Kirksey v. Johnson

• Decision Date: 17 October 2014
• Docket Number: 1130385,1130403.
• Citation: 166 So.3d 633
• Parties: Bessie KIRKSEY v. Iris JOHNSON et al. Ex parte Iris Johnson et al. (In re Bessie Kirksey et al. v. Iris Johnson et al.).
• Court: Alabama Supreme Court

166 So.3d 633

Bessie KIRKSEY

v.Iris JOHNSON et al.

Ex parte Iris Johnson et al.

(In re Bessie Kirksey et al.

v.Iris Johnson et al.).

1130385

1130403.

Supreme Court of Alabama.

Oct. 17, 2014.

John Bahakel of Bahakel & Bahakel, Birmingham, for Bessie Kirskey.

E.L. Brobston and Stan Brobston of Brobston & Brobston, P.C., Bessemer; and Andrew N. Laplante, Bessemer, for Iris Johnson, Darryl Thomas, Dorothy McLemore, John McLemore, Jr., Jerrick McLemore, Frederick Pryor, Jr., Rafeal Santece Powell, Nyya Nicole Marshall, Brandon LeMar Marshall, and Jeffrey Sams.

Joseph E. Stott of Scott, Sullivan, Streetman & Fox, P.C., Birmingham; and Sidney C. Summey of White, Arnold & Dowd, P.C., Birmingham, for Keith T. Belt, Jr., and Belt Law Firm, P.C.

Opinion

PARKER, Justice.

Bessie Kirksey appeals an order of the Jefferson Probate Court (“the probate court”) vacating its order discharging Kirksey as administrator ad litem of the estate of Kirksey's sister, Willie Mae Graves, deceased. Iris Johnson, Darryl Thomas, Dorothy McLemore, John McLemore, Jr., Jerrick McLemore, Frederick Pryor, Jr., Rafeal Santece Powell, Nyya Nicole Marshall, Brandon LeMar Marshall, and Jeffrey Sams (alleged heirs of Graves hereinafter collectively referred to as “the omitted heirs”) filed a cross-appeal from the probate court's order insofar as it denied the omitted heirs' motion to transfer the case to the Jefferson Circuit Court based on the alleged lack of subject-matter jurisdiction in the probate court. For the reasons stated herein, we treat the cross-appeal as a petition for a writ of mandamus, and we have styled the case accordingly. We dismiss the appeal, and we grant the petition and issue the writ.

Facts and Procedural History

On June 3, 2011, Graves died intestate. On June 21, 2011, Kirksey filed a petition in the probate court requesting appointment as administrator ad litem for the purpose of bringing a wrongful-death claim. On June 30, 2011, Kirksey sent the probate court a letter via facsimile stating: “Below is the information you needed regarding the next of kin for Willie Mae Graves.” The letter then listed Kirksey's name and address and the names and addresses of Margaret Thompson and Sonya Gardner, whom the letter identified as Graves's sisters. Kirksey's letter to the probate court also stated that, “[a]t the time of death, Willie Mae Graves had no spouse or children.” On July 11, 2011, the probate court issued an order granting Kirksey's petition and stating:

“Kirksey is appointed as administratrix ad litem in the matter of the estate of Willie Mae Graves, deceased, [to gather] information to investigate a wrongful death claim, with the express order that any settlement of the case must first be approved by [the probate court]. In addition, [Kirksey] must immediately deposit the recovery of any funds into the Jefferson County Probate Court Trust Fund for proper distribution.”

Subsequently, Kirksey filed a wrongful-death action in the Jefferson Circuit Court. On March 21, 2012, Kirksey filed a motion in the probate court stating that a proposed confidential settlement had been reached with the defendant in the wrongful-death action. However, instead of asking the probate court to approve the proposed settlement of the wrongful-death action, as the probate court required in its July 11, 2011, order, Kirksey requested that she be relieved of that condition to her appointment as administrator ad litem. Kirksey also requested that the probate court not require her to deposit the funds with the probate court for distribution. In support of her motion, Kirksey attached a copy of Alabama's wrongful-death statute, § 6–5–410, Ala.Code 1975, which states, in pertinent part: “The damages recovered are not subject to the payment of the debts or liabilities of the testator or intestate, but must be distributed according to the statute of distributions.”

On May 1, 2012, the probate court held a hearing on Kirksey's motion. On May 4, 2012, the probate court issued an order stating, in pertinent part:

“(2) The court approves the wrongful death settlement of $2,250,000 on behalf of the estate of Willie Mae Graves.

“(3) Pursuant to [the] Wrongful Death Act codified in [Ala.Code 1975,] § 6–5–410(c), the proceeds ‘are not subject to the payment of the debts or liabilities of the testator or intestate, but must be distributed according to the statute of distributions.’

