Cashion v. Torbert

• Citation: 881 So.2d 408
• Parties: Amanda Linn CASHION, as executrix of the estate of Dot C. Smith, Deceased v. Mary Dixon TORBERT.
• Decision Date: 29 August 2003
• Court: Supreme Court of Alabama

881 So.2d 408

Amanda Linn CASHION, as executrix of the estate of Dot C. Smith, Deceased
v.
Mary Dixon TORBERT

1020449.

Supreme Court of Alabama.

August 29, 2003.

Rehearing Denied November 7, 2003.

881 So.2d 409

Amanda Linn Cashion, Memphis, Tennessee, for appellant

Joe Espy III and C. Mark Bain of Melton, Espy & Williams, P.C., Montgomery, for appellee.

HARWOOD, Justice.

Amanda Linn Cashion, the executrix of the estate of Dot C. Smith, deceased, appeals from a summary judgment in favor of Mary Dixon Torbert, the conservator of Smith's estate before Smith died. This appeal arises out of the following fairly convoluted procedural history:

On July 12, 2000, the Montgomery County Department of Human Resources petitioned for protective placement for Dot C. Smith, an elderly woman with multiple physical and mental disabilities. The matter was assigned to Montgomery Circuit Judge Tracy McCooey, who entered an order filed on August 31, 2000, directing that Smith "remain in her current nursing home placement" and appointing Mary Dixon Torbert as conservator of Smith's estate. On November 30, 2000, Smith died.

Kathy Lou Tipler of Rossville, Tennessee, a relative of Smith's, filed a petition to probate Smith's will with the judge of probate of Montgomery County on January 23, 2001. James W. Cameron cosigned the petition as Tipler's attorney. The probate judge, the Honorable Reese McKinney, granted letters testamentary to Tipler on January 23, 2001.

On February 7, 2001, Torbert filed in the Montgomery Circuit Court a petition for final settlement as conservator; her petition was accompanied by 36 pages of supporting exhibits. Also on that date, Torbert filed her "Application for Attorney's Fees" accompanied by a copy of her five-page itemized statement of services

881 So.2d 410

rendered. Torbert certified that copies of both filings were hand-delivered to Cameron on February 6, 2001. On February 8, Judge McCooey entered an order granting the petition for final settlement, and, among other things, discharging Torbert and the surety on her conservator's bond "from all further liability." On that same day, Judge McCooey entered a separate order awarding Torbert attorney fees in the amount of $15,298.75. Copies of both orders were served on Cameron

The February 8 order of final settlement contained the statement that Torbert had delivered to the executrix named in Smith's will the "Estate, including all property and funds ... by delivery [of] same to Ms. Tipler's attorney, James W. Cameron." On February 13, 2001, Cameron, in his capacity "as Counsel for Kathy Lou Tipler, executrix of the estate of Dot C. Smith," acknowledged receipt of various items from Torbert, consisting of various keys, three rings, and three boxes containing, but not limited to, "pleadings, correspondence, bills, checkbooks[,] bank information [and] personal papers belonging to the Estate." The date of Cameron's receipt of those items, whether on February 13, or on or before February 8, is thus uncertain. When Tipler subsequently was unable to continue as executrix, Cashion, a niece of Smith's and a resident of Memphis, Tennessee, was appointed successor executrix on April 12, 2001.

On October 10, 2001, Cashion signed under oath her "Report of Insolvency," which declared that the estate had assets of only $18,511.46 and claims against it totaling $31,064.13, not including the expenses and fees of Tipler and Cashion, which totaled $5,800. (The date this report was filed in the probate court is not ascertainable from the record.)

Judge McKinney conducted a hearing on the insolvency report on January 9, 2002, at which, according to a later order, he "heard testimony and evidence on said report and [the supporting] statements" and declared the estate insolvent. On January 15, 2002, Cashion served a "Brief in Support of Report of Insolvency" (the filing date of the brief is not established by the record) in which, among other things, she made detailed assertions and referenced numerous attached exhibits, alleging that Torbert had exaggerated the net worth of the conservatorship estate in her final accounting to Judge McCooey and had misrepresented and omitted certain assets and liabilities.

On January 18, 2002, Judge McKinney issued a "Decree of Insolvency," declaring the estate insolvent and ordering "that Amanda Linn Cashion, as executrix, appear and make a statement of her administration for final settlement of said estate on the 25th day of February, 2002, at 1:30 o'clock p.m." The hearing was held as scheduled on February 25, and Judge McKinney heard Cashion's statement of her administration of the estate "and any objections to same."

