Worley v. Worley

• Decision Date: 12 September 1980
• Parties: W. H. WORLEY, Ind. and as Admr., etc. v. Nancy Lillian WORLEY et al. W. H. WORLEY v. Nancy Lillian WORLEY et al. W. H. WORLEY, Admr., etc. v. Lillian WORLEY. 78-831 to 78-833.
• Court: Alabama Supreme Court

Page 502

388 So.2d 502

W. H. WORLEY, Ind. and as Admr., etc. v. Nancy Lillian WORLEY et al.

W. H. WORLEY v. Nancy Lillian WORLEY et al.

W. H. WORLEY, Admr., etc. v. Lillian WORLEY.

78-831 to 78-833.

Supreme Court of Alabama.

Sept. 12, 1980.

Jack Giles of Giles, Anderson & Smith, Huntsville, for appellant.

J. Robert Miller of Culver & Miller, Huntsville, for appellees.

BEATTY, Justice.

These three cases concern the intestate distribution of the estate of one Mrs. Oscar (Pinkie) Worley. They were consolidated for purposes of trial and are in the form of a petition for sale for division, a suit for accounting and a claim against Mrs. Worley's estate. In passing upon these claims, the trial judge granted the sale for division and the claim against the estate, specifically denying the request for an accounting. For the reasons hereinafter set forth, we affirm in part, reverse in part, and remand.

I

In order to understand the nature of the present suits, it is necessary to focus upon the facts leading up to their independent origins. All relate to the estate of Mrs. Oscar Worley which is largely comprised of farm lands and rental property located near New Hope in Madison County. Much of this real property had been owned by the deceased's husband, Oscar Worley, who had purchased the property over a twenty year period. When Oscar Worley died in 1943, this real estate passed to his three children, W. H. Worley (the appellant), Leonard Worley and Lillian Worley (later Lillian Worley Stimpson), as tenants in common, subject to the dower and homestead rights of Mrs. Worley.

After Oscar Worley's death, Leonard Worley assumed the responsibility of farming the Worley property. Leonard married appellee Lillian Smith Worley and, together with their child, appellee Nancy Lillian Worley, they lived with Mrs. Oscar Worley in the Worley residence. When Leonard died in 1965, he left his one-third interest in the Worley properties to his daughter, Nancy. Both Lillian Smith Worley and Nancy Worley continued to live in the Worley residence and they took care of Mrs. Oscar Worley in her later years.

Mrs. Oscar Worley added to the Worley property holdings in 1968 through the purchase of several adjoining tracts. In that same year Mrs. Worley's daughter, Lillian Worley Stimpson, died and bequeathed to her mother her respective share in the properties previously owned by her father. These real property holdings, plus liquid assets in excess of $70,000, would later comprise the entirety of Mrs. Worley's estate.

In August of 1977, an inquisition was conducted in the Probate Court of Madison County wherein Mrs. Oscar Worley was adjudged to be of unsound mind. The court appointed appellee Lillian Smith Worley as guardian, subject to her filing the proper bond. Mrs. Worley died on January 1, 1978 before any bond was filed and before Lillian Smith Worley assumed her responsibilities as guardian. The appellant W. H. Worley (son) was granted Letters of Administration and immediately removed the administration of the estate to the Circuit Court of Madison County.

On January 30, 1978, the appellant W. H. Worley commenced the first of three suits presently under consideration. He filed a complaint against the appellees requesting the sale of lands, in which they (he and the two appellees) were tenants in common, and a distribution of the proceeds. As defendants to this action, the appellees denied every allegation of the complaint and alleged that the property could be fairly and equitably divided by partition.

On February 26, 1978, the appellant commenced the second action, again naming the appellees as defendants, this time filing a Bill for Accounting or a Bill for Discovery. He contended that the named defendants had occupied a fiduciary relationship to the deceased, being her agent in managing her affairs in the years immediately preceding her death. Furthermore, he contended that an accounting was absolutely necessary in order to have the defendants account for funds allegedly spent on the decedent's behalf during the period in question. No answer was ever filed to this complaint; therefore, the appellant filed a motion for summary judgment on the claim, together with supporting documents and affidavits. No responsive pleading or any other relevant matter was filed with respect to this motion.

