author: LYONS, Special Chief Justice.

text:
    PORTERSVILLE BAY OYSTER COMPANY, LLC, Troy Cornelius, and Rebecca Cornelius v. Christopher BLANKENSHIP, in his official capacity as Commissioner of the Alabama Department of Conservation and Natural Resources
    1161101
    Supreme Court of Alabama.
    August 29, 2018 Rehearing Denied October 16, 2018
    W. Bradford Kittrell, W. Lloyd Copeland, and Steven A. Martino of Taylor Martino, P.C., Mobile; and Jason Hagmaier of Johnston & Hagmaier, LLP, Mobile, for appellants.
    William D. Montgomery, Jr., of Ball, Ball, Matthews & Novak, P.A., Mobile; and Jennifer Z. Weber, Alabama Department of Conservation & Natural Resources, for appellee.
   LYONS, Special Chief Justice.

Portersville Bay Oyster Company, LLC ("the Oyster Company"), and its members, Troy Cornelius and his wife, Rebecca Cornelius, are the plaintiffs in a civil action against 4H Construction Corporation, Greystone Industries, LLC, and Christopher Blankenship, in his official capacity as Commissioner of the Alabama Department of Conservation and Natural Resources, that is pending in the Montgomery Circuit Court ("the trial court"). The Oyster Company and the Corneliuses (hereinafter collectively referred to as "the oyster farmers") appeal from the trial court's order dismissing Commissioner Blankenship as a defendant in this action. The trial court certified the dismissal as a final judgment pursuant to Rule 54(b), Ala. R. Civ. P. We reverse and remand.

I. Factual Background and Procedural History

The Oyster Company is an Alabama limited liability company authorized to grow, harvest, process, and sell oysters in Mobile County. The Corneliuses are its only members.

Oysters can be farmed either from the bottom of the body of water or in elevated cages. A landowner on waterfront property has a statutory right to plant and to harvest oysters from the bottom in an area 600 yards from the shoreline in front of the property. § 9-12-22, Ala. Code 1975. Tensaw Land & Timber Company, Inc. ("Tensaw"), owns land fronting on Portersville Bay. Tensaw leased its statutory right to grow and to harvest oysters on the bottom in Portersville Bay to the Oyster Company. Tensaw executed two oyster-bottom leases on contiguous tracts to the Oyster Company, conveying oystering rights on the submerged land. The Alabama Department of Conservation and Natural Resources ("the Department") grants shellfish aquaculture easements on state-owned submerged lands for the purpose of cultivating and harvesting shellfish, including oysters. On November 20, 2014, the Department conveyed to the Corneliuses a shellfish aquaculture easement allowing them to raise oysters in cages above the area encompassed by one of the Tensaw leases. Subject to exceptions not here relevant, the riparian landowner does not have the right to harvest oysters in elevated cages within 600 yards from the shoreline in front of the waterfront property; the shellfish aquaculture easement enables the oyster farmers to grow oysters in elevated cages in the area of the easement. The oysters grown elsewhere on the Tensaw leases are grown on the bottom.

While both of the Tensaw leases and the shellfish aquaculture easement were in effect, 4H Construction Corporation contracted with the Department to construct a breakwater and marsh for coastal protection in Mobile Bay ("the Marsh Island project"). Construction on the Marsh Island project began in approximately May 2016. It is undisputed that the Marsh Island project was for the public benefit. Sediment and silt removed and released during the construction of the Marsh Island project has been deposited, and is still being deposited, on oyster beds located in the easement and areas of the leases. According to the allegations of the complaint, the sediment and silt deposits have increased over time and are killing the oysters being farmed on those oyster beds.

On September 19, 2016, the Oyster Company sued then commissioner of the Department, N. Gunter Guy, Jr., and 4H Construction in the Mobile Circuit Court, alleging negligence, wantonness, and nuisance against 4H Construction and two claims of inverse condemnation against Commissioner Guy relating to the easement. On October 28, 2016, Commissioner Guy filed a motion to dismiss the two counts against him on the basis that Mobile County was an improper venue for a case involving a State official and for failure to state a claim upon which relief could be granted. The Oyster Company and Commissioner Guy subsequently filed a joint motion to transfer the case to Montgomery County. The Mobile Circuit Court granted the motion to transfer but did not rule on the motion to dismiss.

The Oyster Company then filed an amended complaint in the trial court restating the claims against Commissioner Guy; on December 12, 2016, Commissioner Guy again moved to dismiss the counts against him on the ground that they failed to state a claim upon which relief could be granted. The trial court entered an order on June 2, 2017, dismissing the first amended complaint as to Commissioner Guy. In the meantime, on March 8, 2017, the Oyster Company had filed a second amended complaint to add the Corneliuses, owners of the shellfish aquaculture easement, as plaintiffs. On June 8, 2017, the oyster farmers filed a motion to reconsider the June 2 judgment of dismissal. Then, on June 27, 2017, Commissioner Blankenship filed a motion to dismiss the counts asserted against him in the second amended complaint for failure to state a claim upon which relief could be granted. The trial court entered a judgment on June 28, 2017, dismissing the counts against Commissioner Blankenship in the second amended complaint. On July 28, 2017, the oyster farmers filed a motion to reconsider the June 28 judgment of dismissal. Both motions to reconsider were denied on August 31, 2017.

The oyster farmers explain their allegations in detail in their complaint. The following is taken from their second amended complaint:

