Ex parte Raymond Adams, as coexecutor of the estate of Clifford Wayne Cleveland

Rel: 11/26/14
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SUPREME COURT OF ALABAMA
OCTOBER TERM, 2014-2015
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1130986
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Ex parte Raymond Adams, as coexecutor of the estate of
Clifford Wayne Cleveland, deceased
PETITION FOR WRIT OF MANDAMUS
(In re: Clifford Wayne Cleveland II and Celeste Cleveland
Minor
v.
Raymond Adams, as coexecutor of the estate of Clifford Wayne
Cleveland, deceased)
(Autauga Circuit Court, CV-14-30)
BRYAN, Justice.
Raymond Adams has petitioned this Court for the writ of
mandamus directing the Autauga Circuit Court (1) to remove
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Clifford Wayne Cleveland II ("Chip" or "Chip Cleveland") as
coexecutor of the estate of Clifford Wayne Cleveland ("the
estate"), (2) to vacate its order prohibiting the estate from
hiring an attorney or a certified public accountant ("CPA"),
(3) to compel Chip and his sister, Celeste Cleveland Minor, to
produce property and assets of the estate that are in their
possession, and (4) to impose sanctions on Chip and Minor.
For the reasons set forth below, we deny the petition.
Facts and Procedural History
Clifford Wayne Cleveland died on March 28, 2014. In his
will, Cleveland named his law partner Louis C. Colley and
business partner Adams as coexecutors of the estate. Colley
and Adams petitioned the Autauga Probate Court to probate the
estate and were granted letters testamentary. On April 30,
2014, the Autauga Circuit Court granted Chip and Minor's
motion, as beneficiaries under Cleveland's will, to have the
probate of the estate removed to that court.
On May 5, 2014, Chip and Minor moved the circuit court to
disqualify Adams as a coexecutor of the estate, arguing as a
basis for disqualification that Adams does not reside in
Alabama. The circuit court set the motion for a hearing on
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May 27, 2014, and gave Adams "ten days to provide proof of his
residency." Petition, at Exhibit 5. On May 9, 2014, Chip and
Minor moved the circuit court to prohibit Adams from retaining
any third-party professionals, such as attorneys or CPAs, to
assist with the administration of the estate, arguing that it
was an unnecessary expense. The circuit court entered an
order on that date, granting the motion and prohibiting any
coexecutor or beneficiary from hiring such professional help
"until further order" of the circuit court. The circuit court
also set the issue for further discussion at the May 27
hearing.
On May 16, 2014, Adams filed with the circuit court a
statement of residency, acknowledging that "he currently
resides in North Carolina" but arguing that,
"[c]ontrary to the Motion to Disqualify Co-Executor
filed by [Chip and Minor], out-of-state residency
does not preclude [the] service of an executor
appointed by Will. Rather, Ala. Code § 43-2-22 only
imposes an in-state residency requirement upon
administrators of intestate estates."
Petition, at Exhibit 13. Also on May 16 Colley resigned as
coexecutor of the estate, stating that he did not have time to
fulfill his duties as coexecutor and noting that "[he] ha[d]
been informed by Chip Cleveland, son of [Cleveland], that
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[Chip] is willing to assume the role of [c]o-[e]xecutor."
Petition, at Exhibit 10. That same day, Chip moved the
circuit court to substitute him in Colley's place as
coexecutor or, in the alternative, to appoint him as a
coexecutor of the estate. The circuit court granted that
motion and appointed Chip coexecutor on May 19, 2014.
Adams objected to the substitution of Chip as coexecutor,
arguing:
"Neither the [w]ill nor Alabama law provides any
basis for the substitution of an unnamed co-executor
in the place of a co-executor who resigns his
appointment. Rather, as a matter of law, the sole
remaining co-executor is vested with full authority
to act on behalf of the estate. A court may only
appoint a substitute personal representative when
all of the designated co-executors are unable to
serve."
Petition, at Exhibit 16. The circuit court "noted" Adams's
objection but took no further action with regard to Chip's
appointment.
On May 23, 2014, Adams moved the circuit court to compel
Chip and Minor "to produce all materials within their
possession concerning the assets and liabilities of the
[e]state," petition, at Exhibit 19; to remove Chip as
coexecutor; and to impose sanctions against Chip and Minor.
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With regard to the latter, Adams argued that Chip and Minor
had "obtain[ed] the appointment [of Chip as coexecutor]
through misrepresentations of law and fact." Petition, at
Exhibit 20.
