author: WISE, Justice. SELLERS, Justice (dissenting).

text:
    Charlotte HARBIN v. Glenn E. ESTESS, Jr., as Personal Representative of the Estate of Lecil V. Thomas, et al.
    1170209
    Supreme Court of Alabama.
    July 27, 2018
    Rodney B. Slusher, Florence, for appellant.
    Matthew D. Fridy, Annemarie C. Axon, and Samuel T. Sessions of Wallace, Jordan, Ratliff & Brandt, L.L.C., Birmingham; and G. Rick Hall of Hall, Tanner & Hargett, P.C., Tuscumbia, for appellee Glenn E. Estess, Jr.; and William R. Hovater, Tuscumbia, for appellees Richard Thomas and Roger Thomas.
   WISE, Justice.

The plaintiff below, Charlotte Harbin, appeals from the Colbert Circuit Court's judgment in favor of the defendants below, Glenn E. Estess, Jr., as personal representative of the estate of Lecil V. Thomas; Richard Thomas; and Roger Thomas (hereinafter collectively referred to as "the appellees").

Facts and Procedural History

Lecil and Tommie Thomas were married and had three children, one of whom predeceased them. They had two surviving sons -- Richard Thomas and Roger Thomas (hereinafter collectively referred to as "Lecil's sons"). Lecil executed a will on November 30, 1995, and executed a codicil to that will on December 3, 2003. Tommie died on February 10, 2005. Lecil executed a second codicil to his will on February 13, 2008.

According to Harbin, she and Lecil started dating after Tommie's death. She also asserted that they lived together off and on until September 2009, when, she says, they started living together as husband and wife.

Lecil died on April 28, 2013. On May 30, 2013, Estess filed a petition for probate of Lecil's will in the Colbert County Probate Court. The petition listed Harbin as Lecil's "putative common-law wife." On May 30, 2013, the probate court admitted the will to probate and granted Estess letters testamentary.

On May 14, 2014, Harbin filed a petition in the probate court seeking an omitted spouse's share of Lecil's estate pursuant to § 43-8-90, Ala. Code 1975. In her petition, Harbin asserted that she was Lecil's common-law wife at the time of his death and that she had become Lecil's common-law wife after he had executed the will that had been admitted to probate. On July 3, 2014, Estess filed an objection to Harbin's petition. Harbin filed her response to that objection on July 7, 2014. Estess filed a petition for removal, and the administration of the estate was removed to the Colbert Circuit Court on October 7, 2014.

On April 30, 2015, Estess filed a renewed objection to Harbin's petition seeking a share as an omitted spouse, arguing that the circuit court did not have jurisdiction to consider her petition. Specifically, Estess asserted that, pursuant to § 43-2-350, Ala. Code 1975, Harbin was required to file her petition within six months after letters testamentary were granted; that Harbin did not file her petition within that six-month period; and that her petition thus was barred. Estess also asserted that Harbin could not establish that she was Lecil's common-law wife.

On May 5, 2015, Harbin filed a response. She asserted that, because § 43-8-90 does not include a time-bar, the circuit court had jurisdiction over her petition. She also asserted that "43-2-350(b), Ala. Code 1975, reaffirms [Harbin's] position by stating, 'The provisions of this subsection do not apply to heirs or devisees claiming as heirs or devisees.' " Harbin further asserted that she submitted clear and convincing evidence that would support a finding that a common-law marriage existed between her and Lecil.

On May 15, 2015, Estess filed a motion to dismiss or, in the alternative, for a summary judgment. Estess attached to the motion his affidavit and various supporting documents. On June 15, 2015, Harbin filed her response to Estess's motion. Harbin attached to her response her affidavit and several supporting documents.

On November 1, 2015, Lecil's sons filed a motion to intervene as defendants. They also filed a proposed answer and a proposed counterclaim seeking a judgment declaring that Harbin was not Lecil's common-law wife at the time of his death on April 28, 2013; that Harbin thus was not an omitted spouse; and that Harbin was not entitled to a share of Lecil's estate. On April 4, 2016, the circuit court granted the motion to intervene and deemed the answer and counterclaim as filed as of that date. Harbin subsequently filed an answer to Lecil's sons' counterclaim.

On October 25, 2017, apparently following a hearing, the circuit court entered the following order:

"Lecil V. Thomas ('Mr. Thomas') died on April 28, 2013. On May 30, 2013, the Probate Court admitted Mr. Thomas's Last Will and Testament to probate and granted Letters Testamentary to Glenn E. Estess, Jr. ('Mr. Estess'). Ms. Harbin is a beneficiary of Mr. Thomas's estate.
"As a beneficiary, Ms. Harbin was entitled to, and received notice of, the will's admission to Probate Court. Additionally, notice to 'all persons having claims against [Mr. Thomas's estate]' was published in the Colbert County Reporter Standard and Times informing potential claimants that they were required to file itemized and verified statements of claims in the office of the Judge of Probate by November 30, 2013 'or said claim will be barred and payment prohibited.' It is undisputed that Ms. Harbin communicated with Mr. Estess before the will was admitted to probate regarding a potential claim she had against Mr. Thomas's Estate. Ms. Harbin suggested 'if the estate [honored a $1,000[,000].00 check written during Mr. Thomas's lifetime], I will make no further claim against it.' It is also undisputed that Mr. Estess told Ms. Harbin that he could not honor the check. The matter was never discussed again, and Ms. Harbin did not file a claim by November 30, 2013.
"Over a year after Mr. Thomas's death, and almost six months after the claim period closed, Ms. Harbin filed a petition in the Probate Court's administration of Mr. Thomas's estate. The petition asks the Probate Court to declare that Ms. Harbin was the common-law spouse of Mr. Thomas, was omitted from Mr. Thomas's will, and as 'an omitted spouse of the decedent ... [is] therefore entitled to her intestate share.' Mr. Estess moved to dismiss Ms. Harbin's petition arguing that the Court lacked jurisdiction to hear Ms. Harbin's petition because it was filed more than six months after the will was admitted to probate. Ms. Harbin objected, alleging that her petition is the claim of an heir and therefore is not barred by § 43-2-350.
"Ms. Harbin filed her petition in the Probate Court as part of the probate administration of the Estate of Lecil V. Thomas. Regardless of how it is titled, Ms. Harbin's 'Petition' is legal assertion that she is Mr. Thomas's common-law spouse and her petition asks the Court to recognize her as such. The effect of such a recognition would necessarily impact the speedy, safe, and settlement [sic] of Mr. Thomas's estate, which is the very purpose of § 43-2-350. Motley v. Battle, 368 So.2d 20 (Ala. 1979). There is only one way to invoke the Court's jurisdiction to make such a declaration within the confines of an estate administration, and that is under § 43-2-350. And, until it is determined that Ms. Harbin is a common-law spouse, she is not an heir excepted from the requirements of § 43-2-350.
"Having read all of the submissions and heard oral arguments on the motion to dismiss, the Court finds:
"(1) That Ms. Harbin's petition constitutes a claim against the Estate of Lecil V. Thomas;
"(2) That the claim was filed after November 30, 2013; and
"(3) Is therefore barred by § 43-2-350."

This appeal followed.

Standard of Review

Because the circuit court indicated that it considered matters outside the pleadings, Estess's motion to dismiss was more properly treated as a motion for a summary judgment. See Lloyd Noland Found., Inc. v. HealthSouth Corp., 979 So.2d 784 (Ala. 2007).

"In Bruce v. Cole, 854 So.2d 47, 54 (Ala. 2003), this Court stated:
" 'Summary judgment is appropriate only when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Rule 56(c)(3), Ala. R. Civ. P., and Dobbs v. Shelby County Econ. & Indus. Dev. Auth., 749 So.2d 425 (Ala. 1999). The court must accept the tendencies of the evidence most favorable to the nonmoving party and must resolve all reasonable doubts in favor of the nonmoving party. System Dynamics Int'l, Inc. v. Boykin, 683 So.2d 419 (Ala. 1996). "[W]here the evidence is in conflict, the issue must [be tried to the fact-finder]." Kitchens v. Winn-Dixie Montgomery, Inc., 456 So.2d 45, 47 (Ala. 1984). In reviewing a summary judgment, an appellate court, de novo, applies the same standard as the trial court. Dobbs, supra. '
"( [E]mphasis added.)"

Blackmon v. Brazil, 895 So.2d 900, 904 (Ala. 2004).

