Dorough v. Ricks

• Decision Date: 16 November 2012
• Docket Number: 2101130.
• Parties: Adam DOROUGH, Rufus Dorough, James Dorough, Patrick Dorough, and Robert Dorough v. Denise Scott RICKS.
• Court: Alabama Court of Civil Appeals

164 So.3d 1131

Adam DOROUGH, Rufus Dorough, James Dorough, Patrick Dorough, and Robert Dorough

v.Denise Scott RICKS.

2101130.

Court of Civil Appeals of Alabama.

Nov. 16, 2012.

Chip Cleveland and Robert E. Riddle of Cleveland & Riddle, Attorneys at Law, LLC, Prattville, for appellants.

Jack Owen of Ball, Ball, Matthews & Novak, P.A., Montgomery, for appellee.

On Application for Rehearing

BRYAN, Judge.

This court's opinion of June 1, 2012, is withdrawn, and the following is substituted therefor.

Adam Dorough, Rufus Dorough, James Dorough, Patrick Dorough, and Robert Dorough (collectively referred to as “the Dorough brothers”) appeal from a judgment in favor of Denise Scott Ricks in a will contest brought by the Dorough brothers. We reverse and remand.

Factual Background and Procedural History

On June 9, 2009, Joseph Paul Dorough (“Joseph”) executed a will leaving all his property to Ricks and naming her as his personal representative. Ricks is the daughter of Margaret Farmer, who died in May 2009. Joseph and Farmer had begun dating in approximately 1988 when Ricks was 14 years old, and they had continued dating off and on until Farmer died in May 2009. Ricks testified that, although she was not related by blood or marriage to Joseph, she considered him a surrogate father and that they had had a close relationship. Joseph died on August 22, 2009. The Dorough brothers are Joseph's brothers and next of kin.

On September 8, 2009, Ricks petitioned the Autauga Probate Court to admit Joseph's will to probate. The Autauga Probate Court docketed Ricks's petition as case number 09–151. On September 14, 2009, the Autauga Probate Court set Ricks's petition for hearing on October 13, 2009.

On September 18, 2009, an attorney filed a notice of appearance on behalf of the Dorough brothers. On September 24, 2009, pursuant to a request by the Autauga Probate Court, the Autauga Circuit Court (“the trial court”) appointed a local attorney as a special probate judge to preside in case number 09–151. On the morning of October 13, 2009, shortly before the hearing regarding Ricks's petition to admit the will to probate, the Dorough brothers filed an answer to Ricks's petition. The answer denied that the will was valid but did not constitute a complaint asserting a will contest. See Bullen v. Brown, 535 So.2d 76 (Ala.1988) (holding that a motion for a continuance stating that “the crucial issue in this case is the validity of the Will” did not constitute a complaint asserting a will contest).

The Autauga Probate Court proceeded with the hearing regarding Ricks's petition on October 13, 2009, and the Dorough brothers and their attorney attended the hearing. On October 15, the Autauga Probate Court entered an order titled “Decree Admitting Self–Proving Will to Probate.” The order stated:

“This matter came before the Court on October 13, 2009, to be heard on the application of Denise Farmer Ricks to admit to probate and record the last will and testament of [Joseph], late an inhabitant of this County, heretofore filed in this Court.

“Present were Denise Farmer Ricks, the proponent, her counsel, Jack Owen, and [the Dorough brothers], next of kin of [Joseph], and Chip Cleveland, their counsel.

“It having been shown to the satisfaction of the Court that proper notice was given to each next of kin as required by law, and that all things have been done pursuant to the laws of this State, and to a former Order of this Court, after receiving testimony and evidence,

“The Court finds that the said instrument was made self-proving at the time of its execution by acknowledgment of [Joseph] and the affidavits of the witnesses, each made before an officer authorized to administer oaths and evidenced by the officer's certificate, under official seal, attached to or following the will in the form required by law; and further finds that there has been no showing of fraud, forgery, undue influence or unsound mind of [Joseph].

“WHEREUPON, the court finds that the aforesaid instrument of writing is the last will and testament of [Joseph], that it was executed, attested and self-proved, and that [Joseph] at the time of signing was of full age and sound mind and disposing memory and understanding.

“Therefore, the Court being satisfied of its jurisdiction herein, it is ordered, adjudged and decreed by the Court that said instrument of writing purporting to be the last will and testament of [Joseph] is hereby declared to be duly self-proved as the last will and testament of [Joseph] and such is admitted to probate, and ordered to be recorded, together with the self-proving statements, and all other papers on file relating to this proceeding.”

