgers contended that McEl-roy was not entitled to be compensated for her services as personal representative from the wrongful-death proceeds. McElroy objected, and the matter was litigated. After a hearing, the trial court entered an order finding that McElroy was entitled to compensation for her services as personal representative and awarded her $15,750, which equaled 9% of the total of $175,000 in wrongful-death proceeds that had been collected. The balance of the proceeds was divided evenly between Greene and Rodgers. Rodgers appealed.”

Rodgers v. McElroy, 141 So.8d 1030, 1031-32 (Ala.Civ.App.2012) (footnotes omitted).

The Court of Civil Appeals affirmed the circuit court’s judgment. It concluded that “the trial court did not abuse its discretion in awarding McElroy a fee for her services as the personal representative in this case and that the fee was properly awarded from the proceeds derived from the wrongful-death claim that arose from White’s death.” 141 So.3d at 1037. In his petition for a writ of certiorari, Rodgers contends that this case presents a question of first impression. See Rule 39(a)(1)(C), Ala. R.App. P.

II. Standard of Review

The standard of review on a petition for a writ of certiorari is well settled.

‘“In reviewing a decision of the Court of Civil Appeals on a petition for a writ of certiorari, this Court “accords no presumption of correctness to the legal conclusions of the intermediate appellate court. Therefore, we must apply de novo the standard of review that was applicable in the Court of Civil Appeals.” Ex parte Toyota Motor Corp., 684 So.2d 132, 135 (Ala.1996).’
“Ex parte Exxon Mobil Corp., 926 So.2d 303, 308 (Ala.2005).”

Ex parte Folsom, 42 So.3d 732, 736 (Ala.2009).

Additionally, because this case involves the interpretation of statutes, this Court’s inquiry is governed by settled principles of statutory construction.

“When interpreting a statute, a court must first give effect to the intent of the legislature. BP Exploration & Oil, Inc. v. Hopkins, 678 So.2d 1052 (Ala.1996).
“ ‘The fundamental rule of statutory construction is that this Court is to ascertain and effectuate the legislative intent as expressed in the statute. League of Women Voters v. Renfro, 292 Ala. 128, 290 So.2d 167 (1974). In this ascertainment, we must look to the entire Act instead of isolated phrases or clauses; Opinion of the Justices, 264 Ala. 176, 85 So.2d 391 (1956).’
“Darks Dairy, Inc. v. Alabama Dairy Comm’n, 367 So.2d 1378, 1380 (Ala.1979) (emphasis added). To discern the legislative intent, the Court must first look to the language of the statute. If, giving the statutory language its plain and ordinary meaning, we conclude that the language is unambiguous, there is no room for judicial construction. Ex parte Waddail, 827 So.2d 789, 794 (Ala.2001). If a literal construction would produce an absurd and unjust result that is clearly inconsistent with the purpose and policy of the statute, such a construction is to be avoided. Ex parte Meeks, 682 So.2d 423 (Ala.1996).”

City of Bessemer v. McClain, 957 So.2d 1061, 1074-75 (Ala.2006). “When a court construes a statute, ‘[w]ords used in [the] statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says.’ ” Ex parte Berryhill, 801 So.2d 7, 10 (Ala.2001) (quoting IMED Corp. v. Systems Eng’g Assocs. Corp., 602 So.2d 344, 346 (Ala.1992)). As we have repeatedly stated, the function of this Court is “ ‘to say what the law is, not to say what it should be.’ ” Ex parte Achenbach, 788 So.2d 4, 7 (Ala.2000) (quoting DeKalb Cnty. LP Gas Co. v. Suburban Gas, Inc., 729 So.2d 270, 276 (Ala.1998)).

III. Analysis

Resolution of the question whether a personal representative may be compensated out of the proceeds recovered in a wrongful-death action requires analysis of the wrongful-death statute and the personal-representative-compensation statute. See §§ 6-5-410 and 4S-2-848(a) and (b), Ala.Code 1975. Alabama’s wrongful-death statute provides that “[a] personal representative may commence an action and recover ... damages ... for the wrongful act, omission, or negligence of any person ... whereby the death of the ... intestate was caused, provided the ... intestate could have commenced an action for the wrongful act, omission, or negligence if it had not caused death.” § 6-5-410(a), Ala.Code 1975. “The purpose of Alabama’s wrongful-death statute is the protection of human life and the prevention of homicides by wrongful act, omission, or negligence of persons or corporations. Mattison v. Kirk, 497 So.2d 120 (Ala.1986).” Golden Gate Nat’l Senior Care, LLC v. Roser, 94 So.3d 365, 365 (Ala.2012) (Bolin, J., concurring specially).

