Hoff v. Goyer

• Decision Date: 12 October 2012
• Docket Number: 1111078.
• Citation: 107 So.3d 1085
• Parties: Eliot HOFF v. Anita Kidd GOYER.
• Court: Alabama Supreme Court

107 So.3d 1085

Eliot HOFF

v.Anita Kidd GOYER.

1111078.

Supreme Court of Alabama.

Aug. 17, 2012.

Rehearing Denied Oct. 12, 2012.

Eliot Hoff, pro se.

James P. Naftel II of Maynard, Cooper & Gale, P.C., Birmingham, for appellee.

STUART, Justice.

Eliot Hoff (“Hoff”) appeals the order of the Jefferson Circuit Court (“the circuit court”) remanding the administration of the conservatorship of his grandmother, Susan Bibb Kidd, to the Jefferson Probate Court (“the probate court”). We affirm.

I.

On August 30, 2006, the probate court adjudged Kidd to be an incapacitated person and appointed Mark Goolsby as conservator of her estate.¹ The estate of Susan Bibb Kidd, a protected person, was thereby assigned probate-court case no. 192761. Sometime in August 2008, Goolsby sold some personal property in Kidd's estate to Anita Kidd Goyer, one of Kidd's three daughters. When another of Kidd's daughters, Susan Louis Hoff, and her son Hoff (hereinafter referred to collectively as “the Hoffs”) found out about the sale, they filed an objection in the probate court. Meanwhile, on September 29, 2009, Kidd died.

On February 21, 2011, the probate court issued an order that, among other things, approved the August 2008 sale of Kidd's personal property to Goyer. The Hoffs promptly moved the probate court to reconsider. An initial hearing on their motion was held on June 8, 2011; however, the matter was subsequently continued and another hearing scheduled for September 15, 2011.

On June 24, 2011, Goolsby petitioned the probate court to be appointed administrator of Kidd's estate because he could not conduct business as conservator after her death. The Hoffs thereafter also filed a motion to continue the hearing scheduled for September 15, 2011. On August 22, 2011, the probate court ruled on those motions, setting the hearing on the Hoffs' motion to reconsider for October 27, 2011, and denying Goolsby's motion to be appointed administrator of Kidd's estate. Instead, the probate court, on its own motion, appointed attorney Elizabeth W. McElroy, the general administrator for Jefferson County, as administrator of Kidd's estate. The estate of Susan Bibb Kidd, deceased, was thereby opened and assigned case no. 212938 in the probate court.

On October 20, 2011—one week before the probate court was scheduled to conduct a hearing on the Hoffs' motion to reconsider its February 21 ruling approving Goolsby's sale to Goyer of certain personal property belonging to Kidd—the Hoffs petitioned the circuit court to remove case no. 192761, the conservatorship proceeding, from the probate court.² That petition stated in pertinent part:

“Comes now, Eliot Hoff and Susan Hoff, pursuant to Ala.Code [1975,] § 12–11–41, and petition[ ] the Court for an Order removing the administration of the Estate of Susan Bibb Kidd, a protected person, now deceased, from the Probate Court of Jefferson County, Alabama to the Circuit Court of Jefferson County, Alabama, with the attached will.

“....

“As grounds for said petition, Eliot Hoff and Susan Hoff, state the following:

“(1) In case no. 192761, in the matter of the Estate of Susan Bibb Kidd, a protected person, now deceased:

“(a) No final settlement of the estate has been made and no steps have been taken for a settlement in the probate court.

“(b) In the opinion of your petitioners the estate can be better administrated in circuit court than in probate court.

“(c) This case is removable from the Probate Court of Jefferson County, Alabama pursuant to ... § 12–11–41[, Ala.Code 1975,] upon this petition because ... Eliot Hoff and Susan Hoff, are the respective daughter and grandson, heirs and legatees of said Susan Bibb Kidd, and as such have an interest in the administration of said estate.

“....

“For the foregoing reasons, petitioners pray that case no. 192761, in the Probate Court of Jefferson County, Alabama be removed to this court pursuant to ... § 12–11–41.”

On October 25, 2011, the circuit court entered an order removing the conservatorship proceeding from the probate court.

The judge initially assigned to preside over this case in the circuit court subsequently recused himself, and the judge thereafter assigned to the case scheduled an initial status conference for February 3, 2012. On February 2, 2012, Goyer moved the circuit court to remand the conservatorship proceeding to the probate court, arguing that removal of a conservatorship proceeding from a probate court to a circuit court in Jefferson County was governed by § 26–2–3, Ala.Code 1975, not by § 12–11–41, Ala.Code 1975, as the Hoffs had alleged in their petition seeking removal and that the Hoffs had not established that they were entitled to removal under § 26–2–3. At the status conference held the next day, the circuit court set a hearing on Goyer's motion to remand for February 23, 2012.

