author: MENDHEIM, Justice.

text:
    EX PARTE Evangela SKELTON, as the personal representative of the Estate of Brian Lee Skelton, Sr., deceased
    (In re: Joshua M. Council, as beneficiary under the Frederick Tildon Skelton, Jr., Family Trust v. The Estate of Brian Lee Skelton, Sr., et al.)
    1160641
    Supreme Court of Alabama.
    October 26, 2018
    Thomas A. Woodall and Barry A. Ragsdale of Sirote & Permutt, P.C., Birmingham, for petitioner.
    Andrew P. Campbell, Todd Campbell, and Yawanna N. McDonald of Campbell Guin, LLC, Birmingham; and Matthew C. McDonald of Jones Walker LLP, Mobile, for respondent Joshua M. Council.
    G. Dennis Nabors, William G. Somerville, and Andrew P. Walsh of Baker Donnelson Bearman Caldwell & Berkowitz, P.C., Birmingham; and Matthew C. McDonald of Jones Walker LLP, Mobile, for respondent Loree J. Skelton.
   MENDHEIM, Justice.

Evangela Skelton ("Angel"), as personal representative of the estate of Brian Lee Skelton, Sr., deceased ("the estate"), requests that this Court issue a writ of mandamus directing the Jefferson Circuit Court (1) to vacate its order denying her motion to dismiss an action filed in the circuit court by Joshua M. Council ("Joshua") and (2) to enter an order dismissing Joshua's action on the ground of abatement.

We grant the petition and issue the writ.

The materials submitted by the parties show the following. Frederick Tildon Skelton, Jr. ("Frederick Jr."), died on June 7, 1979. Frederick Jr. was survived by his wife, Rheta S. Skelton ("Rheta"), and four children: Brian Lee Skelton, Sr. ("Brian Lee"), Frederick Tildon Skelton III ("Frederick III"), Loretta Joyce Skelton ("Loree"), and Cindy Marie Skelton ("Cindy"). Frederick Jr.'s will was admitted to probate in the Birmingham Division of the Jefferson Probate Court on October 7, 1979.

Frederick Jr.'s will included provisions for a testamentary trust known as the Frederick Tildon Skelton, Jr., Family Trust ("the trust"). The trust apparently was funded during the administration of Frederick Jr.'s estate, which was closed by final consent settlement on or about April 7, 2000. The original trustee of the trust was Rheta. The trust named Frederick III as successor trustee to Rheta and Brian Lee as successor trustee to Frederick III. The trust named no successor trustee to Brian Lee.

Under the terms of the trust, Rheta was to receive the net income of the trust during her life. The trust further provided:

"2. The family trust shall terminate upon the death of my said wife and the then principal of the trust, together with any undistributed income thereof (all of which is hereinafter called 'such property'), shall be held or disposed of as follows:
"A. If issue of mine is living at the termination of the family trust, the trustee shall divide such property into a sufficient number of equal shares so that there shall be set aside one equal share for each child of mine living at the termination of the trust, and one equal share for the issue collectively living at the termination of the trust of each child of mine who has died prior to the termination of the trust leaving issue living at the termination of the trust.
"With respect to each child of mine living at the termination of the trust, the trustee shall transfer, convey and pay over, free of trust, the share so set aside for such child to him or her if he or she has attained the age of thirty (30) years at the termination of the trust, otherwise the trustee shall continue to hold such share in trust, nevertheless, as a separate trust for such child's primary benefit in accordance with the provisions set out in Item Eight hereof.
"With respect to each child of mine who has died prior to the termination of the trust leaving issue living at the termination of the trust, the trustee shall further divide the shares set aside for the living issue collectively of such deceased child among such living issue, in equal shares per stirpes and with respect to each living issue entitled to a portion shall transfer, convey and pay over, free of trust, the portion to which he or she is so entitled to him or her, if he or she has attained the age of twenty-one (21) years, otherwise, the trustee shall continue to hold the portion to which he or she is so entitled, in trust, nevertheless, as a separate trust for his or her primary benefit in accordance with the provisions set out in Item Nine hereof."

Rheta died on December 13, 2015. Rheta was predeceased by Frederick III, who died on January 1, 2014. Thus, Brian Lee became the successor trustee of the trust following Rheta's death. However, Brian Lee died on July 2, 2016, before dividing the trust property into shares and distributing those shares pursuant to the terms of the trust and before making a final settlement of the trust. See Ala. Code 1975, § 19-3B-205(a) (court proceeding for final settlement); see also Ala. Code 1975, § 19-3B-111(d)(7) (authorizing final settlement by consent under certain circumstances). Brian Lee was survived by his wife, Angel, by two adult children, Brian Lee Skelton, Jr. ("Brian Jr."), and Taylor Skelton Madsen ("Taylor"), and by a minor child, Olivia Jade Skelton ("Olivia").

On July 26, 2016, Angel, Brian Jr., and Taylor filed a "Petition for Approval of Appointment of Successor Trustee for Testamentary Trust" ("the petition for appointment") in the Bessemer Division of the Jefferson Probate Court ("the probate court"). The petition for appointment included allegations that Angel, Brian Jr., and Taylor were "the adult heirs-at-law and next-of-kin of Brian Lee" and that they were "devisees and/or beneficiaries of Brian's" will. The petition for appointment also alleged that Rheta was domiciled within the boundaries of the Bessemer Division of Jefferson County when she died, that the trust had been administered within those boundaries, and that,

"after the death of [Rheta] in December, 2015, the Trust was not terminated and divided ... because a final income tax return for the Trust had not yet been filed and outstanding expenses of the Trust are yet to be paid, and thus, it continues to exist as one aggregate Trust. On information and belief, the Trust owns a small investment account and valuable stock in The SOUTH HAVEN CORPORATION ('South Haven')."

The petition for appointment further alleged:

"8. ... [Frederick Jr.'s] Will did not name any successor to Brian [Lee] as Trustee of the Trust, and thus there is no party presently having appropriate authority to serve as Trustee of the Trust, including without limitation, to vote or take other action with respect to any of the Trust's stock in South Haven and/or to proceed with a termination of the Trust.
"9. Brian [Lee] was over 30 years old at his death. The beneficial interest of Brian [Lee] in and to the Trust had vested absolutely in him on the Termination date, i.e., December 13, 2015. Thus, the beneficial interest of Brian [Lee] in and to the Trust is an asset of his probate estate, and is due to be distributed, outright and free of trust, to an appropriate fiduciary acting on behalf of Brian [Lee's] Estate.
"10. Petitioners have standing to request the relief sought in this Petition as the heirs-at-law and next-of-kin of Brian [Lee] and/or as the named devisees/beneficiaries of Brian [Lee's] Will. Brian [Lee's] Will appoints Angel as the Personal Representative of Brian [Lee's] Estate ..., and Petitioners anticipate the issuance of Letters Testamentary to Angel for Brian [Lee's] Estate following the Court's hearing in Brian [Lee's] Estate, with the result that Angel, in her fiduciary capacity as the Personal Representative of the Estate of Brian [Lee] may be substituted for or added to Petitioners as a moving party with standing to seek the relief sought herein."

The petition for appointment alleged that Frederick III and Cindy were deceased and that the following other persons had an interest in the trust and were to be made parties to the proceedings:

1. Frederick T. Skelton IV ("Frederick IV") and Brian Rutledge Skelton ("Brian Rutledge"), who were the children of Frederick III and who were both over the age of 21 on December 13, 2015;
2. Loree, who was over the age of 30 on December 13, 2015; and
3. Joshua, who was over the age of 21 on December 13, 2015, and who was the only child of Cindy, who died on July 30, 2012.

The petition for appointment requested that the probate court appoint a successor trustee and that the court direct that trustee to proceed with dividing the trust property into appropriate shares, to distribute the trust property as required by the terms of the trust, and "to take all other such action as may be appropriate to administer the Trust pursuant to [its] terms ... and prudent fiduciary practice, including, without limitation, exercising control over the ... stock or other ownership interest in South Haven."

On August 18, 2016, Joshua, as a beneficiary of the trust, filed a "Petition for Termination" ("the petition for termination") in the circuit court. The petition for termination named as respondents Brian Lee's estate; the trust; Loree; Frederick IV; and Brian Rutledge. The petition for termination alleged that the trust should have terminated on Rheta's death and requested the following relief:

"A. That this Court find, order, and decree that the Trust be terminated;
"B. That this Court find, order, and decree that the assets of the Trust be distributed to the Beneficiaries pursuant to the terms of the Trust; and
"C. Petitioner further requests any other appropriate legal or equitable remedy to which he may be entitled."

On August 23, 2016, Angel filed a "Petition for Letters Testamentary Without Bond" ("the petition for letters testamentary") in the probate court as to Brian Lee's estate. The petition for letters testamentary alleged that Brian Lee's will "ha[d] been ... duly probated and admitted to record" in the probate court and that Angel was nominated as personal representative in that will. The petition for letters testamentary requested that the probate court "take judicial notice of the probate of the will" and issue letters testamentary to Angel. On the same day that Angel filed the petition for letters testamentary, the probate court issued letters testamentary appointing her as the personal representative of Brian Lee's estate.

On August 24, 2016, Angel, as personal representative of Brian's Lee's estate, filed a motion in the probate court requesting that she be substituted in her capacity as personal representative for herself in her individual capacity, for Brian Jr., and for Taylor as the petitioner in the petition for appointment. The probate court granted Angel's motion to substitute.

On August 31, 2016, Angel, as personal representative of Brian Lee's estate, filed a motion in the circuit court requesting that that court dismiss the petition for termination. In pertinent part, Angel's motion alleged:

"Given that the filing of the Petition in the Probate Court by Angel on July 26, 2016, predated the filing of the present action on August 18, 2016, the Probate Court already has acquired exclusive subject matter jurisdiction over all matters pertaining to the Trust, including the relief sought in the Petition for Termination filed in this action. [Joshua's] Petition for Termination is, in reality, a compulsory counterclaim to Angel's July 26, 2016 Petition for Successor Trustee in Probate Court, and is, therefore due to be abated and dismissed, pursuant to Ala. Code [1975,] § 6-5-440."

