Belcher v. Queen

• Decision Date: 13 November 2009
• Docket Number: 1080452.
• Parties: Brent BELCHER and Olon Belcher Properties, Ltd.v.Bettye Jan QUEEN, Beverly Jean Scroggins, and Otha A. Belcher.
• Court: Alabama Supreme Court

39 So.3d 1023

Brent BELCHER and Olon Belcher Properties, Ltd.v.Bettye Jan QUEEN, Beverly Jean Scroggins, and Otha A. Belcher.

1080452.

Supreme Court of Alabama.

Sept. 18, 2009.

Rehearing Denied Nov. 13, 2009.

Marc James Ayers of Bradley Arant Boult Cummings LLP, Birmingham; Richard M. Kemmer, Jr., of Kemmer & Kemmer, P.C., Centreville; and Rickman E. Williams III of Pitts, Pitts & Williams, Selma, for appellants.

C. Fred Daniels and Sydney F. Frazier, Jr., of Cabaniss, Johnston, Gardner, Dumas & O'Neal, Birmingham, for appellees.

STUART, Justice.

This is the third time the dispute between these parties has been before this Court. See Ex parte Queen, 959 So.2d 620 (Ala.2006), and Queen v. Belcher, 888 So.2d 472 (Ala.2003). In this latest iteration, Brent Belcher appeals the judgment of the trial court holding that Olon Belcher, the father of the appellant Brent and of the appellees Bettye Jan Queen, Beverly Jean Scroggins, and Otha A. Belcher, was incompetent when he executed: (1) a December 1995 durable power of attorney appointing Brent to be his attorney-in-fact; (2) a December 1995 partnership agreement creating Olon Belcher Properties, Ltd., a partnership between Olon, his wife Hazel Belcher, and Brent; and (3) a March 1998 document creating a revocable trust and naming Brent as the trustee (these documents are hereinafter referred to collectively as “the planning documents”). The trial court accordingly declared each of the planning documents void. Olon Belcher Properties, Ltd., appeals the denial of its motion to intervene, after the trial court entered its judgment declaring the partnership agreement void. We affirm in part and reverse in part.

In Queen, Olon's children Queen, Scroggins, and Otha were collectively referred to as “the petitioning children” because they initiated the case by petitioning the Probate Court of Bibb County to appoint a conservator for Olon. 888 So.2d at 474. In Ex parte Queen, they were again referred to collectively as “the petitioning children” because they were petitioning this Court for a writ of mandamus. 959 So.2d at 620. Therefore, in the interest of consistency, they are again referred to as “the petitioning children” in this opinion.¹

I.

In Queen, we set forth the facts at the root of this dispute:

“On June 15, 2000, the petitioning children petitioned the Probate Court of Bibb County to have a conservator appointed for their father because of his diminishing mental capacity and because of concern about the way their brother Brent was handling his estate. On February 9, 2001, the probate judge granted the petition, concluding that Olon ‘is a person unable to manage property and business affairs effectively as described in [§ 26-2A-130, Ala.Code 1975].’ The order also required Brent to produce the 1998 trust agreement and to make an accounting of that trust. Sanford E. Gunter was appointed conservator of Olon's estate.

“Brent immediately removed the conservatorship to the Bibb Circuit Court and, in June 2001, moved the court to issue an order: (1) adopting the ‘Plan for Joint Care of Olon Belcher’ Brent had submitted, (2) directing the conservator to work with the instruments of Olon's estate already in effect (the durable power of attorney, the partnership agreement, and the trust agreement), and (3) setting June 15, 2000, the date the petitioning children filed their petition for a conservator, as the effective date for the appointment of a conservator.

The petitioning children opposed Brent's motion and moved the court to compel Brent to comply with the provisions of the probate court's February 9 order that required him to produce the 1998 trust agreement and to make an accounting of that trust. They further asked the court to find that Olon had been incapable of managing his business affairs since 1994, and that, therefore, he did not have the capacity in 1995 to execute the power of attorney or the partnership agreement or subsequently in 1998 to execute the trust agreement and that those documents were therefore invalid. On July 26, 2001, the trial court ruled that Brent did not have to comply with the provisions of the probate court's order requiring him to produce the trust agreement and to make an accounting of the trust, but it did not address the other pending issues.

