Shewmake v. Estate of Shewmake
| Decision Date | 03 February 2006 |
| Docket Number | 1041220. |
| Citation | 940 So.2d 260 |
| Parties | Alice SHEWMAKE, individually and as conservator and guardian of the estate of Charlie Burrell Shewmake, Sr. v. The ESTATE OF Charlie Burrell SHEWMAKE, Sr., an incapacitated person. |
| Court | Alabama Supreme Court |
Jeffery C. Duffey, Montgomery, for appellant.
Malcolm N. Carmichael of Balch & Bingham, LLP, Montgomery, for appellee.
Alice Shewmake, individually and as conservator and guardian of the estate of her husband, Charlie Burrell Shewmake, Sr., appeals from a judgment entered by the Montgomery Probate Court upon a settlement agreement. We affirm.
Mrs. Shewmake was appointed guardian and conservator of Mr. Shewmake's estate in the spring of 2002. The Montgomery Probate Court ordered Mrs. Shewmake to file an inventory and a partial settlement of her accounts as conservator; she timely filed each. Upon her filing a petition for partial settlement, the probate court set a hearing and, pursuant to Ala.Code 1975, § 26-5-2, appointed Fred Matthews to be Mr. Shewmake's guardian ad litem. Additionally, Robert Thorington petitioned the probate court for permission to appear as Mr. Shewmake's legal counsel during the partial-settlement proceedings.1 Matthews filed several objections to both Mrs. Shewmake's inventory and her petition for partial settlement, contending that neither contained the requisite degree of specificity. The probate court eventually scheduled a hearing on Mrs. Shewmake's petition for June 4, 2004, ordering Mrs. Shewmake to deliver to both the court and Matthews a complete and updated inventory by noon on May 26, 2004. The probate court also stated that if Mrs. Shewmake failed to deliver that information, she would be required to explain her failure to comply with the court's order, and if her explanation was unsatisfactory, she would be removed as conservator of Mr. Shewmake's estate. The record does not indicate whether Mrs. Shewmake provided the materials.
On June 4, Mrs. Shewmake arrived at the courthouse with her attorney, Charles N. Parnell III, and the two entered a conference room where they met Matthews, Thorington, and William K. Martin, another attorney representing Mr. Shewmake. William D. Coleman, yet another attorney representing Mr. Shewmake, arrived later. The parties began negotiating a settlement agreement. After extended discussions, the parties entered the courtroom.
The central dispute of this case concerns what transpired that day in the conference room and subsequently in the courtroom. According to Parnell, Martin, and Coleman in their affidavits and subsequent testimony at a hearing held on October 28, 2004, as well as Thorington and Matthews, who each made corresponding assertions in his capacity as an officer of the court, the result of these conference-room discussions was a settlement agreement. According to those participants, during the meeting in the conference room Mrs. Shewmake expressly consented to all of the terms of the agreement. After she did so, they assert, all those who had participated in the conference-room discussions but Martin proceeded to the courtroom, where the settlement agreement was announced to the court and its terms were read into the record by Parnell, with Mrs. Shewmake present. According to Mrs. Shewmake, however, no agreement was ever reached in the conference room and none was announced in the courtroom. Unfortunately, because of a malfunction in the probate court's electronic voice-recording system, the events that transpired in the courtroom on June 4 were not recorded.