On September 1, 2016, Joshua amended the petition for termination to add a claim against Brian Lee's estate for damages based on alleged breaches of fiduciary duty by Brian Lee, while he was trustee of the trust. Joshua alleged that Frederick Jr. had owned all 492 shares of stock of South Haven Corporation and that his will "left around 250 (51%) shares in South Haven Corp. to [Rheta] ... and around 242 (49%) South Haven Corp. shares to the Trust." Joshua further alleged that after Rheta's death the trust should have been terminated, but that Brian Lee "refused to terminate or distribute the assets held in the Trust to the Beneficiaries, including the South Haven Corp. shares" and that Brian Lee "used his position as Trustee ... to plunder and misappropriate the assets of the Trust, including the assets of South Haven Corp., for his own personal use and benefit to the detriment of the other Beneficiaries." Joshua requested that the circuit court enter a judgment against Brian Lee's estate for compensatory and punitive damages, and Joshua repeated his request that the circuit court order that the trust be terminated and the trust property distributed to the beneficiaries.

On September 14, 2016, Angel, as personal representative of Brian Lee's estate, filed a motion in the circuit court requesting that that court dismiss the petition for termination. Angel's motion again asserted that dismissal was warranted under § 6-5-440, Ala. Code 1975.

On March 10, 2017, Joshua filed a response in the circuit court to Angel's motion to dismiss. Joshua argued that his action should not be dismissed because, he said, Angel, Brian Jr., and Taylor lacked standing to file the petition for appointment when it was filed and, therefore, the probate court did not acquire subject-matter jurisdiction to adjudicate the petition for appointment. Instead, Joshua argued, his petition for termination was the first-filed action as to the trust because the action was filed before Angel was appointed personal representative of Brian Lee's estate.

On April 2, 2017, Angel filed a reply. In part, Angel noted that Joshua's reliance on the doctrine of standing was misplaced in light of this Court's recent precedents:

"The Alabama Supreme Court has recently taken a significantly more restrictive view of what constitutes 'standing' to bring an action. As a result, it appears that 'standing' now only has application to cases ... involving suits against the government ('public-law cases'). See Ex parte BAC Home Loans Servicing, LP, 159 So.3d 31, 44 (Ala. 2013) ('[T]he concept [of standing] appears to have no necessary role to play in respect to private-law actions, which, unlike public-law cases (for example, a suit against the Secretary of Interior to construe and enforce an environmental regulation designed to protect wildlife), come with established elements that define an adversarial relationship and "controversy" sufficient to justify judicial intervention. In private-law actions (e.g., a claim of negligence or, as here, a statutory claim for ejectment), if the elements are met, the plaintiff is entitled to judicial intervention; if they are not met, then the plaintiff is not entitled to judicial intervention.'); see also Gardens at Glenlakes Prop. Owners Ass'n, Inc. v. Baldwin Cty. Sewer Serv., LLC, [225 So.3d 47, 53] (Ala. ... 2016) ('[I]n Ex parte BAC Home Loans Servicing, LP, ..., this Court again examined the concept of standing and cautioned that the concept is generally relevant only in public-law cases.') [ (plurality opinion) ]; Ex parte Wilcox Cty. Bd. of Educ., [218 So.3d 774, 779] n.7 (Ala. ... 2016) ('In Ex parte BAC Home Loans Servicing, LP, ... we clarified that the concept of standing was developed " 'for public law' cases, ... not 'private law' cases," and thus removed the gate-keeping function of standing from private-law cases.')."

According to Angel, the probate court had subject-matter jurisdiction over the petition for appointment when that petition was filed and her subsequent appointment as personal representative of the estate related back so as to authorize her filing of the petition.

On April 3, 2017, the circuit court entered an order denying Angel's motions to dismiss. The circuit court stated its rationale for the denial as follows:

"It is undisputed that on July 26, 2016, when Angel's Petition [for Appointment] was filed [in the probate court], no one had been appointed as the personal representative for the Estate of Brian Lee Skelton. In fact, Letters of Testamentary were not issued to Angel until August 23, 2016. Accordingly, this Court finds that Angel lacked the standing to commence the action [in the probate court]."

Angel then filed the petition for a writ of mandamus with this Court.

Standard of Review

Alabama's abatement statute, § 6-5-440, Ala. Code 1975, provides:

"No plaintiff is entitled to prosecute two actions in the courts of this state at the same time for the same cause and against the same party. In such a case, the defendant may require the plaintiff to elect which he will prosecute, if commenced simultaneously, and the pendency of the former is a good defense to the latter if commenced at different times."

"Mandamus is the appropriate remedy to correct a trial court's failure to properly apply § 6-5-440." Ex parte J.E. Estes Wood Co., 42 So.3d 104, 108 (Ala. 2010).

" 'Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.' "

Ex parte Perfection Siding, Inc., 882 So.2d 307, 309-10 (Ala. 2003) (quoting Ex parte Integon Corp., 672 So.2d 497, 499 (Ala. 1995) ). "When the facts underlying a motion filed pursuant to § 6-5-440 are undisputed ... our review of the application of the law to the facts is de novo." Ex parte Metropolitan Prop. & Cas. Ins. Co., 974 So.2d 967, 969 (Ala. 2007).

Analysis

Angel argues that the circuit court erred in not applying § 6-5-440 so as to dismiss the petition for termination. We agree.

First, as Angel correctly argues, the doctrine of standing (particularly as a jurisdictional concept) has no application in this private-law case. See Ex parte BAC Home Loans Servicing, LP, 159 So.3d 31, 44 (Ala. 2013) ; see also Ex parte Wilcox Cty. Bd. of Educ., 218 So.3d 774, 779 n.7 (Ala. 2016). No impediment to subject-matter jurisdiction existed as to Angel when she filed the petition for appointment in the probate court. And, because no jurisdictional impediment existed as to Angel and the petition for appointment, her subsequent appointment as personal representative related back to her filing of that petition. See Ala. Code 1975, § 43-2-831 ("The powers of a personal representative relate back in time to give acts by the person appointed which are beneficial to the estate occurring prior to appointment the same effect as those occurring thereafter."); see also Rule 17(a), Ala. R. Civ. P. ("No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest.").

Second, as to the issue of abatement, " '§ 6-5-440 provides that when two actions are commenced at different times, the pendency of the first-filed action "is a good defense" to the second-filed action.' " Washington Mut. Bank, F.A. v. Campbell, 24 So.3d 435, 437 n.2 (Ala. 2009) (quoting First Tennessee Bank, N.A. v. Snell, 718 So.2d 20, 27 (Ala. 1998) (See, J., concurring in the result) ). We have applied § 6-5-440 to a defendant's claims, specifically to compulsory counterclaims:

"[A] compulsory counterclaim is considered an 'action' for purposes of § 6-5-440. Penick v. Cado Sys. of Cent. Alabama, Inc., 628 So.2d 598, 599 (Ala. 1993). As this Court has noted:
" 'This Court has held that the obligation ... to assert compulsory counterclaims, when read in conjunction with § 6-5-440, Ala. Code 1975, which prohibits a party from prosecuting two actions for the same cause and against the same party, is tantamount to making the defendant with a compulsory counterclaim in the first action a "plaintiff" in that action (for purposes of § 6-5-440 ) as of the time of its commencement.... Thus, the defendant subject to the counterclaim rule who commences another action has violated the prohibition in § 6-5-440 against maintaining two actions for the same cause.'
" Ex parte Breman Lake View Resort, L.P., 729 So.2d 849, 851 (Ala. 1999). See also [ Ex parte] University of South Alabama Found., 788 So.2d [161] at 165 [ (Ala. 2000) ] (holding that a party in an action pending in a federal court was subject to the counterclaim rule and thus violated § 6-5-440 by commencing another action in a state court); Ex parte Parsons & Whittemore Alabama Pine Constr. Corp., 658 So.2d 414 (Ala. 1995) (holding that the prosecution in a subsequent action of claims that had been compulsory counterclaims in a previously filed declaratory-judgment action violated § 6-5-440 )."

Ex parte Norfolk S. Ry., 992 So.2d 1286, 1289-90 (Ala. 2008) ; see also Ex parte Brooks Ins. Agency, 125 So.3d 706, 710 (Ala. 2013) (holding that § 6-5-440 mandated the dismissal of an insured's claims filed in a state-court action because those claims were compulsory counterclaims in the insurer's first-filed, declaratory-judgment action in federal court).

The present case involves a trust with various beneficiaries (including Angel, as personal representative of the estate, and Joshua) having claims to or interests in the trust and its proper administration, termination, and final distribution. Both the petition for appointment and the petition for termination arise out of the deaths of Rheta and Brian Lee and concern the winding up and final distribution of the property of the trust, which had no named trustee to perform those acts after Brian Lee's death. The petition for appointment sought an order from the probate court appointing a successor trustee. But the petition for appointment also requested that the probate court direct the trustee to proceed with the division of the trust property into appropriate shares, to distribute the same as required by the terms of the trust, and "to take all other such action as may be appropriate to administer the Trust pursuant to [its] terms ... and prudent fiduciary practice, including, without limitation, exercising control over the ... stock or other ownership interest in South Haven."

The petition for termination requested an order from the circuit court decreeing "that the Trust be terminated" and "that the assets of the Trust be distributed to the Beneficiaries pursuant to the terms of the Trust." As noted above, Joshua amended the petition for termination to include a claim for damages against Brian Lee's estate based on Brian Lee's alleged breaches of fiduciary duty as trustee of the trust. In other words, the petition for termination sought, in part, the same substantive relief as to the trust as was sought in the petition for appointment, particularly the final division and distribution of the trust property according to the terms of the trust.

We note that the administration of the trust did not automatically end upon Rheta's death. As one well recognized treatise notes:

"At such time when the trust is terminated in any way, whether by the expiration of its fixed term or by revocation or court decree or otherwise, the trust nevertheless continues for a reasonable time during which the trustee has power to perform such acts as are necessary to the winding up of the trust and the distribution of the trust property as are expressly given or reasonably implied from the trust instrument....
"The trustee has the duty to carry out this phase of the trust administration with reasonable care and prudence."