“Meanwhile, on October 16, 2001, the court-appointed conservator filed his inventory of Olon's estate. After listing Olon's then current assets and liabilities, he noted numerous transactions in which Brent had been involved that the conservator had not investigated, and he asked the court to clarify the scope of his responsibility, stating:

“ ‘Numerous transactions have occurred over the past years, including liabilities such as that of Belcher Oil Co., Inc. The Conservator has not investigated any transfer as to the issues of fair market value paid or received; proration of interest versus value of contribution; amount and necessity of payouts or withdrawals; potential for conflict of interest issues wherein Brent Belcher serves as Power of Attorney, trustee, Manager, President or Director of Corporation all wherein the ward, Olon Belcher, has an interest therein.

“ ‘The Conservator would determine that under § 26-2A-152, et seq., he has no authority to visit these issues without the Court, per § 26-2A-154, enlarging the Conservator's power.’

“The trial court scheduled a hearing for December 17, 2001, to determine when Olon became incapable of effectively managing his property and his business affairs. At the hearing, the petitioning children presented deposition testimony from three doctors in support of their contention that Olon was incapable of effectively managing his property and business affairs at least as early as 1995, when he executed the power of attorney in favor of Brent. They asked the court to invalidate the power of attorney, the partnership agreement, and the trust agreement, and to order a full accounting of the estate from 1995 to the present.

“In response, Brent presented six affidavits from witnesses who knew Olon in varying degrees, both personally and in business settings, and who swore that Olon had appeared lucid and intelligent during business interactions they had had with him at different times between 1993 and 2000. Brent also presented evidence indicating that the petitioning children had benefited as well from transactions with Olon during this period. The petitioning children moved to strike the affidavits as hearsay.

“On May 13, 2002, the court denied the petitioning children's motion to strike the affidavits and found that Olon had the legal capacity to execute the power of attorney and the partnership agreement in 1995 and the trust agreement in 1998. The court denied the petitioning children's request for an accounting of the estate and ordered that the conservator manage the estate to reflect the validity of all the documents executed by Olon before the conservator was appointed.”

888 So.2d at 474-75. We subsequently reversed the trial court's judgment, holding that the trial court erred by considering the affidavits submitted by Brent, which we concluded were hearsay. We remanded the cause for the trial court “to determine whether Olon Belcher was competent to execute the power of attorney and to enter into the partnership agreement and the trust agreement.” 888 So.2d at 478.

On remand, the petitioning children moved the trial court to enter a judgment on Olon's competency based upon the valid evidence it had received at the December 17, 2001, evidentiary hearing; however, after the trial court denied that motion and instead ordered a new evidentiary hearing, the petitioning children sought mandamus relief in this Court. In Ex parte Queen, we granted mandamus relief to the petitioning children and directed the trial court to rule on the competency issue based on the existing evidence. 959 So.2d at 623. On August 8, 2007, the trial court entered the following order deciding the issue:

“The Supreme Court in its ruling found this court erred and exceeded its discretion by allowing into evidence and considering certain affidavits offered by Brent Belcher. This court accepts the opinion of the Court and now considers only the evidence properly in the record and nothing more. Therefore, based on the evidence in the record and applying the standard applicable to determining the validity of the power of attorney, partnership agreement, and trust agreement (and not the standard for testamentary capacity) this court finds that Olon Belcher was unable to understand and comprehend what he was doing at the time he signed the power of attorney, partnership agreement, and trust agreement.

“All documents made the subject of this litigation are, therefore, declared invalid, void, and of no effect.”

On September 7, 2007, Brent moved the trial court to alter, amend, or vacate its order, arguing that the petitioning children had not met their burden and that, even if they had, the trial court had still erred by declaring the partnership agreement void. That same day, Olon Belcher Properties moved to intervene, arguing that the entire partnership agreement should not be declared void on the basis that one out of the three partners was incompetent at the time the partners entered into the agreement. Following a hearing, the trial court denied both the postjudgment and intervention motions. Brent and Olon Belcher Properties then filed this appeal.

II.

In Queen, we applied a de novo standard of review. 888 So.2d at 476. Brent argues that we should again review the trial court's judgment de novo because, he alleges, that judgment was again based almost entirely on the written depositions of Olon's physicians. See Rogers Found. Repair, Inc. v. Powell, 748 So.2d 869, 871 (Ala.1999) (“When a trial judge's ruling is not based substantially on testimony presented live to the trial judge, review of factual issues is de novo.”). The petitioning children, however, argue that although we may...