author: GRIFFIS, P.J., FOR THE COURT:

text:
    Sanchez DUNCAN a/k/a Sanchez D. Duncan a/k/a Sanchez Dejuan Duncan, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-KA-00249-COA
    Court of Appeals of Mississippi.
    March 20, 2018
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: W. DANIEL HINCHCLIFF
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BILLY L. GORE
    BEFORE GRIFFIS, P.J., CARLTON AND WILSON, JJ.
   GRIFFIS, P.J., FOR THE COURT:

¶ 1. Sanchez Duncan appeals his convictions for possession of methamphetamine and possession of a weapon by a convicted felon. Duncan's appellate counsel filed a brief pursuant to Lindsey v. State , 939 So.2d 743 (Miss. 2005), and certified that the record presented no arguable issues for appellate review. Duncan subsequently filed a pro se brief.

¶ 2. We have reviewed the record and find no arguable issues that necessitate supplemental briefing. After reviewing the issues that Duncan raises in his pro se brief, we find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶ 3. In May 2015, a confidential source, later identified as a neighbor or neighbors, contacted the Hattiesburg Police Department regarding activity at a residence located at 505 Rebecca Avenue. Richard Hill, his girlfriend Janie Sistrunk, and Sistrunk's brother, Jeremy Morgan, lived at the residence. As a result of numerous complaints, active surveillance of the residence began in early July 2015.

¶ 4. On August 6, 2015, Sistrunk contacted Duncan and asked him to come over. According to Sistrunk, she and Duncan were "buddies," and Duncan needed her to unlock and activate some iPhones. In exchange for unlocking and activating the cell phones, Sistrunk would receive methamphetamine.

¶ 5. Sistrunk testified that when Duncan arrived, he was carrying a backpack. Sistrunk explained that she previously had given Duncan the backpack, so she knew "for a fact that it was his backpack." While Sistrunk worked on the cell phones, she and Duncan smoked methamphetamine in her bedroom.

¶ 6. At the time Duncan arrived, Sergeant Joseph Kennedy was surveilling the house. He called for assistance. Lieutenant Daniel Miller and Officer Jarrod Smith responded. They then assisted Sergeant Kennedy with a "knock and talk." Hill answered the door. Duncan and Sistrunk then walked in view of the door. Duncan yelled, "Oh, s**t, police" and fled to Sistrunk's bedroom. For safety purposes, Sergeant Kennedy and Lieutenant Miller entered and secured the residence. Duncan, Sistrunk, Hill, and Morgan were handcuffed and taken outside.

¶ 7. Hill signed a consent form to search the residence. Sergeant Kennedy and Lieutenant Miller then reentered the residence wherein they found "several bags of methamphetamine, a gun[,] ... and pills, a couple of pills that [were] in the bag." The "bag" was a green and black backpack found on Sistrunk's bed. Inside of the backpack was an oval white pill, four bags of a crystalized substance, and a nine-millimeter handgun. Additionally, the officers recovered from Duncan's person a bag containing a crystalized substance as well as an oval pill and a bullet. The oval pill found on Duncan was the same type of pill found in the backpack. Moreover, the bullet found on Duncan was the same brand and caliber that was loaded in the handgun located in the backpack.

¶ 8. Sistrunk testified that the green and black backpack belonged to Duncan and was the same backpack that she had given Duncan "prior to [the] bust." Sistrunk further testified that after they were removed from the residence and taken outside, Duncan mouthed to her that there was a gun in the backpack.

¶ 9. The crystalized substances subsequently were tested by a forensic scientist with the Mississippi Crime Laboratory and determined to be methamphetamine. Specifically, 0.085 grams of methamphetamine were found on Duncan, and 1.402 grams of methamphetamine were found in the backpack.

¶ 10. Duncan was indicted on the charges of Count I, possession of 0.1 gram or more, but less than 2 grams of methamphetamine, and Count II, possession of a weapon by a convicted felon. Duncan's indictment subsequently was amended as to Count I to charge him as a second or subsequent offender pursuant to Mississippi Code Annotated section 41-29-147 (Rev. 2013).

¶ 11. Sistrunk also was indicted. She subsequently entered a guilty plea to a felony charge related to the incident. As part of her plea, Sistrunk agreed to provide truthful testimony at Duncan's trial.

¶ 12. Following a jury trial, Duncan was found guilty on both counts and sentenced to serve six years in the custody of the Mississippi Department of Corrections on Count I, and ten years, with five years suspended, on Count II, with the sentences to run consecutively. Additionally, Duncan was ordered to pay a $2,500 fine, a $200 assessment to the Mississippi Crime Victim Compensation Program, restitution in the amount of $250 to the Forrest County Public Defender Fund, $200 to the 12th Circuit Court Narcotics Enforcement Team, restitution in the amount of $2,048.48 to the Forrest County Jury Account, and all court costs.

¶ 13. Duncan subsequently filed a motion for a judgment notwithstanding the verdict or, alternatively, a new trial, which was denied. Duncan timely appealed.

ANALYSIS

¶ 14. In Lindsey , the Mississippi Supreme Court implemented the following procedure for cases where appellate counsel does not believe any arguable issues exist for appellate review:

(1) Counsel must file and serve a brief in compliance with Mississippi Rule of Appellate Procedure 28(a)(1) -[ (5), (8).]
(2) As a part of the brief filed in compliance with Rule 28, counsel must certify that there are no arguable issues supporting the client's appeal, and he or she has reached this conclusion after scouring the record thoroughly, specifically examining: (a) the reason for the arrest and the circumstances surrounding [the] arrest; (b) any possible violations of the client's right to counsel; (c) the entire trial transcript; (d) all rulings of the trial court; (e) possible prosecutorial misconduct; (f) all jury instructions; (g) all exhibits, whether admitted into evidence or not; and (h) possible misapplication of the law in sentencing.
(3) Counsel must then send a copy of the appellate brief to the defendant, inform the client that counsel could find no arguable issues in the record, and advise the client of his or her right to file a pro se brief.
(4) Should the defendant then raise any arguable issue[s] or should the appellate court discover any arguable issue in its review of the record, the court must, if circumstances warrant, require appellate counsel to submit supplemental briefing on the issue, regardless of the probability of the defendant's success on appeal.
(5) Once briefing is complete, the appellate court must consider the case on its merits and render a decision.

Lindsey , 939 So.2d at 748 (¶ 18) (internal citations omitted).

¶ 15. Here, Duncan's counsel filed a brief in compliance with Rule 28 and asserted that he had "diligently searched the procedural and factual history ... and scoured the record" but was unable to find any arguable issues that he could present in good faith for appellate review.

¶ 16. Duncan's counsel sent a copy of the brief to Duncan and informed him that although he found no arguable issues in the record, Duncan had the right to file a pro se brief. Duncan subsequently filed a pro se brief challenging: (1) the credibility of the State's witnesses and (2) the sufficiency of the evidence. Duncan further claims he should have been charged with constructive possession.

I. Credibility of the State's Witnesses

¶ 17. Duncan first argues that Sistrunk, Sergeant Kennedy, and Lieutenant Miller all provided inconsistent statements. He reasons that they were not credible. Witness credibility is for the jury to determine. Winding v. State , 908 So.2d 163, 168 (¶ 20) (Miss. Ct. App. 2005). "[T]he jury acts as fact-finder and must determine the credibility of the witnesses, and the proper weight to be assigned to their testimony." Id. Any conflicts in the evidence are for the jury to resolve. Williams v. State , 64 So.3d 1029, 1033 (¶ 13) (Miss. Ct. App. 2011) (citation omitted).

¶ 18. Here, the record shows that the jury heard from all witnesses and was able to evaluate their testimony, determine their credibility, and resolve any conflicts in the evidence. Accordingly, this issue is without merit.

II. Sufficiency of the Evidence

¶ 19. Duncan next argues that "the State failed to provide sufficient evidence to support the elements of Count I and Count II." In considering whether the evidence is sufficient to sustain a conviction, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Williams v. State , 35 So.3d 480, 485 (¶ 16) (Miss. 2010) (citations omitted). Where the facts and inferences "point in favor of the defendant on any element of the offense with sufficient force that reasonable [jurors] could not have found beyond a reasonable doubt that the defendant was guilty," the proper remedy is to reverse and render. Id. However, if "reasonable fair-minded [jurors] in the exercise of impartial judgment might reach different conclusions on every element of the offense, the evidence will be deemed to have been sufficient." Id.

¶ 20. Duncan was convicted of possessing 0.1 gram or more, but less than 2 grams of methamphetamine, in violation of Mississippi Code Annotated section 41-29-139(c)(1)(B) (Supp. 2014). "The two essential elements of drug possession are (1) knowledge and (2) possession." O'Donnell v. State , 173 So.3d 907, 916 (¶ 22) (Miss. Ct. App. 2015) (citing Miss. Code Ann. § 41-29-139(c) ). "To support a conviction for possession of a controlled substance, there must be sufficient facts to warrant a finding that the defendant was aware of the presence and character of the particular substance and was intentionally and consciously in possession of it." Id. (citation omitted). "Possession of a controlled substance may be actual or constructive." Id. at 917 (¶ 22) (citation omitted). "To establish constructive possession, the drug merely has to be found near the defendant in a place over which the defendant exercises dominion or control." Id. (citation and internal quotation marks omitted).

¶ 21. Duncan claims the State failed to show that he exercised dominion and control over the backpack in which the methamphetamine was found. We disagree.

¶ 22. Sistrunk testified that she gave the backpack to Duncan prior to August 6, 2015, and "knew for a fact that it was his backpack." Sistrunk further testified that when Duncan arrived at the house on August 6, 2015, he was carrying the backpack. Moreover, Sistrunk testified that in exchange for unlocking and activating the cell phones, she received methamphetamine.