Mary F. Radford, George Gleason Bogert, & George Taylor Bogert, The Law of Trusts and Trustees § 1010 (3d ed. 2006) (footnotes omitted). For example, after an event terminating a trust, the trustee may be required to determine the beneficiaries of the trust and what each beneficiary's share of the trust consists of, to liquidate trust property for purposes of division and distribution, to file final tax returns for the trust, to prepare conveyancing documents for distributions to the beneficiaries, and to prepare necessary documentation for the final settlement of the trust administration. Id.; see also Restatement (Third) of Trusts § 89 (2007) ("The powers of a trustee do not end on the trust's termination date but may be exercised as appropriate to the performance of the trustee's duties in winding up administration, including making distribution, in a manner consistent with the purposes of the trust and the interests of the beneficiaries."). Alabama law recognizes these principles. Section 19-3B-816(a)(26), Ala. Code 1975, specifically authorizes a trustee to, "on termination of the trust, exercise the powers appropriate to wind up the administration of the trust and distribute the trust property to the persons entitled to it." Also, § 19-3B-817(b), Ala. Code 1975, provides:

"Upon the occurrence of an event terminating or partially terminating a trust, the trustee shall proceed expeditiously to distribute the trust property to the persons entitled to it, subject to the right of the trustee to retain a reasonable reserve for the payment of debts, expenses, and taxes."

In the present case, the trust, by its terms, was to terminate upon Rheta's death, and after that event, the trustee was to hold or dispose of the trust principal and any undistributed income by dividing that property into various shares and administering or distributing those shares as otherwise required by the terms of the trust. The reasons offered in the petition for appointment for the appointment of a successor trustee to Brian Lee included that a final income-tax return had not been filed for the trust, that outstanding trust expenses had not been paid, and that the trust property required division and distribution. In other words, the need for a trustee did not cease upon Rheta's death or Brian Lee's death. Even after Brian Lee's death, a trustee still was needed to complete the final division and distribution of the trust property -- a result sought in both the petition for appointment and the petition for termination -- in addition to other alleged matters.

As noted above, this Court has applied § 6-5-440 in the context of a compulsory counterclaim. In determining whether a counterclaim is compulsory, this Court has applied the logical-relationship test.

" 'A counterclaim is compulsory if there is any logical relation of any sort between the original claim and the counterclaim.' Committee Comments on 1973 adoption of Rule 13, [Ala. R. Civ. P.,] ¶ 6. Under the logical-relationship standard, a counterclaim is compulsory if '(1) its trial in the original action would avoid a substantial duplication of effort or (2) the original claim and the counterclaim arose out of the same aggregate core of operative facts.' Ex parte Canal Ins. Co., 534 So.2d 582, 584 (Ala. 1988) (quoting Brooks v. Peoples Nat'l Bank of Huntsville, 414 So.2d 917, 919 (Ala. 1982) )."

Ex parte Cincinnati Ins. Cos., 806 So.2d 376, 380 (Ala. 2001). We have applied these principles in circumstances similar to those here and have concluded that a beneficiary's claims may be subject to abatement under § 6-5-440.

In Regions Bank v. Reed, 60 So.3d 868 (Ala. 2010), Regions Bank filed a petition for final settlement of certain trusts in the Jefferson Probate Court. The day after Regions Bank filed its petition for final settlement, certain beneficiaries of the trusts filed an action in the Jefferson Circuit Court against Regions Bank alleging "breach of fiduciary duty, negligence, wantonness, breach of contract, fraud, negligent indemnity, violation of the Alabama Securities Act, conspiracy, and aiding and abetting breaches of duty and law" as to the trusts. 60 So.3d at 873. This Court first noted:

" Section 19-3B-203 provides:
" '(a) Except as provided in subsection (b), the circuit court has exclusive jurisdiction of proceedings in this state brought by a trustee or beneficiary concerning the administration of a trust.
" '(b) A probate court granted statutory equitable jurisdiction has concurrent jurisdiction with the circuit court in any proceeding involving a testamentary or inter vivos trust.'
"....
"As this Court has recognized, Act No. 1144, Ala. Acts 1971,
" 'grants to the Jefferson Probate Court "general jurisdiction concurrent with that of the Circuit Courts of this State, in equity, in the administration of the estates of deceased persons, minors and insane or non compos mentis persons, including testamentary trust estates." (§ 1.) Thus, Act No. 1144 grants the Jefferson Probate Court broader jurisdiction than is otherwise granted to the probate courts of this state.'
" Jett v. Carter, 758 So.2d 526, 529 (Ala. 1999)."

60 So.3d at 878. We concluded:

"A plain reading of § 19-3B-203 indicates that subsection (b) acknowledges that certain probate courts have been granted broader powers and that the exception referenced in subsection (a) is that those courts that have been granted those broader powers have the same jurisdiction to hear actions brought by trustees or beneficiaries concerning the administration of trusts as do the circuit courts of this State."

60 So.3d at 880 (emphasis added). We then addressed the issue of abatement, stating, in pertinent part:

"Regions' motion to dismiss based on abatement depends in part upon the assumption that the claims brought by the [trust beneficiaries] in the circuit court are in the nature of compulsory counterclaims to the final-settlement action; thus, the [trust beneficiaries] would have to bring them in the final-settlement action or they would be waived. This assumption is, of course, correct with regard to the claims brought by the [trust beneficiaries] in the circuit court action that pertain to the trusts for which Regions served as trustee or cotrustee, because those claims 'arise[ ] out of the transaction or occurrence that is the subject matter of the opposing party's claim.' Rule 13(a), Ala. R. Civ. P."

60 So.3d at 883. We continued:

"[Section] 6-5-440, Ala. Code 1975, provides that
" '[n]o plaintiff is entitled to prosecute two actions in the courts of this state at the same time for the same cause and against the same party. In such a case, the defendant may require the plaintiff to elect which he will prosecute, if commenced simultaneously, and the pendency of the former is a good defense to the latter if commenced at different times.'
"This statutory directive means that 'where two or more courts have concurrent jurisdiction, the one which first takes cognizance of a cause has the exclusive right to entertain and exercise such jurisdiction, to the final determination of the action and the enforcement of its judgments or decrees.' Ex parte Burch, 236 Ala. 662, 665, 184 So. 694, 697 (1938) ; see also Ex parte McMichael, 62 So.3d 465 (Ala. 2010). A compulsory counterclaim is an 'action' for purposes of § 6-5-440. See, e.g., Ex parte J.C. Duke & Assocs., 4 So.3d 1092 (Ala. 2008) ; Penick v. Cado Sys. of Cent. Alabama, Inc., 628 So.2d 598, 599 (Ala. 1993). Moreover, it does not matter that one court is a probate court and the other is a circuit court. See, e.g., Martin v. Clark, 554 So.2d 1030, 1032 (Ala. 1989) (observing that '[o]nce Mr. Clark invoked the jurisdiction of the probate court in Shelby County, he could not simultaneously bring an action involving the same subject matter in another court, even one having concurrent jurisdiction'). Accordingly, abatement is applicable in the context of these actions.
"The final-settlement action was the first filed action. Consequently, the claims against Regions filed by the [trust beneficiaries] in the circuit court action concerning the trusts at issue in the final-settlement action are due to be dismissed pursuant to § 6-5-440, Ala. Code 1975."

60 So.3d at 884-85 (footnote omitted).

The facts before us are sufficiently analogous to those presented in Regions Bank for the rationale in that case to be applied here. The petition for termination, as amended, is subject to abatement, and the circuit court erred in denying Angel's motion to dismiss that petition based on the application of § 6-5-440.

Conclusion

Angel's petition is due to be granted. We direct the Jefferson Circuit Court (1) to vacate its order denying Angel's motion to dismiss the petition for termination, as amended, and (2) to enter an order dismissing Joshua's action on the ground of abatement.

PETITION GRANTED; WRIT ISSUED.

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

Main, J., concurs in the result.

Bolin and Wise, JJ., recuse themselves.

      See Regions Bank v. Reed, 60 So.3d 868 (Ala. 2010) (discussing the jurisdiction of the Jefferson Probate Court as to testamentary trusts); see also Ala. Code 1975, § 19-3B-203 ("A probate court granted statutory equitable jurisdiction has concurrent jurisdiction with the circuit court in any proceeding involving a testamentary or inter vivos trust."); and Ala. Code 1975, § 19-3B-704(c) (appointment of a trustee by a proper court where a trusteeship is vacant).

      The materials before us do not include a copy of Brian Lee's will, the petition to probate that will, or an order from the probate court admitting that will to probate. The letters testamentary issued to Angel, however, state that Brian Lee's will had been duly admitted to probate in the probate court.

      On September 19, 2016, South Haven Corporation and Loree filed a complaint in the Bessemer Division of the Jefferson Circuit Court against Brian Lee's estate and Angel, individually and in her capacity as personal representative of Brian Lee's estate, alleging that Brian Lee and Angel had misappropriated assets of South Haven Corporation. The proceedings in the Bessemer Division of the Jefferson Circuit Court are not the subject of the present petition.

      Facilitating the distribution of Brian Lee's interest in the trust to his estate would benefit his estate. Thus, the present case is distinguishable from Wood v. Wayman, 47 So.3d 1212, 1217 (Ala. 2010), in which this Court noted that "an action brought under the wrongful-death statute is not brought on behalf of the estate, and because the estate gains no benefit from even a successful wrongful-death action, the relation-back provision in § 43-2-831 does not apply to a wrongful-death action brought under § 6-5-410[, Ala Code 1975]."

      Even where a trust is terminated pursuant to a court order, a trustee generally would be necessary to carry out the requirements of the order as to the trust.

      As noted above, Joshua's sole argument against Angel's motion to dismiss was that she lacked standing. Joshua argues (for the first time in his response to Angel's petition) that § 6-5-440 is inapplicable because he was not a party to the petition for appointment and thus no claims were filed against him. As noted above, however, the petition for appointment specifically named Joshua as an interested party, along with Loree, Franklin IV, and Brian Rutledge, and indicated that those parties were to be served with process as to the petition for appointment, which included a request for final division and distribution of the trust property among the trust beneficiaries. See, e.g., Drath v. Armstrong, 224 Ala. 661, 664, 141 So. 634, 637 (1932) (noting that beneficiaries of a trust are necessary parties to an action to establish their respective interests in the trust). Also, we note that the claims in the petition for termination arose out of the same occurrence that is the basis for the petition for appointment, namely the death of Brian Lee, his failure to make a final division and distribution of the trust property before his death, and the need for someone to conclude the administration of the trust and make a final division and distribution of the trust property.


source: Caselaw Access Project

author: THOMPSON, Presiding Judge.

license: Public Domain

text:
    V.L. v. A.W. and W.W.
    2170732 2170733
    Court of Civil Appeals of Alabama.
    October 19, 2018
    Terinna S. Moon of Moon & Melvin, LLC, Prattville, for appellant.
    Submitted on appellant's brief only.
   THOMPSON, Presiding Judge.