Discussion

Harbin argues that the circuit court erroneously found that her claim was barred by § 43-2-350, Ala. Code 1975, a nonclaim statute, which provides:

"(a) All claims against the estate of a decedent, held by the personal representative of the decedent or by an assignee or transferee of the personal representative, or in which the personal representative has an interest, whether due or to become due, must be presented within six months after the grant of letters, or within five months from the date of the first publication of notice, whichever is the later to occur, provided however, that any creditor entitled to actual notice as prescribed in section 43-2-61 must be allowed thirty days after notice within which to present the claim, by filing the claims, or statement thereof, verified by affidavit, in the office of the judge of probate, in all respects as provided by section 43-2-352. All claims not so presented and filed are forever barred, and the payment or allowance thereof is prohibited. But this subsection shall not apply to claims of personal representatives to compensation for their services as such, nor to sums properly disbursed by them in the course of administration.
"(b) All claims against the estate of a decedent, other than the claims referred to in subsection (a) of this section, whether due or to become due, must be presented within six months after the grant of letters, or within five months from the date of the first publication of notice, whichever is the later to occur, provided however, that any creditor entitled to actual notice as prescribed in section 43-2-61 must be allowed 30 days after notice within which to present the claim, and if not presented within that time, they are forever barred and the payment or allowance thereof is prohibited. Presentation must be made by filing a verified claim or verified statement thereof in the office of the judge of probate of the county in which the letters are granted. Claims which have not been filed and which are liens against the property of the decedent may be paid by the personal representative to protect the assets of the estate. The provisions of this subsection do not apply to heirs or devisees claiming as heirs or devisees."

(Emphasis added.) Section 43-8-1(13), Ala. Code 1975, defines "heirs" as "[t]hose persons, including the surviving spouse, who are entitled under the statutes of intestate succession to the property of a decedent." (Emphasis added.) Section 43-8-90, Ala. Code 1975, the omitted-spouse statute, applies when "a testator fails to provide by will for his surviving spouse who married the testator after the execution of the will." (Emphasis added.) Thus, it is clear that § 43-2-350(b) does not apply to a claim for an omitted spouse's share pursuant to § 43-8-90, Ala. Code 1975.

It is undisputed that Harbin did not file her petition for an omitted spouse's share within six months after the grant of the letters testamentary. However, Harbin's claim is for an omitted spouse's share, which does not constitute a claim against the estate.

The appellees assert:

"Even if the petition for the omitted spouse share could be considered a 'claim against the estate by an heir,' a petition to declare someone a common-law spouse is not. Thus, it is not excepted from the scope of non-claim statute and must be filed within the six-month claim period, a practice common for those like Ms. Harbin seeking recognition of a common-law marriage for the purpose of establishing heirship."

(Appellees' brief at p. 17.) The appellees do not cite any authority to support their proposition that, when a person claims an omitted spouse's share as a common-law spouse, the threshold determination of whether a common-law marriage existed is separate and distinct from the claim for an omitted spouse's share. Also, they do not cite any authority that supports their assertion that a threshold determination regarding the existence of a common-law marriage is a claim against the estate, pursuant to § 43-2-350, Ala. Code 1975, subject to the time limits in the statute.

However, even if a threshold determination of whether a common-law marriage exists is a separate matter from Harbin's petition claiming an omitted spouse's share, such a determination does not constitute a claim against the estate pursuant to § 43-2-350. The original nonclaim statute in Alabama was enacted in 1815 and has existed in various forms since that time. See Jones v. Drewry, 72 Ala. 311 (1882). This Court has explained that the purpose of the nonclaim statute is to

"facilitate a safe and speedy settlement of estates, by furnishing the personal representative the means of determining its financial status within [the designated time] after his appointment."

McDowell v. Brantley, 80 Ala. 173, 177 (1885). As this Court noted in Fretwell v. McLemore, 52 Ala. 124, 142 (1875), the authority interpreting nonclaim statutes rests on the principle "that every claim or demand which can be made the foundation of suit against the personal representatives, and the recovery of which will diminish the assets in his hands, subject to administration for the benefit of creditors, of heirs or legatees, falls within the operation of statutes prescribing a bar to suits against him." This Court went on to explain:

"The claim of 'heirs or legatees claiming as such,' excepted from the operation of the statute of non-claim, is not a claim against, but a claim to the estate. It is a claim to that portion of the estate to which, if the person through whom they claim died intestate, they are entitled by virtue of the statutes of descents and distributions, or if he died testate, to which they succeed under his last will. If the administrator or executor dies, having specific property in his hands unadministered or unconverted, then as to such property the claim to it, whether preferred by heirs or legatees, or a succeeding representative, is not within the statute of non-claim. It is a claim of title, which, like all other claims of title, is not a claim chargeable on the assets in the hands of the personal representative for administration. Locke v. Palmer, 26 Ala. 312 [ (1855) ] ; Johnson v. Ames, 11 Pick. 173[, 28 Mass. 173] [ (Mass. 1831) ]."

Fretwell, 52 Ala. at 146 (emphasis added.)

"A claim, in the sense here used, is almost the synonym of moneyed demand; for it is required to be presented, only when money is claimed to be due. It has no reference to property alleged to be withheld. It must be payable in money, although it is not necessary it should be due and payable presently."

McDowell, 80 Ala. at 177.

In Gilbreath v. Levi, 270 Ala. 413, 119 So.2d 210 (1959), this Court addressed whether a widow and minor children's claim for a homestead exemption was a claim against the estate that had to be presented within the time limitations set forth in Title 61, § 211, Ala. Code 1940, the precursor to § 43-2-350. In addressing that issue, this Court stated:

"Alabama statutes do not contemplate that the claim for a homestead by the widow and minor children must be filed as a claim against the estate. 'To be a claim against the estate, there must be the relation of debtor and creditor; and we are not aware of any conceivable case in which the claims of heirs and legatees to the estate, or parts of it, can be called claims against the estate.' Harrison's Adm'r v. Harrison's Distributees, 39 Ala. 489, 496 [ (1864) ]."

Gilbreath, 270 Ala. at 418, 119 So.2d at 215 (some emphasis added).

In her petition seeking an omitted spouse's share of Lecil's estate, Harbin asserts that she is Lecil's common-law surviving spouse and that, therefore, she has an interest in a portion of Lecil's estate. Such a claim is a claim of title for purposes of the nonclaim statute and, therefore, not a claim against the estate. Cf. Fretwell, supra. A determination of whether Harbin was Lecil's common-law wife does not involve a relationship of debtor and creditor between Harbin and the estate. Cf. Gilbreath, supra. Also, a determination of whether a common-law marriage existed does not diminish the assets of the estate and does not affect the financial status of the estate. Cf. Fretwell, supra ; McDowell, supra. Finally, a request for a determination that Harbin is Lecil's common-law spouse, standing on its own, does not involve a claim for money. Cf. McDowell, supra. Thus, the appellees' argument in this regard is without merit.

In its order entering the judgment on Harbin's petition, the circuit court stated that Harbin's petition sought recognition that she was Lecil's common-law spouse. It reasoned that recognizing Harbin as Lecil's common-law wife "would necessarily impact the speedy, safe, and settlement [sic] of Mr. Thomas's estate." However, a spouse's claim for a homestead exemption would also affect the settlement of the estate, but this Court has held that such a claim does not constitute a claim against the estate that must be presented within the time limitations set forth in § 43-2-350. See Gilbreath, supra.

For the above-stated reasons, we hold that Harbin's petition seeking an omitted spouse's share of Lecil's estate was not a claim against the estate that had to be presented within the time set forth in § 43-2-350(b), Ala. Code 1975. Accordingly, the circuit court erred in denying Harbin's petition on that ground.

The appellees assert that, even if Harbin's petition was not barred by § 43-2-350, the circuit court could have properly entered a summary judgment because, they assert, Harbin "failed to support her claim of common-law marriage with substantial evidence that clearly and convincingly demonstrated that such a marriage occurred." (Appellees' brief at p. 22.) It is true that this Court

" ' " 'will affirm the judgment appealed from if supported on any valid legal ground.' " Smith v. Equifax Servs., Inc., 537 So.2d 463, 465 (Ala. 1988) (citation omitted).' "

Blackmon, 895 So.2d at 905 (Ala. 2004) (quoting Kingvision Pay-Per-View, Ltd. v. Ayers, 886 So.2d 45, 51 (Ala. 2003) ) (emphasis added; emphasis omitted).

"The Alabama Supreme Court stated in Lofton v. Estate of Weaver, 611 So.2d 335, 336 (Ala. 1992) :
" ' "Courts of this state closely scrutinize claims of common-law marriage and require clear and convincing proof thereof." Baker v. Townsend, 484 So.2d 1097, 1098 (Ala. Civ. App. 1986), citing Walton v. Walton, 409 So.2d 858 (Ala. Civ. App. 1982)....'
"Clear and convincing evidence is
" ' "[e]vidence that, when weighed against evidence in opposition, will produce in the mind of the trier of fact a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion. Proof by clear and convincing evidence requires a level of proof greater than a preponderance of the evidence or the substantial weight of the evidence, but less than beyond a reasonable doubt."
" '§ 6-11-20[ (b) ](4), Ala. Code 1975.'
" L.M. v. D.D.F., 840 So.2d 171, 179 (Ala. Civ. App. 2002).
" 'In Alabama, recognition of a common-law marriage requires proof of the following elements: (1) capacity; (2) present, mutual agreement to permanently enter the marriage relationship to the exclusion of all other relationships; and (3) public recognition of the relationship as a marriage and public assumption of marital duties and cohabitation. Stringer [v. Stringer ], 689 So.2d [194,] 195 [ (Ala. Civ. App. 1997) ], quoting Crosson v. Crosson, 668 So.2d 868, 870 (Ala. Civ. App. 1995), citing Boswell v. Boswell, 497 So.2d 479, 480 (Ala. 1986). Whether the essential elements of a common-law marriage exist is a question of fact. Stringer, supra, citing Johnson v. Johnson, 270 Ala. 587, 120 So.2d 739 (1960), and Arrow Trucking Lines v. Robinson, 507 So.2d 1332 (Ala. Civ. App. 1987). Whether the parties had the intent, or the mutual assent, to enter the marriage relationship is also a question of fact. See Mickle v. State, 21 So. 66 (1896).'
" Gray v. Bush, 835 So.2d 192, 194 (Ala. Civ. App. 2001)."

