In the Matter of Leola Nichols

• Decision Date: 01 October 1999
• Citation: 771 So.2d 485
• Parties: (Ala.Civ.App. 2000) (Re: In the Matter of Leola Nichols) Ex parte Coffee County Department of Human Resources 2990221
• Court: Alabama Court of Civil Appeals

771 So.2d 485 (Ala.Civ.App. 2000)

(Re: In the Matter of Leola Nichols)

Ex parte Coffee County Department of Human Resources

2990221

ALABAMA COURT OF CIVIL APPEALS OCTOBER TERM, 1999-2000

05/19/2000

PETITION FOR WRIT OF PROHIBITION

Coffee Circuit Court, CV-99-145

CRAWLEY, Judge

The Coffee County Department of Human Resources (DHR) received several telephone calls concerning the welfare of Leola Nichols, an elderly resident of Enterprise. The callers were concerned that Ms. Nichols was being exploited financially. DHR investigated those concerns and determined that Ms. Nichols might benefit from having a conservator appointed to handle her financial affairs.

DHR then filed a "Petition for Letters of Conservatorship" in the Coffee County Probate Court. The probate court appointed Ms. Nichols a guardian ad litem and set the matter for a hearing. Ms. Nichols retained separate counsel and filed a petition to strike the petition for letters of conservatorship and a petition to remove the administration of the conservatorship to the circuit court. The circuit court removed the case and, in response to Ms. Nichols's motion to strike, dismissed the case on the basis that DHR was not a proper party to bring a conservatorship action. DHR has petitioned for a writ of prohibition, arguing that the circuit court did not have jurisdiction to enter the removal order because a conservatorship had not yet been established.

DHR requests a writ of prohibition to prevent the circuit court from exercising jurisdiction over the conservatorship petition. We must determine whether a petition for a writ of prohibition is the appropriate method to review the circuit court's action in this case. Because a writ of prohibition is the proper method to test jurisdiction and "lies when a court acts in excess of its jurisdiction," Ex parte City of Tuskegee, 447 So. 2d 713, 716 (Ala. 1984), and because it is "the proper remedy to intercept and put an end to a usurpation of jurisdiction," Ex parte State ex rel. Bragg, 240 Ala. 80, 85, 197 So. 32, 36 (1940), we conclude that a petition for such a writ is the appropriate method for securing a review.

"Issuance of a writ of prohibition lies within the discretion of the court, and the writ is granted or withheld according to the nature and circumstances of the case, not as a matter of right." State v. Crossman, 687 So. 2d 817, 818 (Ala. Crim. App. 1996) (citations omitted). To prevail on its petition before this court, DHR must show: "(1) that there has been a usurpation or abuse of power, (2) that there is no other adequate remedy at law, (3) that the petitioner has suffered injury, and (4) that the question has been presented to the inferior court." Id. at 819 (citation omitted). DHR has met these requirements.

After considering DHR's argument that the circuit court lacked jurisdiction to enter its removal order, we have determined that the circuit court did act prematurely in issuing that order. In a similar case involving the removal of an estate to the circuit court, the supreme court held that a "circuit court cannot assume jurisdiction over an estate when the administration has not yet begun." Ex parte Smith, 619 So. 2d 1374, 1375-76 (Ala. 1993). The court reasoned:

"[T]he mere filing of a petition for the administration of an estate does not in...