Evans v. Waddell

• Citation: 689 So.2d 23
• Parties: Charlie P. EVANS, Jr., et al. v. John Emory WADDELL, executor of the estate of Virginia Espy Evans, deceased, et al. 1951356.
• Decision Date: 31 January 1997
• Court: Supreme Court of Alabama

Page 23

689 So.2d 23

Charlie P. EVANS, Jr., et al. v. John Emory WADDELL, executor of the estate of Virginia Espy Evans, deceased, et al.

1951356.

Supreme Court of Alabama.

Jan. 31, 1997.

William L. Utsey of Utsey, Christopher & Newton, Butler, for Appellants.

Ron Storey, Dothan; James R. Shaw of Huie, Fernambucq & Stewart, Birmingham; William L. Lee III of Lee & McInish, Dothan; and Robert H. Brogden, Ozark, for Appellees.

BUTTS, Justice.

This appeal involves a will contest and numerous ancillary tort claims. Because of the numerous parties involved and the somewhat confusing nature of their relationships, we have greatly condensed our discussion of the factual background of this case.

Virginia Espy Evans ("Virginia") died of cancer on September 24, 1991. She had executed a will on September 12, 1991, and her attorney, John Emory Waddell, submitted the will to the Dale Probate Court for probate on October 1, 1991. On March 31, 1992, Charlie Evans, Jr. ("Charlie"), Virginia's husband's son by another woman; Lori Evans, Charlie's wife; and their three children filed a complaint in the Dale Circuit Court that contested the validity of the will. ¹ The complaint also made several tort claims. It was filed against Virginia's estate; Waddell, as executor of the estate; Waddell, individually; Georgia Helen Smith ("Georgia"), Virginia's daughter and Charlie's adoptive mother (who was also Charlie's half-sister); and several fictitiously named defendants. Charlie and his family also filed in the probate court a claim against Virginia's estate.

Thereafter, on October 7, 1993, the complaint was amended to add as plaintiffs James Smith, Georgia's former husband, and Irene Clevenger Glover, Virginia's former employee/companion, and to allege additional claims. It also added as defendants Ann Helms, who was Waddell's secretary and a notary public, and other fictitiously named persons. As amended, the complaint made the following claims:

Counts I, X, and XVII--a will contest by Charlie, James Smith, and Glover against Virginia's estate, Waddell, Georgia, and Helms, alleging that the will was not validly executed;

Counts II, XI, and XVIII--a will contest by Charlie, James Smith, and Glover against Virginia's estate, Waddell, Georgia, and Helms, alleging the use of undue influence;

Counts III, XIII, and XX--a breach of fiduciary duty claim by Charlie, James Smith, and Glover against Virginia's estate, Waddell, Georgia, and Helms;

Count IV--a conversion claim by Charlie against Virginia's estate, Waddell, and Georgia, regarding a property deed;

Count V--a claim by Charlie against Virginia's estate, Waddell, and Georgia, alleging a wrongful ouster and trespass to land Count VI--a conversion-of-chattel claim by Charlie against Virginia's estate, Waddell, and Georgia, regarding cattle;

Count VII--an intentional-infliction-of-emotional-distress ("tort of outrage") claim by Charlie and his wife and children against Waddell, Georgia, and several fictitiously named defendants;

Count VIII--a claim by Charlie and his wife and children alleging a tortious interference with a family relationship, against Waddell, Georgia, and several fictitiously named defendants;

Counts IX, XII, and XIX--a "promissory estoppel" claim by Charlie, James Smith, and Glover against Virginia's estate, Waddell, Georgia, and Helms;

Count XIV--a fraud claim by James Smith against Waddell and Georgia;

Count XV--a conspiracy-to-commit-fraud claim by James Smith against Waddell, Georgia, and Helms;

Count XVI--an outrage claim by James Smith against Waddell, Georgia, and Helms.

The defendants did not answer the original complaint, but instead moved to dismiss. The plaintiffs began discovery efforts, but the circuit court temporarily stayed discovery. The defendants petitioned this Court for a writ of mandamus, seeking dismissal of the action; the petition was denied on November 18, 1992. This Court also denied the defendants' motion to reconsider its denial of the writ. The parties, primarily the defendants, filed numerous motions and briefs, so entangling the circuit court in paperwork that while months and years passed, the litigation barely proceeded. On December 6, 1995, the trial court entered a summary judgment in favor of the defendants on all counts. In response, the plaintiffs, on January 3, 1996, filed a "Motion to Reconsider Order Granting Summary Judgment." The circuit court did not rule on that motion within 90 days, and the plaintiffs appealed on May 10, 1996.

I. Issues

There are several issues raised on appeal: (1) was the appeal timely filed; (2) did the complaint filed on March 31, 1992, sufficiently meet the requirements of Ala.Code 1975, § 43-8-199, so as to invoke the jurisdiction of the circuit court regarding the will contest claims; and (3) was the summary judgment proper on all counts?