On September 16, 2016, A.W. ("the great-aunt") and W.W. ("the great-uncle") filed in the Montgomery Juvenile Court ("the juvenile court") petitions seeking to have the two minor children of J.W. ("the father") and V.L. ("the mother") found dependent and seeking an award of custody of the children.

On March 23, 2018, the juvenile court entered judgments finding that the children were dependent, awarding joint legal custody of the children to the mother, the great-aunt, and the great-uncle, and awarding physical custody of the children to the great-aunt and the great-uncle. On April 5, 2018, the mother filed a postjudgment motion addressing both judgments, and, on the same day, she filed a single notice of appeal addressing both judgments. The mother's notice of appeal was held in abeyance until the denial by operation of law of the postjudgment motion. See Rule 59.1, Ala. R. Civ. P.; A.J. v. E.W., 167 So.3d 362, 366 (Ala. Civ. App. 2014).

On appeal, the mother does not challenge the sufficiency of the evidence supporting the dependency findings or the custody awards. Therefore, any arguments as to those issues have been waived. Ex parte Riley, 464 So.2d 92, 94 (Ala. 1985).

Rather, the mother argues on appeal that the juvenile court never acquired subject-matter jurisdiction over the dependency actions because, she says, the great-aunt and the great-uncle did not pay a filing fee in either dependency action. "[Section] 12-19-70 requires the payment of filing fees or a court-approved verified statement of financial hardship at the time of filing the complaint." De-Gas, Inc. v. Midland Res., 470 So.2d 1218, 1222 (Ala. 1985) (emphasis omitted). The record does not indicate that a filing fee was paid in either action. However, at the time the dependency actions were filed, the great-aunt and the great-uncle filed in each action an affidavit of substantial hardship and sought the waiver of the requirement that a filing fee be paid. The record contains no indication regarding whether the juvenile court ruled on those requests for indigency status.

It is the duty of the appellant to ensure that the record on appeal contains sufficient evidence or materials to substantiate a claim that there has been error below or that a court lacks jurisdiction. S.K. v. N.B., 160 So.3d 27, 30 (Ala. Civ. App. 2014) ; see also Woodward v. State ex rel. Woodward, 664 So.2d 211, 213 (Ala. Civ. App. 1994) (affirming the denial of a Rule 60(b)(4), Ala. R. Civ. P., motion when the movant failed to present in support of that motion any documentation demonstrating a lack of jurisdiction). This court is unable to discern from the record that no filing fees were paid, as the mother asserts, or that the juvenile court ruled on the requests for indigency status. Accordingly, we cannot say that the mother has demonstrated error or that the juvenile court lacked jurisdiction.

The mother also argues that the juvenile court's judgments are void because of the lack of indispensable parties. The mother argues on appeal that the children's father and A.D., a maternal aunt of the children, were indispensable parties. We note that, although the record contains allegations regarding the father's circumstances and assertions that A.D. and the mother had been awarded joint legal custody of the children at some point in the past, there are no orders and there is no evidence in the record to support a conclusion that the children have a legal father or that there exists a previous custody award. The juvenile court did not receive ore tenus evidence at the hearing in these actions. Rather an attorney for the Montgomery County Department of Human Resources, a guardian ad litem, and the mother appeared before the juvenile court, and their arguments and unsworn representations to the court were transcribed. Moreover, as our supreme court has recently explained, the failure to include an indispensable party is not a jurisdictional defect. Miller v. City of Birmingham, 235 So.3d 220, 230 (Ala. 2017) ; see also Ex parte A.J., 256 So. 3d 671 (Ala. Civ. App. 2018) (same). Thus, the mother has not demonstrated that the juvenile court's judgments were void for want of jurisdiction based on a purported failure to join indispensable parties.

The mother last argues that the juvenile court erred in awarding her visitation at the discretion of the great-aunt and the great-uncle. Generally, an award of visitation to a noncustodial parent may not be entirely at the discretion of a child's custodian. Pratt v. Pratt, 56 So.3d 638, 643 (Ala. Civ. App. 2010) ; A.M.B. v. R.B.B., 4 So.3d 468, 471 (Ala. Civ. App. 2007). In these cases, the juvenile court failed to take any evidence, and it placed the mother's visitation with the children entirely at the discretion of the great-aunt and the great-uncle. The juvenile court erred in failing to set forth a minimum visitation schedule for the mother. Pratt v. Pratt, supra ; A.M.B. v. R.B.B., supra. Accordingly, we reverse the judgments as to that issue and remand the causes for the juvenile court to conduct any proceedings that are necessary to address that issue and to enter judgments in compliance with this court's opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.

Pittman, Thomas, Moore, and Donaldson, JJ., concur.


author: PITTMAN, Judge.

text:
    Susanna MENDIA v. Edward ENCARNACION
    2170509
    Court of Civil Appeals of Alabama.
    October 26, 2018
    R. Ashby Pate and Gabriella Alonso of Lightfoot, Franklin & White, L.L.C., Birmingham, for appellant.
    Jason R. Brogden of The Brogden Law Firm, L.L.C., Ozark, for appellee.
   PITTMAN, Judge.

Susanna Mendia ("the wife") appeals from an order of the Dale Circuit Court denying her motion for relief from a default judgment entered in favor of Edward Encarnacion ("the husband") in a divorce action initiated by the husband in January 2015. We reverse and remand with instructions.

In January 2015, the husband initiated the divorce action against the wife, alleging in his complaint that the parties married in Georgia in June 2012; that a daughter had been born to the parties in September 2013; and that both parties were Alabama residents and had been for the preceding six months. As to the jurisdictional basis for seeking a judgment of divorce, see generally Ala. Code 1975, § 30-2-1(a), the complaint alleged grounds under subsections (7) and (9) of that statute:

"That there presently exists between the parties hereto such a complete and irrevocable incompatibility of temperament that the parties can no longer live together as husband and wife, that any further attempts at reconciliation would be impractical or futile in that the parties no longer fully communicate with each other, their attitudes and priorities conflict, they cannot be in each other's presence without fussing and quarreling, and that they have such a wide divergence of interests and no common goals in life and that these differences have caused an irretrievable breakdown of their marriage."

The husband sought a judgment divorcing him from the wife, an equitable division of the marital property, an award of sole physical custody of the parties' daughter, and an award of child support.

The husband provided his counsel an address for service upon the wife of Post Office Box 1211, Port Hueneme, California 93044 ("the post-office box"). Counsel, in turn, provided the address of the post-office box to the trial-court clerk for purposes of serving a summons and a copy of the complaint upon the wife. The record contains a copy of a certified-mail return receipt, mailed from Santa Barbara, California, on January 29, 2015, and filed in the trial court on February 3, 2015, that bears the wife's name, the post-office-box address, and the civil-action number; the fields on the receipt form indicating "Received by (Printed Name)," "Date of Delivery," and "Service Type" are blank, and there is no indication that "Restricted Delivery" had been sought. The receipt form contains a scrawled signature but no indication regarding whether the person who signed the form was an "Agent" of the wife or the "Addressee" listed.

On April 9, 2015, the husband filed an application for the entry of a default against the wife, supported by the affidavit of his counsel who testified that the wife had been served on January 29, 2015, but had failed to answer or otherwise defend the action within 30 days; the husband also moved for the entry of a divorce judgment, averring that "[a]ll documents have been filed that are required for the court to enter a final judgment."

On the next day, April 10, 2015, the husband filed, among other things, a Form C-33, "Request for Commissioner, Commission & Deposition," requesting that the clerk of the trial court appoint a notary public employed by the husband's attorney to serve as a commissioner to orally examine the husband. However, in the appellate record, the portion of the form to be executed by the trial-court clerk effectuating the appointment of the notary as a commissioner to take the husband's testimony does not bear the clerk's signature. The section of the form entitled "Deposition" bears the husband's signature and a certificate of the notary as "commissioner"; that section purports to detail the husband's oral testimony in the cause as follows:

"The [wife] and I are both over the age of nineteen years and are bona fide resident citizens of Dale County, Alabama, and have been such for more than six (6) months preceding the filing of the Complaint for Divorce in this case. We were married to each other on 27th day of June, 2012, in Columbus, Georgia, and that there has been one child born to us during our marriage, namely, [the daughter], whose date of birth is September 13, 2013. That the parties shall have joint custody of their child with the [husband] having the sole physical custody of the child and the [wife] having reasonable visitation. The [wife] is unemployed and has no income and so the [husband] is not requesting child support at this time so no child support is being ordered at this time. That the [wife] was served with a copy of the Summons and Complaint in this cause on January 29, 2015, by certified mail, more than thirty days prior to this date, and the [wife] has failed to appear, plead to or answer the Complaint to this date. I would ask this Court for a divorce by default."

The husband's recorded testimony does not indicate any grounds for the parties' divorce recognized in Ala. Code 1975, § 30-2-1(a), such as an irretrievable breakdown of the marriage, incompatibility, adultery, or domestic violence. Nonetheless, the trial court, within two hours of the filing of the Form C-33, entered a default against the wife and entered a default judgment in favor of the husband "upon the pleadings, the written testimony taken before the Commissioner, and the default of the [wife]" and awarded, among other things, sole legal and physical custody of the daughter to the husband.

In August 2016, the wife sent a letter to the trial court inquiring how the default judgment could have been entered. The record reflects no further filings until October 2017, when the wife moved for relief from the default judgment pursuant to Rule 60(b)(4) and 60(b)(6), Ala. R. Civ. P., supported by her affidavit and a brief in support of the motion. As to Rule 60(b)(4), which authorizes relief from a judgment on the basis that the judgment is void, the wife contended that she had never been properly served; she testified in her affidavit that she had resided in Oxnard, California, on the date that the return receipt was postmarked; that she had never rented a post-office box; and that the signature appearing on the return receipt was not hers. In addition, the wife submitted as an exhibit to her affidavit an e-mail communication from a consumer-affairs specialist at the Oxnard post office verifying that the wife "was not registered to [the post-office box] in January-February 2015, and therefore could not have received any mail at that time through [that] P.O. Box." As to Rule 60(b)(6), which allows relief from a judgment for "any other reason justifying relief" not specified in another subsection of Rule 60(b), the wife generally asserted that the circumstances of the case warranted relief under the three factors specified in Kirtland v. Fort Morgan Authority Sewer Service. Inc., 524 So.2d 600, 605 (Ala. 1988), governing whether to set aside a valid default judgment. After the husband was served with the wife's motion, the husband generally denied the allegations set forth in that motion.