Further, regarding damages recovered in a wrongful-death action the wrongful-death statute provides, 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.” § 6-5-410(c), Ala.Code 1975. This Court has repeatedly held that, under Alabama law, the proceeds collected as a result of a wrongful-death claim are not part of the decedent’s estate. Golden Gate Nat’l Senior Care, supra; Ex parte Taylor, 93 So.3d 118, 118 (Ala.2012) (Murdock, J., concurring specially); Wood v. Wayman, 47 So.3d 1212, 1216 (Ala.2010); Steele v. Steele, 623 So.2d 1140, 1141 (Ala.1993). Justice Murdock’s special concurrence in Ex parte Taylor, supra, discusses the role delegated to the personal representative under the wrongful-death statute; however, particularly relevant to this case, it explains the proper distribution of proceeds recovered in a wrongful-death action:

“[T]he 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) (‘[Djamages 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 [v. 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 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).”

93 So.3d at 119.

The statute governing compensation for a personal representative, § 43-2-848(a), provides that “[a] personal representative is entitled to reasonable compensation for services as may appear to the court to be fair....” However, § 43-2-848(a) provides that a fee for ordinary services should not exceed “two and one-half percent of the value of all property received and under the possession and control of the personal representative and two and one-half percent of all disbursements.” (Emphasis added.) Regarding compensation for extraordinary services, § 43-2-848(b), Ala.Code 1975, provides that over and above fees for ordinary services, “the court may allow a reasonable compensation for extraordinary services performed for the estate.” (Emphasis added.) These two statutes are the exclusive statutory authorizations for determining a personal representative’s compensation.

In this case, the circuit court awarded McElroy compensation from proceeds of the wrongful-death recovery for “extraordinary services” rendered as personal representative of the estate. See § 43-2-848(b), Ala.Code 1975. Applying the rules of statutory construction, we conclude that § 43-2-848(b) does not entitle McElroy, the personal representative, to any fee from the wrongful-death proceeds because the recovery in the wrongful-death action was not for the estate. Alabama law mandates the payment of wrongful-death proceeds to the heirs of the deceased. The clear language of the wrongful-death statute provides that proceeds from a wrongful-death action “are not subject to the payment of the debts or liabilities” of the decedent. § 6-5-410(c), Ala.Code 1975. There is no allowance in the wrongful-death statute for payment of expenses of the administration of the decedent’s estate, which would include personal-representative compensation. See § 43-2-371, Ala.Code 1975 (setting out the order of preference of debts against the estate). Under the combined effect of §§ 6-5^10 and 43-2-848(a) and (b), Ala. Code 1975, McElroy was not entitled to be paid from the proceeds of the wrongful-death recovery either reasonable compensation for her services or extraordinary compensation for her services.

IV. Conclusion

Based on the foregoing, we conclude that McElroy was not entitled to compensation out of the proceeds of the wrongful-death recovery for her services as personal representative and that the circuit court exceeded its discretion in awarding McEl-roy compensation out of that recovery. We reverse the Court of Civil Appeals’ judgment and remand the cause to the Court of Civil Appeals for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

MOORE, C.J., and STUART, PARKER, and MURDOCK, JJ., concur.

BOLIN, J., concurs specially.

WISE, J., dissents.

BRYAN, J., recuses himself.

BOLIN, Justice

(concurring specially).

I concur in the main opinion and the result reached therein, given the facts involved in this proceeding and the posture in which the appeal comes before this Court. However, as a former probate judge and for the possible benefit of the bench and bar in like matters, I write specially to propose a potentially alternative method of providing personal-representative compensation for successfully prosecuting wrongful-death actions separate and apart from the estate duties of the personal representative.

As the main opinion reflects, §§ 6-5-410 and 43-2-848(a) and (b), Ala.Code 1975, taken in collective isolation and construed in pari materia, do not allow a personal representative the right to be reasonably compensated from the proceeds of a wrongful-death recovery for services rendered by that personal representative in aiding in that recovery for the benefit of the decedent’s next of kin. Although, as stated, I believe the main opinion reaches the correct result in this case, I write specially because such a result is so unfair and inequitable to the personal representative that I can only surmise that it is the function of a legislative oversight. Although my discussion below centers not on an argument submitted to the circuit court, I nonetheless believe it to be an alternative basis that would ameliorate the unjust result of proceedings such as this one.

