Ex Parte Terry, 1060702

• Decision Date: 02 November 2007
• Docket Number: 1060705.,1060702
• Citation: Ex Parte Terry, 985 So.2d 400 (Ala. 2007)
• Parties: Ex parte Emory L. TERRY, as administrator of the estate of Fay Sewell Terry, deceased. (In re The estate of Fay Sewell Terry, deceased). Emory L. Terry, as administrator of the estate of Fay Sewell Terry, deceased v. Craig G. Terry and Kendrick Terry.
• Court: Alabama Supreme Court

985 So.2d 400

Ex parte Emory L. TERRY, as administrator of the estate of Fay Sewell Terry, deceased (In re The estate of Fay Sewell Terry, deceased) Emory L. Terry, as administrator of the estate of Fay Sewell Terry, deceased v.Craig G. Terry and Kendrick Terry.

1060702

1060705.

Supreme Court of Alabama.

November 2, 2007.

Stephen Mitchell Tunstall, Mobile; and Thomas F. Garth of Lyons, Pipes & Cook, P.C., Mobile, for petitioner/appellantEmory L. Terry.

J. Marshall Gardner of Vickers, Riis, Murray & Curran, L.L.C., Mobile, for respondentsCraig Terry and Kendrick Terry.

SEE, Justice.

Emory L. Terry("Emory"), as the administrator of the estate of Fay Sewell Terry, deceased ("the estate"), petitions this Court for the writ of mandamus directing the Mobile Circuit Court to vacate its order remanding the administration of the estate to the Mobile Probate Court.In the alternative, Emory appeals the decision of the circuit court remanding the case to probate court.We consolidated the two proceedings for purposes of writing one opinion.Because Emory's direct appeal serves as an adequate alternative remedy to mandamus relief, we deny his petition for the writ of mandamus; we affirm the decision of the Mobile Circuit Court.

Facts and Procedural History

This case arises from a dispute between Emory and two of his sons, Craig G. Terry and Kendrick Terry.Craig and Kendrick have objected to the final settlement of the estate because they dispute the inventory and distribution of the assets of the estate.Emory first petitioned the probate court for a final settlement of the estate in May 2005 and filed an accounting of assets and a statement of heirs at that time.The probate court sent a notice to all the heirs listed by Emory and set the hearing on the petition for September 2005.Craig and Kendrick answered the petition and objected to Emory's accounting.Following the September hearing, the parties engaged in discovery and a series of motions, responses, and hearings, none of which resolved the issues raised at the September 2005 hearing.In June 2006, Emory moved the circuit court to remove the administration of the estate to the circuit court pursuant to § 12-11-41,Ala.Code 1975.¹That motion was denied, and Emory petitioned this Court for the writ of mandamus directing the probate court to transfer the administration of the estate to the circuit court.In October 2006, this Court noted that "[the] root of the problem in this case is the failure of the circuit court to act" and denied Emory's petition, in part "because the administrator has another available remedy if the circuit court fails to grant the petition for removal upon its being filed with the necessary statutory averments."Ex parte Terry,957 So.2d 455, 459(Ala.2006).The decision in Terry was based on an earlier ruling in which this Court held that

"when a party has made a prima facie showing that the party is entitled to the removal of the administration of an estate under § 12-11-41, `the circuit courtmust order its removal, subject to retransfer upon a motion by the opponent of the transfer, and a finding by the circuit court that the party effecting removal lacked standing under the statute.'"

957 So.2d at 458(quotingEx parte McLendon,824 So.2d 700, 704(Ala.2001)(hereinafter "McLendon II")).This Court further stated in Terry that "if upon denial of this petition for a writ of mandamusthe circuit court denies the administrator's pending motion to amend or to vacate its order denying removal, ... the administrator may appeal the order of the circuit court."957 So.2d at 459.Following this ruling, the circuit court granted Emory's petition to remove the administration of the estate.Kendrick and Craig then moved the circuit court to transfer the case back to the probate court on the ground that Emory's petition for removal was untimely.The circuit court granted Kendrick and Craig's motion, citing § 12-11-41,Ala.Code 1975, which provides in relevant part that the "estate may be removed from the probate court to the circuit court at any time before a final settlement thereof ...."The circuit court found that Emory had properly petitioned the probate court to begin final settlement proceedings and that the probate court had taken jurisdiction in the case.The circuit court concluded that Emory's petition to remove the administration pursuant to § 12-11-41 was therefore untimely and that the administration of the estate was due to be remanded to the probate court.Emory has sought review of this decision either by the writ of mandamus or, alternatively, by direct appeal.As noted earlier, we deny the petition for the writ of mandamus because his appeal serves as an adequate alternative remedy, and, as to the appeal, we affirm.