Melton v. Jenkins, 92 So.3d 105, 107 (Ala. Civ. App. 2012).

"[F]or trial courts ruling on motions for a summary judgment in civil cases to which a clear-and-convincing-evidence standard of proof applies, 'the judge must view the evidence presented through the prism of the substantive evidentiary burden'; thus, the appellate court must also look through a prism to determine whether there was substantial evidence before the trial court to support a factual finding, based upon the trial court's weighing of the evidence, that would 'produce in the mind [of the trial court] a firm conviction as to each element of the claim and a high probability as to the correctness of the conclusion.' ..."

Ex parte McInish, 47 So.3d 767, 778 (Ala. 2008). With regard to a summary judgment, this Court has also stated that, " ' "[w]here the evidence is in conflict, the issue must [be tried to the fact-finder]." Kitchens v. Winn-Dixie Montgomery, Inc., 456 So.2d 45, 47 (Ala. 1984).' " Blackmon, 895 So.2d at 904 (quoting Bruce v. Cole, 854 So.2d 47, 54 (Ala. 2003) ).

In this case, there was no argument that Lecil and Harbin lacked the capacity to marry. Rather, the question is whether Lecil and Harbin had a "present, mutual agreement to permanently enter the marriage relationship to the exclusion of all other relationships" and whether there was "public recognition of the relationship as a marriage and public assumption of marital duties." Melton, 92 So.3d at 107. The evidence before the circuit court showed that Estess, who was an attorney, sent letters to Lecil regarding Lecil's estate planning. In a letter to Lecil dated July 10, 2012, Estess stated: "I wanted to remind you that we have not revised your will to provide for Charlotte." In a letter to Lecil that was dated August 16, 2012, Estess stated, in pertinent part:

"This letter is to confirm our discussion about two very important matters:
"First, Charlotte will be entitled to one-third (1/3) of your estate upon your death as a result of her being your 'common-law' wife. If you do not want her to receive this much, then I would recommend you negotiate a Nuptial Agreement with her and participate in a civil service to formally recognize her as your spouse. Once the Nuptial Agreement is in place, your will can be revised to provide a benefit for her lifetime. Ideally, you could provide her with a trust fund, the balance of which ultimately would return to your sons or grandchildren upon her death."

(Emphasis added.) Estess also sent a letter to Lecil dated September 7, 2012, to which he attached a draft of a will and a memorandum summarizing the provisions of the draft will. The memorandum stated, in pertinent part:

"Item VI disposes of the balance of your estate. Item VI(a) states that if Charlotte survives you, she is to receive one-third (1/3) of your residuary estate outright. This provision also contains a statement that you consider Charlotte to be your common-law wife and all provisions of your will are to be interpreted as if she is your spouse."

The second paragraph of the draft will states, in pertinent part: "All references hereto to my wife shall refer to CHARLOTTE HARBIN." The draft will was signed by Lecil, but it was not signed by any witnesses.

In support of the motion for a summary judgment, Estess attached his affidavit in which he stated, in pertinent part:

"17. ... I also advised [Harbin] could claim that she was Mr. Thomas's common-law spouse. I explained the elements of common-law marriage to Mr. Thomas, Mr. Thomas specifically denied referring to Ms. Harbin as his wife.
"18. Mr. Thomas repeatedly told me that he loved Ms. Harbin but that he did want to marry Ms. Harbin [sic].
"19. Mr. Thomas also told me that he could not marry Ms. Harbin because he promised his late wife Tommie that he would not remarry.
"20. In August 2012, Mr. Thomas instructed me to draft a will that provided for Ms. Harbin.
"21. Mr. Thomas did not instruct me to identify Ms. Harbin as his wife....
"22. Shortly after I sent the will to Mr. Thomas, I went to visit him. He informed me that he would not sign the will but instructed me to prepare a deed for the house identified in the draft will so that Mr. Thomas could transfer it to Ms. Harbin.
"23. I have reviewed the personal income tax returns filed by Mr. Thomas during the period from 2009 through 2011. In each of these returns, Mr. Thomas identifies himself as single."

In response, Harbin presented evidence indicating that she and Lecil began living together as husband and wife in September 2009; that she and Lecil had telephoned his sons to tell them that they were married; that, after that, they held themselves "out to the public as husband and wife and acknowledged [their] agreement to each other to live together as a married couple"; that, at Lecil's request, she quit her job in January 2010 to stay at home with him and to live together as husband and wife; that she and Lecil opened a joint checking account at Regions Bank; and that Lecil had added her to two of his credit-card accounts. The checks for the Regions Bank account included the names "Lecil Thomas" and "Charlotte Thomas." Additionally, Harbin attached copies of checks written on an account at Bank Independent. The only name included on those checks was "Lecil V. Thomas." One of those checks was made payable to "Charlotte Thomas" in the amount of $300,000, and appeared to be signed by Lecil. Harbin also attached a copy of one of the credit cards that showed her name as "Charlotte Thomas."

Further, in her affidavit, Harbin stated:

"Attached as Exhibit 'C' is a letter to [Lecil] dated September 7, 2012, from Glenn E. Estess, Jr., with a draft of a Will and memorandum prepared by Mr. Estess. On page 26 of the Will draft is the signature of my late husband. Lee signed the Will draft at our home on Foster Nolan Road. We had moved to this house from 1174 N. Shore Drive. Mr. Estess was supposed to come see Lee to discuss the Will but never came."

Harbin also submitted the copy of an information sheet from Lecil's medical records at a health facility identified as the Spine & Neuro Center. The sheet indicated that Lecil was married and that his wife was "Charlotte Thomas." The information sheet was dated January 28, 2013, and appeared to be signed by Lecil.

Additionally, Lecil's death certificate indicated that Lecil was married; listed Harbin as Lecil's spouse; and indicated that one of Lecil's sons was the informant. Finally, Lecil's obituary listed Harbin as his wife, and Harbin said that she and Lecil's sons were present when the information for the obituary was provided.

In this case, there is a conflict in the evidence as to whether a common-law marriage existed. Therefore, there is a genuine issue of material fact as to whether a common-law marriage existed, and the circuit court could not have validly entered a summary judgment in favor of Estess on the ground that a common-law marriage did not exist based on the evidence before it. Thus, the appellees' argument in this regard is without merit.

Conclusion

For the above-stated reasons, the circuit court erroneously entered a judgment for the appellees on Harbin's petition seeking an omitted spouse's share. Accordingly, we reverse the circuit court's judgment and remand this case for proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

Shaw, J., concurs in the result.

Sellers, J., dissents.

SELLERS, Justice (dissenting).

I respectfully dissent from the main opinion. I cannot conclude that the judgment in favor of Glenn E. Estess, Jr., as personal representative of the estate of Lecil V. Thomas, and Richard Thomas and Roger Thomas on the basis that Charlotte Harbin's petition was time-barred under Ala. Code 1975, § 43-2-350, was erroneously entered. Section 43-2-350, the nonclaim statute, mandates that all claims against an estate must be presented within six months after the grant of letters testamentary or of administration--the only exception being that the statute does not apply to "heirs or devisees claiming as heirs or devisees." § 43-2-350(b), Ala. Code 1975. But, even heirs are limited by § 43-8-199, Ala. Code 1975, and are required to file a will contest within six months after the admission of a will to probate. Six months, in my opinion, seems to be the uniform time required that actions involving an estate be commenced.