"6. As part of the Department's duties for the preservation of lands, the Commissioner initiated the 'Marsh Island (Portersville Bay) Restoration Project' (hereinafter, the 'Marsh Island Project'), which involves the creation of a salt marsh along Marsh Island, a state-owned island in the Portersville Bay portion of the Mississippi Sound, Alabama. The project will restore approximately 50 acres of salt marsh through the placement of sediments and the creation of a permeable segmented breakwater to protect the Marsh Island shoreline. The restored marsh will compensate for salt-marsh habitat lost due to the Deepwater Horizon Oil Spill.
"7. The Department also manages and regulates Alabama's burgeoning shellfish industry. As part of this responsibility, the Lands Division of the Department grants shellfish aquaculture easements on state-owned submerged lands for the cultivation and harvesting of oysters, clams, or mussels and scallops.
"8. Plaintiffs are oyster farmers. [The oyster farmers] raise oysters in Portersville Bay, Mobile County, Alabama.
"9. Ala. Code 1975 § 9-12-22 provides that the beds and bottoms of various bodies of water, including bays, are the property of the State of Alabama, 'but the owners of land fronting on such waters where oysters may be grown shall have the right to plant and gather same in the waters in front of their land to the distance of 600 yards from the shore.'
"10. [Tensaw] is an owner of land fronting on the waters of Portersville Bay. Tensaw leased its § 9-12-22 right to plant and gather oysters to [the Oyster Company] via two oyster bottom leases covering contiguous tracts. The first lease, dated 19 June 2015, has a term of 8 July 2015 to 7 July 2018.... The second lease, dated 29 July 2015, has a term of 1 August 2015 to 31 July 2020....
"11. [The Oyster Company] grows oysters on the bottom of Portersville Bay under the 29 July 2015 lease.
"12. On November 20, 2014, the Department conveyed to the Corneliuses a shellfish aquaculture easement for submerged land encompassed by the 19 June 2015 lease.... The easement allows shellfish aquaculture activities on the submerged bottom and the overlying water column. In the area covered by the easement, [the oyster farmers] grow oysters on the bottom and in elevated cages. In the remainder of the area covered by the 19 June 2015 lease, oysters are grown on the bottom.
"13. 4H Construction contracted with the Department to construct a breakwater and marsh for coastal protection in Mobile Bay. This is the Marsh Island Project, State Project # 2-L198. Among other things, 4H Construction operates heavy machinery to remove underwater sediment south of [the oyster farmers'] leases and easement.
"14. 4H Construction and the Department executed a contract for the Marsh Island Project in or about January 2016. As part of the contract for the construction of the breakwater and marsh, 4H Construction must follow certain requirements such as the prevention of sediment release, creating proper containment berms to prevent the movement of any sediment, and ensure that turbidity levels not exceed certain levels within 200 feet of the project.
"15. In or around May 2016, as construction began, sediment and silt removed and released during the construction began to be deposited on [the oyster farmers'] leases and easement. As time passed and the construction continued, the result was an increase in sediment and silt removed and released from the construction site. The currents caused an increased amount of silt and sediment to be deposited on [the oyster farmers'] leases and easement. The Commissioner and 4H Construction made no efforts, before or after construction began, to determine the amount, extent, duration, or migration direction of the sediment and silt created by the Marsh Island Project.
"16. [The oyster farmers] began noticing a significant drop in their young oyster yield as a result of the silt and sediment created by the project. Before the Marsh Island Project began, [the oyster farmers] had a normal oyster mortality rate of 3 to 5%. Since construction began, the mortality rate has risen to 40 to 50% for oysters in elevated cages. The mortality rate for oysters on the bottom is even higher, in some locations 100%.
"17. As a direct result of the silt and sediment deposited on [the oyster farmers'] oyster beds and cages, [the oyster farmers'] oyster spat and larvae have become contaminated and have been dying at a significantly higher rate than normal. Excessive sedimentation smothers the organisms and increases population mortality. Spat and larvae are significantly affected by sediment load in that they are more sensitive to suspended sediments than adult oysters. On or around May 31, 2016, the contamination was discovered to have negatively impacted [the oyster farmers'] entire oyster population.
"18. During the bidding phase of the Marsh Island Project, the Department and 4H Construction were aware that the creation of the breakwater and marsh would or could cause significant excess silt and sediment to be released into the waters where [the oyster farmers'] oyster beds and cages are located and deposited on [the oyster farmers'] leases and easement. The Department and 4H Construction, as the parties to the contract for State Project # 2-L198, had a duty to use reasonable care to ensure that [the oyster farmers'] neighboring oyster beds and cages were protected from contamination.
"19. The Department and 4H Construction, as the parties to the contract for State Project # 2-L198, had a duty not to unreasonably interfere with [the oyster farmers'] use of their leases and easement.
"20. The silt and sediment deposited on, and which continues to be deposited on, [the oyster farmers'] leases and easement is a permanent condition, inasmuch as the sediment and silt will remain where it is unless physically removed, which may not be possible."

On August 14, 2017, the oyster farmers filed a third amended complaint formally substituting Commissioner Blankenship for Commissioner Guy and adding Greystone Industries, a subcontractor of 4H Construction, as a defendant. The third amended complaint alleged claims of negligence, wantonness, and nuisance against 4H Construction and Greystone Industries (hereinafter collectively referred to as "the State contractors") and asserted the same two claims of inverse condemnation against Commissioner Blankenship as had been asserted in the three earlier complaints. After a hearing, the trial court entered a judgment on August 31, 2017, consolidating the motions for reconsideration filed by the oyster farmers and denying those motions on the basis that the oyster farmers had not alleged a valid inverse-condemnation claim and that, therefore, Commissioner Blankenship was entitled to immunity in his official capacity. After the trial court made its judgment final pursuant to Rule 54(b), Ala. R. Civ. P., the oyster farmers appealed.

II. Standard of Review

We review de novo the trial court's dismissal of Commissioner Blankenship as a defendant.

"On appeal, a dismissal is not entitled to a presumption of correctness. Jones v. Lee County Commission, 394 So.2d 928, 930 (Ala. 1981) ; Allen v. Johnny Baker Hauling, Inc., 545 So.2d 771, 772 (Ala. Civ. App. 1989). The appropriate standard of review under Rule 12(b)(6)[, Ala. R. Civ. P.,] is whether, when the allegations of the complaint are viewed most strongly in the pleader's favor, it appears that the pleader could prove any set of circumstances that would entitle her to relief. Raley v. Citibanc of Alabama/Andalusia, 474 So.2d 640, 641 (Ala. 1985) ; Hill v. Falletta, 589 So.2d 746 (Ala. Civ. App. 1991). In making this determination, this Court does not consider whether the plaintiff will ultimately prevail, but only whether she may possibly prevail. Fontenot v. Bramlett, 470 So.2d 669, 671 (Ala. 1985) ; Rice v. United Ins. Co. of America, 465 So.2d 1100, 1101 (Ala. 1984). We note that a Rule 12(b)(6) dismissal is proper only when it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief. Garrett v. Hadden, 495 So.2d 616, 617 (Ala. 1986) ;
Hill v. Kraft, Inc., 496 So.2d 768, 769 (Ala. 1986)."

Nance v. Matthews, 622 So.2d 297, 299 (Ala. 1993).

III. Analysis

A riparian landowner has no title to the submerged lands that abut the owner's land to the water's edge. Nevertheless, as previously noted, subject to exceptions not here relevant, the riparian landowner has the right to harvest oysters to the distance of 600 yards from the shore pursuant to § 9-12-22 but does not have a right to harvest oysters using cages above the submerged surface. Such activity is permissible only when the State grants a shellfish aquaculture easement for that purpose. The Oyster Company has leased the riparian right to harvest from Tensaw, the owner of the land at the water's edge, by executing two leases. In one of the two leased areas the oyster farmers use cages above the submerged surface. For this activity, the Department conveyed a shellfish aquaculture easement to the Corneliuses.