On February 16, 2012, the Hoffs filed their response opposing Goyer's motion and seeking sanctions against her and her attorney pursuant to the Alabama Litigation Accountability Act, § 12–19–270 et seq., Ala.Code 1975 (“the ALAA”), because, the Hoffs alleged, the motion to remand lacked any legal or factual basis. The circuit court considered all pending motions at the hearing held February 23, 2012, and, on March 2, 2012, entered an order remanding the conservatorship proceeding to the probate court and denying the Hoffs' motion for sanctions. On March 20, 2012, Hoff filed his notice of appeal.³

II.

Hoff argues that the circuit court erred both in remanding the conservatorship proceeding to the probate court and in denying his motion for sanctions. Hoff's argument that the circuit court erred in remanding the conservatorship proceeding presents, essentially, a question of statutory interpretation; no relevant facts are in dispute, and we must determine which of the cited statutes— § 12–11–41 or § 26–2–3—governs the removal of this conservatorship proceeding from the probate court to the circuit court. Accordingly, we review the circuit court's decision pursuant to the de novo standard of review. See Pitts v. Gangi, 896 So.2d 433, 434 (Ala.2004) (“We review questions of statutory construction and interpretation de novo, giving no deference to the trial court's conclusions. Greene v. Thompson, 554 So.2d 376 (Ala.1989).”).

We set forth the standard of review applicable to Hoff's argument that the circuit court erred in denying his motion for sanctions pursuant to the ALAA as follows in Ex parte Loma Alta Property Owners Ass'n, Inc., 52 So.3d 518, 523–24 (Ala.2010):

“If a court denies a claim for attorney fees under the ALAA after holding a hearing on that claim, and the party seeking attorney fees appeals that denial arguing that the subject action, claim, defense, or appeal was frivolous, groundless in fact, vexatious, or interposed for an improper purpose, the appellate standard of review is equivalent to the ore tenus standard of review.... If a court denies a claim for attorney fees under the ALAA after holding a hearing on that claim, and the party seeking attorney fees appeals that denial arguing that the subject action, claim, defense, or appeal was groundless in law, the appellate standard of review is de novo....”

(Emphasis added; footnote omitted.)

III.

We first consider Hoff's argument that the circuit court erred in remanding this conservatorship proceeding to the probate court. Citing Rules 12 and 59, Ala. R. Civ. P., Hoff first makes the procedural argument that Goyer's motion to remand was untimely. However, Goyer's motion to remand was not made pursuant to Rule 12 or Rule 59, and the time limits set forth in those rules do not apply to a motion to remand such as Goyer's. Moreover, we note that in her motion to remand Goyer argued that the Hoffs lacked standing to seek the removal of the conservatorship proceeding in the first place, and this Court has stated that issues of standing may not be waived and may be raised at any time in a proceeding. State v. Property at 2018 Rainbow Drive, 740 So.2d 1025, 1028 (Ala.1999). Hoff's argument that Goyer's motion to remand was untimely is without merit.

We therefore turn to the gravamen of Hoff's argument on appeal—that it is undisputed both that Kidd was deceased at the time Hoff and his mother filed their petition to remove the conservatorship proceeding to the circuit court and that an administrator had been appointed over Kidd's estate; accordingly, he argues, § 12–11–41 was the only mechanism by which to remove the conservatorship proceeding to the circuit court because § 12–11–41 contemplates the removal of a deceased person's estate, while § 26–2–3 contemplates the removal of a living person's estate. On a literal level, Hoff's argument is partially correct— § 12–11–41 does concern the removal of the administration of an estate opened by a probate court after a person dies, and § 26–2–3 does concern the removal of the administration of an estate opened for a living, though incapacitated, person. However, because these statutes contemplate different kinds of estates—a decedent's estate as opposed to a conservatorship or guardianship—Hoff's argument ultimately fails.

The Hoffs' petition for removal explicitly stated that it was being made pursuant to § 12–11–41, which provides as follows:

“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; and an order of removal must be made by the court, upon the filing of a sworn petition by any such heir, devisee, legatee, distributee, executor, administrator or administrator with the will annexed of any such estate, reciting that the petitioner is such heir, devisee, legatee, distributee, executor, administrator or administrator with the will annexed and that, in the opinion of the petitioner, such estate can...