On May 30, 2013, the probate court admitted Lecil's will to probate and granted letters testamentary to Estess, the personal representative of his estate. The limitations period for filing a claim against Lecil's estate expired on November 30, 2013. On May 14, 2014, Harbin filed a petition in the probate court seeking a declaration that she was Lecil's common-law spouse, that she had been omitted from his will, and that she was entitled to an intestate share of his estate under § 43-8-90, Ala. Code 1975. The circuit court, to which the proceedings had been removed, concluded that, because Harbin had filed her petition as part of the administration of Lecil's estate and because there had been no determination that Harbin was Lecil's common-law spouse, Harbin was not an "heir" excepted from the time requirements of § 43-2-350(b). Even assuming Harbin had been declared an omitted common-law spouse, I decline to accept her position that § 43-8-90 would allow her to sleep on her rights and wait over one year after Lecil died to file a claim she knew existed at the time of his death. Section 43-8-90 should be construed in pari materia with § 43-2-350 and other related sections of the probate code to provide, in relevant part, that an omitted spouse shall file a petition within the later of six months after the decedent's date of death or six months after the probate of the decedent's will. See Fretwell v. McLemore, 52 Ala. 124, 138 (1875) (noting that the probate statutes "in reference to the probate of wills, the grant of letters testamentary and of administration, the collection, preservation, and distribution of the assets, the payment of debts and legacies, the enforcement of the liability of executors and administrators to creditors, heirs, and legatees, and to their successors in the administration" are "in pari materia, and when a judicial construction is placed on any one of them, it would not only be unsafe, but would mar and disturb the harmony of the system, if its connection with and relation to other parts was not observed and kept in view"); see also § 43-8-73, Ala. Code 1975 (providing, in pertinent part, that a "surviving spouse may elect to take his elective share by filing with the court ... a petition for the elective share within six months after the date of death"); and § 43-2-138, Ala. Code 1975 (providing, in pertinent part, that "[a]ny legatee, after six moths from the grant of letters testamentary or of administration, with the will annexed, may bring a civil action and recover his legacy"). As previously noted, and barring some grossly inequitable result, I believe the six-month limitations period in § 43-2-350 is the uniform time limit for most, if not all, probate matters to be filed to alert the personal representative or administrator of an estate of a potential claim that could diminish the gross estate. As it stands, the holding of the main opinion creates a scenario in which beneficiaries under a will could receive their bequests beginning six months after probate of the will, only to have those bequests subject to recapture years later by a person alleging to be an "omitted" common-law spouse of the decedent. This scenario certainly violates the purpose and goal of the currently existing probate structure, i.e., the speedy and effective administration of the decedent's probate estate. Accordingly, I would affirm the judgment of the circuit court in favor of Estess and Lecil's sons on the basis that Harbin's petition is barred by the six-month limitations period in § 43-2-350.

      In her original petition in the probate court, Harbin refers to herself a "Charlotte Harbin." However, in other places, she refers to herself as "Charlotte Harbin Thomas" or "Charlotte Thomas." For ease of reference, we refer to her as "Harbin" in this opinion.

      As the Court of Civil Appeals noted in Dunning v. Mayhew, 240 So.3d 616, 616 n. 1 (Ala. Civ. App. 2017) :
      "The common-law marriage at issue in this case was entered into before January 1, 2017, the effective date of § 30-1-20, Ala. Code 1975, which provides that '[n]o common-law marriage may be entered into in this state on or after January 1, 2017,' but that '[a]n otherwise valid common-law marriage entered into before January 1, 2017, shall continue to be valid in this state.' "

      It appears that the circuit court conducted a hearing on Estess's motion, but a transcript of that hearing is not included in the record on appeal.

      In its order, the circuit court indicated that the amount of the check was "$1,000.00." However, it appears undisputed that the amount of the check was actually $1,000,000.

      Rather, the appellees cite Alabama cases in which the dates listed in the facts indicate that the claim for the omitted spouse's share had been filed within six months. However, the courts did not address the timeliness of those petitions or any issue regarding when such a petition must be filed. At best, it appears that the appellees cite these cases to support their assertion that it is common practice for "those ... seeking recognition of a common law marriage for the purpose of establishing heirship" to file a petition within six months. (Appellees' brief at p. 17.)


source: Caselaw Access Project

author: MOORE, Judge.

license: Public Domain

text:
    LAWLER AND COLE CPAS, LLC, and Alabama Retail Association d/b/a Alabama Retail Comp v. Donald COLE
    2170162
    Court of Civil Appeals of Alabama.
    July 13, 2018
    Joseph H. Driver and Christopher E. Dorough of Carr Allison, Birmingham, for appellants.
    Matthew D. Fridy, Stephen P. Leara, Thomas A. McKnight, Jr., and Lauren G. Walker of Wallace, Jordan, Ratliff & Brandt, LLC, Birmingham, for appellee.
   MOORE, Judge.

Lawler and Cole CPAs, LLC ("the employer"), and Alabama Retail Association d/b/a Alabama Retail Comp ("Alabama Retail") appeal from a judgment of the Marion Circuit Court ("the trial court") awarding workers' compensation benefits to Donald Cole ("Cole"), the surviving spouse of Linda Cole, who is deceased, under the Alabama Workers' Compensation Act ("the Act"), Ala. Code 1975, § 25-5-1 et seq. We affirm the trial court's judgment.

Procedural History

On October 5, 2016, Cole filed a complaint against the employer and Alabama Retail, asserting, among other things, that Linda Cole ("the employee") had been employed by the employer, that the employee died while at her place of employment, that the employer maintained with Alabama Retail a workers' compensation and employer's liability-insurance policy, and that the employer and Alabama Retail had failed or refused to pay to Cole any workers' compensation benefits as a result of the employee's death. The complaint sought an award of workers' compensation benefits on behalf of Cole, the employee's surviving spouse and next of kin. The employer and Alabama Retail filed separate answers, each denying certain of Cole's claims and asserting a number of defenses.

On July 25, 2017, Cole filed a motion for a summary judgment, along with evidentiary submissions in support thereof. On September 25, 2017, the employer and Alabama Retail filed a joint motion for a summary judgment, along with evidentiary submissions in support thereof. The trial court entered an order on October 6, 2017, determining that the death of the employee "was a compensable accident under [the Act] because it arose out of her employment." On October 26, 2017, the trial court entered a summary judgment in favor of Cole and denied the summary-judgment motion filed by the employer and Alabama Retail. This appeal follows.

Facts

The parties on appeal agree that the facts regarding the circumstances of the death of the employee are undisputed. On February 20, 2016, the employee was on the employment premises performing her duties for the employer as an accountant when Jimmy Dale Cooper entered the premises for the express purpose of assaulting the employee and shot and killed the employee.

Cooper had been a long-time client of the employee, who had handled Cooper's individual and business taxes since at least the 1980s. At some point, Cooper's business underwent a sales-tax audit resulting in liability for unpaid sales taxes. Subsequently, the Alabama Department of Industrial Relations ("the Department") audited Cooper's business. During that audit, Cooper refused to comply with the lawful requests of the Department. The employee informed Cooper that she would not be able to provide him accounting services if he would not comply with the law; in response, Cooper had said he would find another accountant. In 2007 or 2008, Cooper collected copies of his paperwork and requested a final bill from the employer. The employee told Cooper that they were friends, that she did not want any hard feelings between them, and that Cooper did not owe anything to the employer. The audit apparently continued thereafter, ultimately resulting in fines and penalties being imposed against Cooper or his business for failing to properly classify certain workers as employees and for failing to pay appropriate withholding taxes.

The record contains no evidence indicating that the employee and Cooper had any further interaction. Approximately two years before the employee was killed, April Cagle, the employee's daughter who also worked for the employer as an accountant, had talked with Cooper over the telephone about an unrelated matter and Cooper had not mentioned his tax problems. About a year before the employee's death, Donny Miller, Cooper's former business partner, warned Johnny Mack Lawler, the employee's business partner, that Cooper was upset with the employee and blamed her for his tax problems. In reference to Cooper, Miller told Lawler: "Y'all need to be careful."

On February 10, 2016, Cooper went to the office of a Hamilton attorney, Scott Hunt. Cooper held Hunt at gunpoint to coerce Hunt into telephoning Miller and requesting, under false pretenses, that he come down to Hunt's office. Hunt later informed Cagle that, while waiting for Miller to arrive at his office, Cooper had told Hunt "in detail everything that he was going to do and to whom and why" and that "the reason that [Cooper] was [going] after [the employee] was because he blamed her for his tax problems in the past." When Miller arrived at Hunt's office, Cooper appeared from a hiding place and shot Miller. Cooper then attempted to shoot Hunt, but his gun jammed. Cooper then apparently went to the office of the person who was performing his accounting services at that time with the intent to kill that accountant, but he was unable to gain access to that office.

Cooper thereafter entered the offices of the employer, gave a false name to the receptionist, and indicated that he wanted to see the employee for tax-accounting purposes. The employee was working on a client's income-tax return at the time. As the employee's client was leaving the employee's office, Cooper walked down the hall from the reception area into the employee's office. Once Cooper was in the employee's office, the employee attempted to contact the receptionist, and, shortly afterward, the employee left her office and started down the hall. Cagle heard Cooper say to the employee: "You have f***** my taxes up for the last time," and she heard the employee respond to Cooper, saying: "Jimmy, please don't do this" and "I will help you, we will do what we can to fix ... this mess, but I will help you." Cooper then shot the employee three times, resulting in the employee's death.

Both Cagle and Lawler testified in their depositions that they did not know of any other reason that Cooper would have had any personal ill will against the employee and that the employee had not had any interaction with Cooper between the end of the employer's services regarding his taxes in 2007 or 2008 and his return to the employer's offices in February 2016, when he shot the employee. Cagle testified that, approximately six months before the shootings, Cooper had spent six weeks in two different mental institutions, but no further evidence was presented regarding Cooper's mental health.

Issue

The employer and Alabama Retail contend that the death of the employee was not, as a matter of law, a compensable accident and that the trial court, therefore, erred by denying their motion for a summary judgment and by granting the motion for a summary judgment filed by Cole. The employer and Alabama Retail request this court to reverse the judgment of the trial court and to render a judgment denying Cole any death benefits.