According to the complaint, sediment and silt from the activities of the State contractors has interfered with the activities of the oyster farmers under their leases with Tensaw, the riparian landowner, for harvesting oysters on the bottom of the bay. That sediment and silt has also interfered with the oyster farmers' harvesting of caged oysters pursuant to rights conferred by the shellfish aquaculture easement. Based on the State contractors' activities, the oyster farmers claim money damages. The trial court dismissed the counts against Commissioner Blankenship in their complaint based on Commissioner Blankenship's motion to dismiss pursuant to Rule 12(b)(6), Ala. R. Civ. P., for failure to state a claim upon which relief could be granted.

We first address Commissioner Blankenship's contention that the following paragraph in the shellfish aquaculture easement precludes any remedy by inverse condemnation.

"11. PROPERTY RIGHTS: The Grantee shall make no claim of title or interest to the Easement Premises hereinbefore described by reason of the occupancy or use thereof, and all title and interest to said land hereinbefore described is vested in the Grantor. The Grantee is prohibited from including, or making any claim that purports to include, said lands described as the Easement Premises into any form of private ownership. The Grantee is further prohibited from making any claim, including any advertisement, that said land, or the use thereof, may be purchased, sold or re-sold."

Initially, we note that Commissioner Blankenship did not assert this defense in the trial court but introduced it for the first time in his appellate brief. The oyster farmers rebutted this contention by arguing that Commissioner Blankenship's reading of the paragraph leads to an absurd result--undercutting entirely the rights conferred in the instrument. We agree.

The first sentence of paragraph 11 denies to the oyster farmers a claim of "title or interest" to the easement premises "by reason of the occupancy or use thereof." In this proceeding, the oyster farmers' claims are not based merely on their occupancy or use of the easement premises but are derived from the grant in the shellfish aquaculture easement to the Corneliuses of an easement for oyster farming in elevated cages. Moreover, their claims do not assert title or interest in the premises but complain of the disruption of the water quality in the area where their elevated cages are situated. The second sentence deprives the oyster farmers of a claim of private ownership of the lands described as the easement premises. Here again, the oyster farmers' claim that the rights conferred by the easement have been disrupted because of the dispersal of sediment and silt detrimental to oyster farming does not rise to the level of a claim of private ownership of the submerged lands under the elevated cages. The first two sentences are consistent with the general rule that mere presence by permission based on an easement granted by the owner of the fee does not allow the grantee to assert fee simple title by adverse possession to the lands embraced by the easement based on the exercise of rights conferred by the easement. See Blalock v. Conzelman, 751 So.2d 2 (Ala. 1999) ; Harkins & Co. v. Lewis, 535 So.2d 104, 117 (Ala. 1988) ("Ordinary acts of ownership, consistent with permissive possession, are not sufficient to constitute an adverse holding capable of ever ripening into a title."); and Cotton v. May, 293 Ala. 212, 215, 301 So.2d 168, 170 (1974) ("[A] permissive possession does not ripen into title adverse to the owner unless there has been such a repudiation of the permissive possession as to afford notice of an adverse claim."). The last sentence deprives the oyster farmers of any right to claim that the submerged land or the use thereof was available for sale, a scenario irrelevant to this case.

Commissioner Blankenship's contention that paragraph 11 of the easement deprives the oyster farmers of a remedy in inverse condemnation conflicts with the unambiguous language of the paragraph. Acceptance of that contention would rewrite the paragraph and render the rights conferred in the other portions of the shellfish aquaculture easement nugatory. This Court will enforce unambiguous contracts as written. See Ex parte Bill Heard Chevrolet, Inc., 927 So.2d 792, 800 (Ala. 2005) (" '[I]f a contract is unambiguous on its face, there is no room for construction and it must be enforced as written.' Southland Quality Homes, Inc. v. Williams, 781 So.2d 949, 953 (Ala. 2000).").

Commissioner Blankenship's Rule 12(b)(6), Ala. R. Civ. P., argument turns on questions relating to the State's immunity from suit. The general rule as to the immunity that protects the State is stated in Art. I, § 14, Ala. Const. 1901, which provides "[t]hat the State of Alabama shall never be made a defendant in any court of law or equity." A State official sued in his official capacity is also entitled to the protection of State immunity from suit "when the action is, in effect, one against the state." Phillips v. Thomas, 555 So.2d 81, 83 (Ala. 1989). Therefore, if State immunity is applicable to the oyster farmers' claims, Commissioner Blankenship would be entitled to its protection. Lyons v. River Rd. Constr., Inc., 858 So.2d 257, 261 (Ala. 2003). However, an exception from State immunity based on the taking of property for public use is set forth in Art. I, § 23, Ala. Const. 1901, as follows:

"That the exercise of the right of eminent domain shall never be abridged nor so construed as to prevent the legislature from taking the property and franchises of incorporated companies, and subjecting them to public use in the same manner in which the property and franchises of individuals are taken and subjected; but private property shall not be taken for, or applied to public use, unless just compensation be first made therefor; nor shall private property be taken for private use, or for the use of corporations, other than municipal, without the consent of the owner; provided, however, the legislature may by law secure to persons or corporations the right of way over the lands of other persons or corporations, and by general laws provide for and regulate the exercise by persons and corporations of the rights herein reserved; but just compensation shall, in all cases, be first made to the owner; and, provided, that the right of eminent domain shall not be so construed as to allow taxation or forced subscription for the benefit of railroads or any other kind of corporations, other than municipal, or for the benefit of any individual or association."

Inverse condemnation typically involves a taking by a governmental entity without invoking available statutory bases for such taking under which the property owner would have been entitled to just compensation.

"In United States v. Clarke, 445 U.S. 253, 100 S.Ct. 1127, 63 L.Ed. 2d 373 (1980), the United States Supreme Court explained the difference between formal condemnation proceedings and inverse condemnation proceedings. A formal condemnation proceeding is a legal action brought by a condemning authority, such as the Government, in the exercise of its power of eminent domain. 'Inverse condemnation' refers to a legal action against a governmental authority to recover the value of property that has been taken by that governmental authority without exercising its power of eminent domain--it is a shorthand description of the manner in which a landowner recovers just compensation for a taking of his property when the taking authority has not initiated condemnation proceedings. Condemnation proceedings require affirmative 'taking' action on the part of the condemning authority; the particular action required depends on the particular statute applicable. However, in inverse condemnation actions, a governmental authority need only occupy or injure the property in question; when that occurs and the property owner discovers the encroachment, the property owner has the burden of taking affirmative action to recover just compensation."

Jefferson Cty. v. Southern Natural Gas Co., 621 So.2d 1282, 1287 (Ala. 1993). Here, no statutory procedure exists for the alleged taking by reason of the dissemination of sediment and silt from the activities of the State contractors.