Analysis

Emory petitions this Court for the writ of mandamus directing the circuit court to reverse its order remanding the administration of the estate to the probate court.

"`"Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court." ...'"

Terry,957 So.2d at 457(quotingEx parte Williford,902 So.2d 658, 661-62(Ala.2004)).This Court has held that the order of a circuit court"remanding the administration of [an] estate to the probate court[moves] this branch of the case out of the circuit court, and [is] such final decree as will support [an] appeal."Ex parte Kelly,243 Ala. 184, 187, 8 So.2d 855, 857(1942)(citingBailey v. Southern Ry.,215 Ala. 677, 112 So. 203(1927)).As he did when he previously petitioned this Court for the writ of mandamus, Emory has another available remedy by direct appeal of the order of the circuit court.SeeTerry,957 So.2d at 459.Therefore, we deny Emory's petition for the writ of mandamus, and we review the order of the circuit court as a final judgment.

Emory's appeal "involves only an issue of law and the application of the law to undisputed facts; therefore our review is de novo."Ex parte Hamilton,970 So.2d 285, 287(Ala.2006)(citingEx parte Walker,928 So.2d 259, 262(Ala.2005)).The sole issue on appeal is whether the circuit court, to which the administration of the estate was removed pursuant to § 12-11-41,Ala.Code 1975, may remand the administration of the estate to the probate court on the ground that the probate court had already begun to exercise jurisdiction over the final settlement of the estate.

Following this Court's denial of Emory's previous petition for the writ of mandamus, the circuit court granted Emory's petition for removal of the administration of the estate from the probate court pursuant to § 12-11-41,Ala.Code 1975.That statute provides that "[the] administration of any estate may be removed from the probate court to the circuit court at any time before a final settlement thereof, by any heir, devisee, legatee, distributee, executor, administrator or administrator with the will annexed of any such estate, without assigning any special equity."The availability of removal under § 12-11-41 is broad, and "[the] only limitation on removal occurs once the probate court has taken steps toward a final settlement, or has, in fact, made a final settlement."Ex parte Clayton,514 So.2d 1013, 1016(Ala.1987).

"The term `final settlement' signifies that `nothing remain[s] to be done by an administrator or by the court in the settlement of [the] estate.'"Boyd v. Franklin,919 So.2d 1166, 1173(Ala.2005)(quotingStevens v. Tucker,87 Ind. 109, 115(1882)).However, this Court has long held that "[the] words `at any time before a final settlement,' found in the removal act, mean before proceedings for settlement begin, not before they are completed."Ex parte McLendon,212 Ala. 403, 405, 102 So. 696, 698(1924)(hereinafter "McLendon I")."`Furthermore, this Court has previously held that "[j]urisdiction for final settlement in the probate court begins upon filing accounts and vouchers with [a] statement of the heirs invoking the court's jurisdiction for such settlement and an order entered setting [the] day, directing notice, etc."'" Boyd, 919 So.2d at 1172(quotingMcLendon I,212 Ala. at 405, 102 So. at 698, citing§§ 5901and5904,Ala.Code 1923(now §§ 43-2-501 and -502, Ala.Code 1975)).When the probate court has assumed jurisdiction over the final settlement of an estate, yet a petitioner has successfully removed the administration to the circuit court, the circuit court may retransfer the administration to the probate court upon the motion of the party opposing removal.McLendon II,824 So.2d at 704.

In this case, the circuit court's order retransferring the administration of the estate to the probate court indicates that Emory had petitioned the probate court for final settlement proceedings.The order further indicates that the probate court had assumed jurisdiction and had...