¶ 23. Additionally, Sistrunk testified that she and Duncan worked on the cell phones and smoked methamphetamine in her bedroom. When Sergeant Kennedy performed his "knock and talk," he saw Duncan run to the bedroom. Once the house was secure, Sergeant Kennedy searched the premises and found the backpack in the bedroom where Duncan previously was located.

¶ 24. Moreover, further testimony showed that an oval white pill and methamphetamine were found on Duncan's person. The same type of pill and substance also was found in the backpack. Accordingly, sufficient evidence existed for a rational juror to find that Duncan exercised dominion and control over the backpack and possessed methamphetamine.

¶ 25. Duncan also was convicted of possession of a weapon by a convicted felon, in violation of Mississippi Code Annotated section 97-37-5 (Rev. 2014). The State had to prove that: "(1) the defendant was in possession of a firearm, and (2) the defendant had previously been convicted of a felony crime." Gunn v. State , 174 So.3d 848, 866 (¶ 63) (Miss. Ct. App. 2014) (citing Miss. Code Ann. § 97-37-5 ). "The possession element may be shown by proof that the defendant actually or constructively possessed the firearm." Short v. State , 929 So.2d 420, 427 (¶ 21) (Miss. Ct. App. 2006).

¶ 26. Duncan admits he previously was convicted of a felony but claims there was insufficient evidence to show that he possessed the handgun found in the backpack. We disagree.

¶ 27. Sistrunk testified that after she and Duncan were removed from the residence and taken outside, Duncan mouthed to her that there was a gun in the backpack. Moreover, a bullet was found on Duncan. It was the same brand and caliber that was loaded in the handgun located in the backpack.

¶ 28. Overall, considering the evidence in the light most favorable to the State, there was sufficient evidence to support Duncan's convictions for possession of methamphetamine and possession of a weapon by a convicted felon. Thus, this issue is without merit.

III. Constructive Possession

¶ 29. Finally, Duncan argues that he "should have been charged with constructive possession." Duncan was charged with possession of methamphetamine and possession of a weapon by a convicted felon. As previously noted, possession may be actual or constructive.

¶ 30. The record shows the jury was instructed on constructive possession. Specifically, State's instructions S-1, S-2, and S-3 all defined and/or explained constructive possession. Thus, we find this issue is meritless.

CONCLUSION

¶ 31. The issues raised in Duncan's pro se brief are without merit, and we find no issues that call for additional briefing. Accordingly, we affirm the judgment of the Forrest County Circuit Court.

¶ 32. AFFIRMED .

LEE, C.J., IRVING, P.J., BARNES, CARLTON, FAIR, WILSON, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.

      Although the judgment and/or sentencing order are not included in the record, it appears Sistrunk pled guilty to possession of methamphetamine.


source: Caselaw Access Project

author: MAIN, Justice. MURDOCK, Justice (dissenting).

license: Public Domain

text:
    EX PARTE Ronnie Lynn KIRKSEY
    (In re: Ronnie Lynn Kirksey v. State of Alabama)
    1160522
    Supreme Court of Alabama.
    June 23, 2017
   MAIN, Justice.

WRIT DENIED. NO OPINION.

Stuart, C.J., and Bolin, Parker, Shaw, Wise, Bryan, and Sellers, JJ., concur.

Murdock, J., dissents.

MURDOCK, Justice (dissenting).

I would grant certiorari review in this capital case. Ronnie Lynn Kirksey, the petitioner, seeks review by this Court of a decision by the Court of Criminal Appeals upholding his sentence of death. The decision by the Court of Criminal Appeals follows certiorari review by the United States Supreme Court of the Court of Criminal Appeals' earlier decision upholding the petitioner's capital conviction and sentence of death and a remand by that Court to the Court of Criminal Appeals for further consideration of the sentence in light of the Supreme Court's holding in Hurst v. Florida, 577 U.S. ___, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016). See Kirksey v. State, 191 So.3d 810 (Ala. Crim. App. 2015), vacated, 578 U.S. ___, 136 S.Ct. 2409, 195 L.Ed.2d 777 (2016).

I am concerned that the issue whether the aggravating circumstances outweigh the mitigating circumstances in a capital case, as required for the imposition of the death penalty under Alabama law, sufficiently partakes of the nature of a factual inquiry so as to trigger the principles articulated in Hurst. I also believe this Court should further consider the petitioner's argument that the jury's verdict was constitutionally insufficient to support a death sentence because the jury was instructed that its verdict would merely be a recommendation.


author: WELCH, Judge.

text:
    Ronnie Lynn KIRKSEY v. STATE of Alabama
    CR-09-1091
    Court of Criminal Appeals of Alabama.
    December 16, 2016 Rehearing Denied March 17, 2017
    On Remand from the United States Supreme Court
   WELCH, Judge.

Ronnie Lynn Kirksey was convicted of murder made capital because the victim was less than 14 years old. See § 13A-5-40(a)(15), Ala. Code 1975. During the penalty phase of the trial, the foreperson of the jury submitted to the court a verdict form reflecting that by a unanimous vote the jurors found that the State had proven beyond a reasonable doubt the aggravating circumstance that Kirksey's capital offense was especially heinous, atrocious, or cruel when compared to other capital offenses. See § 13A-5-49(8), Ala. Code 1975. The foreperson of the jury submitted to the court a verdict form reflecting that by a unanimous vote the jurors recommended that Kirksey be sentenced to death. The trial court ordered that a presentence investigation report be furnished to the court.

The trial court sentenced Kirksey to death following its consideration of the evidence presented at the guilt and penalty phases of the trial, the presentence report, the aggravating and mitigating factors, the trial court's determination that the aggravating factor outweighed the mitigating factors, and the jury's advisory verdict. This Court affirmed Kirksey's conviction and sentence in Kirksey v. State, 191 So.3d 810 (Ala. Crim. App. 2014). The Alabama Supreme Court denied certiorari on September 18, 2015. On June 6, 2016, the United States Supreme Court granted Kirksey's petition for a writ of certiorari and held:

"On petition for writ of certiorari to the Court of Criminal Appeals of Alabama. Motion of petitioner for leave to proceed in forma pauperis and petition for writ of certiorari granted. Judgment vacated, and case remanded to the Court of Criminal Appeals of Alabama for further consideration in light of Hurst v. Florida, 577 U.S. ___, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016)."

Kirksey v. Alabama, ___ U.S. ___, 136 S.Ct. 2409, 195 L.Ed.2d 777 (2016).

In Hurst, the United States Supreme Court held that Florida's death-penalty scheme violated the protection in the Sixth Amendment of the United States Constitution of a defendant's right to an impartial jury because Florida's death-penalty statute "required the judge alone to find the existence of an aggravating circumstance." Hurst, 577 U.S. at ___, 136 S.Ct. at 622-24. The United States Supreme Court had previously decided two cases upon which the holding in Hurst was based: Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). Apprendi held that the United States Constitution requires that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi, 530 U.S. at 490, 120 S.Ct. 2348. Ring, citing Apprendi, held that "[c]apital defendants, no less than noncapital defendants... are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment." Ring, 536 U.S. at 589, 122 S.Ct. 2428. Moreover, Ring requires "that the jury unanimously find the existence of an aggravating circumstance in order to make the defendant death-eligible." Duke v. State, 889 So.2d 1, 43 n. 4 (Ala. Crim. App. 2002), vacated on other grounds, Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005).

The parties filed briefs on remand addressing the effect of Hurst on Alabama's capital-sentencing scheme. Kirksey argued that in light of Hurst, his death sentence must be vacated because, he says, Alabama's capital-sentencing scheme is, like Florida's, unconstitutional, because, according to Kirksey, the trial judge, contrary to Apprendi and Ring, ultimately made all the required factual findings, including finding that the aggravating circumstance outweighed the mitigating circumstances. He made the following assertions in support of his claim.

1) Hurst and Ring render Kirksey's death sentence unconstitutional because Alabama's death-penalty statute has the same defect found unconstitutional in Hurst: The jury, not the judge, must find each fact necessary to impose a death sentence; thus, a jury's nonbinding advisory recommendation over which a trial judge may consider additional evidence or information and ultimately make all the penalty-phase findings necessary for imposing a death sentence is a Sixth Amendment constitutional violation.
2) The jury's verdict was constitutionally insufficient to support a death sentence because the jury was instructed that its verdict would merely be a recommendation and this was inadequate under Hurst because the trial judge, not the jury, imposed the death sentence in violation of the Eighth Amendment.
3) Contrary to Hurst, the trial judge independently weighed the aggravating and mitigating circumstances, which included review of evidence not presented to the jury, and independently made the statutorily required factual determination that the aggravating circumstances outweighed the mitigating circumstances and, therefore, that a sentence of death was appropriate.

Since the remand from the United States Supreme Court, the Alabama Supreme Court released Ex parte Bohannon, 222 So.3d 525 (Ala. 2016), addressing the effect of Hurst on Alabama's death-penalty statute and holding that Alabama's capital-sentencing scheme is not in violation of Apprendi, Ring, or Hurst. Thus, as discussed more fully below, the decision in Bohannon, is adverse to Kirksey's claims.

1.

Kirksey contends that Hurst and Ring render his death sentence unconstitutional because the jury, not the judge, must find each fact necessary to impose a death sentence; thus, he argues, a jury's nonbinding advisory recommendation over which a trial judge ultimately makes the penalty-phase findings necessary for imposing a death sentence, is a Sixth Amendment Constitutional violation. In Kirksey, as evidenced by verdict forms, the jury did unanimously find beyond a reasonable doubt the existence of one aggravating factor and did unanimously recommend that Kirksey be sentenced to death. The Alabama Supreme Court held in Bohannon:

"Ring and Hurst require only that the jury find the existence of the aggravating factor that makes a defendant eligible for the death penalty - the plain language in those cases requires nothing more and nothing less. Accordingly, because in Alabama a jury, not the judge, determines by a unanimous verdict the critical finding that an aggravating circumstance exists beyond a reasonable doubt to make a defendant death-eligible, Alabama's capital-sentencing scheme does not violate the Sixth Amendment."