Commissioner Blankenship contends that this absence of a statutory procedure is fatal to the oyster farmers' claims against him, relying on Ex parte Carter, 395 So.2d 65, 67 (Ala. 1980). The oyster farmers requested at oral argument that we overrule Carter, and we thereafter ordered briefs addressed to that issue. In Denson v. Alabama Polytechnic Institute, 220 Ala. 433, 126 So. 133 (1930), this Court recognized the State's inherent power to condemn; hence, an action in inverse condemnation pursuant to rights recognized by § 23, Ala. Const. 1901, did not depend on whether the legislature had adopted procedures for certain types of taking. To the extent that Carter supports the view that the existence of a legislative procedure for taking of the category of property at issue is a prerequisite to an action seeking damages for the alleged inverse condemnation of such property, it is expressly overruled.

Both parties rely on Ex parte Alabama Department of Transportation, 143 So.3d 730 (Ala. 2013) (" ALDOT"), in which this Court recognized an inverse-condemnation claim where the Department of Transportation had flooded private property with contaminated water. The oyster farmers contend that the disbursement of contaminated water onto the property in ALDOT is the equivalent of the deposit of sediment and silt in this proceeding. Commissioner Blankenship contends that ALDOT stands for the necessity of direct involvement by the State because the flooding in ALDOT was not the result of activities by a contractor. We note that ALDOT is a plurality opinion in which only three Justices concurred; it is therefore not dispositive of the issues here presented.

We need not reach the question whether activities of a contractor insulate the State from an inverse-condemnation claim because the complaint alleges that the Department knew that the Marsh Island project would or could carry the excess sediment and silt onto the areas embraced by the leases and the shellfish aquaculture easement when it entered into the contract for the Marsh Island project. We see no material difference between this fact pattern and the affirmative act of pumping the contaminated water present in ALDOT.

Construing the allegations of the complaint in favor of the oyster farmers, as we must (see Hexcel Decatur, Inc. v. Vickers, 908 So.2d 237 (Ala. 2005) ; and Nance v. Matthews, 622 So.2d 297, 299 (Ala. 1993) ), we conclude that the activities of the State contractors foreseeably resulted in interference with the private-property rights acquired by the oyster farmers from the riparian landowner--Tensaw. Moreover, the shellfish aquaculture easement acquired from the State created private-property rights that were disrupted by the sediment and silt and for which a right to damages for a taking is recognized in § 23, Ala. Const. 1901. That the rights interfered with were asserted by a person who does not hold fee-simple title is immaterial. See Drummond Coal Co. v. State, 548 So.2d 430, 432 (Ala. 1989) ; Harco Drug, Inc. v. Notsla, Inc., 382 So.2d 1, 3 (Ala. 1980) (recognizing that leasehold interests are subject to taking by eminent domain and that the taking is compensable). Because leasehold interests can be taken by eminent domain, and therefore by inverse condemnation, it correspondingly follows that easements, another real-property interest allowing the use of a property right held by the owner of the land, can be taken by eminent domain and therefore by inverse condemnation. Accordingly, we hold that the oyster farmers properly stated claims of inverse condemnation upon which relief can be granted. We further hold that because the exception from State immunity based on the taking of property for public use applies here, the defense of State immunity is not available to Commissioner Blankenship as to the oyster farmers' inverse-condemnation claims.

IV. Conclusion

The trial court erred when it dismissed Commissioner Blankenship as a defendant based upon his argument that the oyster farmers failed to state a claim upon which relief could be granted. The order of the trial court doing so is hereby reversed, and the case is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

Pamela Willis Baschab, Terry L. Butts, Gorman Houston, Thomas A. Woodall, and Sharon G. Yates, Special Justices, concur.

Jean Williams Brown, Special Justice, dissents.

JEAN WILLIAMS BROWN, Special Justice (dissenting).

I respectfully dissent. Because the oyster farmers did not raise in the trial court the issue whether Ex parte Carter, 395 So.2d 65 (Ala. 1980), should be overruled, and instead raised this issue in this Court for the first time during oral argument, I do not find that this argument was properly preserved for review by this Court.

I agree with Justice Shaw's dissent in Ex parte Pollard, 160 So.3d 835, 837 (Ala. 2014), wherein he stated:

"Parties should be required to direct the trial court to the correct 'arguments' instead of allowing the focus to dwell on immaterial issues or, intentionally or not, 'sandbagging' the trial court with inconsequential 'arguments,' while leaving the appellate courts to address the true 'questions' never brought to the attention of the lower court."

      Canon 3.C of the Canons of Judicial Ethics requires a Justice to disqualify himself or herself in any proceeding in which the Justice's impartiality might reasonably be questioned. On January 11, 2018, the Chief Justice and Associate Justices recused themselves from consideration of this case. Pursuant to § 149, Ala. Const. 1901, the following former Associate Justices and Appellate Judges were appointed to serve as the special Supreme Court in this case: Champ Lyons, Jr., Pamela Willis Baschab, Jean Williams Brown, Terry L. Butts, Gorman Houston, Thomas A. Woodall, and Sharon G. Yates.

      The project is situated in the Portersville Bay portion of the Mississippi Sound, Alabama.

      At some point during these proceedings Commissioner Blankenship succeeded Commissioner Guy as commissioner of the Department.

      The dissenting opinion faults the oyster farmers for failing to request in the trial court that Carter be overruled. The view that a request for such relief in the trial court is a prerequisite to appellate review at one time had some support in this Court. See, e.g., Goodyear Tire & Rubber Co. v. Vinson, 749 So.2d 393, 400 (Ala. 1999) (Lyons, J., concurring specially). More recent authority is inconsistent with that view. See Ex parte Vanderwall, 201 So.3d 525 (Ala. 2015), in which this Court overruled a controlling decision in a setting where the appellant had not asked the trial court or this Court to do so. A special concurrence in Vanderwall cites authorities that demonstrate the absence of an ironclad rule requiring a request to overrule precedent as a prerequisite to such relief. 201 So.3d at 540 (Murdock, J., concurring specially). See also, e.g., Travelers Indem. Co. of Connecticut v. Miller, 86 So.3d 338, 347 (Ala. 2011) ("Although we have not been asked to overrule Haston [v. Transamerica Insurance Services, 662 So.2d 1138 (Ala. 1995) ], and it is this Court's practice not to address issues not presented on appeal, Haston is an aberration; none of this Court's decisions subsequent to Haston have relied on it to provide an injured party an independent right to provide notice to an insurer after a default judgment is entered against the insurer's insured. Accordingly, we overrule Haston ....").
      This Court never adopted the rule expressed in the concurring opinion in Vinson, and Commissioner Blankenship has not requested that we overrule Ex parte Vanderwall and the other authorities recognized in the concurring opinion in Vanderwall. It would be difficult to justify recognition of such exalted status for a proposed rule requiring a request to overrule precedent in the trial court as a prerequisite to such relief if we saw fit to do so in a case where the existing precedent clearly does not require such request and Commissioner Blankenship has not asserted, either in the trial court or in this Court, that such precedent should be overruled. The oyster farmers' request at oral argument to overrule Carter, coupled with this Court's subsequent request for supplemental briefs on the issue whether to overrule Carter, comports with existing precedent and satisfies any concerns for due process that might otherwise obtain in the absence of adequate notice to the parties of the Court's consideration of whether to overrule Carter.