On May 26, 2014, Chip and Minor supplemented their motion
to disqualify Adams, adding an argument that Adams had not
timely administered the estate. A hearing was held on May 27,
and on May 28 Adams submitted a response to the supplemental
motion to disqualify him as coexecutor. On May 29, 2014, Chip
and Minor moved the circuit court to compel Adams to produce
certain documents related to the administration of the estate.
That same day Adams moved the circuit court to require Chip to
post bond as a coexecutor. The parties filed responses to
those respective motions. On June 5, 2014, Adams supplemented
his motion to require Chip to post a bond. It appears that
there has been no ruling on those motions.
On June 6, 2014, Adams petitioned this Court for mandamus
relief from the circuit court's May 9 order prohibiting Adams
from hiring attorneys or other professionals to assist with
the administration of the estate and from the May 19 order
appointing Chip as coexecutor of the estate. Adams also asks
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this Court to instruct the circuit court to "direct [Chip and
Minor] to produce all materials within their possession that
would reflect upon the assets and liabilities of the
[e]state," petition, at 5, and "to enter sanctions against
[Chip and Minor] for the amount of attorneys' fees and costs
determined to have been the result of the ... improper
attempts to usurp control over the [e]state from Adams and/or
Adams' administration of the [e]state." Petition, at 22.
Adams also moved this Court for an emergency stay of the order
appointing Chip as a coexecutor of estate.
On June 13, 2014, Chip moved for sanctions against Adams,
arguing that Adams had presented "willful and gross falsehoods
set forth in documents before [the circuit court]," including,
among others, that Chip and Minor had pressured Colley to
resign as coexecutor. On June 20, 2014, this Court issued a
stay of the order appointing Chip coexecutor and of "all
proceedings in the case generally ... pending further order of
this Court" and ordered answer and briefs to be filed as to
Adams's petition for mandamus relief.
Discussion
"It is well settled that a writ of mandamus will
issue where the petitioner demonstrates '"(1) a
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clear legal right to the order sought; (2) an
imperative duty upon the respondent to perform,
accompanied by a refusal to do so; (3) the lack of
another adequate remedy; and (4) the properly
invoked jurisdiction of the court."'"
Toler v. Murray, 886 So. 2d 76, 78 (Ala. 2004) (quoting Ex
parte Fontaine Trailer Co., 854 So. 2d 71, 76 (Ala. 2003),
quoting in turn Ex parte State ex rel. C.M., 828 So. 2d 291,
293 (Ala. 2002)).
Adams first argues that "[he] has a clear legal right to
have Chip Cleveland removed as co-executor of the estate."
Petition, at 6. Adams argues that the circuit court erred in
granting Chip and Minor's motion to substitute Chip as
coexecutor of the estate in place of Colley because, Adams
argues, "there simply was no legal or factual basis to support
the appointment of Chip in that capacity." Id. Adams argues
that the will named Colley and Adams as coexecutors of the
estate and did not provide for substitution or for the
appointment of a successor coexecutor. Adams notes that,
pursuant to § 43-2-847, Ala. Code 1975, following Colley's
resignation Adams has full authority to administer the estate.
Section 43-2-847 provides: "Unless the terms of the will
otherwise provide, every power exercisable by personal co-
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representatives may be exercised by the one or more remaining
after the appointment of one or more is terminated ...."1
Adams also argues that under Alabama's statutory scheme
"there is no recognized position of 'substitute executor.'
Rather, when none of the originally named executors remain[s]
to serve, a court must issue 'letters of administration with
the will annexed.' Authority thus would be vested in an
'administrator' rather than an 'executor.'" Petition, at 9
n.1. Adams cites §§ 43-2-27 and 43-2-272, Ala. Code 1975, in
support of this argument. Section 43-2-27 provides, in
pertinent part:
"If no person is named in the will as executor,
or if named executors, one or more, all renounce or
fail to apply within 30 days after probate or are
unfit persons to serve, the residuary legatee, or if
he fails to apply within such time, refuses to
accept or is unfit to serve, then the principal
legatee, is entitled to letters of administration,
with the will annexed ...."
(Emphasis added.) Section 43-2-272(a), Ala. Code 1975,
provides: "If the sole executor or all the executors die,
resign or are removed, the probate court having jurisdiction
of the estate must grant letters of administration, with will
1
An executor is included in the definition of "personal
representative" set forth in § 43-2-691, Ala. Code 1975.
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annexed, to the person entitled thereto under section 43-2-
27." (Emphasis added.)