Bohannon, 222 So.3d at 532.

The Alabama Supreme Court held in Bohannon that "our reading of Apprendi, Ring, and Hurst leads us to the conclusion that Alabama's capital-sentencing scheme is consistent with the Sixth Amendment." Bohannon, 222 So.3d at 532. Thus, for the reasons set forth in Bohannon, this argument fails.

2.

Kirksey contends that the jury's verdict in his case was constitutionally insufficient to support a death sentence because his jury was instructed that its verdict would be a mere recommendation, i.e., advisory, and it was the trial judge, not the jury, who made the decision to impose a death sentence, in violation of the Eighth Amendment and Hurst.

In Bohannon, the Alabama Supreme Court addressed the same issue.

"Bohannon contends that an instruction to the jury that its sentence is merely advisory conflicts with Hurst because, he says, Hurst establishes that an `advisory recommendation' by the jury is insufficient as the `necessary factual finding that Ring requires.' Hurst, ___ U.S. ___, 136 S.Ct. at 622 (holding that the `advisory' recommendation by the jury in Florida's capital-sentencing scheme was inadequate as the `necessary factual finding that Ring requires'). Bohannon ignores the fact that the finding required by Hurst to be made by the jury, i.e., the existence of the aggravating factor that makes a defendant death-eligible, is indeed made by the jury, not the judge, in Alabama. Nothing in Apprendi, Ring, or Hurst suggests that, once the jury finds the existence of the aggravating circumstance that establishes the range of punishment to include death, the jury cannot make a recommendation for the judge to consider in determining the appropriate sentence or that the judge cannot evaluate the jury's sentencing recommendation to determine the appropriate sentence within the statutory range. Therefore, the making of a sentencing recommendation by the jury and the judge's use of the jury's recommendation to determine the appropriate sentence does not conflict with Hurst."

Bohannon, 222 So.3d 525. Thus, for the reasons set forth in Bohannon, this argument fails.

3.

Kirksey contends that contrary to the holding in Hurst, the judge presiding over his trial independently weighed the aggravating factors and the mitigating factors and made the statutorily required factual determination that the aggravating circumstances outweighed the mitigating circumstances and, therefore, determined that a death sentence was appropriate.

In Bohannon, the Alabama Supreme Court, for the second time, held that the process of weighing the aggravating factors and the mitigating factors does not constitute a factual finding.

"Hurst does not address the process of weighing the aggravating and mitigating circumstances or suggest that the jury must conduct the weighing process to satisfy the Sixth Amendment. This Court rejected that argument in Ex parte Waldrop, [859 So.2d 1181 (Ala. 2002),] holding that the Sixth Amendment `do[es] not require that a jury weigh the aggravating circumstances and the mitigating circumstances' because, rather than being `a factual determination,' the weighing process is `a moral or legal judgment that takes into account a theoretically limitless set of facts.' 859 So.2d at 1190, 1189. Hurst focuses on the jury's factual finding of the existence of an aggravating circumstance to make a defendant death-eligible; it does not mention the jury's weighing of the aggravating and mitigating circumstances. The United States Supreme Court's holding in Hurst was based on an application, not an expansion, of Apprendi and Ring; consequently, no reason exists to disturb our decision in Ex parte Waldrop with regard to the weighing process. Furthermore, nothing in our review of Apprendi, Ring, and Hurst leads us to conclude that in Hurst the United States Supreme Court held that the Sixth Amendment requires that a jury impose a capital sentence. Apprendi expressly stated that trial courts may `exercise discretion - taking into consideration various factors relating both to offense and offender - in imposing a judgment within the range prescribed by statute.' 530 U.S. at 481, 120 S.Ct. 2348. Hurst does not disturb this holding."

Bohannon, 222 So.3d at 532-33.

Thus, for the reasons set forth in Bohannon, this argument fails.

Conclusion

Based on the forgoing, Alabama's capital-sentencing does not violate the Constitution and does not run afoul of Apprendi, Ring, or Hurst.

Therefore, for the foregoing reasons, as well as the reasons stated by this Court in Kirksey v. State, 191 So.3d 810 (Ala. Crim. App. 2014), the judgment of the trial court is affirmed.

AFFIRMED.

Windom, P.J., and Burke and Joiner, JJ., concur. Kellum, J., not sitting.

      Prior to the Alabama Supreme Court's decision in Bohannon , this Court, in State v. Billups , (Ala. Crim. App. 2016), issued an opinion addressing petitions for a writs of mandamus filed by the State of Alabama asking this Court to direct a circuit court to "vacate its order declaring Alabama's `capital-sentencing scheme' unconstitutional." State v. Billups , 223 So.3d at 957. This Court held that Alabama's capital-sentencing statute is not unconstitutional because Alabama's scheme requires a jury to "unanimously find[] the fact or facts that expose a defendant to imposition of the death penalty." State v. Billups , 223 So.3d at 965. This Court noted that the Hurst decision did not hold
      "that judicial sentencing in capital cases is unconstitutional or that it is unconstitutional to allow a trial court, in determining the appropriate sentence in a capital case, to consider evidence that was not presented to the jury. "... Rather, the [ Hurst ] Court held that Florida's capital-sentencing scheme was unconstitutional to the extent that it specifically conditioned a capital defendant's eligibility for the death penalty on findings made by the trial court and not on findings made by the jury, which contravened the holding in Ring [v. Arizona , , 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002)]. The Court emphasized several times in its opinion that Florida's capital-sentencing statutes did not make a capital defendant eligible for the death penalty until the trial court made certain findings."
      State v. Billups , 223 So.3d at 962.


author: WISE, Justice.

text:
    Mark Robert ENGEL and Daniel Michael Engel v. Bonita Engel AMONETT and Marion Thomas Whitman
    1160113
    Supreme Court of Alabama.
    June 23, 2017
    * Note from the reporter of decisions: On July 21, 2016, this case was assigned to Jean Powers, a temporary probate judge appointed for the adjudication of the merits.
    Wesley H. Blacksher, Mobile, for appellants.
    Duane A. Graham and Roger W. Varner, Jr., of Armbrecht Jackson, LLP, Mobile, for appellees.
   WISE, Justice.

Mark Robert Engel and Daniel Michael Engel appeal from the Mobile Probate Court's order disqualifying them as co-executors of their mother's estate and appointing a third party to administer the estate. We affirm.

Facts and Procedural History

On November 23, 2015, Rositha Lorsch Engel died. In her will, she named Mark Robert Engel and Daniel Michael Engel as co-executors. On March 9, 2016, Mark and Daniel filed a petition for letters testamentary in the Mobile Probate Court. The petition listed Rositha's heirs as her four children: Marion Thomas Whitman ("Thomas"), Mark Robert Engel, Daniel Michael Engel, and Bonita Engel Amonett.

On May 5, 2016, Bonita and Thomas filed an objection to the appointment of Mark and Daniel as co-executors of their mother's estate, arguing that Mark and Daniel were disqualified from serving as co-executors for the reasons stated in § 43-2-22, Ala. Code 1975. Specifically, they contended that Mark and Daniel, either directly or by agent, had been selling Rositha's personal property, as well as personal property of other individuals located in Rositha's residence, by way of the Internet without having the authority to do so. Bonita and Thomas asserted that such actions reflected "intemperance, improvidence, or want of understanding" such that Mark and Daniel were disqualified from serving as the co-executors of Rositha's estate, and they asked that the Mobile County general administrator or some other neutral party be appointed to administer the estate. They also requested that Mark and Daniel be enjoined from selling any of Rositha's personal property and that they be required to account for, and turn over the proceeds from, any items that had already been sold.

The probate court conducted a hearing on May 9, 2016. On May 13, 2016, it entered an order in which, with the consent of all parties, it enjoined all parties from "disposing [of], transferring, giving away, spending, or otherwise dissipating" property belonging to the estate.

The probate court conducted a pretrial conference on July 11, 2016. Thereafter, on July 21, 2016, it entered an order in which it stated that it would conduct a hearing on October 13, 2016, and that the triable issues for that hearing were:

"A. Whether or not Mark Robert Engel and Daniel Michael Engel should be appointed as co-executors as stated in the Last Will and Testament of Rositha L. Engel dated April 15, 2008;
"B. Whether or not Mark Robert Engel and Daniel Michael Engel sold personal property of decedent and committed waste of estate assets or diverted any estate assets;
"C. If Mark Robert Engel and Daniel Michael Engel sold personal property and committed waste of assets, what is the value of the personal property sold and should they return the value to the estate; and
"D. Whether or not the Court should appoint the Mobile County General Administrator to administer decedent's estate."

