Flannigan v. Jordan

• Decision Date: 03 July 2003
• Citation: 871 So.2d 767
• Parties: Jerry E. FLANNIGAN and Charlotte Flannigan, as guardians of Jenna Erin-Lea Flannigan and personal representatives of the estate of Jeffrey Earl Flannigan, deceased v. Lynn JORDAN.
• Court: Alabama Supreme Court

871 So.2d 767

Jerry E. FLANNIGAN and Charlotte Flannigan, as guardians of Jenna Erin-Lea Flannigan and personal representatives of the estate of Jeffrey Earl Flannigan, deceased v. Lynn JORDAN.

1012355.

Supreme Court of Alabama.

July 3, 2003.

Robert E. Sasser, Joel Connally, and R. Brian Tipton of Sasser, Littleton & Stidham, P.C., Montgomery, for appellants.

J. Cole Portis and Kendall C. Dunson of Beasley, Allen, Crow, Methvin, Portis & Miles, P.C., Montgomery, for appellee.

MOORE, Chief Justice.

Jerry E. and Charlotte Flannigan filed a petition for permission to appeal the Montgomery Circuit Court's denial of their motion to dismiss an appeal to that court from the Montgomery Probate Court. This Court granted the petition to address one legal issue: Whether in a case involving the removal by the probate court of an administrator from a decedent's estate, the seven-day appeal period of § 12-22-21(3), Ala.Code 1975, can be tolled by a "motion for reconsideration" filed after the seven days have expired. We reverse the judgment of the trial court and remand the case for that court to dismiss Jordan's appeal.

Facts

On November 9, 2001, Jeffrey Flannigan was killed on the job while working as a high-voltage electrician in Mississippi. On that same day, the appellants, Jeffrey's parents, Jerry and Charlotte Flannigan ("the Flannigans"), were appointed guardians of Jeffrey's only daughter, Erin-Lea Flannigan, by the Circuit Court of Escambia County, Florida, where the Flannigans and Erin-Lea reside. On November 10, 2001, Lynn Jordan petitioned to be appointed as administratrix of Jeffrey's estate on the basis that she was Jeffrey's common-law wife at the time of his death. The Montgomery County Probate Court granted letters of administration to Jordan on November 19, 2001. On November 30, 2001, Jordan filed a civil action on Jeffrey's behalf in Mississippi against Jeffrey's employer seeking damages for Jeffrey's death.

On February 1, 2002, the Flannigans, as guardians of Erin-Lea Flannigan and as personal representatives of Jeffrey's estate,¹ petitioned the Montgomery County Probate Court for the removal of Jordan as administratrix of Jeffrey's estate, asserting three separate grounds for her removal. On May 14, 2002, the Montgomery County Probate Court held a hearing and heard testimony on the Flannigans' petition. On May 30, 2002, without specifying the grounds, the Probate Court of Montgomery County granted that petition and removed Jordan as administratrix of Jeffrey's estate. On June 12, 2002, Jordan filed a "motion for reconsideration or, in the alternative, motion for clarification" of the probate court's order, seeking to learn which of the three grounds argued by the Flannigans was the basis for the order removing her as administratrix. The probate court denied that motion on June 17, 2002, and Jordan appealed to the Montgomery Circuit Court on June 21, 2002.

The Flannigans filed a motion in the Montgomery Circuit Court to dismiss Jordan's appeal as untimely because it was not filed within seven days of the date of the probate court's order removing Jordan as administratrix, i.e., May 30, 2002, see § 12-22-21(3), thus depriving the Montgomery Circuit Court of subject-matter jurisdiction over the appeal. After a hearing on that motion on September 11, 2002, the Montgomery Circuit Court denied the Flannigans' motion and certified its order for an interlocutory appeal under Rule 5, Ala.R.App.P. This Court granted the Flannigans' petition for permission to appeal on October 11, 2002.