“(4) According to [Kirksey], the deceased leaves three lawful heirs:

“Sister. Bessie Kirksey (adult of sound mind)

“Sister. Margaret Thompson (adult of sound mind)

“Sister. Sonya Gardner (adult of sound mind)

“(5) The court orders [Kirksey's attorney] to distribute the proceeds in accordance with [Ala.Code 1975,] § 43–8–42(3).

“(6) The court approves the distribution of these proceeds via the trust account of [Kirksey's attorney]. Said proceeds are not to be paid into the [probate court].”¹

Although the probate court did not require Kirksey to deposit the wrongful-death-settlement proceeds with the probate court, the probate court purported to approve the settlement of the wrongful-death action and the distribution of the wrongful-death-settlement proceeds to Kirksey, Thompson, and Gardner.

The record includes an affidavit of Kirksey, which lists Kirksey, Thompson, and Gardner as a “full and exhaustive list” of Graves's siblings. The affidavit further states:

“6. I understand that a settlement was reached in the [wrongful-death action] in the Circuit Court of Jefferson County (Bessemer Division), Alabama. This case was brought pursuant to [Ala.Code 1975,] § 6–5–410, which is the Wrongful Death Statute of Alabama. According to the Wrongful Death Act, any damages recovered must be distributed according to the Statute of Distributions. Because my sister was not married at the time of her death and had no children, I understand that all of the proceeds from the wrongful death case pass to her heirs pursuant to [Ala.Code 1975,] § 43–8–42(1). Pursuant to this statute, all proceeds will pass to the heirs as long as they are of the same degree of kinship and then they take equally.

“7. Therefore, all siblings of Willie Mae Graves would share equally in the proceeds. I understand and agree that the list of heirs above is a complete and final list. I affirm that I do not have any knowledge of any other spouse, children, siblings or heirs of Willie Mae Graves. I further attest and affirm that all of the listed heirs are true and accurate heirs of Willie Mae Graves, pursuant to [Ala.Code 1975,] § 43–8–48. Therefore, by signing this declaration, I attest and affirm that I agree to this distribution, I agree with the accuracy of the list of heirs, I have no knowledge of any additional heirs, and I would waive any potential legal claim based on any assertion that any of the listed heirs are not legal heirs entitled to a share of these wrongful death proceeds.”

On June 28, 2012, Kirksey, Thompson, and Gardner filed acknowledgments of the receipt of a distributive share of the wrongful-death-settlement proceeds. On the same day, the probate court issued a certificate of discharge stating that Kirksey “is hereby discharged and is released, in so far as her liability appears from her account, evidences and reports filed in this court.”

Sometime thereafter, the omitted heirs learned about the distribution of the wrongful-death-settlement proceeds and filed in the probate court an “emergency petition to reopen estate, set aside discharge, appoint county administrator to handle estate and for other relief.” In their petition, the omitted heirs challenged Kirksey's distribution of the wrongful-death-settlement proceeds. Specifically, the omitted heirs argued that they are heirs of Graves, known to Kirksey at the time of her appointment as administrator ad litem, and that, therefore, they are entitled to a share of the wrongful-death-settlement proceeds along with Kirksey, Thompson, and Gardner. The omitted heirs argued that the “estate need[ed] to be reopened to set aside the discharge that was entered,” pursuant to Rule 60(b), Ala. R. Civ. P., but they did not specify which subpart of Rule 60(b) applied to their petition. The omitted heirs' petition asked the probate court to: 1) reopen the case, 2) set aside the certificate of discharge of Kirksey from her duties as administrator ad litem, 3) require Kirksey to make an accounting of the receipts and disbursements of the wrongful-death-settlement proceeds, 4) order Kirksey to refund all sums overpaid, whether to her or to others, 5) appoint the county administrator to represent Graves's estate, 6) order Gardner and Thompson to immediately repay any overpayment, and 7) order other appropriate relief.

On February 4, 2013, Gardner filed an objection to the omitted heirs' petition. Gardner argued that the petition was untimely and improper for failing to allege an applicable reason for relief under Rule 60(b), Ala. R. Civ. P. Gardner also argued that the petition should be denied because, she argued, the omitted heirs provided no evidence to substantiate their claim that the are heirs of Graves.

On February 5, 2013, the omitted heirs amended their petition and alleged that Kirksey had perpetrated a fraud on the probate court by swearing to the probate court that she, Thompson, and Gardner constituted Graves's heirs and that she had, therefore, distributed the wrongful-death-settlement proceeds in accordance with the statute of distributions, when Kirksey had actually deprived the omitted heirs of their portion of the wrongful-death-settlement proceeds. Accordingly, the omitted heirs alleged that they were entitled to relief pursuant to § 43–8–5, Ala.Code 1975, which states:

“Whenever fraud has been perpetrated in connection with any proceeding or in any statement filed under this chapter or if fraud is used to avoid or circumvent the provisions or purposes of this chapter, any person injured thereby may obtain appropriate relief against the perpetrator of the fraud or restitution from any

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