The probate court conducted the hearing on the petition on October 13, 2016. Afterward, on October 17, 2016, it entered an order in which it stated:

"This cause came before the Court on October 13, 2016, on the Petition for Letters Testamentary filed by Mark Robert Engel and Daniel Michael Engel and the Objection to Appointment of Personal Representative and Motion to Appoint General Administrator or Other Neutral Representative filed by Bonita Engel Amonett and Marion Thomas [Whitman]. Appearances were noted in the record. This cause is properly before the Court pursuant to its jurisdiction and authority as conferred by statute, local act and Constitutional provisions. Upon consideration of the evidence and argument presented, the Court FINDS, CONCLUDES AND ORDERS as follows:
"1. The Petition for Letters Testamentary is DENIED IN PART. The proffered will is admitted to probate; however, the Objection to Appointment of Personal Representative and Motion to Appoint General Administrator or Other Neutral Representative is SUSTAINED and GRANTED.
"2. Frank H. Kruse, General Administrator of Mobile County Probate Court shall be appointed Personal Representative of the Estate and Letters of Administration with the Will Annexed shall issue forthwith.
"3. Mark Robert Engel and Daniel Michael Engel are ORDERED to provide an accounting to the Personal Representative of any personal property sold or put up for sale since the date of decedent's death.
"4. Mark Robert Engel and Daniel Michael Engel are ORDERED to turn over to the Personal Representative any assets in their possession belonging to the Estate.
"5. The Personal Representative is ORDERED to file an inventory on or before November 18, 2016."

(Capitalization in original; emphasis added.)

On November 4, 2016, Mark and Daniel filed a notice of appeal to this Court.

Standard of Review

" 'Because the probate court's judgment is based, in part, upon testimony adduced at an ore tenus proceeding, we presume its judgment to be correct, and we will not reverse its judgment unless it is "palpably erroneous." Cox v. Logan, 262 Ala. 11, 13, 76 So.2d 169, 171 (1954). A more recent statement of the "ore tenus" rule, as applicable in an appeal from a probate court's judgment, appears in Craig v. Perry, 565 So.2d 171, 175 (Ala. 1990) (citations omitted):
" ' "[W]hen a court hears ore tenus evidence in a nonjury case, its ruling based on that evidence is presumed correct and will be overturned only if clearly erroneous or manifestly unjust. ... The presumption of correctness is especially applicable where ... the evidence was conflicting. The weight to be given the witnesses' testimony [is] for the trial judge, because he had the opportunity to view the witnesses and their demeanor." '
" Barron v. Scroggins, 910 So.2d 780, 782-83 (Ala. Civ. App. 2005)."

McGallagher v. Estate of DeGeer, 934 So. 2d 391, 401 (Ala. Civ. App. 2005).

Discussion

Mark and Daniel argue that the probate court erred in disqualifying them from being the co-executors of their mother's estate. Specifically, they contend that the probate court stated that it was disqualifying them because the heirs, which included them, did not get along and for "efficiency of administration," which they assert are not proper grounds for disqualifying them from serving as co-executors. Therefore, Mark and Daniel conclude, the probate court's order should be reversed and they should be appointed as the co-executors of their mother's estate.

Bonita and Thomas argue that the probate court's order was "grounded in the reasons enumerated by Ala. Code [1975,] § 43-2-22(a)," and that that court did not err in finding that Mark and Daniel were disqualified from serving as co-executors for the reasons stated in § 43-2-22. Section 43-2-22(a) provides, in relevant part:

"No person must be deemed a fit person to serve as executor who is under the age of 19 years, or who has been convicted of an infamous crime, or who, from intemperance, improvidence or want of understanding, is incompetent to discharge the duties of the trust."

Bonita and Thomas contend that Mark's and Daniel's "entire appeal is predicated on the assumption that the Probate Court's Final Order was solely based on 'efficiency of administration' " and that "[t]he basis for this wrongful assumption are two gratuitous sentences that were uttered by the judge at the close of the trial prior to entering the final order." Instead, they assert that

"the [probate court] made no indication in [its] verbal statements that this was the sole reason for [its] decision. The Final Order itself, read in light of the pleadings and, in particular, the Objection, clearly reflects that the basis of the [court's] decision was the finding that Mark's and Daniel's conduct (including but not limited to their efforts to sell the Decedent's personal property) reflected intemperance, improvidence, and/or want of understanding, which disqualified them from serving as co-executors of the Decedent's Estate."

We agree with Bonita and Thomas. In their objection to the appointment of Mark and Daniel as co-executors, Bonita and Thomas argued that Mark and Daniel were disqualified from serving as co-executors for the reasons stated in § 43-2-22 because they and/or their children had been placing Rositha's personal property for sale on various sites on the Internet. Also, the probate court entered an order enjoining all parties from "disposing [of], transferring, giving away, spending, or otherwise dissipating" property belonging to the estate. Finally, the probate court entered an order in which it stated that the issues to be tried at the hearing were 1) whether Mark and Daniel sold Rositha's personal property and committed waste of estate assets or diverted any estate assets, and, if so, 2) what was the value of the personal property sold and should the value be returned to the estate, and 3) whether the court should appoint the general administrator to administer the estate. Clearly, the issue about which the probate court was concerned was whether Mark and Daniel were disqualified from serving as co-executors for the reasons stated in § 43-2-22.

Also, the evidence presented during the hearing focused on the question of Mark's and Daniel's fitness to serve based on whether they should be disqualified pursuant to § 43-2-22. During the hearing, Bonita testified that Daniel, his wife, and his three children lived with their mother for at least eight years during which time Daniel did not work and that Daniel did not pay their mother rent or pay for utilities during the time his family lived with her. She explained that Daniel had previously owned a contracting business but that the business had suffered when the economy took a downturn. Bonita stated that, eventually, her mother had put a deadbolt lock on the door to her bedroom because she felt like some of her things, including coins, were missing and that Daniel or his children might have taken them.

Bonita testified that, after her mother died, some items of her mother's personal property were placed for sale on various Internet sites. She stated that she e-mailed Mark and told him that Daniel and his daughter were putting their mother's personal property up for sale on various Internet sites. Bonita testified that Mark had indicated that he would say something to Daniel but that the sale of her mother's personal property still continued. She also testified that, at some point, Mark blocked her texts and e-mails.

Bonita testified that she and her children had visited with her mother frequently before her death and that they all had items of personal property in her mother's house. She also testified that, when she tried to enter and retrieve some of those items after her mother died, Daniel refused to let her in and called law-enforcement authorities.

Bonita testified that she and Mark had talked about their mother's estate and that, at a Christmas gathering, Mark had expressed concern about Daniel's serving as the executor. In particular, she explained that her father's estate, the Mylan Engel estate, was still open nine years after his death because it involved a great deal of land; that some of the farmland is leased and the checks on the leased land had been being made out to her father's estate; and that, after her mother died, one of those rent checks had been made out to Daniel instead of to her father's estate. Bonita also stated that Mark was concerned that Daniel was "pocketing" the money paid for the lease of the farmland.

Bonita testified that, a few days before her mother's death, Mark and Daniel decided to put their mother's house in Mark's name, for the benefit of the siblings, and that she agreed to it. She explained that they did so in an attempt to protect Daniel's share of their mother's estate from his business creditors.

Bonita testified that Mark and Daniel were identical twins; that, because of that, they had a "bond"; and that Mark had concerns about Daniel's handling their mother's estate. She stated that Daniel had built a house for Mark and that he repeatedly complained that Mark had never paid him. However, Mark showed her a copy of the check he had given David and explained that he had put money in Daniel's account and that Daniel's creditors had gotten the money, so he had then given the money for the house to their mother for Daniel's benefit.

Thomas testified that he lived with his mother in her house until she died. After she died, he said, Mark and Daniel made things so difficult for him that he moved out. Specifically, Thomas testified that they blocked the driveway to keep him from coming and going; that Daniel said that he and Mark were going to throw Thomas out of the house; that they said that it was their house and that they were the executors of their mother's will and they could legally do what they wanted; that they did many loads of laundry near his room during the evenings when he was home; and that Daniel broke some of their mother's furniture after he complained about their doing the laundry there. He also testified that Daniel allowed his own children to drive their mother's car after she died, even though she never would have let them drive it if she were alive.

Thomas testified that Lehman Farms had a lease arrangement with Mylan Engel's estate, the proceeds of which basically paid the taxes on the land. He also testified that, shortly after their mother's death, he saw a check from Lehman Farms that was made out to Daniel personally instead of to Mylan Engel's estate. He further testified that he had made Mark aware that Daniel had received a check and that Mark had indicated that he would look into it.

Thomas testified that, during the Christmas gathering, Mark had expressed concern about Daniel's fitness to serve as an executor of their mother's estate. He also testified that Bonita had made him aware that items of their mother's personal property were being placed for sale on various Internet sites. Finally, he stated that his mother had wanted all of her clothing and personal items that were in her bedroom to go to Bonita, but that Mark and Daniel were not going to let that happen.

Thomas testified that he agreed with Bonita's objection to Mark's and Daniel's serving as co-executors of their mother's estate. He also testified that he always knew that Daniel was "shady" and "underhanded" and that he would "lie[ ], steal[ ], [and] cheat[ ]." However, he stated that he "didn't see it coming with Mark."

Mark testified that he had notified various entities that their mother had died, that he had filed her tax returns, and that he had kept a diary of transactions regarding the estate that had occurred since her death. He also testified that Bonita had used one of their mother's credit cards after their mother died and that he had told her not to use it again. Finally, he testified that he personally paid the premiums for the insurance on his mother's vehicle after she died to keep it insured.

Mark testified that, at the time of the hearing, Daniel and his children were still living in their mother's house. He also testified that Bonita's children often stayed there, that one of them lived there for many years, and that their mother paid for food, living expenses, and tuition for that child. Finally, he testified that Thomas lived in their mother's house and did not pay for anything.

Mark testified that he knew that his mother had gotten a deadbolt lock for her bedroom door because she felt like people were going in there and taking things. He stated that there was a competition between Daniel and Bonita and their children and that, in his opinion, their mother had been brainwashed to think that Bonita's children could do no wrong and that Daniel's children could do no right. Mark admitted that, shortly before she died, their mother asked him to get her furs and jewelry and give them to Bonita because she was concerned about those items being in the house when she was no longer there.

