Franks v. Norfolk Southern Ry. Co.

• Decision Date: 26 April 1996
• Parties: Steve FRANKS, as administrator ad litem of the Estate of Georgia Franks, deceased v. NORFOLK SOUTHERN RAILWAY COMPANY, et al. 1941713.
• Court: Alabama Supreme Court

Page 214

679 So.2d 214

Steve FRANKS, as administrator ad litem of the Estate of Georgia Franks, deceased v. NORFOLK SOUTHERN RAILWAY COMPANY, et al.

1941713.

Supreme Court of Alabama.

April 26, 1996.

Leila H. Watson and Charles R. Crowder of Cory, Watson, Crowder & Petway, P.C. and David Cromwell Johnson, Birmingham, for Appellant.

David K. Howard of Jester, Howard & Jenkins, Florence, for Appellees.

BUTTS, Justice.

Steve Franks, as administrator ad litem of the estate of Georgia Delaine Franks, deceased, appeals from a dismissal of the wrongful death action he filed after the death of his sister-in-law, Georgia Franks. Mrs. Franks was struck and killed by a train on October 1, 1988, and her husband, Roger Franks, was seriously injured in the same accident. Steve Franks, Roger's brother, is also the conservator for Roger Franks, who is nonfunctional as a result of the accident. For a synopsis of the facts of the accident, see this Court's opinion in Franks v. Norfolk Southern Corp., 646 So.2d 578 (Ala.1994).

The Colbert County Probate Court appointed Danny L. Borden, Georgia Franks's brother, as administrator of her estate on August 29, 1990; however, the record indicates that Borden did not plan to file a wrongful death action. ¹ Therefore, on September 27, 1990, the probate court appointed Steve Franks administrator ad litem for the purpose of filing a wrongful death action based on the death of Georgia Franks; that appointment had the effect of removing from Danny Borden, as administrator, the privilege of filing a wrongful death action. Immediately upon his appointment, Steve Franks sued Norfolk Southern Corporation, ² Charlie Beckwith, Nathaniel Burt, and Jimmy Larimore (hereinafter collectively referred to as "Norfolk Southern"), seeking wrongful death damages based on the death of Georgia Franks and seeking damages for personal injuries suffered by Roger Franks. He alleged that Norfolk Southern had acted negligently and wantonly and had thereby caused the injuries and death.

On October 29, 1990, Norfolk Southern filed the first motion to dismiss, which is at issue in this appeal. In that motion, Norfolk Southern stated, "Steve Franks, as administrator ad litem of the Estate of Georgia Delaine Franks, deceased, is not the proper party to bring [this] lawsuit." After hearing arguments, the trial court overruled the motion and ordered Norfolk Southern to answer the complaint.

Discovery proceeded and Norfolk Southern filed its first motion for a summary judgment. That summary judgment motion made no argument that Steve Franks was not the proper party to bring this lawsuit. The trial court entered a summary judgment for Norfolk Southern, holding that no genuine issue of material fact existed; this Court reversed that summary judgment, see Franks, supra, 646 So.2d 578, and the case was set for trial on May 15, 1995. On the morning of May 15, Norfolk Southern filed a second motion to dismiss or, in the alternative, for a summary judgment, claiming that "Steve Franks is not the proper party to have brought the lawsuit for the wrongful death of Georgia Delaine Franks and that action is therefore a nullity and should be dismissed...." After a hearing, the trial court reversed its earlier ruling, dismissed the action, and, in its order, stated that the appointment of Steve Franks as administrator was void and that the action was a nullity because (1) the action had not been brought by the proper party, (2) there was no relation back, and (3) the statutory limitations period had run.

On appeal, Steve Franks argues (1) that the circuit court did not have jurisdiction to consider a collateral attack on the order of the probate court appointing him as administrator ad litem, (2) that his appointment as administrator ad litem was proper and, therefore, authorized him to bring the wrongful death action, and (3) that it was prejudicial and unfair for Norfolk Southern to file on the morning of trial a second motion based on the same issue that had been ruled upon five years earlier.

The trial court's ruling on a motion to dismiss involves an application of law to the facts; therefore, the trial court's ruling is not entitled to a presumption of correctness. Allen v. Johnny Baker Hauling, Inc., 545 So.2d 771 (Ala.Civ.App.1989). Thus, this Court must determine whether the trial court correctly applied the law to the facts in granting the motion to dismiss.