Standard of Review

We will review the issue of subject-matter jurisdiction even when the issue was not raised in the lower court because "[t]he question of jurisdiction is always fundamental." Mobile & Gulf R.R. v. Crocker, 455 So.2d 829, 831 (Ala.1984).

"[I]f there is an absence of jurisdiction over either the person, or the subject matter, a court has no power to act, and jurisdiction over the subject matter cannot be created by waiver or consent. Rinehart, etc. v. Reliance Life Ins. Co. of Georgia, 272 Ala. 93, 128 So.2d 503[ (Ala.1961)]. Absence of jurisdiction over the subject matter ends all inquiry, and the matter may be raised on appeal."

Norton v. Liddell, 280 Ala. 353, 356, 194 So.2d 514, 517 (1967). See also Talton Telecomm. Corp. v. Coleman, 665 So.2d 914, 916-18 (Ala.1995). We are also not limited to any specific matters within the pleadings but may review the entire record certified to this Court on appeal. Mobile & Gulf R.R., 455 So.2d at 832.

Analysis

The Flannigans state three bases for their argument that the circuit court lacked subject-matter jurisdiction of Jordan's purported appeal of her removal as administratrix. First, they argue that Jordan did not appeal the probate court's order removing her as administratrix; she appealed from the order denying her "motion for reconsideration or, in the alternative, motion for clarification." Second, they argue that Jordan's appeal was untimely in light of § 12-22-21(3), Ala.Code 1975, because she filed it with the circuit court on June 21, 2002, well beyond seven days after the entry on May 30, 2002, of the probate court's order removing her as administratrix. Third, they argue that Jordan's "motion for reconsideration or, in the alternative, motion for clarification," filed on June 12, 2002, was not a motion filed pursuant to Rule 59(e), Ala. R. Civ. P., to alter, amend, or vacate the judgment and therefore did not toll the seven-day appeal period of § 12-22-21(3). Because of our rationale in resolving the issue presented, we need not address the question whether Jordan's "motion to reconsider" was in fact a Rule 59(e) motion. Nor need we answer the question whether Jordan in fact appealed from the May 30 order removing her as administratrix or from the June 17 order denying her "motion to reconsider."

Jordan claims that the Alabama Rules of Civil Procedure apply to her appeal and that she had 30 days from the entry of the probate court's order removing her as administratrix within which to file her "motion for reconsideration or, in the alternative, motion for clarification." She argues that her motion was in substance a Rule 59(e), Ala. R. Civ. P., motion that must be filed within 30 days of the judgment and that her filing of that motion suspended the time for filing an appeal to the circuit court, making that appeal timely. However, neither of these arguments makes any difference whatsoever in this case. Even if we agreed with her arguments that the Alabama Rules of Civil Procedure applied and that her motion was a Rule 59(e) motion, it is logically impossible for her motion to have tolled a limitations period that had already passed when the motion was filed.

The Alabama Legislature has established the time in which a removed administratrix may appeal her removal by the probate court:

"Appeal from the order, judgment or decree of the probate court may be taken by the party aggrieved to the circuit court or Supreme Court in the cases hereinafter specified. Appeals to the Supreme Court shall be governed by the Alabama Rules of Appellate Procedure, including the time for taking an appeal. Appeal to the circuit court in such cases shall be within the time hereinafter specified:

"....

"(3) Upon any decree, judgment or order removing an executor or administrator, in which case the appeal must be taken within seven days after such decree, judgment or order."

§ 12-22-21(3), Ala.Code 1975.

An appeal is not a vested right but rests on statutory grounds. Greystone Close v. Fidelity & Guar. Ins. Co., 664 So.2d 900, 902 (Ala.1995); Echols v. Star Loan Co., 290 Ala. 76, 79, 274 So.2d 51, 53 (1973), citing Stone v. Lewin, 8 Ala. 395 (1845); Burgess v. State Dep't of Indus. Relations, 637 So.2d 1366, 1368 (Ala.Civ. App.1994) ("It is well settled that an appeal is not a matter of vested right but is by the grace of statute and must be perfected...