Mark testified that, shortly before their mother died, he used a power of attorney she had given him to put the title to her house in his name because of concerns the children had about Daniel's creditors. Although he agreed that the house belonged to all four children, he acknowledged that Daniel was still living in the house and that there had not been any discussion about his paying rent to the estate, but he stated that their mother would not want Daniel to pay rent. When he was asked how long Daniel would be allowed to live in the house rent free, Mark stated: "Well, once this gets resolved, then we'll distribute it. We'll get rid of everything. I can't do anything while my hands are tied."

Mark testified that there had been an altercation at the house between Bonita and Daniel, that items were being taken out of the house, and that he went to the house to try to keep the peace. He also testified that he did not know anything about their mother giving certain items to certain children before she died and that he would contend that all such items needed to be returned and distributed according to the terms of their mother's will. However, Mark later admitted that he took his mother's bedroom furniture after she died because she had previously told him that she wanted him to have it.

With regard to the lease arrangement with Lehman Farms, Mark testified that a check for rent had been made out to Daniel following their mother's death. However, he explained that the land that was being leased had been split between the four children and that the rent had been paid to his mother, who in turn had paid the taxes for the parcels that belonged to Daniel, Thomas, and Bonita. He also explained that Daniel handled everything with regard to the land in their father's estate and that he assumed that Daniel talked with a representative of Lehman Farms about the rent check after their mother died. When asked if Daniel told the representative to make the check payable to him alone, Mark said: "I guess. I mean, you have to ask him that. I can't answer that." Mark further stated that his initial concerns about Daniel's being a co-executor of their mother's estate were erased once Daniel clarified why he had received a rent check from Lehman Farms.

On cross-examination, Mark admitted that, although he had not thought about it, at least a portion of the rent paid by Lehman Farms may have been an asset of their mother's estate. He stated that he had not notified Lehman Farms about their mother's death and that he assumed that Daniel had instructed Lehman Farms to make out the rent checks to him.

Mark was asked about Bonita's informing him that items that belonged to their mother were being offered for sale on the Internet. The following then occurred:

"A. Bonita sent me a notice saying things were being listed. I had no knowledge. I immediately e-mailed Daniel and said, 'If this is going on, it better stop.' But I don't live there. I don't come and go there. So I, you know-I'm being-You're asking me to be responsible for behavior that I can't be responsible for.
"Q. And I'll accept that you made that communication, but Daniel didn't stop; did he?
"A. I don't know.
"Q. Well, if the time that we first came down here in either May or June and we got the status quo order-
"A. Uh-huh.
"Q.-things were still being listed on the Internet then; weren't they?
"A. I don't know. I don't do social media and all that stuff. I just opened a Facebook [social-media] page for the first time, so I can't really-
"Q. Mark, you weren't concerned enough about that problem that you monitored to see (inaudible)-
"A. I told him.
"Q.-your brother?
"A. I told him repeatedly if that's going on to stop.
"Q. But you didn't-
"A. Now, what he does with it-
"Q. You didn't follow through to make sure he stopped?
"A. Well, I mean, how do you want me to make him stop. If someone's doing something, I can't make them-I can't control people's behaviors. All I can do is notify them; tell them to stop, which I did. I e-mailed him and told him and told him if it's going on, it needs to stop. If you sold anything, you need to retrieve it. I specifically told him that.
"And the reason I blocked them is because they wouldn't stop harassing me. I-you know, at some point I have to make a living. I can't be-I can't, all day long, be bombarded with them-with stupid questions. I can't handle that."

Mark testified that he believed that he could carry out his duty as the executor of the estate. He also testified that their mother had said that she wanted him and Daniel to be the executors of her estate because she was afraid that Bonita "would spend everything on purses and clothing and jewelry and stuff like that." However, he admitted that he had declared bankruptcy approximately 20 years before. Finally, Mark stated that his parents' estates were intertwined and that he believed appointing another person to handle their mother's estate would unnecessarily add expense and time to the administration of her estate.

Daniel testified he and Bonita and Thomas had had some issues during the seven or eight years that he and his children lived in their mother's house. He also testified that their mother had invited them to move in after he lost his business and that, while he was there, he remodeled the house. Daniel further testified that, when he was living there after the first time he separated from his wife, he paid their mother $1,200 per month and he paid all the household bills. He added that Thomas never contributed anything to the house or expenses.

Daniel admitted that his daughter Hannah had placed some items of their mother's personal property for sale on the Internet. However, he testified that they had not been sold and that the items were at the house. Daniel stated that he himself had not placed any items of their mother's personal property for sale. He also stated that, even though the items indicated that they had been placed for sale on the Internet by Daniel Engel, he was not the person who had placed them for sale.

Daniel testified that there were approximately 13 parcels of real estate in his father's estate and that, before he died, his father had also designated parcels for each of the children and for their mother. He also testified that Lehman Farms leased property from his father's estate as well as parcels that belonged to the children and their mother and that all the rent was paid to their mother until she died. Daniel stated that, after their mother died, he learned about the land and the arrangement with Lehman Farms. He also stated that Lehman Farms took it upon itself to write the rent check to him after their mother died.

Daniel testified that their mother had been sole executor of their father's estate before she died and that he had helped her handle it. He also testified that he and Mark were now the co-executors of their father's estate and that one-third of the acreage in their father's estate would go to their mother's estate. Finally, he testified that he was asking that he and Mark be allowed to serve as the co-executors of their mother's estate because appointing a third party would cost additional money and consume more time.

At the end of the hearing, the probate court stated:

"It seems to me, clear, that-and it's unfortunate that we see it in this court all the time, that the siblings cannot get along. And the estate administration will be more efficient with a neutral third party. And with any luck, maybe over time, the sibling relationships will be repaired. I certainly hope that. And I am pleased to hear that you all, at least, sound open to that.
"So my inclination is to appoint Frank Kruse because he's the County General Administrator."

Thereafter, the probate court entered a written order in which it stated, in relevant part:

"This cause came before the Court on October 13, 2016, on the Petition for Letters Testamentary filed by Mark Robert Engel and Daniel Michael Engel and the Objection to Appointment of Personal Representative and Motion to Appoint General Administrator or Other Neutral Representative filed by Bonita Engel Amonett and Marion Thomas [Whitman]. Appearances were noted in the record. This cause is properly before the Court pursuant to its jurisdiction and authority as conferred by statute, local act and Constitutional provisions. Upon consideration of the evidence and argument presented, the Court FINDS, CONCLUDES AND ORDERS as follows:
"1. The Petition for Letters Testamentary is DENIED IN PART. The proffered will is admitted to probate; however, the Objection to Appointment of Personal Representative and Motion to Appoint General Administrator or Other Neutral Representative is SUSTAINED and GRANTED.
"2. Frank H. Kruse, General Administrator of Mobile County Probate Court shall be appointed Personal Representative of the Estate and Letters of Administration with the Will Annexed shall issue forthwith.
"3. Mark Robert Engel and Daniel Michael Engel are ORDERED to provide an accounting to the Personal Representative of any personal property sold or put up for sale since the date of decedent's death.
"4. Mark Robert Engel and Daniel Michael Engel are ORDERED to turn over to the Personal Representative any assets in their possession belonging to the Estate.
"5. The Personal Representative is ORDERED to file an inventory on or before November 18, 2016."

(Capitalization in original; emphasis added.)

After reviewing the orders entered before the hearing and the language in the final order, we cannot conclude that the probate court found that Mark and Daniel were disqualified simply on the basis of "efficiency of administration." Rather, it is clear to this Court that the probate court found that Mark and Daniel were disqualified for reasons of improvidence or want of understanding, as set forth in § 43-2-22.

Further, the evidence supports the probate court's order.

" 'Improvidence means a lack of care and foresight, of forehandedness, of thrift, of business capacity. It does not mean, however, that the capacity for care and foresight must needs to be proved by the accumulation of any considerable estate, for men are largely creatures of time and chance. Improvidence in this connection means only that probable lack of care and foresight in the management of the estate's only asset which would endanger its safety in case administration should be committed to appellee.'
" Nichols v. Smith, 186 Ala. 587, 591-92, 65 So. 30, 31 (1914)."

Thames v. Thames, 183 So.3d 168, 180 (Ala. Civ. App. 2015).

"Improvidence as here used has been defined as that probable lack of care and foresight in the management of the estate which would endanger its safety in case administration should be committed to the applicant. Nichols v. Smith, 186 Ala. [587,] 592, 65 So. 30 [ (1914) ] ; 33 C.J.S., Executors and Administrators, p. 947, § 46, subsec. e; In re Ferguson's Will, 41 Misc. 465, 84 N.Y.S. 1102 [ (N.Y. Sur. 1903) ].
"The disqualifying term means more than the lack of capacity to accumulate a considerable estate ( Nichols v. Smith, supra, 186 Ala. at page 591, 65 So. 30 ) ....
"A much quoted New York decision observed that improvidence, as termed in the statute, 'refers to habits of mind and conduct which become a part of the man, and render him generally, and under all ordinary circumstances, unfit for the trust or employment in question.' In Matter of Flood's Will, 236 N.Y. 408, 411, 140 N.E. 936, 937 [ (N.Y. 1923) ], quoting Emerson v. Bowers, 14 N.Y. 449 [ (N.Y. 1856) ]. See also In re Schwartz' Estate, 138 Misc. 537, 246 N.Y.S. 478, 480 [ (N.Y. Sur. 1930) ]."

Griffin v. Irwin, 246 Ala. 631, 635, 21 So.2d 668, 671 (1945).

