Keeling v. Keeling

• Decision Date: 17 January 2014
• Docket Number: 2120612 and 2120613.
• Citation: 145 So.3d 763
• Parties: James W. KEELING, individually and as personal representative of the estate of Neita B. Keeling v. Jamie KEELING, individually and as personal representative of the estate of Rex George Keeling. Jamie Keeling, individually and as personal representative of the estate of Rex George Keeling v. James W. Keeling, individually and as personal representative of the estate of Neita B. Keeling. James W. Keeling, individually and as personal representative of the estate of Neita B. Keeling v. Jamie Keeling, individually and as personal representative of the estate of Rex George Keeling. Jamie Keeling, individually and as personal representative of the estate of Rex George Keeling v. James W. Keeling, individually and as personal representative of the estate of Neita B. Keeling.
• Court: Alabama Court of Civil Appeals

145 So.3d 763

James W. KEELING, individually and as personal representative of the estate of Neita B. Keeling

v.Jamie KEELING, individually and as personal representative of the estate of Rex George Keeling.

Jamie Keeling, individually and as personal representative of the estate of Rex George Keeling

v.James W. Keeling, individually and as personal representative of the estate of Neita B. Keeling.

James W. Keeling, individually and as personal representative of the estate of Neita B. Keeling

v.Jamie Keeling, individually and as personal representative of the estate of Rex George Keeling.

Jamie Keeling, individually and as personal representative of the estate of Rex George Keeling

v.James W. Keeling, individually and as personal representative of the estate of Neita B. Keeling.

2120612 and 2120613.

Court of Civil Appeals of Alabama.

Jan. 17, 2014.

Jack Floyd of Floyd Law Firm, LLC, Gadsden, for James W. Keeling, individually and as personal representative of the estate of Neita B. Keeling.

Adam K. Israel, Ed R. Haden, and Amy D. Adams of Balch & Bingham LLP, Birmingham; and Charles Y. Boyd of Rhea, Boyd, Rhea & Coggin, Gadsden, for Jamie Keeling, individually and as personal representative of the estate of Rex George Keeling.

PER CURIAM.

James W. Keeling (“James”), individually and as personal representative of the estate of Neita B. Keeling (“Neita's estate”), appeals, and Jamie Keeling (“Jamie”), individually and as personal representative of the estate of Rex George Keeling (“Rex's estate”), cross-appeals, from a summary judgment of the Etowah Circuit Court (“the trial court”), which determined that Jamie and Rex's estate were entitled to a judgment as a matter of law on James's and Neita's estate's claims and which dismissed with prejudice all those claims with “costs taxed as paid,” and from a postjudgment order, which, among other things, denied Jamie's and Rex's estate's “renewed motion for costs including attorneys' fees.”

Neita was the mother of two sons, Rex and James. Neita died on July 13, 2009. Rex died on June 3, 2010. Jamie is Rex's widow.

In December 2010, Neita's estate filed in the Etowah Probate Court (“the probate court”) a verified claim against Rex's estate, seeking, among other things, the return of approximately $74,000 worth of SouthTrust Bank and/or Wachovia Bank stock, approximately $200,000 worth of dividends paid on that stock, and various items of personal property that Rex had allegedly converted from Neita.¹

In May 2011, Rex's estate filed in the trial court a petition to remove the administration of Rex's estate from the probate court to the trial court. In June 2011, the trial court granted the petition, concluding that Rex's estate “would be best served and better administrated by being in a court of equity”; that proceeding was assigned case number CV–11–219.

In July 2011, James and Neita's estate filed in the trial court as a separate action a four-count complaint against Jamie and Rex's estate, seeking the return of virtually the same property described in the verified claim against Rex's estate; that action was assigned case number CV–11–286. In the complaint, James and Neita's estate alleged that Rex, and subsequently Jamie and Rex's estate, had converted that property.²

On September 21, 2011, Jamie and Rex's estate filed in the trial court a joint motion to dismiss the July 2011 conversion action or, in the alternative, a motion to consolidate the actions. Jamie and Rex's estate submitted a brief and exhibits in support of their motion. Among other things, Jamie and Rex's estate asserted that the conversion claims under counts one and two of the complaint failed to state a claim for which relief could be granted and that the conversion claims under counts three and four of the complaint were barred by the six-year statute of limitations applicable to conversion claims. As noted, in the alternative, Jamie and Rex's estate sought to consolidate the verified-claim action and the conversion action. Because the trial court subsequently consolidated the actions in May 2012, we omit any further references to Jamie and Rex's estate's motion to consolidate.

Also on September 21, 2011, James and Neita's estate filed a motion in opposition to Jamie and Rex's estate's motion to dismiss, denying the material allegations in the motion and requesting a hearing on the matter. James and Neita's estate also filed an amended complaint and demanded a jury trial.

