Rodgers v. McElroy
Citation | 153 So.3d 814 |
Decision Date | 18 April 2014 |
Docket Number | 2121039. |
Parties | Samuel RODGERS v. Elizabeth McELROY. |
Court | Alabama Court of Civil Appeals |
Stewart E. Burns of Burns Garner Law Firm, Gadsden, for appellant.
Carl Ann Smith and A. Mark Bahakel of Smith & Pace, P.C., Birmingham, for appellee.
This is the second time the parties have come before this court on the issue of compensation for Elizabeth McElroy for her service as personal representative of the estate of Ron'Drequez Cortez White in a wrongful-death action arising out of a motor-vehicle accident in which White was killed. The wrongful-death action resulted in a recovery for White's next of kin: his mother, Sandey Greene, and his father, Samuel Rodgers. The issue of McElroy's fee was litigated, after which the Jefferson Circuit Court (“the trial court”) awarded her a fee to be paid from the proceeds of the wrongful-death action for “extraordinary services” rendered as personal representative of the estate, pursuant to § 43–2–848(b), Ala.Code 1975. Rodgers appealed the judgment awarding McElroy a fee; this court affirmed the judgment. Rodgers v. McElroy, 141 So.3d 1030 (Ala.Civ.App.2012) (“Rodgers I ”).1
(Footnote omitted.) Accordingly, on remand from the supreme court, this court reversed the judgment of the trial court and remanded the cause to the trial court for further proceedings consistent with our supreme court's opinion. Rodgers v. McElroy, 141 So.3d 1046 (Ala.Civ.App.2013).
On remand, the trial court held a hearing regarding whether McElroy was entitled to a reasonable fee for her services as personal representative. Afterward, on September 10, 2013, the trial court entered a judgment (“the 2013 judgment”) finding that, although the Alabama Supreme Court had determined that McElroy was not entitled to a fee pursuant to § 43–2–848, “general rules of trust law permit a personal representative compensation in wrongful death actions.” The trial court went on to state:
The trial court then awarded McElroy a fee of $15,750 to compensate her for the services she had rendered as “personal representative, attorney, and statutory trustee of wrongful death proceeds.” The trial court also denied Rodgers's motion seeking distribution of the $15,750 of the wrongful-death proceeds that had not yet been distributed. The balance of the wrongful-death proceeds had already been distributed to Greene and Rodgers.
Rodgers appealed from the 2013 judgment.2 McElroy sought to have the appeal dismissed, contending that White's estate remained open and pending and, therefore, that the judgment was nonfinal. On March 4, 2014, this court reinvested the trial court with jurisdiction to certify the 2013 judgment as final, if appropriate, pursuant to Rule 54(b), Ala. R. Civ. P. The trial court determined that Rule 54(b) certification was appropriate, and it entered an order certifying the 2013 judgment as final on March 18, 2014. Accordingly, the 2013 judgment is now final for purposes of appeal.
On appeal, Rodgers contends that in Ex parte Rodgers, supra, our supreme court made clear that proceeds recovered from a wrongful-death claim must be distributed to the next of kin of the decedent and cannot be paid to the personal representative of an estate as compensation. Therefore, he says, the trial court erred in awarding McElroy a fee under any legal theory.
This issue presents this court with a question of law, which we review de novo.
Ex parte Terry, 957 So.2d 455, 457 (Ala.2006).
As mentioned, in Ex parte Rodgers, supra, our supreme court granted certiorari review “to determine the narrow question whether a personal representative may be compensated out of the proceeds recovered in a wrongful-death action.” Ex parte Rodgers, 141 So.3d at 1042. In that case, our supreme court first parsed the language in § 43–2–848(b), which provides for the compensation of a personal representative “for extraordinary services performed for the estate,” and § 6–5–410, one of Alabama's wrongful-death statutes. It then wrote:
Ex parte Rodgers, 141 So.3d at 1043.
Although McElroy relies on Justice Bolin's special concurrence in Ex parte Rodgers to support her position that the trial court in this case was free to compensate her from the wrongful-death proceeds based on principles of trust law, she overlooks that part of the special writing in which Justice Bolin states that his proposed solution to the inequity that results in cases like this one is prospective. Justice Bolin wrote:
“Although I concur with the main opinion, I posit that the unjust result obtained for the personal representative in this case may well be...
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