Standard of Review

In workers' compensation cases, as in other civil cases, this court reviews a summary judgment de novo. See Stough ex rel. Stough v. B & B Pallet Repair, Inc., 778 So.2d 193 (Ala. Civ. App. 2000). A summary judgment is proper only when there is no genuine issue of material fact and the movant is entitled to a judgment as a matter of law. Meeks v. Thompson Tractor Co., 686 So.2d 1213, 1215 (Ala. Civ. App. 1996) ; Rule 56, Ala. R. Civ. P. In this case, the parties to the appeal all agree that there is no genuine issue of material fact regarding the circumstances of the employee's death. The employer and Alabama Retail would be entitled to a summary judgment only if the death of the employee was not a compensable accident under applicable law.

Discussion

Death benefits may be awarded to the surviving spouse of an employee only when the death of the employee has been caused by an accident arising out of and in the course of the employment. See Ala. Code 1975, §§ 25-5-51 & 25-5-60. In this case, the employer and Alabama Retail argue that Cole's claim for death benefits should have been denied because, they say, the shooting death of the employee was not caused by an accident arising out of her employment.

Alabama law has long recognized that an unexpected willful assault upon an employee by another person constitutes an accident for purposes of the Act. See Garrett v. Gadsden Cooperage Co., 209 Ala. 223, 96 So. 188 (1923). Generally speaking, for the intentional assault upon an employee to be considered an accident arising out of the employment, "the rational mind must be able to trace the resultant [death] to a proximate cause set in motion by the employment, and not by some other agency." Beverly v. Ruth's Chris Steak House, 682 So.2d 1360, 1362 (Ala. Civ. App. 1996). In the context of workers' compensation cases, the employment may be the "proximate cause" of an accident even if the assault was not foreseeable as a natural and anticipated risk of the employment. See Garrett, supra ; Ex parte Terry, 211 Ala. 418, 100 So. 768 (1924).

The Alabama Legislature has enacted a special statute that further clarifies the scope of coverage for injuries and deaths resulting from intentional assault. Section 25-5-1(9), Ala. Code 1975, defines "injury" as "only injury by accident arising out of and in the course of the employment" and provides further, in pertinent part, that "[i]njury does not include an injury caused by the act of a third person ... intended to injure the employee because of reasons personal to him or her and not directed against him or her as an employee or because of his or her employment." The plain language of § 25-5-1(9) clearly and unambiguously provides that an intentional assault does not arise out of the employment if it is committed upon an employee because of reasons personal to the employee and not because of his or her status as an employee or because of his or her employment. See Ex parte Morris, 999 So.2d 932, 938 (Ala. 2008) (" ' "If a statute is not ambiguous or unclear, the courts are not authorized to indulge in conjecture as to the intent of the Legislature or to look to consequences of the interpretation of the law as written." ' " (quoting Gray v. Gray, 947 So.2d 1045, 1050 (Ala. 2006), quoting in turn Ex parte Presse, 554 So.2d 406, 411 (Ala. 1989) ) ).

In this case, the undisputed evidence shows that Cooper intentionally assaulted and killed the employee not out of any personal ill will, but solely because of their working relationship. Cooper apparently blamed the employee, as well as his former business partner, his accountant at the time of the shooting, and other professionals, for his tax problems and financial difficulties. While holding Hunt hostage, Cooper explained in detail to Hunt that he specifically planned to shoot the employee because he blamed her for his past tax problems. Immediately before opening fire on the employee, Cooper unmistakably expressed his intent to kill the employee because she had "f***** up [his] taxes." The employee responded that she would help Cooper "fix this mess," plainly referring to the tax problems and not to some other unrelated matter. The record contains no evidence of any other possible motivation for the assault.

The employer and Alabama Retail point out that Cole presented no evidence indicating that the employee had actually caused any of Cooper's tax problems. Under § 25-5-1(9), the pertinent inquiry concerns whether the rational mind can trace the assault on the employee to her status as an employee or because of her employment as opposed to some personal characteristic of the employee, see Ex parte N.J.J., 9 So.3d 455 (Ala. 2008) (racially motivated rape occurring at employment premises held not compensable), or to some purely personal relationship. See Jacobs v. Bowden Elec. Co., 601 So.2d 1021 (Ala. Civ. App. 1992) (assault upon employee at work by emotionally disturbed nephew held not compensable). In this case, it is without question that Cooper directed his assault against the employee because she was his former accountant and she had been working as his accountant when the audits that led to his tax problems first occurred. Regardless of whether the employee actually contributed to any of Cooper's tax problems, it remains that Cooper assaulted and killed the employee because of her status as his former accountant and because of her employment.

We reject the contention that the assault should be considered as a purely personal attack because of the long passage of time since the professional relationship between Cooper and the employee ended. As the employer and Alabama Retail point out, the evidence indicates that Cooper and the employee amicably ended their accountant-client relationship following a disagreement over Cooper's refusal to follow tax laws and tax-audit requirements. Nearly a decade passed before Cooper stalked and killed the employee. Although the record is vague as to what transpired during that period, it is clear on the point that Cooper had not interacted with the employee at all and that Cooper had not developed any ill will or anger toward the employee for any reasons other than his perception that she had contributed to his tax problems and financial difficulties.

In Martin v. Sloss-Sheffield Steel & Iron Co., 216 Ala. 500, 113 So. 578 (1927), two employees quarreled over work-performance issues. After the argument ended, the two employees separated for a period. After the project ended, one of the employees went to an area of the employment premises to rest when he was verbally accosted and taunted into fighting by the other employee. The resting employee eventually picked up a piece of iron and struck the other employee in the head, killing him instantly. Our supreme court, applying the certiorari standard of review, affirmed the judgment of the trial court that had concluded that the original work-related argument had subsided and that the second confrontation had arisen from personal anger and resentment unrelated to the employment.

Notably, in Martin our supreme court did not hold that an employment-related dispute would be transformed into a purely personal dispute based solely on the passage of time, a proposition this court clearly rejected in Beverly v Ruth's Chris Steak House, supra, in which this court reversed a judgment denying compensation to an employee who was injured by a co-employee who he had confronted about stealing the employer's shrimp approximately 20 minutes earlier. In Beverly, this court distinguished Martin as follows:

"The facts of Martin in no way resemble the facts presented here. Although Flood and Beverly separated after their initial altercation, Flood attacked Beverly within minutes of Beverly's return to his post in the kitchen, while Beverly was engaged in the performance of his duties. There is no evidence that Flood and Beverly renewed their quarrel, or that Beverly taunted Flood in any way, after Beverly returned from his break; the record reveals that the two men did not speak to one another again before Flood doused Beverly with the boiling water. Under the evidence presented here, we are unwilling to hold that a 20-minute interval between the initial quarrel and the attack, without more, was sufficient to transform the basis of Flood's resentment toward Beverly from anger at being thwarted in his thievery to a pure and personal ill will that was unrelated to Beverly's performance of his duties. Clearly, Beverly was attacked at his post in the kitchen as a result of his employment duties, i.e., because he successfully prevented the theft of the restaurant's food."

682 So.2d at 1363.

In this case, as in Beverly, no personal dispute arose between Cooper and the employee following the original work-related disagreement that had led to the end of their client-accountant relationship. Whatever anger and resentment Cooper had developed toward the employee over the years after the termination of that relationship, without evidence of some intervening circumstances, cannot be characterized as purely personal ill will and animosity unrelated to their past working relationship, like the trial court found in Martin. Rather, the record very clearly shows that, over time, the tax problems and financial difficulties Cooper encountered eventually motivated him to harm those professionals, including the employee, who he blamed for those problems. The undisputed evidence indicates that, at all times, Cooper's grievance with the employee remained rooted in their working, not personal, relationship.

Because the trial court correctly concluded in this case that the death of the employee was caused by an accident arising out of the employment, we affirm the trial court's judgment awarding benefits to Cole.

AFFIRMED.

Thompson, P.J., and Pittman and Donaldson, JJ., concur.

Thomas, J., not sitting.

      Cole filed his complaint both in his capacity as the personal representative of the estate of Linda Cole and as her dependent surviving spouse. However, the personal representative of the estate of a deceased employee does not have a claim for death benefits when the employee dies leaving a dependent surviving spouse. See, e.g., Johnson v. Huxford Pole & Timber Co., 983 So.2d 1133, 1138 (Ala. Civ. App. 2007). Accordingly, we deem the complaint to have been prosecuted by Cole solely as Linda Cole's dependent surviving spouse.

      We note that the Act does not provide for the filing of a direct action against an insurer or a self-insurance fund under the circumstances of the present case, see § 25-5-8(f)(4), Ala. Code 1975, and Thomason v. Midland Ins. Co., 380 So.2d 902 (Ala. Civ. App. 1980) ; however, because none of the parties objected to the joinder of Alabama Retail as a defendant, the judgment was entered in the trial court against Alabama Retail without objection, and the parties have failed to raise the issue on appeal, the issue has been waived, and, accordingly, we consider Alabama Retail to be a proper appellant for purposes of the present appeal. See Gary v. Crouch, 923 So.2d 1130, 1136 (Ala. Civ. App. 2005) ("[T]his court is confined in its review to addressing the arguments raised by the parties in their briefs on appeal; arguments not raised by the parties are waived.").