" 'Improvidence' is thus defined in 42 C.J.S., p. 472:
" 'In general, a lack of business capacity, care and foresight, forehandedness, prudence, or thrift; and, more specifically, a want of care and foresight in the management of property. The term refers to habits of mind and conduct which become a part of the man and render him generally and under all ordinary circumstances unfit for the trust or employment in question; but does not necessarily imply a failure to accumulate any considerable estate.'
"Webster's New International Dictionary, 2d Ed., defines 'improvidence' as 'want of foresight or thrift.' "

Smith v. Rice, 265 Ala. 236, 248, 90 So.2d 262, 273 (1956).

During the hearing, Bonita and Thomas presented evidence indicating that Daniel had had difficulties with his own financial affairs; that their mother had provided financial support for Daniel and his family; that their mother had put a deadbolt lock on her bedroom door because she felt like some of her things, including coins, were missing and that Daniel or his children might have taken them; and that, after their mother died, at the very least, Daniel's daughter had placed items of their mother's personal property for sale on various sites on the Internet. They also presented evidence indicating that Bonita had notified Mark about the items that had been placed for sale on the Internet; that he had indicated that he would say something to Daniel but that it continued; and that, at some point, Mark blocked her texts and e-mails. Further, Bonita testified that a rent check from Lehman Farms had been made out to Daniel personally and that Mark had, at one time, expressed concerns about Daniel's "pocketing" the money.

During his testimony, Mark appeared to show a lack of appropriate concern about Daniel and his actions with regard to the Lehman Farms rent checks, to not paying rent for the time he lived in their mother's house, and to the possible sale of their mother's property on the Internet. Specifically, he appeared to take Daniel's representations as true, to not follow up on questions about Daniel's actions, to not make sure that personal property was not being sold, and to act as if his hands were somehow tied. Mark also offered what appeared to be inconsistent testimony about whether his mother had given property to her children before her death. At one point, he stated that he did not know about any such gifts, but he later stated that he had taken a bedroom suite she had stated she wanted him to have.

In light of the evidence presented, the probate court could have reasonably concluded that there were questions as to Mark's and Daniel's willingness, ability, and fitness to do what was best for the estate. Specifically, it could have concluded that Daniel's actions before their mother died and both Daniel's and Mark's actions after their mother died demonstrated improvidence and a want of understanding such that they were disqualified from serving as the co-executors for her estate.

"Our ore tenus standard of review is well settled. ' "When a judge in a nonjury case hears oral testimony, a judgment based on findings of fact based on that testimony will be presumed correct and will not be disturbed on appeal except for a plain and palpable error." ' Smith v. Muchia, 854 So.2d 85, 92 (Ala. 2003) (quoting Allstate Ins. Co. v. Skelton, 675 So.2d 377, 379 (Ala. 1996) ).
" 'The ore tenus rule is grounded upon the principle that when the trial court hears oral testimony it has an opportunity to evaluate the demeanor and credibility of witnesses.' Hall v. Mazzone, 486 So.2d 408, 410 (Ala. 1986). The rule applies to "disputed issues of fact," whether the dispute is based entirely upon oral testimony or upon a combination of oral testimony and documentary evidence. Born v. Clark, 662 So.2d 669, 672 (Ala. 1995). The ore tenus standard of review, succinctly stated, is as follows:
" ' "[W]here the evidence has been [presented] ore tenus, a presumption of correctness attends the trial court's conclusion on issues of fact, and this Court will not disturb the trial court's conclusion unless it is clearly erroneous and against the great weight of the evidence, but will affirm the judgment if, under any reasonable aspect, it is supported by credible evidence." '
" Reed v. Board of Trs. for Alabama State Univ., 778 So.2d 791, 795 (Ala. 2000) (quoting Raidt v. Crane, 342 So.2d 358, 360 (Ala. 1977) )."

Kennedy v. Boles Invs., Inc., 53 So.3d 60, 67-68 (Ala. 2010).

For the above-stated reasons, the probate court could have reasonably concluded that Mark and Daniel were disqualified from serving as the co-executors of their mother's estate pursuant to § 43-2-22. Accordingly, we affirm the probate court's judgment.

AFFIRMED.

Stuart, C.J., and Shaw, Main, and Sellers, JJ., concur.

      The decedent's name is also spelled "Roswitha" in the record.


author: MURDOCK, Justice.

text:
    WELLS FARGO BANK, N.A. v. NATIONAL BANK OF COMMERCE
    1150992
    Supreme Court of Alabama.
    June 30, 2017
    Victor L. Hayslip and Benjamin B. Coulter of Burr & Forman LLP, Birmingham, for appellant.
    Amber M. Whillock and John P. Scott, Jr., of Starnes Davis Florie LLP, Birmingham, for appellee.
   MURDOCK, Justice.

Wells Fargo Bank, N.A. ("Wells Fargo"), appeals from the Jefferson Circuit Court's denial of its claim for attorney fees against National Bank of Commerce ("NBC"). We affirm the judgment of the circuit court.

I. Facts

The claim at issue in this appeal stems from a lawsuit concerning the deposit of a check issued on June 18, 2009, by Jennifer Champion, treasurer of Jefferson County, in the amount of $178,916.42 in settlement of claims made in Winston v. Jefferson County, Case No. CV-07-2297, a class-action lawsuit concerning excess tax bids. The check was drawn on Jefferson County's account with Wachovia Bank, N.A., a predecessor to Wells Fargo, and it was jointly payable to the order of Carl Prewitt, Debra Prewitt, Renasant Bank, and Moore Oil Co., Inc. ("Moore Oil").

After the check was issued, it was mailed to the Prewitts at their home in Trussville, and it was received by Debra Prewitt. On June 22, 2009, the check was stamped "for deposit only," and it was deposited to an account in the name of Liberty Investing, LLC ("Liberty Investing"), at Red Mountain Bank, a predecessor to NBC, using a remote scanner that was provided by NBC's predecessor to Creative Edge Landscaping, Inc. ("Creative Edge"). It is undisputed that the check was deposited without endorsements and that the Prewitts were not signatories on the Liberty Investing account.

After NBC's predecessor accepted the check and credited the Liberty Investing account, it presented the check to Wells Fargo's predecessor for payment. Wells Fargo's predecessor paid the check and debited Jefferson County's account. The Prewitts received the proceeds of the check over time through a series of withdrawals and transfers from the Liberty Investing account.

In 2011, Moore Oil became aware of the check, and by a letter dated September 14, 2011, it demanded that Jefferson County pay Moore Oil the amount of the check because, Moore Oil contended, it was entitled to the proceeds of the check. Wells Fargo asserts that Jefferson County then "contacted Wells Fargo, seeking repayment" of the check. In contrast, NBC asserts that Jefferson County has not "made a demand to Wells Fargo for reimbursement of the proceeds from the check." Neither party, however, provides record support for these assertions concerning the treasurer's actions.

On October 13, 2011, Wells Fargo sent a letter to NBC asserting that NBC's predecessor had breached its presentment warranty under § 7-4-208, Ala. Code 1975, by accepting the check for payment without proper endorsements and then presenting it for payment to Wells Fargo's predecessor. On October 26, 2011, NBC sent a response to Wells Fargo in which it asserted that "applicable Alabama law precludes any recovery by Wells Fargo based on a presentment warranty against NBC for any funds paid under this check."

On April 20, 2012, Moore Oil filed an action in the Jefferson Circuit Court against the Prewitts, Wells Fargo, and NBC, alleging that each of the defendants was liable for conversion of the check. On May 3, 2012, Wells Fargo sent a letter to NBC demanding that it defend and indemnify Wells Fargo in the action filed by Moore Oil. On May 9, 2012, NBC sent a response in which it declined to defend or to indemnify Wells Fargo, citing the reasons provided in its previous letter to Wells Fargo.

On May 30, 2012, Wells Fargo answered Moore Oil's complaint, denying liability for conversion of the check, and it filed cross-claims against both NBC and the Prewitts for indemnity and money had and received and cross-claims solely against NBC for breach of warranty and unjust enrichment.

On June 18, 2012, NBC answered Moore Oil's complaint, denying liability for conversion of the check, and it filed cross-claims and third-party claims against Liberty Investing, Creative Edge, the Prewitts, Edward Parker, and Shea and Amanda Mitchell, including claims alleging contractual indemnity, common-law indemnity, breach of contract, breach of transfer warranty, fraud, and fraudulent suppression based on the wrongful deposit of the check in violation of NBC's predecessor's remote-deposit-account agreements.

Moore Oil subsequently amended its complaint several times to assert claims against Liberty Investing, Creative Edge, Parker, and Shea Mitchell alleging conversion and conspiracy and seeking prejudgment interest. On August 12, 2013, the circuit court granted a motion to stay the action pending this Court's ruling in First United Security Bank v. McCollum, 178 So.3d 372 (Ala. 2014). The court returned the action to its active docket by order dated October 30, 2014.

On April 29, 2015, Wells Fargo moved for a partial summary judgment against NBC. On May 22, 2015, NBC filed its response in opposition to the motion. Wells Fargo filed a reply in support of its motion on May 27, 2015.

On September 25, 2015, Moore Oil filed a motion for a partial summary judgment on its claims against NBC, Wells Fargo, Liberty Investing, Creative Edge, the Prewitts, and Shea Mitchell. Both Wells Fargo and NBC opposed the motion on the ground that Moore Oil was not entitled to the proceeds of the check.

On November 9, 2015, the circuit court issued an order in which it entered a partial summary judgment in favor of Moore Oil on its conversion claims against Wells Fargo, NBC, the Prewitts, and Shea Mitchell, stating:

"The Plaintiff's Motion for Partial Summary Judgment is granted in part. The plaintiff's claims against defendants National Bank of Commerce and Wells Fargo Bank, N.A., under Ala. Code §§ 7-3-420 and 7-3-310 [are] granted. Judgment against these defendants on this claim will be entered. Additionally, the plaintiff's motion with regard to its conversion claims against defendants Carlton Prewitt, Debra Prewitt and Shea Mitchell is granted. In all other respects, plaintiff's motion is denied."

