Dubose v. Weaver

• Decision Date: 25 February 2011
• Docket Number: 1070579.
• Citation: 68 So.3d 814
• Parties: Stuart C. DuBOSE, individually and as personal representative of the estate of Joseph J. Sullivan, deceasedv.Cheryl WEAVER.
• Court: Alabama Supreme Court

68 So.3d 814

Stuart C. DuBOSE, individually and as personal representative of the estate of Joseph J. Sullivan, deceased

v.Cheryl WEAVER.

1070579.

Supreme Court of Alabama.

Feb. 25, 2011.

Daniel L. McCleave of McCleave Denson Shields, L.L.C., Mobile, for appellant.Utopia Cassady of Cassady & Cassady, P.C., Fairhope; and Peter F. Burns of Burns, Cunningham & Mackey, P.C., Mobile, for appellee.MURDOCK, Justice.

This case concerns a dispute between Cheryl Weaver and Stuart C. DuBose, an attorney who represented Weaver and who also served as the personal representative of the estate of Joseph J. Sullivan, deceased (“the estate”), in which Weaver had an interest. We vacate the judgment of the Mobile Circuit Court, dismiss the case, and dismiss the appeal.

I. Facts and Procedural History

The present case is not the first case before this Court concerning the relationship between DuBose, Weaver, and the estate. See Ex parte Alabama State Bar, 3 So.3d 178 (Ala.2008) (staying disciplinary proceedings against DuBose that arose out of his representation of Weaver and the estate). As this Court noted in Alabama State Bar: ¹

“In April 2003 Cheryl Weaver asked Dubose, then a practicing attorney, to prepare and draft a will for Joseph J. Sullivan. Sullivan, an elderly widower, lived in Washington County and had no immediate family living nearby. Weaver had been Sullivan's caretaker for more than a decade, and when Sullivan became ill he eventually moved in with Weaver, who continued to care for him. Weaver informed Dubose that Sullivan was dying and that he wanted to leave his entire estate to her. Sullivan's estate was substantial; it consisted of various bank accounts, stocks in various companies, and real property. Dubose drafted a will naming Weaver as the executor and sole beneficiary of Sullivan's estate. According to Dubose, Weaver also told him that she wanted him to be named in the will as the attorney for the estate. Dubose included in the will provisions naming himself as the successor personal representative as well as the attorney for the estate. Dubose stated that he explained to Weaver the proper procedure to effectuate the due execution of the will by Sullivan. He also prepared a certificate to be signed by Sullivan's physician stating that Sullivan was competent and directed Weaver to have it signed. Dubose did not meet with or speak to Sullivan regarding the will or its provisions before preparing the will.

“Sullivan signed the will on April 11, 2003; he died on April 29, 2003. On May 6, 2003, Weaver and Dubose, apparently in anticipation of an action by Sullivan's heirs contesting the will, entered into a contingency contract whereby Dubose was employed to represent both Sullivan's estate and Weaver. Sullivan's estate and Weaver agreed to pay Dubose 33% from the proceeds of any settlement obtained before the filing of a will contest and 40% from the proceeds of any settlement obtained after the filing of any will contest. The agreement also provided that Sullivan's estate and Weaver would pay the cost of any investigation that might be required.”

In May 2003, with DuBose's assistance, Weaver filed in the Washington Probate Court a petition to admit Sullivan's will to probate and a petition for letters testamentary. In August 2003, before the will was admitted to probate, Sullivan's heirs filed a petition in the Washington Circuit Court contesting the will (“the will-contest petition”).²

Contemporaneously, Sullivan's heirs filed in the probate court a “Petition for Transfer and Removal of the Estate from Probate Court to Circuit Court for Will Contest Proceedings” (“the transfer/removal petition”). The transfer/removal petition specifically referenced Ala.Code 1975, § 43–8–198, which provides for the transfer of a pending will contest by the probate court to the circuit court. The transfer/removal petition also contained allegations, however, that “in the opinion of Contestants/Plaintiffs [i.e., Sullivan's heirs,] the said estate can be better administered in the Circuit Court of this County than in the Probate Court” and that “there has been no final settlement of said decedent's estate, and no proceedings have been taken in the Probate Court of this County preparatory to a final settlement of said estate.” ³

On August 22, 2003, the probate court issued an order in relation to the transfer/removal petition. The order stated that the petition “pray[ed] for the removal of the administration of the said decedent's estate from the Probate Court ... to the Circuit Court.” (Emphasis added.) Also, the order states that “ the Estate of Joseph J. Sullivan, deceased, be and the same hereby is removed from the Probate Court of Washington County, Alabama, and transferred to the Circuit Court of Washington County, Alabama, to be administered and processed according to the law and Court rule.” (Emphasis added.) The order of the probate court makes no specific reference to a will contest.⁴ Thereafter, the Washington Circuit Court purported to appoint a special administrator of the estate and to conduct proceedings concerning the will contest; the probate court apparently took no further action concerning the estate.