      We do not consider the vague reference to Cooper's having enrolled in a mental-health institution, without more, as substantial evidence of an intervening cause. The employer did not present any evidence indicating that Cooper had been diagnosed with any mental illness or that a mental illness had caused him to assault the employee six months after enrolling in a mental-health institution.


author: PITTMAN, Judge.

text:
    W.L. v. D.B. and R.B.
    2170202
    Court of Civil Appeals of Alabama.
    July 13, 2018
    Charles E. Johns, Jr., Brewton, for appellant.
    Kevin O. McKinley, Atmore, for appellees.
   PITTMAN, Judge.

W.L. ("the father") appeals from a judgment of the Escambia Juvenile Court ("the juvenile court") denying his petition seeking custody of G.A.M. ("the child"), a boy born in June 2016. Because we conclude that the juvenile court did not have before it a necessary party who should have been joined if feasible, we reverse and remand.

M.M. ("the mother") gave birth to the child prematurely after only 25 weeks of gestation. The child was born with life-threatening medical problems and was treated in the intensive-care unit of a hospital for eight months after his birth. When the final hearing in this action was held, the child was approximately 16 months old and still required 24-hour care.

In July 2016, the Escambia County Department of Human Resources ("DHR") filed a dependency petition, which was assigned case number JU-16-106.01, alleging that the mother was unable to care for the child and that the identity of the child's father was unknown. DHR's petition alleged that, the day after the child's birth, it had received a report that the mother had had cocaine, methamphetamine, and amphetamines in her system when she had given birth to the child and that the child also had had illegal drugs in his system. DHR's petition further alleged that it had an ongoing investigation of the mother based on a report that she had neglected her other child and that the mother had informed DHR that she had criminal charges pending against her in both Alabama and Florida. The petition asked the juvenile court to award temporary custody of the child to D.B. and R.B. ("the grandparents"), the child's maternal grandfather and maternal stepgrandmother. Following a hearing, the juvenile court entered an order finding that the child was dependent, awarding the grandparents pendente lite custody of the child, granting the grandparents the authority to secure emergency medical treatment for the child while he was in their custody, and providing that the mother could have supervised visitation with the child at the discretion of the grandparents.

In September 2016, the father filed a petition for custody of the child, which was assigned case number JU-16-106.02 ("the .02 action"). The juvenile court appointed a guardian ad litem to represent the child and appointed counsel to represent the father. The grandparents were served with process; however, no attempt was made to serve the mother with process. The juvenile court subsequently entered an order requiring DNA testing of the father and the child, and the mother was served with a copy of that order by certified mail while she was incarcerated in Santa Rosa County, Florida. The mother never filed any pleadings or motions or appeared at any hearings in the .02 action. The results of the DNA test established that the father was indeed the child's father. In September 2017, the juvenile court entered an order awarding the father two hours of visitation with the child each Saturday, with the visitation to be supervised by the grandparents. Following a final hearing, the juvenile court entered a judgment that implicitly found that the child remained dependent, found that the father did not have the necessary family-support system to provide the child with the 24-hour care he needed, found that the grandparents did have such a family-support system, denied the father's petition for custody, maintained the grandparents' pendente lite custody, and maintained the visitation previously awarded the father.

The father timely filed a postjudgment motion, which the juvenile court denied. The father then timely filed a notice of appeal. This court has jurisdiction over the appeal pursuant to Rule 28(A)(1)(c)(i), Ala. R. Juv. P.

Neither the father nor the grandparents raised an issue regarding the failure to join the mother as a party in the juvenile court, and neither the father nor the grandparents have raised that issue on appeal. However,

" '[f]ailure of the plaintiff or the trial court to add a necessary and indispensable party, and of the defendant to raise the absence of such party in his or her pleadings, does not necessarily dispose of the issue. This defect can be raised for the first time on appeal by the parties or by the appellate court ex mero motu.' "

Chicago Title Ins. Co. v. American Guar. & Liab. Ins. Co., 892 So.2d 369, 371 (Ala. 2004) (quoting J.C. Jacobs Banking Co. v. Campbell, 406 So.2d 834, 850 (Ala. 1981) ).

In pertinent part, Rule 19, Ala. R. Civ. P., provides:

"(a) Persons to Be Joined if Feasible. A person who is subject to jurisdiction of the court shall be joined as a party in the action if (1) in the person's absence complete relief cannot be accorded among those already parties, or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person's absence may (i) as a practical matter impair or impede the person's ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest. If the person has not been so joined, the court shall order that the person be made a party. If the person should join as a plaintiff but refuses to do so, the person may be made a defendant, or, in a proper case, an involuntary plaintiff. If the joined party objects to venue and joinder of that party would render the venue of the action improper, that party shall be dismissed from the action.
"(b) Determination by Court Whenever Joinder Not Feasible. If a person as described in subdivision (a)(1)-(2) hereof cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable. The factors to be considered by the court include: first, to what extent a judgment rendered in the person's absence might be prejudicial to the person or those already parties; second, the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; third, whether a judgment rendered in the person's absence will be adequate; fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder."

In Hall v. Reynolds, 60 So.3d 927, 929-30 (Ala. Civ. App. 2010), this court stated:

" Rule 19(a) defines who is a necessary party to an action. Prime Lithotripter Operations, Inc. v. LithoMedTech of Alabama, LLC, 855 So.2d 1085, 1092 (Ala. Civ. App. 2001) ; Adams v. Boyles, 610 So.2d 1156, 1157 (Ala. 1992). See also Committee Comments on 1973 Adoption of Rule 19. Certain necessary parties are also indispensable parties under Rule 19(b) :
" 'A party is an indispensable party pursuant to Rule 19(b), Ala. R. Civ. P., if: (1) he is a necessary party under the definition of Rule 19(a) ; (2) he cannot be made a party to the action; and (3) the trial court concludes that in equity and good conscience the action cannot proceed without the absent party.'
" 855 So.2d at 1092.
"Our supreme court discussed the application of Rule 19 in Liberty National Life Insurance Co. v. University of Alabama Health Services Foundation, P.C., 881 So.2d 1013 (Ala. 2003) :
" 'We have discussed the application of Rule 19 as follows:
" ' " 'Rule 19, Ala. R. Civ. P., provides for joinder of persons needed for just adjudication. Its purposes include the promotion of judicial efficiency and the final determination of litigation by including all parties directly interested in the controversy. Hooper v. Huey, 293 Ala. 63, 69, 300 So.2d 100, 105 (1974), overruled on other grounds, Bardin v. Jones, 371 So.2d 23 (Ala. 1979).' "
" ' Dawkins v. Walker, 794 So.2d 333, 336 (Ala. 2001) (quoting Byrd Cos. v. Smith, 591 So.2d 844, 846 (Ala. 1991) ).
" ' " Rule 19, [Ala.] R. Civ. P., provides a two-step process for the trial court to follow in determining whether a party is necessary or indispensable. Ross v. Luton, 456 So.2d 249, 256 (Ala. 1984), citing Note, Rule 19 in Alabama, 33 Ala. L. Rev. 439, 446 (1982). First, the court must determine whether the absentee is one who should be joined if feasible under subdivision (a). If the court determines that the absentee should be joined but cannot be made a party, the provisions of (b) are used to determine whether an action can proceed in the absence of such a person. Loving v. Wilson, 494 So.2d 68 (Ala. 1986) ; Ross v. Luton, 456 So.2d 249 (Ala. 1984). It is the plaintiff's duty under this rule to join as a party anyone required to be joined. J.C. Jacobs Banking Co. v. Campbell, 406 So.2d 834 (Ala. 1981).
" ' " 'If such persons are not joined, the plaintiff must, under subsection (c) of Rule 19, [Ala. R. Civ. P.], state their names and the reasons why they are not joined. If there is a failure to join a person needed for just adjudication by a litigant then under subsection (a) of Rule 19, the trial court shall order that he be made a party.'
" ' " 406 So.2d at 849-50....
" ' "We note that the interest to be protected must be a legally protected interest, not just a financial interest. Ross, supra ; see Realty Growth Investors v. Commercial & Indus. Bank, 370 So.2d 297 (Ala. Civ. App. 1979), cert. denied, 370 So.2d 306 (Ala. 1979). There is no prescribed formula for determining whether a party is a necessary one or an indispensable one. This question is to be decided in the context of each particular case. J.R. McClenney & Son v. Reimer, 435 So.2d 50 (Ala. 1983), citing Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 88 S.Ct. 733, 19 L.Ed. 2d 936 (1968)."
" ' Holland v. City of Alabaster, 566 So.2d 224, 226-27 (Ala. 1990) (emphasis omitted). "The absence of a necessary and indispensable party necessitates the dismissal of the cause without prejudice or a reversal with directions to allow the cause to stand over for amendment." J.C. Jacobs Banking Co. v. Campbell, 406 So.2d 834, 850-51 (Ala. 1981). See also Stamps v. Jefferson County Bd. of Educ., 642 So.2d 941, 945 (Ala. 1994) (Almon, J., concurring in part and dissenting in part).'
" 881 So.2d at 1021-22."