Chip and Minor responded by arguing that the circuit
court acted within its discretion in appointing Chip as
coexecutor in place of Colley. They cite Jones v. McGuirt,
416 So. 2d 970 (Ala. 1985), for the proposition that "this
Court has approved the appointment of successive executors
where a prior executor was either unavailable or unfit to
serve." Chip and Minor's brief, at 6. However, Jones
involved the removal of the sole executor named in the will,
not the resignation or removal of a coexecutor. Moreover,
this Court in Jones did not "approv[e] the appointment of
successor executors"; it instead affirmed orders entered by
the circuit court removing Jones as an executor and as a
trustee of Glenn W. Anthony's estate and appointing a
successor trustee. See Jones, 416 So. 2d at 971. Our
decision in Jones does not indicate that a successive executor
was appointed for Anthony's estate. Thus, Chip and Minor's
reliance on Jones is misplaced.
Chip and Minor also argue that "where a court makes an
appointment of an executor or an administrator of an estate,
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such is prima facie evidence that there was a vacancy." Chip
and Minor's brief, at 6 (citing Sims v. Waters, 65 Ala. 442,
443 (Ala. 1880), and Morgan v. Casey, 73 Ala. 222, 225 (Ala.
1882)). However, Sims and Morgan address the appointment of
administrators de bonis non2 where the administration of an
intestate estate had been left vacant. Those cases do not
address whether a substitution can be made if one coexecutor
among others named in a will resigns, nor do they provide for
the appointment of a successor executor even if all named
executors are removed. Thus, those cases do not support the
circuit court's decision to appoint Chip to serve in Colley's
place as coexecutor of the estate.
Chip and Minor also cite Smith v. Alexander, 148 Ala.
554, 42 So. 29 (1906), for the proposition that "an
appointment of an executor will be upheld unless it plainly
appears the appointing court had no jurisdiction." Chip and
Minor's brief, at 7. Again, however, Chip and Minor's
reliance on Smith is misplaced. Smith involved the
appointment of an administrator de bonis non, not the
2
An "administrator de bonis non" is "[a]n administrator
appointed by the court to settle the remainder of an intestate
estate not settled by an earlier administrator or executor."
Black's Law Dictionary 54 (10th ed. 2014).
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substitution of a coexecutor. Moreover, the question in Smith
was whether the jurisdiction of the probate court had been
properly invoked with regard to the removal of an
administrator and the appointment of an administrator de bonis
non in his place. Neither party in this case has challenged
the jurisdiction of the circuit court. Thus, Smith does not
justify the circuit court's appointment of Chip as coexecutor,
and Chip and Minor have cited no relevant authority to support
their argument that the appointment of an executor must be
upheld unless the appointing court lacked jurisdiction.
Chip and Minor also argue:
"[The circuit court] had the discretion to interpret
[Cleveland's] Will. It is well settled that the
touchstone of the construction of a will is to find
the testator's intention, which is accomplished by
considering all the provisions therein. Lowrey v.
McNeel, 773 So. 2d 449, 453 (Ala. 2000). In naming
[c]o-[e]xecutors within [Cleveland's] will,
[Cleveland] selected his long time law partner,
Louis C. Colley, and his business partner, Raymond
Adams.
"[Cleveland] therefore nominated and appointed
one local in-state citizen, Louis C. Colley, to
coordinate efforts with the out of state resident,
Raymond Adams, in the administration of the Estate.
It seems [Cleveland's] intention was to have a local
resident attorney, familiar with the Estate's local
presence, to carry out the duties of management."
Chip and Minor's brief, at 7-8.
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However,
"'"[t]o determine the intent of a testator
or testatrix, the court must look to the
four corners of the instrument, and if the
language is unambiguous and clearly
expresses the testator's or testatrix's
intent, then that language must govern."
Born v. Clark, 662 So. 2d 669, 671 (Ala.
1995).'"
Beasley v. Wells, 55 So. 3d 1179, 1184-85 (Ala. 2010) (quoting
Cottingham v. McKee, 821 So. 2d 169, 171-72 (Ala. 2001)).
Neither side argues that Cleveland's will is ambiguous, and
none of the provisions of that will indicates that Cleveland's
reason for nominating Colley as coexecutor was to ensure that
a local attorney would assist with the management of his
estate. Moreover, Cleveland's will does not provide for the
substitution or appointment of a successor to the named
coexecutors. Thus, "look[ing] to the four corners of the
instrument," i.e., the will, we cannot say that Chip's
appointment as coexecutor is consistent with the testator's
intent or that the circuit court's appointment of Chip is
justified on that basis.