Looking only to personal-representative compensation under the Probate Procedure Act, § 43-2-830 et seq., Ala. Code 1975, in effect allows the law to impose an uncompensable mandate upon the personal representative to perform a function with a beneficent societal purpose, i.e., the protection of human life and the prevention of homicides by wrongful act, omission or negligence of others, Mattison v. Kirk, 497 So.2d 120 (Ala.1986), through the prosecution of a wrongful-death cause of action. In wrongful-death actions, the personal representative is statutorily designated as the proper party to act as a quasi-trustee for the benefit of the decedent’s next of kin, and to obtain for such heirs a monetary res without any mention of or provision for receiving any compensation for carrying out this duty — all the while being charged with properly prosecuting the wrongful-death action, obtaining an accurate identification of the heirs at law of the decedent, and effectuating a correct proportionate ascertainment and distribution of the money recovered for them. Again, although the avenue for relief set out below was not argued by the parties before the circuit court or raised as an issue on appeal, I submit that the inequity imposed upon the personal representative herein may not have to exist in the future, as there is a remedy already existent under trust law that would lie to prevent such an injustice.

Justice Murdock has explained the role of a personal representative in the context of a wrongful-death action:

“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 [v. Steele ], 623 So.2d [1140] at 1141 [ (Ala.1998) ] (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 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 (1978).”

Ex parte Taylor, 93 So.3d 118, 119 (Ala.2012) (Murdock, J., concurring specially).

Consistent with the personal representative’s role as described in Ex parte Taylor, supra, the Restatement of Trusts recognizes a statutory trust that “may be created by statute without a manifestation of intention on the part of any person as settlor. Thus, in some States a trust is created by giving a statutory right of action for death by wrongful act to an executor, administrator or other person.” Restatement (Second) Trusts § 23 cmt. c (1959). “If by statute a right of action not possessed by a decedent is conferred upon his executor and the sum recovered by enforcing such right of action does not become a part of the assets of the decedent’s estate, the executor holds such right of action as trustee and not as executor.” Restatement (Second) Trusts § 6 cmt. h (1959). The terms of a statutory trust “ ‘are either set forth in the statute or are supplied by the default rules of general trust law.’ ” Awakuni v. Awana, 115 Haw. 126, 135 n. 8, 165 P.3d 1027, 1036 n. 8 (2007) (quoting the Restatement (Third) of Trusts § 4 cmt. g (2012)). In determining that a statutory trustee was entitled to “fair compensation” for his service in managing a statutory trust, the court in Bissell v. Butterworth, 97 Conn. 605, 615-16, 118 A. 50, 54 (1922), explained:

“For it is a general principle of law, long prevailing in this and nearly all of the United States, that a trustee is entitled to be reimbursed for all costs which he properly incurs in the execution of a trust, and to fair compensation for his time and trouble in managing the trust fund and performing the duties of an office he has undertaken for the benefit of others; and it is immaterial that no express provision for such charges and expenses has been made by the creator of the trust. Kendall v. N.E. Carpet Co., 13 Conn. 383 [(1840)]; Clark v. Platt, 30 Conn. 282 [ (1861) ]; 3 Pomeroy’s Eg. Jur. (4th Ed.) §§ 1084, 1085; 2 Perry on Trusts (6th Ed.) §§ 910, 912, 918; 39 Cyc. 480; Lewin on Trusts (12th Ed.) §§ 785-788; Schriver v. Frommel, 183 Ky. 597, 210 S.W. 165 [ (1919) ]. Justice Story has said: ‘Nor can any one expect any trustee to devote his time and services to a very watchful care of the interests of others when there is no remuneration for his services, and there must often be a positive loss to himself in withdrawing from his own concerns some of his own valuable time.... The policy of the law ought to be such as to induce honorable men, without a sacrifice of their private interests, to accept the office, and to take away the temptation to abuse the trust for mere selfish purposes, as the only indemnity for services of an important and anxious character.’ 3 Story’s Eg. Jur. (14th Ed.) § 1676, note, p. 312.”