On July 1, 2004, the probate court set a status conference for July 9 at which "[t]he parties should be prepared to present oral and/or written information regarding the proposed Settlement Agreement allegedly reached between the parties in this matter." The court sent copies of this order to Thorington, Matthews, and Parnell. On July 8, Thorington and Matthews jointly petitioned the probate court to enter an order On July 9, with only Matthews and Thorington in attendance,2 the probate court conducted the scheduled status conference and that same day entered an "Order on Settlement Agreement," reciting within that order both the terms of the settlement agreement as well as that the settlement agreement had been
The pertinent terms of the agreement, as set forth in the order, were as follows: Within one week of being served with the order, Mrs. Shewmake would move Mr. Shewmake from the assisted-living facility in which he was then residing to a different assisted-living facility. Thorington was to draft an irrevocable trust for Mr. Shewmake's benefit ("Mr. Shewmake's trust"), which would be funded with the proceeds from the auction of most of Mr. Shewmake's personal property, consisting principally of valuable antiques and a "glass collection." Most of Mr. Shewmake's firearms collection was to be sold before the auction,3 and the proceeds from those sales were also to be deposited into Mr. Shewmake's trust. Subsequent to the auction and the deposit into Mr. Shewmake's trust of all the proceeds from the auction and the sale of the firearms, Mrs. Shewmake would resign as conservator and guardian of Mr. Shewmake's estate, and further, within 15 days of depositing the proceeds from the auction into Mr. Shewmake's trust, Mrs. Shewmake would deposit into Mr. Shewmake's trust an amount "sufficient to make up any shortfall between the sum of the [deposits] and the sum of $300,000." Mrs. Shewmake was served with the order entered on the settlement agreement on July 12, 2004.
On July 26, 2004, Mrs. Shewmake notified Parnell by both fax and letter that his legal services as her attorney were being terminated; that same day, Mrs. Shewmake notified the court that she had retained new counsel, who immediately filed a motion to vacate the probate court's July 9 order. Matthews, as Mr. Shewmake's guardian ad litem, filed a response to Mrs. Shewmake's motion to vacate in which he asserted that Mrs. Shewmake had agreed to a binding settlement agreement, which had been read before the court by her counsel, with her present and raising no objections. Matthews supported those assertions with affidavits from Martin and Coleman, as well as a July 27, 2004, letter written by Parnell to numerous individuals involved in the matter, in which he stated, among other things:
On October 28, 2004, the probate court conducted a hearing on Mrs. Shewmake's motion to vacate. At the hearing, ore tenus evidence was received from Mrs. Shewmake, Parnell, Martin, and Coleman, as well as two incidental witnesses. On November 18, 2004,4 the probate court entered an order denying Mrs. Shewmake's motion to vacate. Mrs. Shewmake appeals, raising three issues: whether the order entered on the settlement agreement was "not valid for failure to comply with" § 34-3-21, Ala.Code 1975; whether there was a valid settlement agreement representing a final "meeting of the minds of [the] parties"; and whether the settlement agreement is in Mr. Shewmake's best interest.
Standard of Review
Hensley v. Poole, 910 So.2d 96, 100 (Ala.2005). Furthermore, "`"[u]nder the ore tenus rule, a trial court's findings of fact are presumed correct and its judgment will be reversed only if plainly or palpably wrong or against the preponderance of the evidence."'" Eagerton v. Second Econ. Dev. Coop. Dist., 909 So.2d 783, 788 (Ala.2005) (quoting Ex parte Baron Servs., Inc., 874 So.2d 545, 548 (Ala.2003), quoting in turn Ex parte Cater, 772 So.2d 1117, 1119 (Ala.2000)).
Mrs. Shewmake first argues that any settlement agreement that was allegedly reached is invalid under Ala.Code 1975, § 34-3-21, which provides:
"Any attorney has authority to bind his client, in any action or proceeding, by any agreement in relation to such case, made in writing, or by an entry to be made on the minutes of the court."
Mrs. Shewmake correctly notes that no settlement agreement was put in writing by the parties before the trial court entered its order. She additionally contends that "[a] review of the court file reflects that there was no ... entry in the minutes of the court for the June 4, 2004, hearing regarding the alleged settlement agreement." (Mrs. Shewmake's brief, at 37.)
As the probate court explained in its November 18 order denying her motion to vacate, however, and as Matthews, as Mr. Shewmake's guardian ad litem, argues on appeal, the settlement agreement was not reached between the attorneys so as to come within § 34-3-21; rather, it was agreed to by and between Mrs. Shewmake and Matthews, as Mr. Shewmake's guardian ad litem. The probate court's factual determination in its November 18 order that the settlement was agreed to by the parties,...
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