      We have not ignored the extent to which considerations of stare decisis protect Carter from being overruled. We have not found, nor has Commissioner Blankenship cited, any subsequent case applying this aspect of Carter whereby the availability of a remedy for inverse condemnation depends on the existence of a legislative grant of authority. Moreover, the weight accorded to the doctrine of stare decisis is diminished in cases involving constitutional issues, in acknowledgment of the practicalities involved in correcting an erroneous interpretation of rights afforded by the Constitution by resort to the amendatory or legislative process. See Marsh v. Green, 782 So.2d 223, 232-33 (Ala. 2000) ("However, when the Constitution is misinterpreted, the doctrine of stare decisis is not entitled to the deference it otherwise receives. In Seminole Tribe of Florida v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996), the United States Supreme Court stated that, while the doctrine of stare decisis counsels against a reconsideration of precedent, the Court has been particularly willing to reconsider constitutional cases because, in such cases, ' " 'correction through legislative action is practically impossible.' " ' Id. at 63, 116 S.Ct. 1114 (quoting Payne v. Tennessee, 501 U.S. 808, 828, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991), in turn quoting Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 407, 52 S.Ct. 443, 76 L.Ed. 815 (1932) (Brandeis, J., dissenting) ). See, also, Ex parte Dan Tucker Auto Sales, Inc., 718 So.2d 33, 42-43 n. 10 (Ala. 1998) (Lyons, J., concurring specially).").

      We do not deal in this case with a taking of the oysters. The absence of a claim for the taking of the oysters does not pretermit the oyster farmers' claims for interference with property rights here presented for the reasons heretofore discussed.


source: Caselaw Access Project

author: SELLERS, Justice.

license: Public Domain

text:
    Patricia CAMPBELL v. J.R.C., J.L.C., R.L.C., and J.H.S., minors, by and through their Guardians ad Litem, and the Estate of Remano L. Campbell, deceased
    1170385
    Supreme Court of Alabama.
    October 19, 2018
    Scott W. Hunter, Daphne; and Renee E. Thiry of Thiry & Caddell, LLP, Mobile, for appellant.
    Virginia G. Chouinard, Mobile, guardian ad litem, for appellees R.L.C., J.R.C., and J.L.C.
    Mary Carol Ladd of The Ladd Firm, LLC, Mobile, guardian ad litem, for appellee J.H.S.
    Duane A. Graham and Roger W. Varner, Jr., of Armbrect Jackson LLP, Mobile, for appellee Frank H. Kruse, as administrator of the estate of Remano L. Campbell.
   SELLERS, Justice.

Patricia Campbell appeals from an order of the Mobile Circuit Court adjudicating J.R.C., J.L.C., R.L.C., and J.H.S., minor children, as the heirs of the estate of her son, Remano L. Campbell. We affirm.

I. Facts and Procedural History

Remano died intestate in October 2011, the victim of a homicide perpetrated by his wife, Eugenia Campbell. At the time of his death, Remano was the insured under a $200,000 life-insurance policy issued by United of Omaha Life Insurance Company ("Omaha"). The policy lists Eugenia as the beneficiary, and Eugenia filed a claim for the proceeds of the policy. Because of the circumstances surrounding Remano's death and, more specifically, the existence of a pending criminal investigation, Omaha, pursuant to Rule 22, Ala. R. Civ. P., filed an interpleader action against Eugenia and Remano's estate, depositing the proceeds from the policy plus interest into an escrow account with the circuit court and requesting that the court determine the heirs of Remano's estate, who would possibly be entitled to the proceeds of the policy. The circuit court thereafter appointed an administrator ad litem to represent Remano's estate pursuant to § 43-2-250, Ala. Code 1975.

In August 2016, Eugenia pleaded guilty in connection with Remano's murder; accordingly, the proceeds of the insurance policy were payable as though she had predeceased Remano. § 43-8-253(c), Ala. Code 1975. Because Eugenia is not considered to be Remano's surviving spouse, the proceeds of the insurance policy would pass to Remano's issue; if there is no surviving issue, then to his parent or parents equally. See § 43-8-42, Ala. Code 1975. In this case, Remano and Eugenia were legally married in June 2002. During their marriage, Remano and Eugenia had three children--J.R.C., J.L.C., and R.L.C. (hereinafter referred to collectively as "the Campbell children"). Eugenia also had another child, J.H.S., who was born approximately 18 months before her marriage to Remano and who lived with Remano and Eugenia throughout their marriage.

Following Eugenia's conviction, Patricia, Remano's mother, petitioned the Mobile Probate Court for letters of administration. In her petition, as amended, Patricia alleged that she was an heir of Remano and that the Campbell children and J.H.S. were only purported heirs because, she claimed, they were not Remano's biological children. Virginia G. Chouinard, the guardian ad litem for the minor children, objected to Patricia's petition, asserting that, because Patricia was challenging the legitimacy of the minor children, she would have a conflict representing Remano's estate.

In January 2017, the administrator ad litem of Remano's estate filed a complaint in the interpleader action, seeking a judgment declaring that the Campbell children and J.H.S. were Remano's heirs and thus were entitled to the life-insurance proceeds. The circuit court, at the administrator ad litem's request, appointed Chouinard, the guardian ad litem for the minor children in the probate court, as the guardian ad litem for the minor children in the circuit court.

In February 2017, the probate court issued letters of administration to Frank H. Kruse, the general administrator of Mobile County ("the administrator"), who intervened in the interpleader action and petitioned the circuit court to appoint a separate guardian ad litem for J.H.S. and, following a hearing, to enter an order determining the heirs of the estate. The circuit court appointed Mary Carol Ladd as the guardian ad litem for J.H.S.

In June 2017, the administration of Remano's estate was removed from the probate court to the circuit court, where it was consolidated with the interpleader action.

In July 2017, Patricia petitioned the circuit court, pursuant to the Alabama Uniform Parentage Act, § 26 - 17 - 101 et seq., Ala. Code 1975 ("the AUPA"), for an order establishing the paternity of the Campbell children and J.H.S. After conducting a hearing, the circuit court entered an order adjudicating the Campbell children and J.H.S. to be Remano's heirs and further finding that Patricia lacked standing to challenge the paternity of the children. Accordingly, the circuit court ordered disbursement of the insurance proceeds in the interpleader action and directed that the estate administration be remanded to the probate court. Patricia filed a postjudgment motion, which was denied. This appeal followed.