Based on the foregoing, I conclude that Alabama’s wrongful-death statute, § 6-5-410, Ala.Code 1975, creates a “statutory trust” in that it gives both the capacity and the right, and indeed even the obligation should a wrongful-death cause of action exist, solely to a decedent’s personal representative to bring a wrongful-death action on behalf of the decedent’s next of kin based on the death of the decedent by wrongful act. Although nothing in § 6-5-410 provides for a fair compensation to be paid to the personal representative for bringing such an action, neither does anything expressly prohibit a fair compensation from being paid to a personal representative who has successfully brought a wrongful-death action pursuant to that section, payable from the proceeds resulting therefrom. Thus, I submit that general rules of trust law should govern personal-representative compensation in wrongful-death actions, and either based upon equitable principles or pursuant to § 19-3B-708, Ala.Code 1975, the personal representative/quasi-trustee should be allowed to receive compensation for services relative to the non-probate administration of a statutory trust. Ex parte Taylor, 93 So.3d at 118 (Murdock, J., concurring specially and stating that the personal representative acts as a quasi-trustee upon recovery in a wrongful-death action).

Section 43-2-848, Ala.Code 1975, concerns payment of a personal representative for services rendered on behalf of the decedent’s estate, to be determined by the court handling the administration of the decedent’s estate. This section has no applicability to a cause of action that accrues only upon the decedent’s death by wrongful act. Allowing proper compensation for the personal representative to be determined by the circuit court handling the wrongful-death action, in which a non-probate “trust res” may be created, would neither defile nor interfere with “normal and customary” personal-representative compensation awarded under the Probate Procedure Act for services performed in administering an estate.

Although I concur with the main opinion, I posit that the unjust result obtained for the personal representative in this case may well be avoided prospectively on the basis of the finding of a statutory trust in successful wrongful-death actions brought by the personal representative, with reasonable and just compensation being fixed as trustee fees and paid from the trust res in those actions.

      . See Affinity Hosp., L.L.C. v. Williford, 21 So.3d 712, 715-16 (Ala.2009). See also Baggett v. Sellers, 282 Ala. 235, 210 So.2d 796 (1968) (damages recovered as result of wrongful death must be distributed according to statute of distribution); Hatas v. Partin, 278 Ala. 65, 175 So.2d 759 (1965) (personal representative is conduit for collecting damages in a wrongful-death action and passing them over to those entitled under statute); Stephens v. Williams, 226 Ala. 534, 147 So. 608 (1933) (administratrix is statutory representative in a wrongful-death action, suing for sole benefit of beneficiaries named in statute); Kuykendall v. Edmondson, 205 Ala. 265, 87 So. 882 (1921) (distributees of decedent’s estate are sole beneficiaries of proceeds in a wrongful-death action); Kennedy v. Davis, 171 Ala. 609, 55 So. 104 (1911) (property right in damages collected in a wrongful-death action vested exclusively in distributees of intestate); Louisville & Nashville R.R. v. Street, 164 Ala. 155, 51 So. 306 (1909) (sum recovered as result of a wrongful death not asset of estate, not subject to decedent’s debts or liabilities, and sum recovered is distributable in accordance with our statute of distribution).


author: THOMPSON, Presiding Judge.

text:
    Samuel RODGERS v. Elizabeth McELROY.
    2110364.
    Court of Civil Appeals of Alabama.
    June 21, 2013.

      Stewart E. Burns of Burns, Burns & Garner, Gadsden, for appellant.
    Carol Ann Smith and A. Mark Bahakel of Smith & Pace, P.C., Birmingham, for appellee.
    Duane A. Graham of Armbrecht Jackson LLP, for amicus curiae Frank H. Kruse, in support of the appellee.
    Algert S. Agricola, Jr., of Ryals, Plum-mer, Donaldson, Agricola & Smith, P.C., Montgomery, for amicus curiae Alabama Probate Judges Association, in support of the appellee.
   After Remand from the Alabama Supreme Court

THOMPSON, Presiding Judge.

The prior judgment of this court has been reversed and the cause remanded by the Supreme Court of Alabama. Ex parte Rodgers, 141 So.3d 1038 (Ala.2013). In compliance with the Supreme Court’s opinion, the judgment of the trial court is hereby reversed and the cause remanded for further proceedings consistent with the Supreme Court’s opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

PITTMAN, THOMAS, MOORE, and DONALDSON, JJ., concur.