In the same order, the circuit court granted in part Wells Fargo's motion for a summary judgment against NBC, stating:

"The Motion for Partial Summary Judgment, filed by Wells Fargo, N.A, against co-defendant National Bank of Commerce is granted in part. The court finds that NBC is legally obligated to indemnify Wells Fargo against any demand of the plaintiff herein against Wells Fargo. The court denies Wells Fargo's request for attorneys' fees."

(Emphasis added.)

According to NBC, following the circuit court's November 9, 2015, order, Moore Oil, NBC, Parker, Creative Edge, and Liberty Investing entered into a settlement agreement resolving the claims between them. Wells Fargo did not participate in the settlement.

On April 28, 2016, the circuit court entered an order in which it observed that "[b]y separate orders entered today, several defendants have been dismissed from this action." The circuit court requested that the parties inform it as to whether any other disposition was required in the case. On May 9, 2016, the circuit court entered an order dismissing all remaining claims in the action with prejudice.

Wells Fargo subsequently filed this appeal from the circuit court's November 9, 2015, order, specifically challenging the denial of its claim for attorney fees.

II. Standard of Review

"Whether to award or to deny attorney fees lies within the sound discretion of the trial court. On appeal, the trial court's ruling on that question is subject to reversal only upon a showing of abuse of discretion." Battle v. City of Birmingham, 656 So.2d 344, 347 (Ala. 1995). We note that Wells Fargo contends that our standard of review should be de novo because it bases its right to attorney fees on the interpretation of a statute. As will become apparent from our analysis, however, Wells Fargo actually relies upon the application of certain rules of special equity to sustain its claim. The question whether a rule of equity " 'will be [invoked] rests in the sound discretion of the chancellor.' " Ex parte Green, 58 So.3d 135, 156 (Ala. 2010) (Murdock, J., concurring specially in part and dissenting in part) (quoting with approval Yuba Consolidated Gold Fields v. Kilkeary, 206 F.2d 884, 889 (9th Cir. 1953) ).

III. Analysis

Wells Fargo contends that NBC should be required to reimburse Wells Fargo for the attorney fees it incurred in defending against the action brought by Moore Oil because § 7-4-208, Ala. Code 1975, gives a drawee bank a right to reimbursement of its "expenses" when a presenting bank violates the presentment warranty. It argues that, in this situation, the term "expenses" must be interpreted to include attorney fees. The issue presented is one of first impression for this Court.

Section 7-4-208, Ala. Code 1975, concerns presentment warranties. It provides:

"(a) If an unaccepted draft is presented to the drawee for payment or acceptance and the drawee pays or accepts the draft, (i) the person obtaining payment or acceptance, at the time of presentment, and (ii) a previous transferor of the draft, at the time of transfer, warrant to the drawee that pays or accepts the draft in good faith that:
"(1) The warrantor is, or was, at the time the warrantor transferred the draft, a person entitled to enforce the draft or authorized to obtain payment or acceptance of the draft on behalf of a person entitled to enforce the draft;
"(2) The draft has not been altered; and
"(3) The warrantor has no knowledge that the signature of the purported drawer of the draft is unauthorized.
"(b) A drawee making payment may recover from a warrantor damages for breach of warranty equal to the amount paid by the drawee less the amount the drawee received or is entitled to receive from the drawer because of the payment. In addition, the drawee is entitled to compensation for expenses and loss of interest resulting from the breach. The right of the drawee to recover damages under this subsection is not affected by any failure of the drawee to exercise ordinary care in making payment. If the drawee accepts the draft (i) breach of warranty is a defense to the obligation of the acceptor, and (ii) if the acceptor makes payment with respect to the draft, the acceptor is entitled to recover from a warrantor for breach of warranty the amounts stated in this subsection.
"(c) If a drawee asserts a claim for breach of warranty under subsection (a) based on an unauthorized indorsement of the draft or an alteration of the draft, the warrantor may defend by proving that the indorsement is effective under Section 7-3-404 or 7-3-405[, Ala. Code 1975,] or the drawer is precluded under Section 7-3-406 or 7-4-406[, Ala. Code 1975,] from asserting against the drawee the unauthorized indorsement or alteration.
"(d) If (i) a dishonored draft is presented for payment to the drawer or an indorser or (ii) any other item is presented for payment to a party obliged to pay the item, and the item is paid, the person obtaining payment and a prior transferor of the item warrant to the person making payment in good faith that the warrantor is, or was, at the time the warrantor transferred the item, a person entitled to enforce the item or authorized to obtain payment on behalf of a person entitled to enforce the item. The person making payment may recover from any warrantor for breach of warranty an amount equal to the amount paid plus expenses and loss of interest resulting from the breach.
"(e) The warranties stated in subsections (a) and (d) cannot be disclaimed with respect to checks. Unless notice of a claim for breach of warranty is given to the warrantor within 30 days after the claimant has reason to know of the breach and the identity of the warrantor, the warrantor is discharged to the extent of any loss caused by the delay in giving notice of the claim.
"(f) A cause of action for breach of warranty under this section accrues when the claimant has reason to know of the breach."

(Emphasis added.)

This Court has explained that this section

"places a duty on the collecting bank [NBC] to ensure that the indorsements on a check are not forgeries, and the collecting bank is held to warrant the genuineness of the indorsements. If the collecting bank breaches this warranty, then it is liable to the drawee bank [Wells Fargo] for the amount of the check. The rationale of this section is that the first bank in the collection chain ... is in a better position to ensure that the one presenting the check has good title than are subsequent banks or the payor bank. Further, there is no duty on the drawee bank to discover an indorsement forgery in the context of payment of a check to a collecting bank."

Union Bank & Trust Co. v. Elmore Cty. Nat'l Bank, 592 So.2d 560, 562 (Ala. 1991).

The "Alabama Comment" to § 7-4-208 states: "See the Alabama Comment to Section 3-411 for the issue as to when attorney's fees are recoverable." Section 7-3-411, Ala. Code 1975, concerns the refusal to pay cashier's checks, teller's checks, and certified checks. Subsection (b) of § 7-3-411 contains language similar to subsection (b) of § 7-4-208, providing:

"(b) If the obligated bank wrongfully (i) refuses to pay a cashier's check or certified check, (ii) stops payment of a teller's check, or (iii) refuses to pay a dishonored teller's check, the person asserting the right to enforce the check is entitled to compensation for expenses and loss of interest resulting from the nonpayment and may recover consequential damages if the obligated bank refuses to pay after receiving notice of particular circumstances giving rise to the damages."

(Emphasis added.)

Official Comment 2 to § 7-3-411 explains:

"2. The term 'obligated bank' refers to the issuer of the cashier's check or teller's check and the acceptor of the certified check. If the obligated bank wrongfully refuses to pay, it is liable to pay for expenses and loss of interest resulting from the refusal to pay. There is no express provision for attorney's fees, but attorney's fees are not meant to be necessarily excluded. They could be granted because they fit within the language 'expenses ... resulting from the nonpayment.' In addition the bank may be liable to pay consequential damages if it has notice of the particular circumstances giving rise to the damages."

(Emphasis added.)

In contrast to the Official Comment to § 7-3-411, the Alabama Comment to § 7-3-411 states:

"Official Comment 2 states that there is no express provision for attorney's fees, but such fees are not meant to be necessarily excluded. The current rule in Alabama is that in the absence of a statute, contract or recognized equitable grounds, there is no right to recover attorney's fees from the opposing party either as cost or damages. Hartford Accident And Indemnity Company v. Cosby, 277 Ala. 596, 173 So.2d 585 (1965) ; Mason v. City of Albertville, 276 Ala. 68, 158 So.2d 924 (1963) ; Inland Mutual Insurance Company v. Hightower, 274 Ala. 52, 145 So.2d 422 (1962) ; Cincinnati Insurance Company v. City of Talladega, 342 So.2d 331 (Ala. 1977)."

(Emphasis added.)

Wells Fargo contends that the Alabama Comment to § 7-3-411 simply explains that attorney fees are recoverable by a drawee bank "to the extent permitted under Alabama law." It further argues that Wells Fargo's situation in this case falls into two recognized equitable grounds for attorney-fee recovery under Alabama law: "(1) where a warrantor owes the warrantee indemnity and (2) 'where the natural and probable consequences of the defendant's wrongful act causes the plaintiff to become involved in litigation with a third person.' "

Wells Fargo's first ground for its claimed right to recover attorney fees is that an indemnitee is entitled to such a recovery. In Stone Building Co. v. Star Electrical Contractors, Inc., 796 So.2d 1076 (Ala. 2000), the Court provided a detailed explanation of the parameters of this equitable exception to the Alabama rule that attorney fees are not recoverable:

" 'We are aware that it appears to be well settled in other jurisdictions that an indemnitee is entitled to recover, as part of the damages, reasonable attorney fees which it is compelled to pay as a result of suits against it in reference to the matter against which it is indemnified. 42 C.J.S. Indemnity § 13(d) (1968). The indemnification of attorney fees is, however, subject to certain limitations. For instance, the allowance of attorney fees is limited to the defense of the claim indemnified against and does not extend to services rendered in establishing the right of indemnity. 41 Am. Jur. 2d Indemnity § 36 (1955) ; See, e.g., United General Ins. Co. v. Crane Carrier Co., 695 P.2d 1334 (Okla. 1984) ; [ E.C.] Ernst, [Inc. v. Manhattan Constr. Co., 551 F.2d 1026 (5th Cir. 1977) ].
" 'Furthermore, there is considerable authority holding that an indemnitee is precluded from recovering attorney fees where the indemnitee has been required to defend accusations which encompass his own separate wrongful acts. See, e.g., Farr v. Armstrong Rubber Co., 288 Minn. 83, 179 N.W.2d 64 (1970) ; Piedmont Equipment Co. v. Eberhard Mfg. Co., 99 Nev. 523, 665 P.2d 256 (1983). In other words, indemnification, including attorney fees, is allowed where one is defending claims predicated solely upon another defendant's negligence; howev er, where one is defending for his own benefit, an award of attorney fees will not be allowed .' "

796 So.2d at 1091-92 (quoting with approval Jack Smith Enters. v. Northside Packing Co., 569 So.2d 745, 746 (Ala. Civ. App. 1990) ) (emphasis added).

