Engel v. Amonett, 1160113

• Decision Date: 23 June 2017
• Docket Number: 1160113
• Citation: 240 So.3d 530
• Parties: Mark Robert ENGEL and Daniel Michael Engel v. Bonita Engel AMONETT and Marion Thomas Whitman
• Court: Alabama Supreme Court

240 So.3d 530

Mark Robert ENGEL and Daniel Michael Engel

v.Bonita Engel AMONETT and Marion Thomas Whitman

1160113

Supreme Court of Alabama.

June 23, 2017

* Note from the reporter of decisions: On July 21, 2016, this case was assigned to Jean Powers, a temporary probate judge appointed for the adjudication of the merits.

Wesley H. Blacksher, Mobile, for appellants.

Duane A. Graham and Roger W. Varner, Jr., of Armbrecht Jackson, LLP, Mobile, for appellees.

WISE, Justice.

Mark Robert Engel and Daniel Michael Engel appeal from the Mobile Probate Court's order disqualifying them as co-executors of their mother's estate and appointing a third party to administer the estate. We affirm.

Facts and Procedural History

On November 23, 2015, Rositha Lorsch Engel¹ died. In her will, she named Mark Robert Engel and Daniel Michael Engel as co-executors. On March 9, 2016, Mark and Daniel filed a petition for letters testamentary in the Mobile Probate Court. The petition listed Rositha's heirs as her four children: Marion Thomas Whitman ("Thomas"), Mark Robert Engel, Daniel Michael Engel, and Bonita Engel Amonett.

On May 5, 2016, Bonita and Thomas filed an objection to the appointment of Mark and Daniel as co-executors of their mother's estate, arguing that Mark and Daniel were disqualified from serving as co-executors for the reasons stated in § 43–2–22, Ala. Code 1975. Specifically, they contended that Mark and Daniel, either directly or by agent, had been selling Rositha's personal property, as well as personal property of other individuals located in Rositha's residence, by way of the Internet without having the authority to do so. Bonita and Thomas asserted that such actions reflected "intemperance, improvidence, or want of understanding" such that Mark and Daniel were disqualified from serving as the co-executors of Rositha's estate, and they asked that the Mobile County general administrator or some other neutral party be appointed to administer the estate. They also requested that Mark and Daniel be enjoined from selling any of Rositha's personal property and that they be required to account for, and turn over the proceeds from, any items that had already been sold.

The probate court conducted a hearing on May 9, 2016. On May 13, 2016, it entered an order in which, with the consent of all parties, it enjoined all parties from "disposing [of], transferring, giving away, spending, or otherwise dissipating" property belonging to the estate.

The probate court conducted a pretrial conference on July 11, 2016. Thereafter, on July 21, 2016, it entered an order in which it stated that it would conduct a hearing on October 13, 2016, and that the triable issues for that hearing were:

"A. Whether or not Mark Robert Engel and Daniel Michael Engel should be appointed as co-executors as stated in the Last Will and Testament of Rositha L. Engel dated April 15, 2008;

"B. Whether or not Mark Robert Engel and Daniel Michael Engel sold personal property of decedent and committed waste of estate assets or diverted any estate assets;

"C. If Mark Robert Engel and Daniel Michael Engel sold personal property and committed waste of assets, what is the value of the personal property sold and should they return the value to the estate; and

"D. Whether or not the Court should appoint the Mobile County General Administrator to administer decedent's estate."

The probate court conducted the hearing on the petition on October 13, 2016. Afterward, on October 17, 2016, it entered an order in which it stated:

"This cause came before the Court on October 13, 2016, on the Petition for Letters Testamentary filed by Mark Robert Engel and Daniel Michael Engel and the Objection to Appointment of Personal Representative and Motion to Appoint General Administrator or Other Neutral Representative filed by Bonita Engel Amonett and Marion Thomas [Whitman]. Appearances were noted in the record. This cause is properly before the Court pursuant to its jurisdiction and authority as conferred by statute, local act and Constitutional provisions. Upon consideration of the evidence and argument presented, the Court FINDS, CONCLUDES AND ORDERS as follows:

"1. The Petition for Letters Testamentary is DENIED IN PART. The proffered will is admitted to probate; however, the Objection to Appointment of Personal Representative and Motion to Appoint General Administrator or Other Neutral Representative is SUSTAINED and GRANTED.

"2. Frank H. Kruse, General Administrator of Mobile County Probate Court shall be appointed Personal Representative of the Estate and Letters of Administration with the Will Annexed shall issue forthwith.