The last of the three actions was commenced on July 20, 1978 by J. Robert Miller (the present attorney for the appellees), Nancy Worley and Lillian Smith Worley. Each individual asserted a claim against the deceased's estate. Mr. Miller filed a claim for $1,109.83 for attorney's fees incurred in representing Lillian Smith Worley at the inquisition hearing wherein Lillian was appointed Mrs. Worley's guardian; appellee Nancy Worley claimed $251.06 for utilities and nursing care paid by her on behalf of the deceased; and appellee Lillian Smith Worley claimed $153,388.02 for goods and services rendered or paid for by her, for and on behalf of the deceased. The latter claim is one based entirely upon principles of implied contract for services rendered in caring for the deceased during the three years prior to her death.

The actions thus set forth were consolidated upon motion by the appellant and were set for trial on March 28, 1979. In addition, the appellant's summary judgment motion was set for hearing concurrently with the trial on the merits. The combined cases, together with the motion for summary judgment, thus proceeded to trial ore tenus.

On June 14, 1979, the trial court entered its judgment granting the sale for division, denying the accounting, denying the claims of Nancy Worley and J. Robert Miller and allowing the claim of Lillian Smith Worley in the amount of $68,104.25. Interest was computed on the judgment in favor of Mrs. Worley so that her final award stands at $73,937.71. After various motions for new trial were denied, an appeal was perfected to this Court.

II

The preliminary issue raised by the appellant focuses upon the judgment of the trial court in denying his claim for an accounting. The appellant specifically contends that the trial court committed reversible error when it refused to grant summary judgment on the claim. The appellant argues that since the appellees failed to rebut any of the evidence offered in support of the motion, the trial court was required to consider the evidence uncontroverted. It is alleged that in the face of uncontroverted evidence there could be no genuine issue of material fact and no ground supporting the trial court's refusal to grant summary judgment. In addition, the appellant contends that, even assuming that he was not entitled to summary judgment on his accounting claim, he was nonetheless entitled to judgment on the claim on the basis of the pleadings and evidence adduced at trial.

We immediately agree with the appellant concerning the treatment of uncontroverted evidence offered in support of a motion for summary judgment. With regard to the general production of evidence supporting such motions this Court has noted on several occasions that the initial burden of proving the nonexistence of any genuine issue of material fact rests upon the moving party. Ragland v. Alabama Power Co., Ala., 366 So.2d 1097 (1978); Ray v. Midfield Park, 293 Ala. 609, 308 So.2d 686 (1975). If the movant successfully bears this burden and shows, by the material on file, that there is lacking any genuine issue of material fact, it then becomes the responsibility of the party opposing the motion to produce evidence to the contrary. Morris v. Morris, Ala., 366 So.2d 676 (1978). If the opposing party fails to do so, the court is left with no other recourse but to conclude that no genuine issue of material fact exists. In this way one can observe how uncontroverted evidence may be taken by a trial court as representing a state of facts which actually does not exist. This is one reason we have held that it is perilous for a nonmoving party to neglect to file evidentiary materials or affidavits in opposition to a motion for summary judgment. Ray v. Midfield Park, supra; Baxley v. Givhan, 292 Ala. 533, 297 So.2d 357 (1974).

In reviewing the appellant's motion for summary judgment and the evidentiary materials filed in support thereof, it is readily apparent that he fulfilled the responsibility of establishing the nonexistence of any genuine issue of material fact. As noted previously, the appellees never responded to the motion. No answer or opposing affidavit was ever filed. The trial court was, therefore, faced with a situation in which it had to conclude that no genuine issue of material fact existed; however, this conclusion, in and of itself, was insufficient to justify the entry of summary judgment. Having found that no genuine issue of fact existed, the trial court was still required to go on to determine whether the appellant was entitled to judgment on his accounting claim as a matter of law.

The appellant contends that in order to establish an entitlement to an accounting one need only show the existence of a fiduciary relationship, a compilation of accounts, or the necessity for discovery. This, however, is an incorrect statement of the law. As noted by the trial court in its final decree the several factors alluded to by the appellant represent but the minimum jurisdictional requirements which must be met before an action for an equitable accounting can be maintained. Hall v. McKellar, 155 Ala. 508, 46 So. 460 (1908); Kirksey Motors, Inc. v. General Acceptance Corp., 276 Ala. 270, 161 So.2d 475 (1964). See also 1 C.J.S. Accounting § 14 (1936); 1 Am.Jur.2d Accounts and Accounting 851 (1962). Thus, the mere recitation or finding of these factors was not sufficient to justify an order requiring the appellees to account. The appellant was requesting equitable relief based upon his alleged inability to determine or ascertain the degree or character of the appellees' action in managing his m...