In the present case, the mother was a necessary party under Rule 19(a) because her parental rights to the child had not been terminated -- those rights remained intact, subject only to the pendente lite custody of the child awarded the grandparents in the dependency action brought by DHR. Therefore, the mother should have been joined as a party in the .02 action if it was feasible. However, she was not joined in that action, and no determination was made regarding whether it was feasible or, if it was not feasible, whether the action should proceed in her absence. Therefore, we reverse the judgment of the juvenile court and remand the cause for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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


author: THOMPSON, Presiding Judge.

text:
    Thomas WOJTALA v. Felicia WOJTALA
    2170383
    Court of Civil Appeals of Alabama.
    July 13, 2018
    William K. Bradford of Bradford Ladner, LLP, Birmingham, for appellant.
    Dustin J. Fowler of Buntin, Etheredge & Fowler, LLC, Dothan, for appellee.
   THOMPSON, Presiding Judge.

This is the second time these parties have been before this court. The Henry Circuit Court ("the trial court") entered a judgment in which it, in pertinent part, divorced Felicia Wojtala ("the mother") and Thomas Wojtala ("the father"), awarded the mother custody of the parties' two minor children, and ordered the father to pay child support. The mother appealed, raising a number of issues. In Wojtala v. Wojtala, 241 So.3d 37 (Ala. Civ. App. 2017), this court, among other things, reversed that part of the judgment addressing the issue of child support. 241 So.3d at 40-42. This court determined, in pertinent part, that the trial court had erred in allowing the father certain credits against his $1,594.01 per month child-support obligation, resulting in the father owing only $242 per month in child support. This court entered its certificate of judgment on July 12, 2017.

On July 13, 2017, the mother moved the trial court for a hearing to address this court's holding in Wojtala v. Wojtala, supra. The mother later moved for an award of interest on unpaid child support. The trial court then asked the parties to brief certain issues related to the award of child support.

On October 24, 2017, the trial court entered a judgment redetermining the father's child-support obligation for both children for the period of June 1, 2016, through May 1, 2017, to be $1,527 per month. One of the children reached the age of majority in May 2017, so the trial court determined that the father's child-support obligation for the remaining minor child was $1,074 per month. The trial court then determined that the difference between the amounts it had awarded in the October 24, 2017, judgment and the amount of child support the father had paid under the original judgment that was reversed in Wojtala v. Wojtala, supra, and it found that the father owed a child-support arrearage of $15,466. In addition to his monthly child-support obligation, the trial court ordered the father to pay $200 per month toward the accumulated child-support arrearage. The father filed a postjudgment motion, which was denied by the trial court. The father timely appealed.

On appeal, the father argues only that the trial court erred in making the child-support determination in the October 24, 2017, judgment "retroactive" to the date of the original divorce judgment. The father relies on Shirley v. Shirley, 361 So.2d 590 (Ala. Civ. App. 1978), in support of his argument.

In Shirley v. Shirley, supra, this court had earlier reversed an alimony award and support provision of a divorce judgment, and, on remand, the trial court recalculated those obligations and determined that the effective date of the new amounts was the date of this court's earlier decision and judgment. This court affirmed, holding:

"The reversal of a judgment, or a part thereof, wholly annuls it, or the part of it, as if it never existed. Birmingham Elec. Co. v. Alabama Pub. Serv. Comm'n, 254 Ala. 119, 47 So.2d 449 (1950). Another judgment rendered by a court with jurisdiction must thereafter replace it. Such was the effect of our reversal and remandment with direction in this case."

Shirley v. Shirley, 361 So.2d at 591. In reaching that holding, this court explained:

"A review of a final judgment on appeal is in effect a new case. Murphy v. Stewart, 43 U.S. 263, 2 How. 263, 11 L.Ed. 261 (1844). The jurisdiction of the trial court, at least in respect to the matters appealed is ousted and jurisdiction is reposed in the appellate court until it renders judgment with its mandate returning jurisdiction to the trial court. Its judgment becomes the law of the case as of that date. Douglass, Ex'r. v. City Council of Montgomery, 124 Ala. 489, 27 So. 310 (1899). The judgment by its terms may have retroactive application in some instances, particularly where there may have been a stay of the trial court's judgment. In the absence of such direction, as in this case, the increase of support and alimony directed by this court is effective on the date of its judgment. It is our opinion that the rule applies even when the appellate court reverses and renders, entering the judgment the trial court should have entered under the authority of § 12-22-70, Code of Alabama (1975)."

Id. (emphasis added).

Relying on the holding of Shirley v. Shirley, supra, the father contends that this court's decision in Wojtala v. Wojtala, supra, nullified the child-support provisions of the original divorce judgment and, therefore, that the trial court's award of the correct amount of child support could be effective only from the date of this court's decision in Wojtala v. Wojtala, supra.

However, in Kreitzberg v. Kreitzberg, 80 So.3d 925 (Ala. Civ. App. 2011) (" Kreitzberg I"), a husband appealed the property-division and periodic-alimony provisions of a judgment that divorced him from his wife. This court reversed the periodic-alimony award on the ground that the amount of that award was excessive, given the facts, and, because matters of alimony and property division are considered together, this court also reversed the property division. Kreitzberg I, supra. On remand from Kreitzberg I, the trial court in that case entered a new judgment dividing the parties' marital property, determining a new periodic-alimony award, and assessing an alimony arrearage for periods during the pendency of Kreitzberg I in which the husband had failed to make any periodic-alimony payment to the wife. The husband appealed, asserting several arguments pertaining to whether the trial court in that case could establish an arrearage or hold him in contempt for failing to pay periodic-alimony during the pendency of the first appeal. Kreitzberg v. Kreitzberg, 131 So.3d 612 (Ala. Civ. App 2013) (" Kreitzberg II").

In Kreitzberg II, supra, the trial court redetermined the husband's periodic-alimony obligation and ordered that the husband pay an arrearage back to the time of the original divorce judgment based on that newly redetermined amount of periodic alimony. This court acknowledged that in Shirley v. Shirley, supra, it had held that the reversal of a judgment annuls that judgment. Kreitzberg II, 131 So.3d at 626 (citing Shirley v. Shirley, supra ). However, this court concluded that the trial court properly determined the husband's periodic-alimony arrearage as accruing from the date of the original divorce judgment but at the amount reflected in the new judgment. This court explained:

"Similarly, we cannot conclude that the trial court lacked the ability to calculate the husband's arrearage of alimony based on the amount of alimony it awarded in the March 1, 2012, judgment, which it entered in compliance with our remand instructions. The trial court determined that the husband was in contempt for failing to pay alimony pending the appeal. The trial court could not have calculated the husband's arrearage based on the $2,500-per-month alimony obligation that this court had reversed. Instead, the trial court, in compliance with our remand instructions, determined an appropriate amount of monthly alimony--$1,310.50. Based on that reduced amount of alimony, the trial court properly computed the husband's arrearage. Although our instructions on remand in Kreitzberg [I] did not contemplate calculation of an alimony arrearage, we think it implicit in reversals of this nature that the judgment on remand instituting an alimony obligation in compliance with the remand instructions of this court should be applied retroactively to the date of the judgment this court reversed. See Foster v. Foster, 733 So.2d 454, 455 (Ala. Civ. App. 1999) (holding that a child-support order entered in compliance with remand instructions from this court should be retroactive to the date of the divorce judgment reversed by this court); Ex parte McWhorter, 716 So.2d 720, 722 (Ala. Civ. App. 1998) (same); see also Smith v. Smith, 928 So.2d 287, 294 (Ala. Civ. App. 2005) (recognizing that a party who pays alimony pursuant to judgment that is later reversed on that issue may be entitled to reimbursement for the overpayment); Woolwine v. Woolwine, 549 So.2d 512, 514 (Ala. Civ. App. 1989) (same). We find no error on the part of the trial court in holding the husband in contempt for failing to pay alimony pending the appeal or in calculating the husband's arrearage based on the reduced amount of alimony the trial court awarded in its March 1, 2012, judgment on remand."

Kreitzberg II, 131 So.3d at 627.

In a case involving child support, Foster v. Foster, 733 So.2d 454 (Ala. Civ. App. 1999), cited in Kreitzberg II, supra, the trial court entered a new child-support judgment after a reversal from this court, but the trial court made its new child-support determination effective as of the entry of that new judgment. This court reversed, holding that the trial court should have determined the mother's child-support obligation as of the date of the original divorce judgment. In so holding, this court stated:

"In its original divorce judgment, dated March 17, 1997, the trial court divorced the parties and awarded custody of the four children to the wife. It was the intent of this court, in remanding this case, to have the trial court adjudicate those issues that it should have adjudicated when it entered its original order.
" 'Parental support is a fundamental right of all minor children. [State ex rel. Shellhouse v.] Bentley, [666 So.2d 517 (Ala. Civ. App. 1995) ]. "Although child support is paid to the custodial parent, it is for the sole benefit of the minor children." Id., 666 So.2d at 518. This court will not allow an erroneous ruling of the trial court [to] deprive the minor children of their fundamental right of support.'
" Ex parte McWhorter, 716 So.2d 720 at 722 (Ala. Civ. App. 1998). The trial court erred in failing to order that the father's child support be retroactive to the date of the original divorce judgment; on remand, the trial court is directed to make its child-support order effective as of the date of the original divorce judgment."