On March 5, Judge McKinney issued his "Order on Final Settlement," in which he found, "upon consideration of all the evidence, testimony, and briefs," that the available assets of the estate amounted to $18,511.46, and that they should be disbursed to satisfy certain claims and expenses of the estate, including Torbert's claim, reduced from the $15,298.75 awarded by Judge McCooey to $15,286.11. Further, Torbert was ordered to pay out of that amount two other claims, totaling $2,548.79. Judge McKinney concluded his order by stating that upon the ordered disbursements being made, the estate would be "fully and completely settled."

On April 9, 2002, Cashion signed a notice of appeal with respect to Judge McKinney's order on final settlement, her

881 So.2d 411

"Request for Findings of Fact and Conclusion of Law" directed to him, and an "Action to Set Aside Judgment Procured Through Fraud upon the Court and Complaint for Breach of Fiduciary Duty." The action to set aside Judge McCooey's order and her complaint alleging breach of fiduciary duty were filed in the Montgomery Circuit Court on April 11, 2002, but the filing dates of the notice of appeal and the request are not documented in the record. The matter was assigned to Judge Eugene Reese. On May 20, 2002, Torbert filed a motion to dismiss Cashion's proceedings in the circuit court. On July 15, Cashion filed with Judge Reese a motion to consolidate, noting that her appeal to the Montgomery Circuit Court of Judge McKinney's order on final settlement had been assigned to Judge William A. Shashy, and stating that the appeal and the case pending before Judge Reese involved common questions of law and fact. On July 16, Cashion certified that she had served Joe Espy and Mark Bain, attorneys for Torbert, with her "Response in Opposition to Defendant's Motion to Dismiss" and her "Memorandum of Law in Opposition to Defendant's Motion to Dismiss." (For some reason, those documents were not logged in by the circuit clerk as having been filed until August 21.) On July 23, Torbert filed her reply to Cashion's opposition to her motion to dismiss. Two of the principal legal issues argued by the parties were the defenses asserted by Torbert in her motion to dismiss of res judicata and collateral estoppel

On July 24, 2002, Judge Reese conducted a hearing on all pending motions; Ms. Julie C. Bartholomew, Cashion's attorney, and Mr. Espy attended the hearing. At that hearing, Espy advised the court that he had filed and faxed to Ms. Bartholomew a brief the day before the hearing, which Ms. Bartholomew explained she had not received because she had been in transit from Tennessee to Montgomery. She stated that she would like two weeks to review the brief and to respond, and Mr. Espy and Judge Reese ultimately agreed to her request. The parties stipulated that the motion to dismiss would be treated as a motion for a summary judgment, because of the various exhibits attached to it. See Rule 12(b), Ala. R. Civ. P.

On August 6, 2002, Cashion executed an affidavit, authenticating a number of exhibits, either already filed with the court or attached to the affidavit. The date of filing of that affidavit is not reflected in the record. On August 20, Cashion filed her opposition to the motion for a summary judgment. On August 21, Torbert filed a reply to Cashion's opposition; Cashion filed an amended statement in opposition on August 23, 2002. On October 10, 2002, Judge Reese denied the motion to consolidate the cases and granted Torbert's motion for a summary judgment on the grounds of res judicata and collateral estoppel. Cashion appealed that order on November 19, 2002.¹

As noted, following Smith's death, Torbert, as conservator, filed a petition for final settlement, and an application for attorney fees, and hand-delivered copies of both to Cameron, as the attorney for the executrix of Smith's estate. Section 26-5-7, Ala.Code 1975, mandates that a final settlement take place following the death of a conservator's ward. Section 26-2A-142, Ala.Code 1975, provides that the conservator and any attorney whose services were beneficial to the ward are to be paid "reasonable compensation from the estate."

881 So.2d 412

Judge McCooey's February 8, 2001, orders addressed the petition and application for attorney fees, respectively. With respect to the petition for final settlement, Judge McCooey granted the petition and "accepted and approved" the proposed settlement of the conservatorship; "discharged and relieved [Torbert] of any and all of her duties as conservator ... without any other or further accounting of said conservatorship to the executrix of the estate of Dot C. Smith, namely, Kathy Lou Tipler"; declared that Torbert had delivered to Cameron, as Tipler's attorney, "all property and funds," that the "Executrix has acknowledged payment in full of all funds and property due her by said Conservator," and that the surety on Torbert's bond as conservator had consented to Torbert's discharge as conservator; discharged both Torbert and the surety from all further liability; and noted that a copy of the order was to be transmitted to Cameron, as attorney for Tipler, as executrix. With respect to the separate application for attorney fees, Judge McCooey awarded...