Chip and Minor also argue:
"The [circuit] court had reason to appoint Chip
Cleveland as a local resident substitute [c]o-
[e]xecutor, as Raymond Adams' own status as a
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qualified [c]o-[e]xecutor remained in question under
law before the trial court. [Adams] is disqualified
to be a [c]o-[e]xecutor under § 43-2-22 of the Code
of Alabama."
Chip and Minor's brief, at 9. Section 43-2-22, Ala. Code
1975, provides, in pertinent part:
"(a) No person must be deemed a fit person to
serve as executor who is under the age of 19 years,
or who has been convicted of an infamous crime, or
who, from intemperance, improvidence or want of
understanding, is incompetent to discharge the
duties of the trust. Nor shall any nonresident of
the state be appointed as administrator unless he is
at the time executor or administrator of the same
estate in some other state or territory or
jurisdiction, duly qualified under the laws of that
jurisdiction."
Chip and Minor argue:
"This Court [has] held [that] § 43-2-22 applies to
both the qualifications of executors as well as
administrators in the probate of estates. Burnett
v. Garrison, 75 So. 2d 144, 148 (Ala. 1954).
Additionally, this Court has stated '[w]e recognize
that the disqualification statute (§ 43-2-22) uses
only the word "executor" and that this Court, as far
back as the case of Williams v. McConico, 27 Ala.
572 (1855), has applied this disqualification
statute to administrators also.' Ex parte Holladay,
466 So. 2d 956, 960 (Ala. 1985). This Court
likewise determined § 43-2-22 is controlling on the
fitness of an executor named in a will, and
therefore controls whether petitioner is a fit
executor of the Estate. Riley v. Wilkinson, 23 So.
2d 582, 589 (Ala. 1945)."
Chip and Minor's brief, at 9-10.
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Chip and Minor's arguments in this regard are
disingenuous at best. Although Ex parte Holladay, 466 So. 2d
956 (Ala. 1985), Burnett v. Garrison, 261 Ala. 622, 75 So. 2d
144 (1954), and Riley v. Wilkinson, 247 Ala. 231, 23 So. 2d
582 (1945), do indicate that the disqualifications listed in
§ 43-2-22 for executors also apply to administrators, those
cases do not hold that the two terms are interchangeable for
the purposes of that statute or that executors are subject to
the nonresident restriction set forth in § 43-2-22 for
administrators. In fact, as Adams argues, § 43-2-191, Ala.
Code 1975, expressly allows a nonresident to serve as an
executor in Alabama: "Judges of probate are authorized to
issue letters testamentary to persons named as executors in
wills regularly probated who are nonresidents of this state,
upon like bond and surety and upon the same terms, conditions
and requirements as are required by law of citizens of this
state."
Chip and Minor argue that, "[h]istorically, § 43-2-22 has
been used for the removal of out of state executors by the
language of this Court." Chip and Minor's brief, at 10
(citing Harris v. Dillard, 31 Ala. 191, 192 (1857)). However,
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at the time Harris was decided, in 1857, the Alabama Code
expressly included nonresidence among the disqualifications
for executors. See Ala. Code 1852, § 1658 ("No person must be
deemed a fit person to serve as executor: ... [w]ho is not an
inhabitant of this state."). By 1876, however, that
disqualification no longer applied to executors. Ala. Code
1876, § 2340 ("No person must be deemed a fit person to serve
as executor –- 1. Who is under the age of twenty-one years. 2.
Who has been convicted of an infamous crime. 3. Who, from
intemperance, improvidence, or want of understanding, is
incompetent to discharge the duties of the trust."); Ala. Code
1876, § 2379 ("Judges of probate are authorized to issue
letters testamentary to persons named as executors in wills
regularly probated, who are or may be non-residents of this
state, upon like bond and security, and upon the same terms,
conditions and requirements as are required by law of citizens
of this state."). Thus, Chip and Minor have not demonstrated
that Adams is disqualified from acting as coexecutor under the
will on the basis of nonresidence.
In light of the statutory authority cited by Adams in
support of his argument that the circuit court erred in
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appointing Chip as coexecutor in place of Colley and the
apparent lack of authority supporting that appointment, we
agree with Adams that he has a clear legal right to have Chip
removed as coexecutor. However, to be entitled to a writ of
mandamus as to this issue at this time, Adams must show not
only that he has a clear legal right to the relief requested,
but he must also show "an imperative duty upon the respondent
to perform, accompanied by a refusal to do so." Toler, 886
So. 2d at 78 (emphasis added). See also Ex parte Barnett, 858
So. 2d 948, 949 (Ala. 2003) ("Mandamus is an extraordinary
writ, and will issue only when the petitioner has demonstrated
that, among other things, 'the respondent has an imperative
duty to perform and has refused to do so.'" (quoting Ex parte
Flint Constr. Co., 775 So. 2d 805, 808 (Ala. 2000))).