"3. Mark Robert Engel and Daniel Michael Engel are ORDERED to provide an accounting to the Personal Representative of any personal property sold or put up for sale since the date of decedent's death.

"4. Mark Robert Engel and Daniel Michael Engel are ORDERED to turn over to the Personal Representative any assets in their possession belonging to the Estate.

"5. The Personal Representative is ORDERED to file an inventory on or before November 18, 2016."

(Capitalization in original; emphasis added.)

On November 4, 2016, Mark and Daniel filed a notice of appeal to this Court.

Standard of Review

" ‘Because the probate court's judgment is based, in part, upon testimony adduced at an ore tenus proceeding, we presume its judgment to be correct, and we will not reverse its judgment unless it is "palpably erroneous." Cox v. Logan, 262 Ala. 11, 13, 76 So.2d 169, 171 (1954). A more recent statement of the "ore tenus" rule, as applicable in an appeal from a probate court's judgment, appears in Craig v. Perry, 565 So.2d 171, 175 (Ala. 1990) (citations omitted):

" ‘ "[W]hen a court hears ore tenus evidence in a nonjury case, its ruling based on that evidence is presumed correct and will be overturned only if clearly erroneous or manifestly unjust. ... The presumption of correctness is especially applicable where ... the evidence was conflicting. The weight to be given the witnesses' testimony [is] for the trial judge, because he had the opportunity to view the witnesses and their demeanor." ’

" Barron v. Scroggins, 910 So.2d 780, 782–83 (Ala. Civ. App. 2005)."

McGallagher v. Estate of DeGeer, 934 So. 2d 391, 401 (Ala. Civ. App. 2005).

Discussion

Mark and Daniel argue that the probate court erred in disqualifying them from being the co-executors of their mother's estate. Specifically, they contend that the probate court stated that it was disqualifying them because the heirs, which included them, did not get along and for "efficiency of administration," which they assert are not proper grounds for disqualifying them from serving as co-executors. Therefore, Mark and Daniel conclude, the probate court's order should be reversed and they should be appointed as the co-executors of their mother's estate.

Bonita and Thomas argue that the probate court's order was "grounded in the reasons enumerated by Ala. Code [1975,] § 43–2–22(a)," and that that court did not err in finding that Mark and Daniel were disqualified from serving as co-executors for the reasons stated in § 43–2–22. Section 43–2–22(a) provides, in relevant part:

"No person must be deemed a fit person to serve as executor who is under the age of 19 years, or who has been convicted of an infamous crime, or who, from intemperance, improvidence or want of understanding, is incompetent to discharge the duties of the trust."

Bonita and Thomas contend that Mark's and Daniel's "entire appeal is predicated on the assumption that the Probate Court's Final Order was solely based on ‘efficiency of administration’ " and that "[t]he basis for this wrongful assumption are two gratuitous sentences that were uttered by the judge at the close of the trial prior to entering the final order." Instead, they assert that

"the [probate court] made no indication in [its] verbal statements that this was the sole reason for [its] decision. The Final Order itself, read in light of the pleadings and, in particular, the Objection, clearly reflects that the basis of the [court's] decision was the finding that Mark's and Daniel's conduct (including but not limited to their efforts to sell the Decedent's personal property) reflected intemperance, improvidence, and/or want of understanding, which disqualified them from serving as co-executors of the Decedent's Estate."

We agree with Bonita and Thomas. In their objection to the appointment of Mark and Daniel as co-executors, Bonita and Thomas argued that Mark and Daniel were disqualified from serving as co-executors for the reasons stated in § 43–2–22 because they and/or their children had been placing Rositha's personal property for sale on various sites on the Internet. Also, the probate court entered an order enjoining all parties from "disposing [of], transferring, giving away, spending, or otherwise dissipating" property belonging to the estate. Finally, the probate court entered an order in which it stated that the issues to be tried at the hearing were 1) whether Mark and Daniel sold Rositha's personal property and committed waste of estate assets or diverted any estate assets, and, if so, 2) what was the value of the personal property sold and should the value be returned to the estate, and 3) whether the court should appoint the general administrator to administer the estate. Clearly, the issue about which the probate court was concerned was whether Mark and Daniel were disqualified from serving as co-executors for the reasons stated in § 43–2–22.

Also, the evidence presented during the hearing focused on the question of Mark's and Daniel's fitness to serve based on whether they should be disqualified pursuant to § 43–2–22. During the hearing, Bonita testified that Daniel, his wife, and his three children lived with their mother for at least eight years during which time Daniel did not work and that Daniel did not pay their mother rent or pay for utilities during the time his family lived with her. She explained that...