On September 23, 2011, Jamie and Rex's estate filed an amended joint motion to dismiss. Jamie and Rex's estate submitted a brief and exhibits in support of their motion. Among other things, Jamie and Rex's estate asserted that their statute-of-limitations defense applied to the conversion claims under all four counts. In October 2011, James and Neita's estate filed a response to Jamie and Rex's estate's motion to dismiss.

In May 2012, James and Neita's estate filed another amended complaint to add count five; that count alleged that Rex had held the property described in count one of the complaint (i.e., primarily bank stock and dividends) in constructive trust for Neita before she died and that Jamie and Rex's estate currently were holding that property in constructive trust for Neita's estate. Also in May 2012, Neita's estate filed an amendment to the verified claim against Rex's estate to assert the additional allegations set forth in count five.

In June 2012, Jamie and Rex's estate filed an amended joint motion to dismiss or, in the alternative, for a summary judgment. Jamie and Rex's estate submitted a brief and exhibits in support of their motion. In that motion, Jamie and Rex's estate sought, among other things, an award of the payment of costs pursuant to § 43–2–354, Ala.Code 1975; they asserted that “costs” under that statutory provision included the payment of attorney's fees.

In July 2012, James and Neita's estate filed an another amended complaint to add count six; that count, once again, alleged that Rex had held the property described in count one of the complaint in constructive trust for Neita before she died and that Jamie and Rex's estate currently were holding that property in constructive trust for Neita's estate. That count further alleged, in part:

“4. From October 2005 and subsequent to that date, until the death of [Neita], she had progressive cognitive impairment. From time to time she suffered from confusion, disorientation, memory loss, all of which culminated in a diminished mental condition.

“5. She relied heavily on her son, [Rex]. There was a confidential relationship that existed between them. [Rex] took advantage of his position and the mental and physical weaknesses of [Neita], and through undue influence practicedby him on her through 2008, and up to her death, had [Neita] transfer to [Rex] in his name [the property described in count one of the complaint].

“6. All of the above was accomplished by [Rex] through undue influence on his mother, [Neita], and by abuse of his confidential relationship with her.”

Also in July 2012, Neita's estate filed a second amendment to the verified claim to assert the additional allegations set forth in count six of the amended complaint.

On August 8, 2012, James and Neita's estate filed a response to Jamie and Rex's estate's amended joint motion to dismiss or, in the alterative, for a summary judgment. On August 17, 2012, the trial court held a hearing on that motion and heard the parties' oral arguments.

On August 23, 2012, the trial court entered an order reserving a ruling on Jamie and Rex's estate's motion and granting James and Neita's estate 60 days to perform additional discovery to support their claims and to submit a supplemental response and/or a legal memorandum. The trial court set a hearing for November 15, 2012, to hear additional oral arguments of the parties.

October 30, 2012, James and Neita's estate filed an amended complaint to add count seven; that count, once again, alleged that Rex had held the property described in count one of the complaint in constructive trust for Neita before she died and that Jamie and Rex's estate currently were holding the property in “constructive trust, or in the alternative, in resulting trust” for Neita's estate. Count seven, in addition to containing the allegations contained in count six, alleged that Rex had possessed the power of attorney for Neita and further alleged, in part:

“6. From 1997 through 2004 [Rex] had [Neita] transfer to him stock from which he received stock dividends. [Neita] employed the services of ... an attorney for the purpose of retaining the return of her stock and stock dividends.

“7. On April 14, 2004, [Rex], in writing, for good consideration, agreed to transfer back and deliver to [Neita] the stock that had been transferred to him prior to April 14, 2004, and to return the dividends that he had collected on it. The transfer was to be made back to [Neita]. He agreed to transfer the stock back to [Neita] by January 15, 2005.³

“8. Prior to January 15, 2005, [Rex] had been holding said items of stock and dividends in constructive or resulting trust for [Neita].

“9. That although [Rex] agreed to return the stock on January 15, 2005, and terminate the trust, he did not return the stock nor the dividends and [on] that date[ ] converted the stock and dividends received held in trust for [Neita].

“10. He agreed to deliver the stock and its dividends on or before January 15, 2005. He failed to do so. At that time, January 15, he converted those assets.

“11. All stock dividends and other stock received by him from [Neita] [from] 1997 through 2004 were being held in constructive or resulting trust for her; that [Rex] agreed to return all of the stocks and dividends held by him in trust by written instrument dated April 14, 2004 and agreed to deliver the stock and its dividends by January 15, 2005.

“12. That [Rex] failed to deliver the stock and dividends on January 15, 2005, but...