As noted previously, Adams filed a motion on May 23
asking the circuit court to remove Chip as coexecutor. The
circuit court has not, as yet, ruled on that motion, which was
filed only two weeks before Adams filed his mandamus petition
with this Court on June 6, and proceedings have been stayed in
the circuit court since June 20, 2014.
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Adams does not directly address this prong of the
mandamus standard in his petition. He does argue at one point
that "[i]t appears that the trial court is electing to ignore
all filings submitted by Adams," petition, at 16 n.3, noting
that the circuit court has promptly responded to each motion
filed by Chip and Minor but has not ruled on any of Adams's
affirmative pleadings. We find this alleged difference in
treatment troubling, but we cannot say at this time that the
circuit court has "ignore[d]" Adams's motions or that the
circuit court has refused to act on Adams's request to remove
Chip as coexecutor. Thus, although we agree that the circuit
court erred in appointing Chip as coexecutor, we decline to
issue a writ of mandamus with regard to that appointment at
this time. See Ex parte Barnett, supra.
We decline to grant Adams's other requests for mandamus
relief on the same basis. Adams argues that "[he] has a clear
legal right to retain third-party professionals to assist with
estate administration," petition, at 11, and that "the trial
court should be directed to withdraw its May 9, 2014 [o]rder
that prohibits Adams from obtaining the assistance of
attorneys and accountants." Petition, at 14. However, it
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appears that Adams has not moved the circuit court to
"withdraw" its May 9 order. He did argue in his motion to
remove Chip as coexecutor and to impose sanctions against Chip
and Minor that Chip's motion to prohibit the hiring of such
assistance was due to be denied. As noted previously, the
circuit court has not ruled on that motion. Moreover, as
Adams himself acknowledges, the circuit court set the question
of hiring third-party professionals for the May 27 hearing.
No action has been taken since that hearing, but, as noted,
Adams filed his petition for mandamus relief on June 6, only
10 days after the May 27 hearing, and this Court stayed
proceedings in the circuit court on June 20. Even assuming
that Adams has a clear legal right to have the May 9 order
vacated, he has not demonstrated that the circuit court has
refused a request to so act.
Similarly, Adams argues that "[he] has a clear legal
right to obtain all estate property and records in [Chip and
Minor's] possession," petition, at 14, and that he is entitled
to sanctions against Chip and Minor. The circuit court has
not yet ruled on either of those motions. Adams argues: "To
date, the [circuit] court has taken no action upon Adams'[s]
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request to be provided materials under Ala. Code [1975,] § 43-
2-837. Through its silence, the trial court effectively has
denied Adams access to those materials." Petition, at 15.
However, the motion to compel and the request for sanctions
were filed on May 23. Adams's petition for mandamus relief
was filed on June 6, just two weeks later. Adams has cited no
authority -- and we know of none -- indicating that the
failure to rule on a motion within two weeks of its being
filed constitutes a denial of that motion. With these grounds
for mandamus relief, as with Adams's argument regarding the
removal of Chip as coexecutor, he has not met his burden to
"demonstrate[] that, among other things, '[the circuit court]
ha[d] an imperative duty to perform and has refused to do so."
Ex parte Barnett, 858 So. 2d at 949. Thus, Adams is not
entitled to mandamus relief in this regard as well.
Conclusion
We agree with Adams that the circuit court erred in
substituting Chip as a coexecutor of Cleveland's estate.
However, because the circuit court has not yet ruled on
Adams's motion to remove Chip as coexecutor, Adams has not
demonstrated that the circuit court has refused to perform an
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imperative duty. See Ex parte Barnett, supra. Similarly,
Adams has not demonstrated that, at this time, he is entitled
to a writ of mandamus, directing the circuit court to vacate
its May 9 order, which prohibits the hiring of an accountant
or an attorney to assist with the administration of the
estate, or directing the circuit court to grant his motions to
compel production of estate property and assets and to impose
sanctions against Chip and Minor. Therefore, we deny Adams's
petition for mandamus relief. We further lift the stay of
proceedings in the circuit court and encourage the circuit
court to address the pending motions expeditiously.
PETITION DENIED.
Parker, Murdock, and Shaw, JJ., concur.
Moore, C.J., and Stuart, Bolin, and Main, JJ., concur in
the result.
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