DuBose represented Weaver in the will contest. On February 14, 2005, after Sullivan's heirs and Weaver entered into a settlement agreement concerning the will contest, Sullivan's heirs filed a motion to dismiss the will contest. On that same date, the circuit court entered an order dismissing the will contest with prejudice.

Also on February 14, 2005, Weaver and DuBose filed a petition to probate the will, along with what appears to be a copy of the will, in the Washington Circuit Court. Contemporaneously, Weaver filed a renunciation of her right to be appointed sole personal representative of the estate, and she and DuBose filed a petition for letters testamentary, requesting that they be appointed co-personal representatives of the estate. On the same date, the Washington Circuit Court entered an order purporting to admit the will to probate and an order granting Weaver and DuBose's petition for letters testamentary. An electronic stamp on the petition to probate the will, on the copy of the will, on the renunciation, on the petition for letters testamentary, and on the orders of the Washington Circuit Court admitting the will to probate and granting the petition for letters testamentary reflects that those documents were recorded in the “Miscellaneous” records, “Book # 148,” of the probate court after the Washington Circuit Court entered the orders; the will was also recorded in the book maintained by the probate court for the recording of wills.

Within a week after their appointment as co-personal representatives of the estate, a dispute arose between Weaver and DuBose as to the compensation allegedly due DuBose. DuBose contended that, pursuant to the contingency-fee agreement he and Weaver had entered into concerning the will contest, he was entitled to 40% of Weaver's portion of the estate, which was valued at approximately $2.5 million, including corporate stock and real property. Weaver contended that the value of the stock and the real property was not to be included in calculating DuBose's fee and that DuBose was entitled only to 40% of the cash assets of Weaver's portion of the estate. Consequently, on February 18, 2005, DuBose filed in the purported estate-administration proceeding in the circuit court a verified claim against the estate claiming that he was entitled to $127,630 for his services as co-personal representative and that he was entitled to “[f]orty percent (40%) of all assets of the Estate [,] which for Estate Tax Return purposes were valued at $2,566,975.00,” as attorney fees. In response, Weaver, having obtained new counsel, filed in the same proceeding a “Complaint and Objection to Verified Statement” in which she objected to the verified claim and asserted claims against DuBose alleging breach of fiduciary duty, legal malpractice, misrepresentation/suppression, and negligent administration of the estate.⁵

The judges of the First Judicial Circuit, which includes Washington County, recused themselves from the case; the recusals were apparently based upon concerns about an appearance of impropriety because DuBose, a party in a legal action, regularly practiced law before the judges at issue. Then Chief Justice Drayton Nabers assigned the case to Judge John R. Lockett of the Mobile Circuit Court. Subsequently, because DuBose was elected as a circuit judge in Washington County, Judge Lockett granted a motion filed by Weaver to transfer the case to the Mobile Circuit Court.

Weaver's and DuBose's claims were set for trial. On the date of the scheduled trial, they informed the court that they had reached a settlement, and DuBose read the settlement, which he had written by hand, into the record. The circuit court had the parties orally assent to each paragraph of the settlement as it was read. In pertinent part, the settlement provided that Weaver would receive from the estate $1,200,000 and approximately 600 acres of land, including Sullivan's homestead property. DuBose would receive whatever remained of the estate after Weaver received her share. The settlement also stipulated that DuBose would be appointed sole personal representative of the estate for the purpose of effectuating the details of the settlement. The settlement stated that “[c]losing [is] to occur as soon as [DuBose, as personal representative,] can transfer and sell all stock to provide necessary funds to satisfy the [$]1.2 million.”

Based upon the terms of the parties' settlement agreement, the circuit court entered an order purporting to appoint DuBose sole personal representative of the estate; to grant letters testamentary to him; and to authorize DuBose to “undertake the execution of the Will and conclude all matters necessary in that endeavor and in the settlement agreement.” In the...