Parris v. Ballantine
| Decision Date | 25 September 2020 |
| Docket Number | 1180908 |
| Parties | James L. PARRIS, G.D. Varn III, James V. Searse, Jr., and Samuel S. Parris v. Phyllis H. BALLANTINE, Scott Preston Harrison, and Renee DuPont Harrison |
| Court | Alabama Supreme Court |
K. Phillip Luke of Mudd, Bolvig, Luke & Wells, LLC, Birmingham; and Mark E. Hoffman, Birmingham, for appellants.
C. Fred Daniels and Steven A. Benefield of Cabaniss, Johnston, Gardner, Dumas & O'Neal, LLP, Birmingham, for appellees.
This appeal involves the question whether, under the terms of a particular trust instrument, a person adopted as an adult is considered a lineal descendant of a beneficiary of the trust and, thus, a beneficiary. James L. Parris, G.D. Varn III, James V. Searse, Jr., and Samuel S. Parris appeal from a partial summary judgment in favor of Phyllis H. Ballantine, Scott Preston Harrison, and Renee DuPont Harrison. We affirm the judgment.
In 1971, C. Porter Schutt and Phyllis DuPont Schutt ("the trustors") created a trust ("the 1971 trust") for the benefit of their three children and their children's "lineal descendants." The 1971 trust provides, in pertinent part:
Pursuant to the terms of the 1971 trust, the trustee is to make distributions of income and principal "to or among the issue of the primary descendant[s] and such issue's lineal descendants." The 1971 trust defines "lineal descendants" as 1
In 2002, in response to a dispute between the trustees of the 1971 trust and the income beneficiaries, the Mobile Circuit Court entered a judgment incorporating a settlement agreement between the parties that divided the 1971 trust into three separate trusts -- one trust for each of the trustors’ three children (Charles Porter Schutt, Jr., Sarah Schutt Harrison, and Caroline Schutt Brown) and the children's descendants. One of the three trusts was for Sarah Schutt Harrison and her four children: Phyllis Harrison Ballantine, Renee DuPont Harrison, Scott Preston Harrison, and Aimee Harrison Parris ("the Harrison trust").
In 2010, a dispute arose between the beneficiaries of the Harrison trust. The Jefferson Probate Court ("the probate court") entered an order approving a settlement agreement between the parties ("the 2010 order") that created four separate trusts for each of Sarah Schutt Harrison's children and her children's lineal descendants ("the sibling trusts"): one for Phyllis and her lineal descendants; one for Renee and her lineal descendants; one for Scott and his lineal descendants; and one for Aimee and her lineal descendants ("Aimee's trust"). The 2010 order provided that the sibling trusts would "be the same in form and terms as" the 1971 trust. In addition, it provided that, if a sibling trust had no remaining issue or lineal-descendant beneficiaries, the assets and liabilities of that trust would be divided equally among the remaining sibling trusts.
Aimee appointed James L. Parris (her husband), G.D. Varn III, and James V. Searse, Jr., as individual trustees of her trust ("the individual trustees"), and they in turn appointed BancorpSouth Bank to serve as the corporate trustee. In November 2016, after learning that she had a terminal illness, Aimee adopted Samuel S. Parris, her adult stepchild and her husband's biological son. The adoption decree was entered in the Family Court of Charleston County, South Carolina. In February 2017, Aimee died.
In March 2017, BancorpSouth filed in the probate court a petition for final settlement of Aimee's trust.2 In response, Phyllis, Renee, and Scott ("the siblings") filed an answer and counterclaim against BancorpSouth and cross-claims against the individual trustees and Samuel. The siblings argued, among other things, that, because Samuel was adopted as an adult, he is not a "lineal descendant" of Aimee's and, thus, was not a beneficiary of Aimee's trust. Therefore, they argued, there being no remaining issue or lineal descendants of Aimee's, the assets from Aimee's trust should be divided among the three other sibling trusts.