The trial court held a hearing on the wife's motion on January 23, 2018. During that hearing, the husband orally moved for the e-mail communication from the consumer-affairs specialist to be struck; that motion was not acted upon by the trial court. After the hearing, the trial court entered an order denying the wife's Rule 60(b) motion, stating that it had reviewed its records "and considered the arguments of [c]ounsel applying the three (3) pronged standard enumerated in Kirtland," but determining that the wife "ha[d] failed to meet the Kirtland standard"; the trial court made no determinations regarding the validity of the judgment. Also, the trial court noted that neither party nor the daughter had resided in Alabama since 2016 and, based upon that fact, relinquished continuing jurisdiction as to matters involving the daughter's custody.

The wife appeals, asserting that the grounds set forth in her motion for relief from the default judgment were improperly rejected by the trial court. The husband, for his part, contends that the wife did not adduce clear and convincing evidence that she was not served and that the trial court acted within its discretion in determining that the Kirtland factors did not warrant relief from the default judgment.

Our review of the record, however, has revealed a defect as to the trial court's subject-matter jurisdiction not discussed by the parties in their briefs. "Lack of subject matter jurisdiction may not be waived by the parties and it is the duty of an appellate court to consider lack of subject matter jurisdiction ex mero motu"; further, "[i]f a court is without subject matter jurisdiction, any judgment rendered therein is void." Ex parte Smith, 438 So.2d 766, 768 (Ala. 1983).

In Helms v. Helms, 50 Ala. App. 453, 280 So.2d 159 (Civ. App. 1973), this court reviewed a divorce judgment entered following the filing of a complaint by a wife who alleged that the parties should be divorced because of an incompatibility of temperament. Although the husband admitted the jurisdictional averments in the complaint, there was no evidence adduced at trial as to the ground for divorce asserted in the complaint, and this court held that the parties' agreement on the ground for divorce was an insufficient basis for the trial court in that case to have based a judgment of divorce. In so holding, this court cited as authority Ala. Code 1940 (Recomp. 1958), tit. 34, § 26 ("[n]o decree [of divorce] can be rendered on the confession of the parties, or either of them"), which, in relevant part, remains a part of our Code (see Ala. Code 1975, § 30-2-3 ), and we quoted Meares v. Meares, 256 Ala. 596, 598, 56 So.2d 661, 662 (1952), for the proposition that " '[t]he jurisdiction of a court of equity to grant a divorce a vinculo matrimonii does not exist independent of the statute, and it is essential that jurisdictional facts affirmatively appear from the record.' " Helms, 50 Ala. App. at 455, 280 So.2d at 161.

More recently, this court relied upon the holding in Helms in reviewing a default divorce judgment that was entered by a trial court as a discovery sanction pursuant to Rule 37, Ala. R. Civ. P. See Johnson v. Johnson, 168 So.3d 61 (Ala. Civ. App. 2014). The judgment in that case stated that it had been entered " 'on consideration of the pleadings and hearing held for sanctions,' and not upon any other evidence." 168 So.3d at 64. Noting that this court had not been "directed by the parties to any evidentiary support for the ground for divorce contained in the judgment" (i.e., incompatibility of temperament) and that, "[w]ithout such evidence being provided, the trial court could not divorce the parties," id. (emphasis added), we concluded that the divorce judgment could not stand; we further noted the mandatory requirement of Rule 55(e), Ala. R. Civ. P., that "[n]o judgment by default ... be entered against ... parties to an action for divorce ... unless the claimant establishes the party's claim or right to relief by evidence." 168 So.3d at 64.

In this case, as was alleged in Johnson, the husband alleged in his complaint in this case that the parties should be divorced based upon "no-fault" grounds recognized for granting a divorce under Alabama law, i.e., incompatibility of temperament and an irretrievable breakdown of the marital relationship. However, at the time the trial court entered the default judgment in favor of the husband, the record reflects that no testimony in support of those grounds had been adduced, even assuming the validity of the Form C-33 that lacked any appointment by the clerk of the notary public/employee of the husband's counsel as a commissioner to take testimony under Rule 43(a), Ala. R. Civ. P. Because, as this court noted in Helms, jurisdictional facts must be established by the evidence in order for a trial court to enter a valid judgment of divorce, and because those jurisdictional facts are lacking here, we conclude that the trial court's default judgment is void for lack of subject-matter jurisdiction regardless of whether it might be void or due to be reversed on the bases urged by the wife on appeal.

Because the default judgment entered in favor of the husband on April 10, 2015, in this case is void for lack of subject-matter jurisdiction, we reverse the trial court's order to the extent that that court denied relief under Rule 60(b)(4), Ala. R. Civ. P. We remand the cause with instructions to the trial court to vacate the default judgment.

REVERSED AND REMANDED WITH INSTRUCTIONS.

Thompson, P.J., and Thomas, Moore, and Donaldson, JJ., concur.


text:
    Willie James JONES, Jr. v. Barbara Joann JONES
    2170494
    Court of Civil Appeals of Alabama.
    October 26, 2018
    Charles H. Sims III, Selma, for appellant.
    Jessica L. Parker of The Law Offices of Vickers & White, PLLC, Montgomery, for appellee.
   PITTMAN, Judge.

This appeal arises from domestic-relations proceedings in the Dallas Circuit Court. In 2013, Barbara Joann Jones ("the former wife") filed a complaint seeking a divorce from Willie James Jones, Jr. ("the former husband"); that civil action was assigned case number DR-13-900003 ("the divorce action"). An order was entered in the divorce action in June 2013 that, among other things, awarded the former wife pendente lite periodic alimony in the amount of $600 per month and reserved certain issues for a subsequent hearing. On April 1, 2015, after an ore tenus hearing at which both parties and their attorneys appeared, the trial court entered a final judgment in the divorce action terminating the pendente lite alimony as of September 1, 2013, and declining to award periodic alimony, but reserving the power to award periodic alimony in the future and directing the former husband to pay the former wife a $1,500 pendente lite alimony arrearage and $3,420 as one-half of the total charges for the funeral services for Audrey A. Jones, the parties' deceased daughter. Under Crenshaw v. Crenshaw, 816 So.2d 1046 (Ala. Civ. App. 2001), a trial court's reservation of the periodic-alimony issue "is, for all intents and purposes, a denial of alimony at the time of the original divorce," and "a request for an award of alimony after the reservation of the issue must be based upon a material change of circumstances." 816 So.2d at 1048.

In February 2016, the former wife initiated a new civil action against the former husband seeking modification of the parties' divorce judgment as to periodic alimony and enforcement of the payment obligations in the April 1, 2015, final judgment entered in the divorce action; that new civil action was assigned case number DR-13-900003.01 ("the modification and enforcement action"). The former wife alleged in her complaint in that action that the former husband had received a lump-sum disability settlement that would allow him to discharge his financial obligations in the divorce judgment and that, as to periodic alimony, he was working and earning moneys surreptitiously in addition to receiving disability payments. The former husband was personally served in March 2016 with process in the modification and enforcement action at the address for him supplied by counsel for the former wife, but he did not respond to the former wife's pleading, nor did counsel appear on his behalf in that action.

While the modification and enforcement action was pending, the former wife initiated independent efforts in the divorce action to garnish moneys held by the former husband at Wells Fargo Bank, and the trial court held one or more hearings in the divorce action regarding the former husband's compliance with the April 1, 2015, final judgment entered in the divorce action. On January 3, 2017, the parties and their attorneys of record in the divorce action appeared for a hearing, after which the trial court entered an order in the divorce action recalculating the outstanding financial obligations of the former husband under the divorce judgment in light of certain partial payments and setting forth a payment schedule for the former husband's full satisfaction of those obligations.

Although the January 3, 2017, order entered in the divorce action touched and concerned some of the issues raised in the modification and enforcement action, that order notably did not address the periodic-alimony issue. In June 2017, the former wife sent a handwritten letter to the trial court requesting that the modification and enforcement action be placed on the docket as soon as possible; that letter did not indicate that a copy thereof had been served upon the former husband. In response to the former wife's letter, the trial court entered an order in the modification and enforcement action setting a hearing on the former wife's "Request for Hearing" at 9:00 a.m. on September 20, 2017, and directing notice of that hearing to be sent both to counsel for the former wife and -- because no attorney had appeared for the former husband in that action -- to the former husband's last known address on file. The former wife's attorney then filed a motion to withdraw, which the trial court granted, and the former wife thereafter proceeded pro se. On September 20, 2017, the former wife appeared for the scheduled hearing in the modification and enforcement action, but neither the former husband nor any attorney acting on his behalf appeared; there is no transcript of that hearing in the appellate record, and it is thus unclear whether the former wife, a pro se litigant, adduced evidence at that hearing to establish her right to relief. The trial court entered a judgment on October 23, 2017, noting that the former husband had failed to appear at the hearing; that judgment awarded the former wife a $3,400 judgment as to the unpaid funeral-home expenses and periodic alimony of $600 per month for 24 months beginning in October 2017.

Under Rule 55(c), Ala. R. Civ. P., a trial court "may ... set aside a judgment by default on the motion of a party filed not later than thirty (30) days after the entry of the judgment." On November 16, 2017, within the applicable 30-day period, the former husband, appearing through counsel for the first time in the modification and enforcement action, filed a postjudgment motion to set aside the default judgment, asserting that neither he nor counsel had received notice of a hearing and that his income was approximately $1,000 per month. The former husband subsequently requested a hearing on that postjudgment motion, which the trial court set for January 23, 2018.

At the hearing on the postjudgment motion, the former husband introduced an evidentiary exhibit indicating that he receives a net amount of $1,083 each month from the Social Security Administration after deduction of Medicare premiums. In addition, the former husband testified at that postjudgment hearing (a) that he was unable to perform any electrical work, which had been his trade, and that Social Security benefits were his sole income each month; (b) that he had been paying rent of $400 per month while living with his sister, leaving him funds of less than $100 per month after the alimony deduction was taken into account (much of which residue he was also paying to his sister for her expenses); (c) that he cannot live on a monthly income reduced by the alimony payments; and (d) that he did not receive any notice to be present for the hearing in the modification and enforcement action leading to the October 23, 2017, default judgment. Six days after the hearing had concluded, the trial court entered an order on January 29, 2018, denying the former husband's postjudgment motion to set aside the default judgment. The former husband timely appealed, identifying the January 29, 2018, postjudgment order as the pertinent "judgment" as to which he sought appellate review. Cf. Rule 4(a)(1), Ala. R. App. P. (last sentence providing that "[o]n an appeal from [an] ... order a party shall be entitled to a review of any judgment, order, or ruling of the trial court").