(Emphasis added.)

Also on October 15, 2009, the Dorough brothers filed a motion titled “Motion to Transfer Proceeding to Circuit Court.” The record does not contain a ruling on that motion by the Autauga Probate Court. However, on October 19, 2009, the Dorough brothers filed an amended complaint in an action they had commenced against Ricks in the trial court on August 28, 2009. The complaint commencing that action had asserted claims that are not before us in this appeal; however, the amended complaint filed on October 19, 2009, asserted a will contest challenging the will on the grounds of (1) lack of valid execution, (2) undue influence, (3) fraud, and (4) lack of testamentary capacity. On November 24, 2009, Ricks answered the Dorough brothers' amended complaint and denied the material allegations of their will contest. In response to a motion filed by the Dorough brothers, the trial court, on December 15, 2009, ordered the Autauga Probate Court to transfer case number 09–151 to the trial court. On January 15, 2010, the Autauga Probate Court filed with the trial court certified copies of the filings in case number 09–151.

The trial court held a separate bench trial regarding the will contest on November 16, 2010, and February 28, 2011, and received evidence ore tenus. Although caselaw has held that the proper procedure in a will-contest proceeding in circuit court after the admission of the will to probate by the probate court is for the proponent to introduce the proceedings in the probate court before the contestant of the will presents his or her case-in-chief, see Smith v. Bryant, 263 Ala. 331, 334, 82 So.2d 411, 414 (1955), the Dorough brothers presented their case-in-chief first, without asserting that they had no obligation to present their case-in-chief until Ricks had introduced the proceedings in the Autauga Probate Court. During their case-in-chief, the Dorough brothers introduced into evidence a copy of the will, which showed that Joseph and the subscribing witnesses had signed affidavits in the form specified by § 43–8–132, Ala.Code 1975, the Code section providing for self-proving wills, and that a notary public, as an officer authorized to administer oaths, had signed a certificate in the form specified by § 43–8–132, but it does not show that the notary public's official seal is affixed to the will as required by § 43–8–132. Ricks never introduced the proceedings in the Autauga Probate Court into evidence, and the only evidence regarding the execution of the will she introduced was the testimony of the attorney who had drafted the will and, in her capacity as a notary public, had signed the certificate regarding Joseph's and the subscribing witnesses' execution of their affidavits. The attorney testified that Joseph had signed the will in the presence of the two subscribing witnesses and that the attorney, in her capacity as a notary public, had notarized the signatures of Joseph and the two subscribing witnesses. However, she was not asked whether she had affixed her notary public's official seal to the will as required by § 43–8–132. No party introduced the original will into evidence or called the subscribing witnesses to testify regarding the execution of the will.

At the close of all the evidence, the Dorough brothers orally moved the trial court for a judgment on partial findings¹ pursuant to Rule 52(c), Ala. R. Civ. P. The Dorough brothers asserted that they were entitled to a judgment in their favor because, they said, Ricks had the burden of making a prima facie showing that the will had been validly executed and had failed to meet that burden because, they said, she had not introduced the testimony of the two subscribing witnesses. In response, Ricks asserted that she had indeed made a prima facie showing that the will had been validly executed (1) through the testimony of the attorney who drafted the will, which, Ricks said, established that the will was self-proving, and (2) through the Autauga Probate Court's order determining that the will was self-proving, which, Ricks said, had become a part of the record in the trial court when the Autauga Probate Court filed a certified copy of the order with the trial court. The trial court did not rule on the Dorough brothers' motion at that time.

On March 25, 2011, the trial court entered an interlocutory order stating:

“This cause coming on before this Court ... and testimony being taken ore tenus on November 16, 2010 and February 28, 2011 on the single issue of the contest of the Will, this Court finds as follows:

“1. That [Joseph] executed [the will] on June 9, 2009.

“2. That the same was executed before two witnesses, Shannon Smith and Kimberly Kervin.

“3. That the two witnesses executed the same before a Notary Public, Joy Booth, who testified to the execution of the notary acknowledgment and to making the instrument for [Joseph].

“4. That the execution of this instrument is in compliance with Alabama Code Section 43–8–132, 1975 and subparagraph (c) makes the execution proper without further proof, by a presumption.

“Wherefore, this Court finds the [will] is [Joseph's] Last Will and is properly accepted as his final disposition for his Estate.”²

On April 22, 2011, the Dorough brothers filed a motion to alter, amend, or vacate the trial court's March 25, 2011,...