In January 2018, the siblings filed a motion for a partial summary judgment. In their motion, the siblings argued that language in the 1971 trust included only biological descendants of the trustors’ children as beneficiaries. The siblings asserted that the 1971 trust language was unambiguous but that, if the probate court did not find so, it could consider affidavit testimony from Thomas P. Sweeney, a codrafter of the 1971 trust.
Samuel filed a response in opposition to the siblings’ partial-summary-judgment motion. In his response, Samuel argued that the language of the 2010 order confirmed that adopted children were meant to be included as beneficiaries under the 1971 trust because, by the time that order was entered, this Court had made clear that terms such as "issue" and "lineal descendant" included an adopted child. Samuel also argued that, before entering the 2010 order, the probate court had appointed a guardian ad litem to represent "all unborn, unconceived, and unascertainable income and remainder beneficiaries." Samuel argued that the use of the word "unascertainable" demonstrated that it was in the contemplation of the parties and the probate court that there were other potential beneficiaries who did not fall into the categories of unborn or unconceived and that "unascertainable" could only be a reference to children adopted in the future. Samuel attached to his response an affidavit of Aimee that had been filed in the adoption proceeding, an affidavit of James Parris that included letters from Thomas Sweeney discussing the terms of the 1971 trust, a transcript from the 2002 proceedings in the Mobile Circuit Court, and a mineral trust between C. Porter Schutt and First Alabama Bank created in 1993. BancorpSouth also filed a response in which it stated that it neither joined nor opposed the partial-summary-judgment motion.
Samuel filed a motion to strike the affidavit of Thomas Sweeney in which Samuel asserted that previous letters from Sweeney, the contents of which Sweeney had testified about in the Mobile Circuit Court proceedings, conflicted with his testimony in the affidavit. Samuel also objected because, he said, the affidavit was based on Sweeney's subjective belief, rather than personal knowledge. The siblings filed a reply to Samuel's response to their motion for a partial summary judgment and a motion to strike the affidavit of James Parris that Samuel had submitted. The probate court did not rule on the motions to strike.
On July 1, 2019, the probate court entered a partial summary judgment. The probate court found, among other things, that the language of the 1971 trust was not ambiguous, that Samuel was not a "lineal descendant" as defined by the 1971 trust, and that, therefore, Samuel was not a beneficiary of Aimee's trust. The probate court certified the order as final pursuant to Rule 54(b), Ala. R. Civ. P. On August 7, 2019, Samuel and the individual trustees filed a notice of appeal.
On December 19, 2019, after Samuel filed his reply brief, the siblings filed a "corrected" brief along with a "declaration of technology difficulties and a motion to accept corrected brief as timely filed" in which they asserted that they fixed typographical errors, pagination errors, and citation errors present in their original brief. The Supreme Court Clerk's office, after determining that there were also changes to the language in the "corrected" brief, issued a show-cause order to the siblings to explain why this Court should accept the corrected brief, noting that there is no provision in the Alabama Rules of Appellate Procedure to accept an appellee's brief after the briefing period has closed. The siblings responded that there had been no substantive changes and that the revisions were to correct typographical oversights, and they submitted a version evidencing their corrections. After reviewing the two versions, we note that there are multiple changes in the "corrected" brief, including the addition of legal authorities not cited in the original brief. Based on the large number of changes, and because the Alabama Rules of Appellate Procedure do not contemplate accepting an appellee's brief after the appellant has submitted a reply brief, we have considered only the siblings’ originally filed brief.
We must next address a motion to dismiss filed in this Court by the siblings. In their motion, the siblings asserted that Act No. 1144, Ala. Acts 1971 ("Act No. 1144"), a local act that requires notices of appeal from certain probate-court judgments to be filed within 30 days of the entry of the judgment, controls and that, because Samuel and the individual trustees did not file their notice of appeal within 30 days, this Court lacks jurisdiction to consider their appeal. Samuel argues that Act No. 1144 governs only appeals from matters concerning the administration of estates and that, because this matter involves a...
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