II. Timeliness of the Appeal

The defendants argue that the plaintiffs' appeal was not timely and should be dismissed. They point out that the appeal was not filed within 42 days of December 6, 1995, the date of the summary judgment on all counts. It was filed on May 10, 1996, which was 155 days after the date of the judgment. The defendants further argue that the plaintiffs' motion for the trial court to "reconsider" the summary judgment was not a proper Rule 59(e), Ala.R.Civ.P., motion to "alter, amend, or vacate" the judgment. Thus, they contend that the running of the plaintiffs' 42 days for filing a notice of appeal was not tolled by the filing of the motion to reconsider, and that the appeal was, therefore, untimely.

In response, the plaintiffs contend that what they called their motion is not controlling. Citing Jenkins v. Landmark Chevrolet, Inc., 575 So.2d 1157 (Ala.Civ.App.1991), they argue that although their January 3, 1996, "motion to reconsider" was not styled as a "motion to alter, amend, or vacate the judgment," it nevertheless should be treated as a Rule 59(e) motion. Thus, they argue that that motion suspended the running of the time for filing an appeal--until the 90th day, when it would have been denied by operation of law. See Rule 59.1, Ala.R.Civ.P. The appeal was filed within 42 days of that 90th day.

We agree that the plaintiffs' January 3, 1996, motion was properly to be treated as a Rule 59(e) motion and that its filing tolled the running of the plaintiffs' time for filing a notice of appeal from the summary judgment. The substance of a motion and not its style determines what kind of motion it is. Cannon v. State Farm Mut. Automobile Ins. Co., 590 So.2d 191 (Ala.1991). While the Alabama Rules of Civil Procedure do not speak of a "motion to reconsider," this Court has repeatedly construed motions so styled, when they have been filed within 30 days after the entry of a final judgment, to be Rule 59(e) motions. Waters v. J.I. Case Co., 548 So.2d 454 (Ala.1989); McAlister v. Deatherage, 523 So.2d 387 (Ala.1988); Papastefan v. B & L Constr. Co., 356 So.2d 158 (Ala.1978). The January 3, 1996, motion filed by the plaintiffs was denied by operation of law after 90 days, see Rule 59.1 and Ex parte Alfa Mut. General Ins. Co., 684 So.2d 1281 (Ala.1996). The plaintiffs appealed within 42 days of that denial. The appeal was timely.

III. Will Contest under Ala.Code 1975, § 43-8-199

The defendants argued to the circuit court, and now argue to this Court, that the circuit court did not have the statutorily conferred jurisdiction to entertain the plaintiffs' will contest claims because, they say, the plaintiffs' March 31, 1992, complaint failed to allege every pleading requirement of § 43-8-199. Specifically, they contend that the complaint failed to allege that the plaintiffs had an "interest" in Virginia's will and was, thus, insufficient to "quicken" the jurisdiction of the circuit court.

Under § 43-8-199, a will contest in a circuit court must be properly filed within six months following probate of the will. In addition to arguing that the complaint was deficient, the defendants say that the plaintiffs' amendment to the complaint attempting to cure the deficiency was not filed until more than six months after the probate of the will. Thus, the defendants argue that the amendment did not cure the deficient complaint, that the circuit court's jurisdiction under § 43-8-199 was never invoked, that the will contest counts should have been dismissed, and the trial court, therefore, correctly entered the summary judgment on those counts.

In response, the plaintiffs first argue that their complaint contained all the material averments required by § 43-8-199. Alternatively, they argue that if any deficiency existed, it was cured by a later amendment alleging that Charlie was a major beneficiary of a will executed before the will being contested. The plaintiffs argue that the amendment to the complaint was proper under Rule 15, Ala.R.Civ.P., and that it did not cause the defendants to suffer any actual prejudice or serve to delay the action. They summarize their argument on this issue by stating that the complaint "was filed within the [period allowed by the] statute of limitations, with the proper court, stated the requisites of the applicable statute and was properly served on [the adverse] parties."

Section 43-8-199 states:

"Any person interested in any will who has not contested the same under the provisions of this article, may, at any time within the six months after the admission of such will to probate in this state, contest the validity of the same by filing a complaint in the circuit court in the county in which such will was probated."

Because a circuit court's jurisdiction over a will contest is statutorily conferred and limited, a proceeding initiated under § 43-8-199 must comply exactly with the requirements of that statute. Boshell v. Lay, 596 So.2d 581 (Ala.1992); Marshall v. Vreeland, 571 So.2d 1037 (Ala.1990); Simpson v. Jones, 460 So.2d 1282 (Ala.1984); Ex parte Pearson, 241 Ala. 467, 3 So.2d 5 (1941)...