In his appellate brief, the former husband reasserts his contentions that he received no notice of the September 20, 2017, hearing in the modification and enforcement action and that he has no ability to pay the alimony awarded to the former wife in the default judgment. In Stanfield v. Stanfield, 2 So.3d 873 (Ala. Civ. App. 2008), we set forth a number of pertinent principles governing appellate review of trial-court orders entered on motions to set aside default judgments such as that under review in this appeal:

"In Kirtland v. Fort Morgan Authority Sewer Service, Inc., 524 So.2d 600 (Ala. 1988), our Supreme Court established a two-pronged analysis for evaluating whether to grant a motion for relief from a default judgment. This two-pronged analysis is designed to balance the two competing policy interests of judicial economy and a litigant's right to defend on the merits. Kirtland, 524 So.2d at 604. The first prong of the analysis identified by the Kirtland Court is that the trial court must presume that cases 'should be decided on the merits whenever practicable.' 524 So.2d at 604. The second prong of the analysis entails consideration of three factors commonly referred to as the Kirtland factors: '1) whether the defendant has a meritorious defense; 2) whether the plaintiff will be unfairly prejudiced if the default judgment is set aside; and 3) whether the default judgment was a result of the defendant's own culpable conduct.' Kirtland, 524 So.2d at 605.
"As this court recently observed in Sumlin v. Sumlin, 931 So.2d 40 (Ala. Civ. App. 2005), the two-pronged analysis applied in determining whether to set aside a default judgment begins with the presumption that a case should be decided on the merits whenever practicable
" 'because "the interest in preserving a litigant's right to a trial on the merits is paramount and, therefore, outweighs the interest of promoting judicial economy." [ Kirtland,] 524 So.2d at 604. It is against this presumption and its recognition of the paramount nature of a litigant's right to defend on the merits that this court should interpret and apply the second step in the Kirtland analysis.'
" 931 So.2d at 44 (emphasis added). As Kirtland itself explains:
" '[A] trial judge should start with the presumption that cases should be decided on the merits whenever practicable. Hritz v. Woma Corp., 732 F.2d 1178, 1181 (3rd Cir. 1984). The Alabama Constitution and our past opinions construing the default judgment rule support the conclusion that the interest in preserving a litigant's right to a trial on the merits is paramount and, therefore, outweighs the interest of promoting judicial economy. We have repeatedly held that the trial court's use of its discretionary authority should be resolved in favor of the defaulting party where there is doubt as to the propriety of the default judgment. Johnson v. Moore, 514 So.2d 1343 (Ala. 1987) ; Elliott v. Stephens, [399 So.2d 240 (Ala. 1981) ]; Oliver v. Sawyer, 359 So.2d 368 (Ala. 1978) ; Knight v. Davis, 356 So.2d 156 (Ala. 1978). We have affirmatively acknowledged the disfavorable treatment afforded default judgments on the ground that such judgments preclude a trial on the merits. Oliver v. Sawyer, supra, at 369. We have also construed Rule 55(c) as contemplating a liberal exercise of a trial court's discretion in favor of setting aside default judgments. Ex parte Illinois Central Gulf R.R., 514 So.2d 1283 (Ala. 1987). Moreover, Article 1, §§ 6 and 13, Alabama Constitution of 1901, by guaranteeing the due process rights of citizens, and Article 1, § 10, by holding inviolate a person's right to defend himself in a civil action to which he is a party, elucidate[ ] this state's commitment to protect an individual's right to attain an adjudication on the merits and to afford litigants an opportunity to defend. We, therefore, emphatically hold that a trial court, in determining whether to grant or to deny a motion to set aside a default judgment, should exercise its broad discretionary powers with liberality and should balance the equities of the case with a strong bias toward allowing the defendant to have his day in court.'
" 524 So.2d at 604-05 (emphasis added).
"The 'strong bias' recognized in Kirtland toward deciding cases on the merits is particularly strong in domestic-relations cases. As this court stated in DeQuesada v. DeQuesada, 698 So.2d 1096 (Ala. Civ. App. 1996), ' "a court should be particularly reluctant to uphold a default judgment (and thereby deprive a litigant of his day in court) because it means that such important issues as child custody, alimony, and division of property will be summarily resolved." ' 698 So.2d at 1099 (quoting Evans v. Evans, 441 So.2d 948, 950 (Ala. Civ. App. 1983) )."

2 So.3d at 875-76. Accord Bates v. Bates, 194 So.3d 976, 978-79 (Ala. Civ. App. 2015) (applying same principles in context of review of default judgment entered in modification action).

The former husband's assertions of inability to pay were in the nature of a claimed meritorious defense on the merits to that aspect of the former wife's complaint seeking modification of the underlying divorce judgment so as to award her periodic alimony. As we have noted, under Crenshaw, supra, the former wife's entitlement to relief on such a claim depends upon a showing of a material change of circumstances, and the former wife, "as the party seeking the modification, ha[s] the burden of establishing that a material change in circumstances ha[s] occurred," as well as "that the [former] husband ha[s] an ability to pay." Flores v. Flores, 978 So.2d 791, 793 (Ala. Civ. App. 2007).

A meritorious defense in the context of a motion to set aside a default judgment " ' "does not require that the movant satisfy the trial court that the movant would necessarily prevail at a trial on the merits, only that the movant show the court that the movant is prepared to present a plausible defense." ' " Bates, 194 So.3d at 979 (quoting B.E.H. v. State ex rel. M.E.C., 71 So.3d 689, 693 (Ala. Civ. App. 2011), quoting in turn Sampson v. Cansler, 726 So.2d 632, 634 (Ala. 1998) ). The defense offered must additionally " 'be of such merit as to induce the trial court reasonably to infer that allowing the defense to be litigated could foreseeably alter the outcome of the case.' " Bates, 194 So.3d at 979 (quoting Kirtland, 524 So.2d at 606 ).

In this case, the former husband's testimony and evidentiary submission at the postjudgment hearing in support of his motion to set aside indicated that, if the alimony award were allowed to stand, he would have less than $100 per month in disposable income from disability payments and would, in addition, be without any means to earn additional income. Those showings directly concerned the former husband's ability to pay any periodic-alimony award that the trial court might enter in response to the former wife's complaint in the modification and enforcement action. Because that evidence could foreseeably change the trial court's judgment, we conclude that the former husband established a meritorious defense to the former wife's complaint under the first criterion specified in Kirtland and its progeny.

The second Kirtland factor is prejudice to the nonmoving party. In the trial court, the former wife, appearing pro se, did not file any response to the former husband's motion to set aside in which she might have specified any prejudice that would result from an order setting aside the default judgment and restoring the case to the active docket of the trial court. Moreover, her remarks to the trial court during the hearing on the postjudgment motion were largely directed to extraneous matters, such as whether the former husband had engaged in extramarital affairs or disparaging behavior directed toward the former wife's child during the parties' marriage; her sole statements potentially bearing upon prejudice were her opinions that the former husband has "an excuse for everything" and her disclosure that her current residence was in Montgomery rather than in the city in which the trial court was located. However, " ' "[m]ere delay or increased cost is not sufficient to justify a refusal to set aside a default judgment." ' " Bates, 194 So.3d at 979 (quoting Hambright v. Hambright, 935 So.2d 1185, 1188 (Ala. Civ. App. 2006), quoting in turn Ex parte Gilliam, 720 So.2d 902, 906 (Ala. 1998) ). The record thus contains nothing tending to support the denial of the former husband's motion on a prejudice theory.

Finally, the third Kirtland factor requires consideration of the culpability of the movant's conduct. " 'Conduct committed wil[l]fully or in bad faith constitutes culpable conduct for purposes of determining whether a default judgment should be set aside,' " whereas " '[n]egligence by itself is insufficient.' " Stanfield, 2 So.3d at 877 n.2 (quoting Kirtland, 524 So.2d at 607 ). Although "[w]illful or bad-faith conduct includes 'incessant and flagrant disrespect for court rules, deliberate and knowing disregard for judicial authority, or intentional nonresponsiveness,' " " 'a defaulting party's reasonable explanation for inaction and noncompliance may preclude a finding of culpability.' " Bates, 194 So.3d at 980 (quoting Kirtland, 524 So.2d at 608 ).

In this case, the former wife's complaint in the modification and enforcement action was personally served upon the former husband in March 2016 at the address supplied by her counsel. Neither the former husband nor his counsel in the divorce action filed any response to that pleading, and counsel for the former husband did not file a notice of appearance in the modification and enforcement action so as to indicate to the trial court that the former husband had obtained legal representation as to that action. Under subsections (a) and (b) of Rule 5, Ala. R. Civ. P., "every written motion other than one which may be heard ex parte" and "every written notice" is to be served upon pro se parties in civil actions by "delivering ... or mailing it to ... the party at the ... party's last known address."

For all that appears in the record, the former wife's handwritten letter was not served on the former husband in the manner contemplated by Rule 5. Further, although the second supplemental record in this appeal reveals that a notice was sent on July 6, 2017, by the trial court to the former husband's last known address, the notice simply stated that the former wife's pro se "Request for Hearing" had been set for a hearing on September 20, 2017, at 9:00 a.m. Also, at the hearing on the postjudgment motion, the former husband expressly denied having received notice from the trial court, and the former husband's testimony further indicated that he had been residing with his sister. Finally, as the former husband's counsel has noted in his reply brief, the hearing notice was sent by the trial court in the modification and enforcement action although, as the third supplemental record indicates, a substantial number of the same issues had been adjudicated by the trial court in its January 3, 2017, order in the divorce action, which was entered after a hearing at which both parties had appeared in person and through counsel.