Foster v. Foster, 733 So.2d at 455.

In Ex parte McWhorter, 716 So.2d 720 (Ala. Civ. App. 1998), after this court reversed a judgment suspending a mother's child-support obligation, the trial court entered a new judgment requiring the mother to pay child support from the date of the new judgment. The father appealed, arguing that the child-support award should have been effective from the date of the original judgment that had been reversed on appeal. This court agreed, stating that "[i]t was the intent of this court that the mother's support obligation be reinstated as of the date of the [original] order. Parental support is a fundamental right of all minor children." Ex parte McWhorter, 716 So.2d at 722.

We acknowledge that Shirley v. Shirley, supra, provides that the portions of a judgment that are reversed by an appellate court are null and are deemed replaced by a new judgment. However, more recent caselaw has determined that the judgments that replace a reversed judgment may date back to the date of the original judgment. Kreitzberg II, supra ; Foster v. Foster, supra ; and Ex parte McWhorter, supra. We conclude that that position is particularly equitable in situations involving a redetermination of child support after a reversal. The position advocated by the father in this case is contrary to the fundamental rights of the children to parental support. See, e.g., Foster v. Foster, supra (parental support is a fundamental right); Ex parte McWhorter, supra (same). It would operate to deprive the children of needed child support during the length of time any appeal might be pending before an appellate court, and it would allow the father to benefit from a mistake made by the trial court. To the extent that Shirley v. Shirley, supra, holds otherwise, it is expressly overruled.

This court held in its decision in Wojtala v. Wojtala, supra, that the trial court had erred in establishing the father's child-support obligation at $242 per month. In its October 24, 2017, judgment, the trial court corrected its determination of the amount of child support due to the parties' children, and it established that child-support obligation as dating back to the date of the original child-support order. Given the policy of ensuring appropriate support for the children of divorced parents, as well as our holdings in Kreitzberg II, supra, Foster v. Foster, supra, and Ex parte McWhorter, supra, we cannot say that the father has demonstrated that the trial court erred.

The father has raised no other issues on appeal, and, therefore, any other issues have been waived. See Boshell v. Keith, 418 So.2d 89, 92 (Ala. 1982) ("When an appellant fails to argue an issue in its brief, that issue is waived."). Accordingly, the trial court's judgment is affirmed.

AFFIRMED.

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


author: THOMAS, Judge.

text:
    EX PARTE ALABAMA MEDICAID AGENCY
    (In re: J.C.M. v. Alabama Medicaid Agency)
    2170748
    Court of Civil Appeals of Alabama.
    July 13, 2018
    Steve Marshall, atty. gen., and Matthew J. Ward, asst. atty. gen., Alabama Medicaid Agency, for petitioner.
    Raley Wiggins, Red Oak Legal, P.C., Montgomery, for respondent.
   THOMAS, Judge.

In February 2017, I.W.M. applied to the Alabama Medicaid Agency ("Medicaid"), seeking nursing-home benefits for his wife, J.C.M., who had been, and continues to be, a resident of a nursing home in Montgomery. On July 5, 2017, after performing a spousal-resource assessment, Medicaid denied the request for benefits for J.C.M. J.C.M. sought review of Medicaid's decision by filing in the Montgomery Circuit Court ("the trial court") a petition for judicial review and a request that the cost bond be waived. The trial court waived the cost bond, and Medicaid filed a motion to dismiss the petition and sought vacation of the order waiving the cost bond. The trial court denied the motion to waive the cost bond by order on April 20, 2018. On that same date, the trial court entered an order referring the action to a special master ("the referral order"). The referral order reads as follows:

"It has become apparent that the appointment of a Special Master is necessary to hear pending motions and other matters and make recommended orders. Pursuant to Rule 53, Ala. R. Civ. P., it is hereby ORDERED that Micheal Jackson is appointed Special Master to hear all matters in the above-styled case.
"The Special Master shall have the rights, powers, and duties provided in Rule 53 and may adopt such procedures as are not inconsistent with that rule or with this or other orders of the Court.
"The Special Master shall make findings of fact, as necessary, and conclusions of law with respect to matters presented by the parties and shall report expeditiously to the Court.
"Compensation at rates mutually agreeable to the Special Master and the parties shall be paid to the Special Master on a monthly basis by the parties, together with reimbursement for reasonable expenses incurred by the Special Master. If the parties and the Special Master are unable to agree upon the compensation, it shall be fixed by the Court. The Special Master shall, within five (5) days, inform the Court if an agreement has been reached as to compensation.
"If practicable, the Special Master shall conduct conferences by telephone."

Medicaid filed a motion on May 1, 2018, requesting that the trial court vacate the referral order. In its motion, Medicaid argued that the trial court had no basis for referring the action to a special master and that the trial court could not order the state to pay the special master. The trial court denied Medicaid's motion on May 7, 2018. Medicaid filed its petition for the writ of mandamus challenging the referral order in this court on May 11, 2018, within 42 days of the entry of the April 20, 2018, referral order. Medicaid moved to stay the proceedings below, and we granted its request. We also called for an answer to the petition, which was submitted, and the petition is now ripe for review.

In its petition, Medicaid argues first that the referral order is overly broad and violates Rule 53(b), Ala. R. Civ. P. Specifically, Medicaid relies on the text of Rule 53(b), which states: "A reference to a master shall be the exception and not the rule.... [I]n actions to be tried without a jury, save in matters of account and of difficult computation of damages, a reference shall be made only upon a showing that some exceptional condition requires it." Medicaid also relies on Ex parte Alabama State Personnel Board, 54 So.3d 886 (Ala. 2010), in which our supreme court granted a writ of mandamus requiring the Montgomery Circuit Court to vacate an identical order of reference issued by it.

In Ex parte Alabama State Personnel Board, our supreme court pointed out that " ' Rule 53... authorizes the appointment of special masters to assist, not to replace, the adjudicator, whether judge or jury ....' " 54 So.3d at 893 (quoting In re Bituminous Coal Operators' Ass'n, Inc., 949 F.2d 1165, 1168 (D.C. Cir. 1991) ). In addition, an order of reference to a special master is required to "delineat[e] the special master's charge" so that the special master's authority is clear. Id. at 895. Finally, as our supreme court explained in Ex parte Alabama State Personnel Board, "a reference to a special master should be made only upon a showing that some exceptional condition requires it." Id. at 896.

Nothing in the materials before this court indicates that an "exceptional condition" requiring the appointment of a special master exists. The action involves an administrative appeal and is governed by the Ala. Code 1975, § 41-22-20, a part of the Alabama Administrative Procedure Act ("the AAPA"), codified at Ala. Code 1975, § 41-20-1 et seq. Under the AAPA, a circuit court is typically required to review an administrative agency's decision without a jury, § 41-22-20(j), and must take "the agency order ... as prima facie just and reasonable" and is precluded from "substitut[ing] its judgment for that of the agency as to the weight of the evidence on questions of fact." § 41-22-20(k). The issue raised by J.C.M. is whether Medicaid improperly refused to award her nursing-home benefits; she contends that her one-half interest in certain property should be excluded as an asset under Ala. Admin. Code (Medicaid), Rule 560-X-25-.06(2)(e)(5). Thus, it appears that the issue in this action involves construction of an agency rule and the application of the rule to a set of facts; neither of those matters appears particularly complicated or complex or provides a basis for concluding that there exists an "exceptional condition" meriting the referral of the action to a special master.

Furthermore, the referral order appears to be, as Medicaid asserts, overly broad. The order states that the special master is to "hear pending motions and other matters and make recommended orders" and "to hear all matters in the above-styled case." Such a broad abdication of authority is not proper. See Ex parte Alabama State Pers. Bd., 54 So.3d at 895 (indicating that the order of reference was defective because it failed to specify the authority of the special master "other than by an omnibus pourover of responsibility").

As our supreme court has explained, reference to a special master is to be the exception, not the rule, and only in the case of an "exceptional condition" should an order of reference be made in a nonjury action. Id. at 892-93. " 'Because of the increased costs, likelihood of delay, and possible lack of confidence in the outcome, the power to order a reference is to be sparingly exercised. See Adventures in Good Eating, Inc. v. Best Places to Eat, Inc., 131 F.2d 809, 815 (7th Cir. 1942).' " Id. at 893 (quoting Committee Comments on 1973 Adoption of Rule 53 ). Based on the foregoing, we conclude that the trial court abused its discretion by referring this action to a special master, and we order the trial court to vacate the April 20, 2018, referral order.

PETITION GRANTED; WRIT ISSUED.

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

      Because we have determined that the referral order must be vacated, we pretermit discussion of Medicaid's argument that the referral order impermissibly directs the state agency to pay the fees of the special master.