II. Standard of Review

"To the extent the circuit court made factual findings based on oral testimony, those factual findings are entitled to deference by this Court under the ore tenus standard of review. Under that standard, ' "we must accept as true the facts found by the trial court if there is substantial evidence to support the trial court's findings." ' Allsopp v. Bolding, 86 So.3d 952, 959 (Ala. 2011) (quoting Beasley v. Mellon Fin. Servs. Corp., 569 So.2d 389, 393 (Ala. 1990) ). This standard is based on a recognition of the trial court's unique position of being able to evaluate the credibility of witnesses and to assign weight to their testimony. See, e.g., Justice v. Arab Lumber & Supply, Inc., 533 So.2d 538, 543 (Ala. 1988). The deference owed a trial court under the ore tenus standard of review, however, does not extend to the trial court's decisions on questions of law. Appellate review of questions of law, as well as whether the trial court has properly applied that law to a given set of facts, is de novo. See, e.g., Ex parte Graham, 702 So.2d 1215, 1221 (Ala. 1997)."

Wehle v. Bradley, 195 So.3d 928, 934 (Ala. 2015).

III. Analysis

We begin our analysis with the Campbell children, who were born during Remano and Eugenia's marriage. As indicated, the circuit court concluded that Patricia lacked standing under the AUPA to challenge the paternity of those children. The AUPA addresses judicial determinations of paternity in general and excepts from its scope matters concerning legitimation and adoption. See § 26-17-103, Ala. Code 1975. See also Clemons v. Howard, 124 So.3d 738, 746 (Ala. Civ. App. 2013) (holding that the AUPA also excepts from its scope § 43-8-48(2)b., Ala. Code 1975, a part of the Uniform Probate Code, providing that, " '[i]f, for purposes of intestate succession, a relationship of parent and child must be established to determine succession by, through, or from a person[,]' a child born out of wedlock is the child of the father if '[t]he paternity is established by an adjudication before the death of the father or is established thereafter by clear and convincing proof' "(emphasis omitted) ).

In this case, it is undisputed that the Campbell children were not adopted or born out of wedlock; thus, any issue concerning their paternity can be resolved by applying the applicable provisions of the AUPA. Specifically, because the Campbell children were born during the legal marriage of Remano and their mother, they are entitled to the presumption of paternity stated in § 26-17-204(a)(1), Ala. Code 1975, a part of the AUPA. Section 26-17-204(a)(1) provides that "[a] man is presumed to be the father of a child if ... he and the mother of the child are married to each other and the child is born during the marriage." The presumption of paternity established by § 26-17-204(a)(1) may be rebutted in an appropriate action by clear and convincing evidence. See § 26-17-601 et seq., Ala. Code 1975. Section 26-17-602, Ala. Code 1975, identifies a broad range of individuals and agencies who have standing to bring a paternity action, including in § 26-17-602(7) "any interested person." Patricia asserts that, because she is a potential heir of Remano's estate, she has standing to challenge the paternity of the Campbell children. Although § 26-17-602 states that any interested person may maintain an action to adjudicate paternity, § 26-17-602 is limited in application by §§ 26-17-607 and 26-17-609, Ala. Code 1975. In Ex parte S.E., 125 So.3d 720, 721 (Ala. Civ. App. 2013), the Court of Civil Appeals explained:

" Section 26-17-602, Ala. Code 1975, a part of the Alabama Uniform Parentage Act ('the AUPA'), § 26 - 17 - 101 et seq., Ala. Code 1975, provides that any interested party may bring an action to adjudicate parentage. However, § 26-17-602 is limited in application by §§ 26-17-607 and 26-17-609, Ala. Code 1975, which restrict who has standing to seek an adjudication of paternity. When there is a presumed father, the AUPA permits the presumed father to bring an action to disprove his paternity at any time. § 26-17-607(a). However, if the presumed father wishes to persist in his presumption of paternity, no one may bring an action to disprove his paternity or to establish paternity in another man. Id. ('If the presumed father persists in his status as the legal father of a child, neither the mother nor any other individual may maintain an action to disprove paternity.'). The Alabama Comment to § 26-17-607 specifically states that '[s]ubsection (a) follows Ex parte Presse, 554 So.2d 406 (Ala. 1989) [,] and its progeny that favor maintaining the integrity of the family unit and the father-child relationship that was developed therein.' "

(Emphasis added.) In this case, the circuit court held a hearing to determine whether Patricia had standing to assert a paternity claim and, more specifically, to allow the parties to present evidence bearing on whether Remano, during his lifetime, persisted in the presumption of paternity afforded him by § 26-17-204(a)(1). In other words, if the evidence demonstrated that Remano, during his lifetime, persisted in his paternity, Patricia would have no standing to challenge that paternity. See W.D.R. v. H.M., 897 So.2d 327, 331 (Ala. Civ. App. 2004) (noting that "a man seeking to establish paternity of a child born during the mother's marriage to another man must be given the opportunity to establish standing in an evidentiary hearing where he and others may present evidence bearing on whether the presumed father, who was deceased, had persisted in his presumption of paternity"). The evidentiary hearing in this case established that Remano and Eugenia were legally married to each other when each of the Campbell children was born and that Remano was listed as the father on each of their birth certificates. Moreover, the application for the life-insurance policy included a dependent-children's rider, insuring each of the Campbell children, including J.H.S., for $10,000 and identifying each child as either the "son" or "daughter" of Remano. The children's maternal grandmother, who is also the guardian of the Campbell children and J.H.S., testified that Remano consistently provided for all the children both financially and emotionally and that he referred to J.H.S. as his son. The circuit court noted that neither Patricia nor anyone else produced any evidence to dispute that Remano, during his lifetime, ever repudiated his paternity with regard to the Campbell children or J.H.S., for that matter. Because Remano is the presumed father of the Campbell children under § 26-17-204(a) and because the evidence is undisputed that he persisted in his paternity during his lifetime, the circuit court properly concluded that Patricia lacked standing under the AUPA to challenge Remano's paternity as to them. Because Patricia was ruled out as a potential heir of Remano's estate, no challenge as to J.H.S.'s heirship remains. See § 43-8-42 (a parent takes no share of the decedent's estate where there is surviving issue).

