Colley v. Estate of Dees

266 So. 3d 707
CourtSupreme Court of Alabama
DecidedJune 15, 2018
Docket1170042
StatusPublished

This text of 266 So. 3d 707 (Colley v. Estate of Dees) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Colley v. Estate of Dees, 266 So. 3d 707 (Ala. 2018).

Opinion

STUART, Chief Justice.

Following the death of Sara Dees in February 2013, her nephew Franklin Leroy Stephens produced a will executed by Dees in September 2012 in which she bequeathed to him the vast majority of her estate. Dees's sister Hazel Colley ("Hazel"), who had been a named beneficiary in a previous will executed by Dees, initiated an action challenging the validity of the September 2012 will. Hazel passed away while the will contest was pending, and the executor of her estate, her son Stephen Colley ("Colley"), was ultimately substituted as plaintiff. Following a jury trial, a verdict was returned in favor of Stephens and Dees's estate, and the Pike Circuit *710Court accordingly entered a judgment in their favor. Colley appeals; we affirm.

I.

A more detailed recitation of the facts at the heart of this case can be found in Stephens v. Colley, 160 So.3d 278 (Ala. 2014) (" Stephens I"), in which this Court reversed a preliminary injunction that had been issued by the trial court. The facts essential to this appeal may be summarized as follows. In January 2012, Dees was residing in a rehabilitation center in Troy following the amputation of her second leg when Stephens checked her out and returned her to her house, moving in with her to help with her care. Over the course of the next year, Stephens arranged appointments for Dees with an attorney, who drafted a durable power of attorney designating Stephens as Dees's attorney-in-fact and the September 2012 will designating Stephens as the executor of Dees's estate and making him her primary heir. Stephens also drove Dees to various financial institutions in the area at which Dees maintained accounts and took steps to be added as either a signatory or beneficiary to those accounts.

In February 2013, Dees passed away. Stephens thereafter submitted her September 2012 will to the Pike Probate Court and was named executor of her estate. On March 12, 2013, Hazel initiated the underlying action by petitioning the trial court and asking it to take over the administration of Dees's estate; Hazel also simultaneously asked the trial court to remove Stephens as executor based on his 1990 conviction for manslaughter, which, she alleged, rendered him unfit pursuant to § 43-2-22(a), Ala. Code 1975, which bars any individual "convicted of an infamous crime" from serving as an executor. The trial court thereafter granted both of Hazel's requests, and Stephens's daughter Sonya Bolling was appointed the new executrix of Dees's estate. In August 2013, Hazel amended her initial pleading, asserting claims against Stephens and Dees's estate and asking the trial court to set aside both the September 2012 will and actions taken pursuant to the power of attorney because, she alleged, they had been procured by fraud, misrepresentation, and undue influence. In October 2013, Hazel initiated a new action asserting additional undue-influence and breach-of-fiduciary-duty claims against Stephens; upon Hazel's request, this new action was consolidated with the existing action. None of Hazel's pleadings through this time requested a trial by jury on her claims.

In February 2014, Hazel moved the trial court to enter a temporary restraining order barring Stephens from spending any more money from Dees's accounts or taking any action affecting the title to Dees's house. Hazel also requested that Stephens be required to identify where all assets formerly held by Dees were located and that certain funds that had previously been identified be paid into the trial court for holding. The trial court thereafter issued the requested temporary restraining order and, following a subsequent hearing, issued a preliminary injunction extending the terms of the restraining order until the litigation was resolved. Stephens appealed to this Court, and, in Stephens I, we reversed the trial court's order entering the preliminary injunction because it failed to comply with Rule 65(d)(2), Ala. R. Civ. P. 160 So.3d at 284.

While Stephens I was pending, Hazel passed away. On remand, Colley was substituted as the plaintiff, and the trial court issued another preliminary injunction, the terms of which were similar to the preliminary injunction reversed on appeal but with additional explanation so as to comply with Rule 65(d)(2). Stephens appealed that *711preliminary injunction also; however, in March 2015, this Court affirmed the trial court's preliminary injunction without an opinion. See Stephens v. Colley, 210 So.3d 1091 (Ala. 2015) (table) (" Stephens II").

While Stephens II was pending, Colley moved the trial court to sever the claims against Dees's estate, which had not appealed either of the preliminary injunctions entered, so that those claims could proceed to trial. In October 2014, the trial court separated the claims. Thereafter, Colley moved the trial court to remove Bolling as the executrix of Dees's estate. That motion was vigorously opposed by Dees's estate, and the trial judge ultimately recused himself from the case before Colley withdrew his request to remove Bolling so that, he stated, the litigation could move toward a resolution.

After a new trial judge was appointed, a hearing was held in October 2015 at which the trial court ordered the parties to mediation and stated that, if mediation was unsuccessful, a bench trial would be scheduled. In November 2015, Colley moved for the first time for a trial by jury, arguing that the previous trial judge had indicated that he would use an advisory jury and that no party would accordingly be prejudiced if a jury heard the case. Stephens and Dees's estate responded by arguing that any right to a jury trial had been waived because it had not previously been asserted. The parties were thereafter unable to agree to dates and details for any mediation proceedings, and, in March 2016, Colley moved the trial judge to recuse himself, citing the trial court's management of the jury-trial and mediation issues, as well as its indication that it would attempt to narrow the scope of the issues at trial and its apparent "personal relationship" with defense counsel. In July 2016, the trial judge denied the motion to recuse in a written order addressing each of the concerns raised by Colley; however, the trial court also subsequently agreed to receive additional briefs on the jury-trial issue. In February 2017, the trial court entered an order granting Colley's request for a jury trial, stating:

"The court finds that pursuant to Rule 38(d), Ala. R. Civ. P., there has been a waiver of right to trial by jury. [However,] Rule 39(b), Ala. R. Civ. P., allows discretion in allowing an untimely jury demand. A trial court should exercise its discretion liberally in favor of granting a jury trial in absence of strong and compelling reasons to the contrary. A right to a trial by jury is fundamental and courts should indulge every reasonable presumption against waiver. Aetna Ins. Co. v. Kennedy ex rel. Bogash, 301 U.S. 389

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Bluebook (online)
266 So. 3d 707, Counsel Stack Legal Research, https://law.counselstack.com/opinion/colley-v-estate-of-dees-ala-2018.