Wells Fargo argues that, because the circuit court concluded that it was entitled to indemnity from NBC, it follows that Wells Fargo is also entitled to attorney fees from NBC for defending the claim Moore Oil brought against Wells Fargo. It concedes that "no Alabama court has expressly ruled in applying an indemnity theory to breach of presentment warranties," but it cites cases from other jurisdictions that have applied the exception to such situations. See, e.g., Perkins State Bank v. Connolly, 632 F.2d 1306, 1316 (5th Cir. 1980) ; Bagby v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 491 F.2d 192, 198 n.9 (8th Cir. 1974) ; and First Virginia Bank-Colonial v. Provident State Bank, 582 F.Supp. 850, 852 (D. Md. 1984).

Wells Fargo also contends it is entitled to recover attorney fees because it has been recognized that

"where the natural and proximate consequences of the defendant's wrongful act cause[ ] the plaintiff to become involved in litigation with a third person, attorneys' fees and other expenses incurred in such litigation may be recovered as damages. 22 Am. Jur. 2d, Damages, § 166, p. 235 ; 25 C.J.S. Damages § 50, p. 787.
"In order to recover attorneys' fees against a defendant in a tort suit, the following elements are necessary:
"(1) The plaintiff must have incurred attorneys' fees in the prosecution or defense of a prior action.
"(2) The litigation must have been against a third party and not against the defendant in the present action.
"(3) The plaintiff must have become involved in such litigation because of some tortious act of the defendant. 45 A.L.R.2d 1183."

Highlands Underwriters Ins. Co. v. Elegant´e Inns, Inc., 361 So.2d 1060, 1066 (Ala. 1978).

Wells Fargo argues that it meets the requirements of this principle of recovery. It says that the only reason it became embroiled in the action brought by Moore Oil was that NBC refused "to pay the funds necessary to satisfy the claim made by Moore Oil in October 2011" when Wells Fargo asked NBC to do so. The litigation for which Wells Fargo seeks compensation was brought by a third party, i.e., Moore Oil. Wells Fargo also notes that it has been observed that the "prior-action" requirement is met where the two actions are part of the same underlying case. See Wood v. Old Sec. Life Ins. Co., 643 F.2d 1209, 1218 (5th Cir. 1981) (observing that in Highlands Underwriters an action for reformation of the insurance policy and an action against the insurance agent alleging negligent endorsement of the same insurance policy were consolidated for trial).

Before we specifically examine whether the equitable exceptions to Alabama's general rule under which Wells Fargo seeks to travel are applicable, we must note a threshold difficulty with Wells Fargo's argument as a whole. Wells Fargo claims an unequivocal right to attorney fees based on a statute that simply is not explicit about such a right. The only language in § 7-4-208 that speaks to this issue in any respect states: "In addition, the drawee is entitled to compensation for expenses and loss of interest resulting from the breach." § 7-4-208(b). In other words, § 7-4-208 contains no express provision for the recovery of attorney fees. The right to such a recovery is left to implication based on interpretation of comments to Uniform Commercial Code provisions. As this Court has observed: " 'Though the official comments are a valuable aid in construction, they have not been enacted by the legislature and are not necessarily representative of legislative intent.' " Pinigis v. Regions Bank, 977 So.2d 446, 455 (Ala. 2007) (quoting Simmons v. Clemco Indus., 368 So.2d 509, 514 (Ala. 1979) ).

In contrast, as NBC observes, Alabama's version of the Uniform Commercial Code contains several sections that do expressly provide for an award of attorney fees. See Ala. Code 1975, § 7-4A-305(e) (providing for recovery of "reasonable attorney's fees" upon failure to execute payment order); § 7-5-111(e) (noting that "reasonable attorney's fees and other expenses of litigation may be awarded" under Article 5 dealing with letters of credit); § 7-9A-607(d) (stating that a secured party may deduct from the collections reasonable expenses "including reasonable attorney's fees and legal expenses"); § 7-7-601(a) (stating the court may order payment of bailee's "reasonable costs and attorney's fees"); § 7-4A-404(b) (noting that "reasonable attorney's fees" are recoverable if demand for interest is made and refused); and § 7-4A-211(f) (authorizing award of "reasonable attorney's fees" upon cancellation of payment order).

It is axiomatic that the best evidence of legislative intent is the language of a statute itself. The legislature expressly provided for the recovery of attorney fees in several provisions of Alabama's version of the Uniform Commercial Code, but it did not do so in § 7-4-208. Instead, Wells Fargo asks us to infer such a right based upon inconclusive statutory language and comments upon that language that restate Alabama's general rule that attorney fees are not recoverable.

As to the commentary on the statute, Wells Fargo offers the only possible construction favorable to its position. But, although is true that, if the Alabama Comment to § 4-3-411 is read in isolation, it could be interpreted to be stating that attorney fees are recoverable where Alabama law allows for such recovery, reading the commentary to § 4-3-411 as a whole puts the Alabama Comment in a different light. The Official Comment to § 4-3-411 opens the door to allowing attorney fees under the auspices of the term "expenses"; the Alabama Comment follows that observation with a terse statement of Alabama law on the subject. The result is that the Alabama Comment comes across as pushing back against the position in the Official Comment through its emphasis on this State's adherence to the traditional American Rule concerning attorney fees.

Beyond all of this, Wells Fargo's situation does not qualify for the equitable exceptions it seeks to invoke. With regard to the rule expressed in Stone Building Co. concerning indemnitees being entitled to recovery of attorney fees, Wells Fargo left out of its iteration of the rule the caveat that " 'an indemnitee is precluded from recovering attorney fees where the indemnitee has been required to defend accusations which encompass his own separate wrongful acts.' " Stone Bldg. Co., 796 So.2d at 1092 (quoting Jack Smith Enters., 569 So.2d at 746 ). Moore Oil brought claims asserting conversion against both NBC and Wells Fargo. Specifically with regard to Wells Fargo, Moore Oil alleged that "Wells Fargo made payment on the Check without Moore's consent or indorsement" and that "Wells Fargo is liable to Moore for conversion of the Check." Wells Fargo had to defend itself in the Moore Oil action because of its own allegedly wrongful conduct. In fact, the circuit court ruled in Moore Oil's favor with regard to its claim against Wells Fargo. Wells Fargo protests that this should not matter because the circuit court concluded that NBC had to indemnify Wells Fargo, but where the circuit court ultimately placed financial liability in the action does not change the fact that Wells Fargo was not " 'defending claims predicated solely upon [NBC's] negligence.' " Stone Bldg. Co., 796 So.2d at 1092 (quoting Jack Smith Enters., 569 So.2d at 746 ). Accordingly, this equitable exception does not apply here.

A similar difficulty prevents application of the equitable rule expressed in Highlands Underwriters concerning instances "where the natural and proximate consequences of the defendant's wrongful act cause[ ] the plaintiff to become involved in litigation with a third person." Highlands Underwriters, 361 So.2d at 1066. For that rule to apply, "[t]he plaintiff must have become involved in such litigation because of some tortious act of the defendant." Id. It is true that NBC failed to ensure that the check was properly endorsed before it accepted the check, an act that was integral in the chain of events that led to conversion of the check. But Moore Oil filed a separate conversion claim against Wells Fargo because Wells Fargo simply relied upon NBC's presentation of the check, and it paid the check without making any inquiry about whether it was properly endorsed. Wells Fargo would not have become involved in Moore Oil's suit apart from its own actions. Accordingly, the equitable rule expressed in Highlands Underwriters also is not applicable here.

In sum, Wells Fargo's claim for reimbursement of attorney fees expended in defense of the claim brought by Moore Oil lacks support in the statutory scheme and in the comments on the statute at issue. Furthermore, neither of the "special equity" rules under which Wells Fargo claims entitlement to reimbursement of its attorney fees is applicable in this situation. Therefore, we cannot say that the circuit court erred in denying Wells Fargo's claim for reimbursement of its attorney fees.

IV. Conclusion

Based on the foregoing, we conclude that the circuit court's judgment denying Wells Fargo's claim for attorney fees is due to be affirmed.

AFFIRMED.

Stuart, C.J., and Bolin, Main, and Bryan, JJ., concur.

      The property involved in the excess tax bid was originally owned by the Prewitts, who financed the purchase through a note and mortgage from Renasant Bank. Moore Oil purchased the note and mortgage in 2007.

      A remote-deposit agreement existed between NBC's predecessor and Creative Edge. Liberty Investing and Creative Edge were owned by the same person, Edward Parker. Apparently the Prewitts' son-in-law, Shea Mitchell, was an employee for one of Parker's businesses.

      In its reply in support of its motion for a summary judgment, Wells Fargo stated that "[t]he Jefferson County Treasurer is not asserting any claim against Wells Fargo."

      Wells Fargo concedes that NBC is not responsible for attorney fees Wells Fargo expended in pursuit of its indemnity claim against NBC and claims against other parties in the action.