Patricia finally argues that the circuit court erred in not removing the administrator ad litem of the estate once an administrator for the estate was appointed. Patricia moved to remove the administrator ad litem because, she says, his position in regard to the disposition of the insurance proceeds was inconsistent with the position taken by the administrator. Specifically, unlike the administrator, who maintained a neutral position, the administrator ad litem took the position that the Campbell children and J.H.S. were presumed heirs of Remano entitled to equal shares of the life-insurance proceeds. Patricia states that, for this reason, the entire process at the trial court level was flawed and that, therefore, the case should be remanded so that she can pursue her paternity action. Patricia failed to cite any legal authority in her initial appellate brief to support her argument that the trial court erred in declining to remove the administrator ad litem. Rule 28(a)(10), Ala. R. App. P., requires that an argument in an appellate brief contain "the contentions of the appellant/petitioner with respect to the issues presented, and the reasons therefor, with citations to the cases, statutes, other authorities, and parts of the record relied on." Although Patricia does cite Affinity Hospital, L.L.C. v. Williford, 21 So.3d 712 (Ala. 2009), in her reply brief, her reliance on that case is as tardy as it is inapplicable. See Steele v. Rosenfeld, LLC, 936 So.2d 488, 493 (Ala. 2005) (noting that " 'an argument may not be raised, nor may an argument be supported by citations to authority, for the first time in an appellant's reply brief.' Improved Benevolent & Protective Order of Elks v. Moss, 855 So.2d 1107, 1111 (Ala. Civ. App. 2003), abrogated on other grounds, Ex parte Full Circle Distribution, L.L.C., 883 So.2d 638 (Ala. 2003)"); see also Meigs v. Estate of Mobley, 134 So.3d 878, 889 n. 6 (Ala. Civ. App. 2013) (noting that " Rule 28(a)(10) [, Ala. R. Civ. P.,] requires compliance in an appellant's initial brief"); and L.J.K. v. State, 942 So.2d 854, 868 (Ala. Crim. App. 2005) (noting that citation to legal authority for the first time in reply brief is the equivalent of raising an issue for the first time in that brief). Accordingly, Patricia is deemed to have waived her argument that the circuit court erred in failing to remove the administrator ad litem in this case.

IV. Conclusion

The judgment of the circuit court adjudicating J.R.C., J.L.C., R.L.C., and J.H.S. as the heirs of Remano's estate is affirmed.

AFFIRMED.

Stuart, C.J., and Parker, Main, Wise, Bryan, and Mendheim, JJ., concur.

Bolin and Shaw, JJ., concur in the result.

BOLIN, Justice (concurring in the result).

I respectfully concur only in the result, because the following issue was not argued by Patricia Campbell, the appellant in this appeal. However, I think it is important to address why an administrator and an administrator ad litem could not coexist in this case.

In a proceeding in which an estate must be represented and there is no executor or administrator, the court may appoint an administrator ad litem for the estate for that particular proceeding, i.e., "a special administrator appointed by the court to represent the estate's interest in an action usu. either because there is no administrator or because the current administrator has an interest in the action adverse to that of the estate." Black's Law Dictionary 54 (10th ed. 2014). That is precisely what happened here following the interpleading of the insurance proceeds on the life of Remano L. Campbell into the circuit court, where no estate had been opened. The error occurred when the administrator ad litem continued to represent the estate subsequent to the probate court's appointment of a personal representative for the estate.

In this case, United of Omaha Life Insurance Company ("Omaha") had contracted with Remano, the decedent, for a life-insurance policy in the amount of $200,000. Remano's wife, Eugenia Campbell, was the named beneficiary. After Remano's death, Eugenia made claim for the proceeds of the policy. Rather than pay the proceeds to Eugenia, Omaha, as a result of the circumstances relating to the cause of Remano's death, elected to file an interpleader action against Eugenia and Remano's estate in the Mobile Circuit Court, requesting that the circuit court determine the lawful recipients of the life-insurance proceeds. Because no administration of Remano's estate was pending at that time, the circuit court appointed an administrator ad litem for the estate pursuant to § 43-2-250, Ala. Code 1975.

As the action continued, Eugenia pleaded guilty to the felonious homicide of Remano, thereby triggering the beneficiary-forfeiture provision of § 43-8-253(c), Ala. Code 1975, which prevents a beneficiary from profiting from the felonious and intentional killing of an insured. There being no contingent beneficiary listed in the policy, the effect of that section is that the proceeds "become payable as though the killer had predeceased the decedent," either by the terms of the decedent's will or, in the absence of a will, by virtue of the laws of descent and distribution. I submit that the life-insurance proceeds here should devolve to Remano's estate -- that is where assets of an estate are properly administered, providing protection for any lawful creditors of the estate. The only, and I submit whole, purpose of the administrator ad litem was to represent the interests of the estate before an administration of the estate. Rather, the administrator ad litem advocated that four minor children receive the policy proceeds as secondary beneficiaries, thereby bypassing the proper administration of Remano's estate and the rights of creditors therein.

In the meantime, Remano's mother, Patricia Campbell, petitioned the Mobile Probate Court for probate of Remano's intestate estate and for letters of administration for herself, listing in the petition that the four children were "purported" heirs. Apparently recognizing the conflict of interest Patricia had in her attempt to have those four children declared illegitimate, resulting in her becoming Remano's primary heir at law, the Mobile Probate Court appointed the general administrator for Mobile County, Frank H. Kruse, a disinterested party, to be the personal representative of the estate and issued letters of administration to him.

Assuming that this personal representative had no conflict in representing the estate in the interpleader action pending in the circuit court, he correctly intervened in the circuit court action on behalf of Remano's estate, as the duly appointed and lettered estate representative. At such time, there was no further need or legal necessity for the (non-bonded) administrator ad litem to continue any role in the litigation.

There are instances when both the administrator ad litem and the administrator of an estate may coexist; however, coexistence is not possible where two administrators set forth vastly inconsistent positions, purportedly for the same party, in the same proceeding. For instance, when a personal representative has been appointed and that personal representative has a conflict of interest with regard to the litigation, the court may then appoint an administrator ad litem for a special and limited purpose. The administrator ad litem may subsist together with the administrator and facilitate the separate roles that are required. However, in the instant case, the administrator and the administrator ad litem took adverse positions. Moreover, the need for an administrator ad litem in representing the estate where the estate had no representation essentially ended when the personal representative was appointed.

The circuit court appointed a guardian ad litem for the three children born during Remano and Eugenia's marriage and a different guardian ad litem for the child born 18 months before their marriage, because their legal interests were not aligned. Those two guardians ad litem were positioned to represent the best interests of their respective clients, rather than the administrator ad litem in a perverted role -- he should have been representing and protecting the unopened estate of the decedent but, instead, was advocating for the children's interests collectively. Therefore, both the special administrator ad litem appointed by the circuit court and the administrator of the estate appointed by the probate court presented inconsistent positions on behalf of the estate in the same action before the same court.

The administrator ad litem was initially appointed by the circuit court because Remano's estate was not open when the interpleader action was filed. Upon the opening of Remano's estate, however, the probate court ensured that the assets of the estate would be protected by appointing the general administrator for Mobile County as the personal representative. The estate intervened in the interpleader action, and the administration of the estate was removed from the probate court to the circuit court and, at least theoretically, consolidated with the interpleader action as one case. Because the removed estate administration was not treated as a separate action with its own case number and was consolidated with the interpleader action, the proceedings were not considered separate. Despite the opening of the estate and the appearance of a duly appointed personal representative/intervener, which I submit rendered unnecessary the further services of the administrator ad litem, the circuit court allowed, over the objection of the personal representative, the administrator ad litem to remain in the proceedings.