Although we need not go so far as to hold, as the former husband would have us hold, that a "mix-up" of the two actions involving the former wife and the former husband occurred such that the trial court's denial of the motion to set aside would necessarily amount to a denial of due process -- a contention that was not apparently made in the trial court in the first instance -- we do glean from the record that the former husband's conduct, while potentially negligent, was not culpable under Kirtland and its progeny. The former husband was notified by the trial court, at most, that the former wife had, acting pro se, requested a hearing in the modification and enforcement action and that a hearing had been set on that request. Even assuming that the former husband's testimony that he had not received the notice sent by the trial court was not truthful or, in the former wife's words, was merely "an excuse," we cannot conclude on this record that the failure of the former husband to appear at the scheduled hearing on the former wife's "Request for Hearing," which was not served on the former husband, amounts to culpable conduct that meets the standard of "incessant and flagrant disrespect for court rules, deliberate and knowing disregard for judicial authority, or intentional nonresponsiveness." Kirtland, 524 So.2d at 608. We would emphasize that we reach that conclusion with the "particularly strong" bias in favor of a trial court's reaching a decision in domestic-relations cases on the merits ( Stanfield, 2 So.3d at 876 ) firmly in mind.

Based upon the foregoing facts and authorities, we conclude that the trial court erred in denying the former husband's postjudgment motion to set aside the default judgment entered in favor of the former wife. The order denying that motion is reversed, and the cause is remanded to the trial court to enter an order setting aside the default judgment and for further proceedings on the merits of the former wife's claims in the modification and enforcement action.

REVERSED AND REMANDED WITH INSTRUCTIONS.

Thompson, P.J., and Thomas, Moore, and Donaldson, JJ., concur.

      Although Rule 55(e), Ala. R. Civ. P., requires, as a prerequisite to the entry of a default judgment, that a party in "an action for divorce or annulment" must provide proof of that party's right to relief notwithstanding an opponent's default, the former wife's complaint in the modification and enforcement action did not seek those forms of relief.

      We disagree, however, that the former wife's handwritten letter was an "original complaint" under Rule 5(a) so as to require service of a summons under Rule 4(a), Ala. R. Civ. P.


author: WINDOM, Presiding Judge.

text:
    Timothy Vincent MURPHY v. STATE of Alabama
    CR-16-1220
    Court of Criminal Appeals of Alabama.
    July 13, 2018 Rehearing Denied August 31, 2018 Certiorari Denied October 19, 2018
    Alabama Supreme Court 1171156
    Willard Brent Woodall, Tuscumbia, for appellant.
    Steve Marshall, atty. gen., and Marc Alan Starrett, asst. atty. gen., for appellee.
   WINDOM, Presiding Judge.

Timothy Vincent Murphy appeals his conviction for attempted murder, see §§ 13A-6-2 and 13A-4-2, Ala. Code 1975. The circuit court sentenced Murphy to 99 years in prison.

On February 1, 2016, Murphy choked his mother, Janice Murphy, until she was unconscious and then put a gun to his head and threatened to kill himself. On February 2, 2016, Murphy threatened to mutilate his father, Vincent Murphy, and to kill himself. On February 3, 2016, Vincent filed a petition to have Murphy involuntarily committed to a mental-health facility. After conducting a hearing, the probate court found probable cause to order Murphy to be confined at a mental-health hospital for diagnosis and treatment.

Later, Deputy Randall McCrary, Sergeant Kent Sims, and Sergeant Tim Ray went to the Murphy residence to effectuate the commitment order. When Murphy saw the officers approach the house, he said, "Oh, hell no. I'm not going," ran into the house, and locked himself in a bedroom. (R. 194.) The officers entered the house and talked to Murphy through the door. Despite the officers' requests for Murphy to open the bedroom door, he refused and insisted that the officers were there to kill him. The officers repeatedly assured Murphy that they were there only to help him. Murphy, however, still refused to open the door and claimed that he would only "come out in a body bag." (R. 198.) At that point, officers decided to force their way through the bedroom door. As soon as the officers opened the bedroom door, Murphy fired at the officers and Deputy McCrary returned fire. In the exchange, Deputy McCrary and Murphy were both shot.

In accordance with the commitment order issued by the probate court, Dr. David Anakwenze, a psychiatrist at Eliza Coffee Memorial Hospital, evaluated Murphy's mental condition. After evaluating Murphy, Dr. Anakwenze sent a letter to the probate court, recommending that Murphy remain at the hospital for further treatment:

"Timothy Murphy was admitted to Renaissance Center for Emotional Health at ECM Hospital on 0/02/2016 [sic] under a court petition filed by his father.
"Timothy Murphy is mentally ill. He is diagnosed with Schizophrenia Disorder, paranoid type. Mr. Murphy was admitted to the psychiatric unit after being medically stabilized at Huntsville Hospital due to a gunshot wound attained in an altercation with law enforcement officers.
"Timothy Murphy is mentally ill, currently diagnosed with Schizophrenia Disorder, paranoid type. Mr. Murphy is unable to make rational and informed decisions as to whether or not treatment for mental illness would be desirable, as he continues to evidence paranoia, delusions, and thought blocking and appears to still be responding to external stimuli. The patient will, if not treated, continue to suffer mental distress and will continue to experience deterioration in the ability to function independently. As a result of his mental illness, Mr. Murphy poses a real and present threat of substantial harm to himself and/or others. I recommend Probable Cause be found and that Mr. Murphy remain at ECM for further stabilization and treatment."

(C. 28.) On April 11, 2016, the probate court issued an order for further commitment.

In the meantime, Murphy was charged with attempted murder, see §§ 13A-4-2 ; 13A-6-2, Ala. Code 1975, for shooting Deputy McCrary. Murphy pleaded not guilty and not guilty by reason of mental disease or defect. Murphy also moved the court for a mental evaluation to determine his competency to stand trial. The circuit court granted Murphy's motion, and Dr. Glenn King, a forensic psychologist, evaluated Murphy.

During his evaluation, Dr. King found Murphy to be competent to stand trial and sane at the time of the offense. The circuit court then held a hearing on Murphy's competency to stand trial and determined that Murphy was competent. Murphy disputed Dr. King's findings and moved the court for funds for an independent mental-health evaluation. The circuit court held a hearing on Murphy's motion for funds for an independent mental evaluation. At the hearing, the State argued that Murphy had been evaluated by Dr. King and that he was not entitled to another evaluation. The circuit court agreed with the State and denied Murphy's motion.

At trial, Dr. King testified for the State regarding his finding that Murphy was not suffering from any mental disease or defect at the time of the offense. Murphy attempted to rebut Dr. King's testimony and establish that he was not guilty by reason of mental disease or defect by presenting testimony from Will Motlow, the probate judge who had ordered his commitment; Dr. Anakwenze; and his mother. Although each of Murphy's witnesses had reason to believe that he suffered from mental defects, none had evaluated him for sanity at the time of the offense. See (R. 601) (Dr. Anakwenze stating that he had not evaluated Murphy to determine whether Murphy knew right from wrong). After hearing all the evidence and being instructed by the circuit court, the jury found Murphy guilty of attempted murder.

The circuit court adjudicated Murphy guilty and sentenced him to 99 years in prison.

Thereafter, Murphy filed a motion for a new trial. In his motion, Murphy argued, among other things:

"The Court erred by denying [Murphy]'s Motion for Funds for independent mental health evaluation. Said denial was extremely detrimental as [Murphy] was/is indigent and could not afford independent evaluation, thus denying the constitutional rights of due process .... Evidence produced both at motion hearing and trial was that [Murphy] has a history of mental illness and had an involuntary mental commitment pending at the time of the events made the basis of this cause."

(C. 140.) The circuit court denied Murphy's motion.

On appeal, Murphy argues that the circuit court erred by denying his request for funds for an independent mental-health evaluation. This Court agrees.

In Morris v. State, 956 So.2d 431 (Ala. Crim. App. 2005), this Court recognized:

"The United States Supreme Court, in Ake v. Oklahoma, 470 U.S. 68, 83, 105 S.Ct. 1087, 84 L.Ed. 2d 53 (1985), held that, when an indigent defendant makes a preliminary showing that his mental condition at the time of the offense is likely to be a significant factor at trial, due process requires that, at a minimum, a state provide access to a competent psychiatrist who will evaluate the defendant 'and assist in evaluation, preparation, and presentation of the defense' at the guilt phase and at sentencing. The Court began its analysis by stating, 'This Court has long recognized that when a State brings its judicial power to bear on an indigent defendant in a criminal proceeding, it must take steps to assure that the defendant has a fair opportunity to present his defense.' 470 U.S. at 76, 105 S.Ct. 1087. '[A] criminal trial is fundamentally unfair if the State proceeds against an indigent defendant without making certain that he has access to the raw materials integral to the building of an effective defense.' 470 U.S. at 77, 105 S.Ct. 1087.
"The Court stated that three factors are relevant to determining 'whether, and under what conditions, the participation of a psychiatrist is important enough to preparation of a defense to require the State to provide an indigent defendant with access to competent psychiatric assistance in preparing the defense.' Id. The three factors are the private interest affected by the State's action, the governmental interest that would be affected if the expert were provided, and the probable value of the psychiatric assistance versus the risk of error in the proceeding if the assistance is denied. The Court observed as to the first factor, 'The private interest in the accuracy of a criminal proceeding that places an individual's life or liberty at risk is almost uniquely compelling.' 4[70] U.S. at 78, 92 S. Ct. 1983 [105 S.Ct. 1087]. The Court stated that the individual's interest in the State's attempt to convict him weighed heavily in the analysis. As to the second factor, the Court could identify only the State's financial interest weighing against the provision of a psychiatrist, and it found that interest to be insubstantial. The Court found that the State could 'not legitimately assert an interest in the maintenance of a strategic advantage over the defense, if the result of that advantage is to cast a pall on the accuracy of the verdict obtained.' 470 U.S. at 79, 105 S.Ct. 1087. As to the third factor, the Court noted, initially, that psychiatric assistance had come to play a pivotal role in criminal proceedings. It noted that a majority of states and the federal government had decided that, in certain circumstances, an indigent defendant was entitled to psychiatric assistance to secure an adequate defense. The Court recognized the extensive tasks that psychiatrists had come to complete at criminal trials:
" '[W]hen the State has made the defendant's mental condition relevant to his criminal culpability and to the punishment he might suffer, the assistance of a psychiatrist may well be crucial to the defendant's ability to marshal his defense. In this role, psychiatrists gather facts, through professional examination, interviews, and elsewhere, that they will share with the judge or jury; they analyze the information gathered and from it draw plausible conclusions about the defendant's mental condition, and about the effects of any disorder on behavior; and they offer opinions about how the defendant's mental condition might have affected his behavior at the time in question. They know the probative questions to ask of the opposing party's psychiatrists and how to interpret their answers. Unlike lay witnesses, who can merely describe symptoms they believe might be relevant to the defendant's mental state, psychiatrists can identify the "elusive and often deceptive" symptoms of insanity, Solesbee v. Balkcom, 339 U.S. 9, 12 [70 S.Ct. 457, 94 L.Ed. 604] (1950), and tell the jury why their observations are relevant. Further, where permitted by evidentiary rules, psychiatrists can translate a medical diagnosis into language that will assist the trier of fact, and therefore offer evidence in a form that has meaning for the task at hand. Through this process of investigation, interpretation, and testimony, psychiatrists ideally assist lay jurors, who generally have no training in psychiatric matters, to make a sensible and educated determination about the mental condition of the defendant at the time of the offense.'
" 470 U.S. at 80-81, 105 S.Ct. 1087.
"Additionally, the Court noted:
" 'By organizing a defendant's mental history, examination results and behavior, and other information, interpreting it in light of their expertise, and then laying out their investigative and analytic process to the jury, the psychiatrists for each party enable the jury to make its most accurate determination of the truth on the issue before them. It is for this reason that States rely on psychiatrists as examiners, consultants, and witnesses, and that private individuals do as well, when they can afford to do so. In so saying, we neither approve nor disapprove the widespread reliance on psychiatrists but instead recognize the unfairness of a contrary holding in light of evolving practice.'
" 470 U.S. at 81-82, 105 S.Ct. 1087 (footnote omitted).
"Following its discussion of the pivotal role played by psychiatrists at criminal trials, quoted above, the Court stated:
" 'The foregoing leads inexorably to the conclusion that, without the assistance of a psychiatrist to conduct a professional examination on issues relevant to the defense, to help determine whether the insanity defense is viable, to present testimony, and to assist in preparing the cross-examination of a State's psychiatric witnesses, the risk of an inaccurate resolution of sanity issues is extremely high. With such assistance, the defendant is fairly able to present at least enough information to the jury, in a meaningful manner, as to permit it to make a sensible determination.'
" 470 U.S. at 82, 105 S.Ct. 1087 (emphasis added).
"Noting that the risk of error from the denial of psychiatric assistance was highest when the defendant's mental condition was seriously in question, the Court recognized that 'a defense may be devastated by the absence of a psychiatric examination and testimony.' 470 U.S. at 83, 105 S.Ct. 1087. The Court then detailed the relevant factors in Ake's case, including that Ake's sole defense had been insanity, that he had been found incompetent to stand trial and had been committed for treatment, that psychiatrists who had examined him for competency suggested that Ake's mental illness might have begun years earlier, and that state law recognized an insanity defense and placed the initial burden of producing evidence on the defendant. 470 U.S. at 86, 105 S.Ct. 1087. These factors led the Court to conclude that Ake's mental state at the time of the offense was a substantial factor in his defense and, therefore, that the trial court's denial of his request for the assistance of a psychiatrist deprived Ake of due process. The Court also noted that, because psychiatric testimony about Ake's future dangerousness was an issue at sentencing, denying Ake a psychiatrist to assist him with his defense as to that issue also constituted a due-process deprivation."

Morris, 956 So.2d at 444-46.

This Court further explained:

"As the Supreme Court made clear ..., when an indigent defendant makes a preliminary showing that his mental health is likely to be a significant factor at trial, due process requires that the State provide access to a psychiatrist's assistance. Morris was entitled to 'the assistance of a psychiatrist to conduct a professional examination on issues relevant to the defense, to help determine whether the insanity defense is viable, to present testimony, and to assist in preparing the cross-examination of the State's psychiatric witnesses.' Ake v. Oklahoma, 470 U.S. at 82, 105 S.Ct. 1087 (emphasis added). The trial court apparently believed that the evaluations by Dr. Ackerson and Taylor Hardin [Secure Medical Facility] satisfied the Ake requirements. We disagree. The fundamental holding of Ake involved a defendant's receiving assistance from an independent expert who could 'assist in evaluation, preparation, and presentation of a defense.' 470 U.S. at 83, 105 S.Ct. 1087. Dr. Ackerson's and Dr. Nagi's evaluations were conducted at the court's request, and the reports of the evaluations were submitted to the court and to both parties. In no sense did these evaluations satisfy the intent expressed by the Supreme Court in Ake.
"To the extent that the trial court believed that Dr. Nagi was a neutral expert and that, therefore, Ake was satisfied, we disagree. As noted above, the Supreme Court made it clear that, once an indigent defendant had established that his sanity was likely to be a significant issue at trial, he is entitled to an independent expert -- an expert devoted to assisting his defense and one who is not providing the same information or advice to the court and to the prosecution. One of the most crucial decisions a defense expert can provide assistance with is whether a mental-health defense is viable and, if so, how best to present it to the jury. Certainly, it is unreasonable to expect that a neutral expert who reports to the court and to the parties would provide the same degree of assistance to a defendant as could be expected from the defendant's own independent expert. The Supreme Court in Ake stated:
" 'Psychiatry is not, however, an exact science, and psychiatrists disagree widely and frequently on what constitutes mental illness, on the appropriate diagnosis to be attached to given behavior and symptoms, on cure and treatment, and on likelihood of future dangerousness. Perhaps because there often is no single, accurate psychiatric conclusion on legal insanity in a given case, juries remain the primary factfinders on this issue, and they must resolve differences in opinion within the psychiatric profession on the basis of the evidence offered by each party. When jurors make this determination about issues that inevitably are complex and foreign, the testimony of psychiatrists can be crucial and a "virtual necessity if an insanity plea is to have any chance of success." By organizing a defendant's mental history, examination results and behavior, and other information, interpreting it in light of their expertise, and then laying out their investigative and analytic process to the jury, the psychiatrists for each party enable the jury to make its most accurate determination of the truth on the issue before them. It is for this reason that States rely on psychiatrists as examiners, consultants, and witnesses, and that private individuals do as well, when they can afford to do so.'
" 470 U.S. at 81-82, 105 S.Ct. 1087 (footnotes omitted) (emphasis added)."

Morris, 956 So. 2d 447-48.

Before trial, Murphy made "a preliminary showing that his mental condition at the time of the offense is likely to be a significant factor at trial." Morris, 956 So. 2d 444. Over a two-day period, Murphy had choked his mother until she was unconscious and had threatened to mutilate his father; after both incidents Murphy had threatened to kill himself. Based on his harmful and erratic behavior, Murphy's father filed a petition to have him involuntarily committed to a mental-health facility. The probate court found probable cause to order Murphy to be confined in a mental-health hospital for diagnosis and treatment. When law-enforcement officers approached Murphy to execute the probate court's order, Murphy ran from them and hid in the back of the house. He refused to come out, insisting that the officers were there to kill him. When the officers forced their way into the room, he fired at the officers, hitting Deputy McCrary. After he was taken into custody, Murphy was evaluated and Dr. Anakwenze found:

"Timothy Murphy is mentally ill, currently diagnosed with Schizophrenia Disorder, paranoid type. Mr. Murphy is unable to make rational and informed decisions as to whether or not treatment for mental illness would be desirable, as he continues to evidence paranoia, delusions, and thought blocking and appears to still be responding to external stimuli. The patient will, if not treated, continue to suffer mental distress and will continue to experience deterioration in the ability to function independently. As a result of his mental illness, Mr. Murphy poses a real and present threat of substantial harm to himself and/or others. I recommend Probable Cause be found and that Mr. Murphy remain at ECM for further stabilization and treatment."

(C. 28.)

Murphy pleaded not guilty and not guilty by reason of mental disease or defect. He moved the court to order a mental-health evaluation. The circuit court granted Murphy's motion, and Dr. King evaluated Murphy to determine whether he was competent to stand trial and whether, at the time of the offense, he suffered from a mental disease or defect and was unable to appreciate the nature and quality or wrongfulness of his acts. Dr. King determined that Murphy did not suffer from a mental disease or defect. Murphy contested Dr. King's findings and sought funds for an independent mental-health expert.

Murphy made "a preliminary showing that his mental condition at the time of the offense is likely to be a significant factor at trial[; thus] due process require[d] that, at a minimum, a state provide access to a competent psychiatrist who [would] evaluate [him] 'and assist in evaluation, preparation, and presentation of the defense' at the guilt phase and at sentencing." Morris, 956 So.2d at 444. The circuit court, however, denied Murphy's motion, believing that Dr. King's court-ordered evaluation satisfied Murphy's right to due process. "[T]he trial court['s] belie[f] that [a] mental-health evaluation[ ] performed for the court, the results of which were made available to the parties, ... satisfied [the] due-process requirements ... misunderstood the holding of Ake v. Oklahoma." Morris, 956 So.2d at 447. Murphy was not merely entitled to a court-ordered, mental-health evaluation. He was entitled to a competent mental-health expert to "assist in evaluation, preparation, and presentation of [his mental-health] defense." Morris, 956 So.2d at 444. Accordingly, the circuit court erred by denying Murphy's motion for funds.

Further, this Court cannot say that the circuit court's error was harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) (holding that "before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt"). At trial, Murphy pursued a defense of not guilty by reason of mental disease or defect. To overcome that defense, the State presented as a witness Dr. King, who informed the jury that, in his opinion, Murphy did not suffer from any mental disease or defect. Murphy lacked a mental-health expert to aid in cross-examining Dr. King. Additionally, and more importantly, the need for a competent, mental-health expert was central to Murphy's ability to present his defense. He was not, however, afforded a mental-health expert to help him present his defense and, thus, was forced to attempt to establish his defense through his mother, a probate judge, and a psychiatrist who had not evaluated him to determine his sanity at the time of the offense. Based on these facts, this Court cannot say that the circuit court's decision to deny Murphy funds for a mental-health expert was harmless. As such, this Court must reverse Murphy's conviction and sentence.

Murphy's attempted-murder conviction and his sentence to 99 years in prison are reversed, and the cause is remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED.

Welch, Kellum, Burke, and Joiner, JJ., concur.

      According to the State, "Murphy was charged by separate indictment with the offense of domestic violence by strangulation in Lauderdale CC-16-226, see, e.g., (C. 38, 91), but the trial court later granted the State's motion to nol-pross the charge." (State's brief, at 1.)