I. Appellate Jurisdiction over Probate Court Orders

In Alabama, circuit courts have "a general superintendence" over the probate courts. Ala.Code 1975, § 12-11-30(4). Encompassed in this superintendence is the power to review certain judgments and orders of the probate court, either through direct appeal or by petition for an extraordinary writ. See Helms v. McCollum, 447 So.2d 687 (Ala.1984). Sections 12-22-2 and 12-22-20, Ala.Code 1975, authorize appeals from final judgments of a probate court to either the circuit court or the Supreme Court.

This Court has held that an order appointing one petitioner as guardian of an infant and denying the petition of another was a "final" judgment or order of the court of probate and therefore would support an appeal under the predecessor of § 12-22-21. Loftin v. Carden, 203 Ala. 405, 83 So. 174 (1919). Roger Franks's situation is similar to that of an infant--the evidence indicates he is unable to care for himself, needs constant supervision, and is unable to handle his own affairs. Steve Franks is his conservator. Steve Franks was appointed administrator, instead of Danny Borden, for the purpose of bringing this wrongful death action. Therefore, the order of the probate court appointing Steve Franks was appealable to the circuit court.

An appeal from any probate judgment or order removing an executor or administrator must be taken within seven days of the issuance of the judgment or order. Ala.Code 1975, § 12-22-21(3). Borden was the administrator of the estate, and had the authority to file a wrongful death claim, until Steve Franks was appointed administrator ad litem for the purpose of bringing a wrongful death action. If, after the appointment of Steve Franks, Borden had wished to challenge the appointment, he should have appealed within seven days. He did not do so, and any appeal now would be too late.

The appellate jurisdiction of the circuit court can also be invoked by a petition for an extraordinary writ. Ala. Const. of 1901, amend. 328, § 6.04(b). Orders as to which no statute grants appellate jurisdiction are reviewed on petitions for writ of certiorari, mandamus, or prohibition. Town of Flat Creek v. Alabama By-Products Corp., 245 Ala. 528, 17 So.2d 771 (1944). Borden has not challenged the appointment of Steve Franks by petition for an extraordinary writ, nor could any writ be issued, because the appointment of Steve Franks is within § 12-22-21(3), Ala Code 1975, which grants the circuit court appellate jurisdiction over this particular order of the probate court. By not filing a direct appeal from the probate court's order, Borden forfeited his right to challenge that order.

II. The Collateral Attack

After Steve Franks was appointed administrator ad litem for the purpose of filing a wrongful death action, neither Borden nor Norfolk Southern appealed. When this case was before this Court two years ago, Norfolk Southern failed to challenge the appointment of Steve Franks as administrator ad litem and, in that case, this Court referred to Steve Franks as the "administrator of the estate of Georgia Franks." Franks, 646 So.2d at 579. Five years after the appointment of Steve Franks, Norfolk Southern filed a second motion to dismiss, although the trial court had already ruled on this issue and the parties and this Court had relied on that ruling. The trial court granted this second motion to dismiss, stating in its order:

"3. The Court further finds from the evidence that the order of the Probate Court of Colbert County, Alabama, appointing Steve Franks the administrator ad litem of the estate of Georgia Delaine Franks, states that a hearing was held on the 27th day of September 1990 in the Probate Court of Colbert County, Alabama; however, the Court specifically finds that there was no hearing, no testimony or evidence was taken before that court, and Danny Borden, the administrator of the estate of Georgia Delaine Franks, was given no notice of said hearing.

"4. The Court further finds that the petition to appoint Roger Lee Franks [sic] the administrator ad litem in the Probate Court of Colbert County contained mere allegations not supported by any testimony or evidence in the Probate Court of Colbert County, nor was it sworn to.

"....

"6. The Court further finds that the attempt to have Steve Franks appointed administrator ad litem fails in that the appointment does not meet a single requirement necessary to appoint [an] administrator ad litem as set out in the Code of Alabama in Section 43-2-250 et seq., and in the case of Ex parte Riley, 247 Ala. 242[, 23 So.2d 592 (1945) ].

"7. The Court further finds that the appointment of Steve Franks as administrator ad litem is void."

As noted above in Section I, there are only two ways to invoke the circuit court's appellate jurisdiction over a probate court's orders. A motion to dismiss filed in the circuit court will not invoke its appellate jurisdiction over an order of the probate court. Thus, we must determine whether the circuit court's order granting Norfolk Southern's second motion to dismiss is an improper collateral ruling invalidating an order of the probate court.

The law distinguishes between a direct attack and a collateral attack on the order of another court. "A direct attack is an attempt to amend, correct, reform, vacate or enjoin the execution of that judgment in a proceeding instituted for that purpose, and ... a collateral attack is an attempt to avoid the binding force of a judgment in a proceeding not instituted in an attempt to...