As stated earlier, § 43-2-250 provides for an administrator ad litem:

"When, in any proceeding in any court, the estate of a deceased person must be represented, and there is no executor or administrator of such estate, or he is interested adversely to, it shall be the duty of the court to appoint an administrator ad litem of such estate for the particular proceeding, without bond, whenever the facts rendering such appointment necessary shall appear in the record of such case or shall be made known to the court by the affidavit of any person interested therein."

(Emphasis added.)

Thus, it was the duty of "any court," here the circuit court, to appoint an administrator ad litem when there was the need for a then nonexistent decedent's estate to be represented. In this case, an appointment was made solely for the purpose of allowing the interpleader action to proceed in the circuit court. But clearly, after (1) the personal representative of the estate was appointed by the probate court, with a fiduciary bond, and was granted letters of administration, and (2) the personal representative petitioned to intervene in the interpleader action, and (3) the administration of the estate itself was removed to the circuit court and ostensibly consolidated with the interpleader action, the services of the administrator ad litem were no longer necessary in the circuit court proceeding. See § 43-2-250.

Moreover, the position that the administrator ad litem took, advocating for the children as heirs who should directly receive the life-insurance proceeds, was aligned with the position of the guardians ad litem, thereby creating a conflict of interest between the two estate representatives.

"Generally, an administrator ad litem is a fiduciary charged with acting in the best interests of the successors to an estate. An administrator and an administrator ad litem serve in different fiduciary capacities and are separate and distinct parties. The appointment of an administrator ad litem may precede the appointment of an administrator, and the two may subsist together. The administrator ad litem is appointed for a special and limited purpose and is solely responsible to the estate for that portion of its affairs entrusted to him or her by the court. 31 Am. Jur. 2d Executors and Administrators § 1050 (2002)."

Affinity Hosp., L.L.C. v. Williford, 21 So.3d 712, 716 (Ala. 2009) (emphasis added). See also Thames v. Thames, 183 So.3d 168 (Ala. Civ. App. 2015) (" '[T]he need for an administrator ad litem occurs when there is already an existing civil proceeding ("in any proceeding in any court") that is in need of someone to substitute for a deceased party, who either has no personal representative or has one who is conflicted.'

" (quoting Golden Gate Nat'l Senior Care, LLC v. Roser, 94 So.3d 365, 370 (Ala. 2012) (Bolin, J., concurring specially)(emphasis added) ) ).

The only conflict in this matter is not the type of conflict discussed above -- i.e., a personal representative who has his or her own personal conflict in the peripheral legal matters where representation of the estate is necessary. Ironically, the only conflict exists by the presence of the competing motions and pleadings, arguments, and objections filed by the two representatives of Remano's estate in this case. For example, the personal representative of Remano's estate filed a petition to distribute the funds held by the court; the administrator ad litem objected. The personal representative of the estate filed a memorandum of law asserting that Patricia Campbell had standing to pursue the paternity action; the administrator ad litem disagreed. The administrator ad litem sought to have the estate itself dismissed from the circuit court case contending that the insurance proceeds were not payable to the estate and should be paid directly to the children; the personal representative responded that the administrator ad litem's position was in conflict with the plain language of the policy and, moreover, that his appointment as personal representative effectively mooted the need for the administrator ad litem because, under § 43-2-250, an administrator ad litem is appointed only if there is no qualified legal representative of the estate. All of these are the unfortunate happenings that may occur when two separate entities, with different, yet similar, duties and responsibilities, are allowed to represent and advocate for the same party.

The circuit court correctly appointed an administrator ad litem when the estate was legally nonexistent and needed representation. But I submit that the court erred in allowing an unnecessary administrator ad litem to continue to hold a position in the litigation, particularly as an advocate who made arguments to the possible detriment (the potential loss of estate assets) of the party he was appointed to represent, in the circuit court proceedings after Remano's estate was opened and a fiduciary appointed and the estate was removed from probate and subsumed, as an actual party, within the interpleader action.

The circuit court's failure to remove the administrator ad litem in this action was an obstacle that prevented the proper administration of the proceedings. There may not be any creditors of Remano's who are prejudiced by the circuit court's inaction, but justice dictates that the adversarial proceeding be conducted in a fair manner, with each party being represented, but no party being represented by two opposing representatives.

Based on the foregoing, it is my opinion that the circuit court erred procedurally in allowing the hearing to proceed as it did.

      The circuit court allowed the funds to be interpleaded and subsequently discharged Omaha as the plaintiff in the interpleader action.

      The role of an administrator ad litem is governed by § 43-2-250 :
      "When, in any proceeding in any court, the estate of a deceased person must be represented, and there is no executor or administrator of such estate, or he is interested adversely thereto, it shall be the duty of the court to appoint an administrator ad litem of such estate for the particular proceeding, without bond, whenever the facts rendering such appointment necessary shall appear in the record of such case or shall be made known to the court by the affidavit of any person interested therein."

      Section 43-8-253(c) provides:
      "A named beneficiary of a ... life insurance policy ... who feloniously and intentionally kills ... the person upon whose life the policy is issued is not entitled to any benefit under the ... policy, ... and it becomes payable as though the killer had predeceased the decedent."

      The estate-administration proceeding was not assigned a separate case number in the circuit court. Rather, following removal of the estate administration to the circuit court, the record in estate administration was filed in the circuit court, and that court conducted consolidated proceedings in the estate administration proceeding and the interpleader action.

      We note that § 26-17-602, Ala. Code 1975, lists those individuals and/or entities that have "[s]tanding to maintain [a paternity] proceeding." Because the statute specifically uses the term "standing," we will use that term in this opinion. See generally Ex parte MERSCORP, Inc., 141 So.3d 984 (Ala. 2013) (discussing the confusion in our jurisprudence between issues of standing and the failure to state, or to prove, a cognizable claim).

      Sections 26-11-1 and 26-11-2, Ala. Code 1975, provide for the legitimation of a child born out of wedlock. The Alabama Adoption Code, § 26-10A-1 et seq., Ala. Code 1975, governs adoptions.

      Patricia states that Affinity demonstrates what should have happened in this case. She then states that in Affinity the administrator ad litem filed a wrongful-death action against the hospital in July 2007 and that in April 2008 the administrator appointed for the estate was substituted for the previously appointed administrator ad litem. However, Patricia fails to explain how Affinity has any specific application to the facts of this case and, more specifically, how that case demonstrates any error on the part of the circuit court in this case.