Engel v. Amonett

240 So. 3d 530
CourtSupreme Court of Alabama
DecidedJune 23, 2017
Docket1160113
StatusPublished

This text of 240 So. 3d 530 (Engel v. Amonett) 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
Engel v. Amonett, 240 So. 3d 530 (Ala. 2017).

Opinion

WISE, Justice.

Mark Robert Engel and Daniel Michael Engel appeal from the Mobile Probate Court's order disqualifying them as co-executors of their mother's estate and appointing a third party to administer the estate. We affirm.

Facts and Procedural History

On November 23, 2015, Rositha Lorsch Engel1 died. In her will, she named Mark Robert Engel and Daniel Michael Engel as co-executors. On March 9, 2016, Mark and Daniel filed a petition for letters testamentary in the Mobile Probate Court. The petition listed Rositha's heirs as her four children: Marion Thomas Whitman ("Thomas"), Mark Robert Engel, Daniel Michael Engel, and Bonita Engel Amonett.

On May 5, 2016, Bonita and Thomas filed an objection to the appointment of Mark and Daniel as co-executors of their mother's estate, arguing that Mark and Daniel were disqualified from serving as co-executors for the reasons stated in § 43-2-22, Ala. Code 1975. Specifically, they contended that Mark and Daniel, either directly or by agent, had been selling Rositha's personal property, as well as personal property of other individuals located in Rositha's residence, by way of the Internet without having the authority to do so. Bonita and Thomas asserted that such actions reflected "intemperance, improvidence, or want of understanding" such that Mark and Daniel were disqualified from serving as the co-executors of Rositha's estate, and they asked that the Mobile County general administrator or some other neutral party be appointed to administer the estate. They also requested that Mark and Daniel be enjoined from selling any of Rositha's personal property and that they be required to account for, and turn over the proceeds from, any items that had already been sold.

The probate court conducted a hearing on May 9, 2016. On May 13, 2016, it entered an order in which, with the consent of all parties, it enjoined all parties from "disposing [of], transferring, giving away, spending, or otherwise dissipating" property belonging to the estate.

The probate court conducted a pretrial conference on July 11, 2016. Thereafter, on July 21, 2016, it entered an order in which it stated that it would conduct a hearing on October 13, 2016, and that the triable issues for that hearing were:

"A. Whether or not Mark Robert Engel and Daniel Michael Engel should be appointed as co-executors as stated in the Last Will and Testament of Rositha L. Engel dated April 15, 2008;
"B. Whether or not Mark Robert Engel and Daniel Michael Engel sold personal property of decedent and committed waste of estate assets or diverted any estate assets;
"C. If Mark Robert Engel and Daniel Michael Engel sold personal property *533and committed waste of assets, what is the value of the personal property sold and should they return the value to the estate; and
"D. Whether or not the Court should appoint the Mobile County General Administrator to administer decedent's estate."

The probate court conducted the hearing on the petition on October 13, 2016. Afterward, on October 17, 2016, it entered an order in which it stated:

"This cause came before the Court on October 13, 2016, on the Petition for Letters Testamentary filed by Mark Robert Engel and Daniel Michael Engel and the Objection to Appointment of Personal Representative and Motion to Appoint General Administrator or Other Neutral Representative filed by Bonita Engel Amonett and Marion Thomas [Whitman]. Appearances were noted in the record. This cause is properly before the Court pursuant to its jurisdiction and authority as conferred by statute, local act and Constitutional provisions. Upon consideration of the evidence and argument presented, the Court FINDS, CONCLUDES AND ORDERS as follows:
"1. The Petition for Letters Testamentary is DENIED IN PART. The proffered will is admitted to probate; however, the Objection to Appointment of Personal Representative and Motion to Appoint General Administrator or Other Neutral Representative is SUSTAINED and GRANTED.
"2. Frank H. Kruse, General Administrator of Mobile County Probate Court shall be appointed Personal Representative of the Estate and Letters of Administration with the Will Annexed shall issue forthwith.
"3. Mark Robert Engel and Daniel Michael Engel are ORDERED to provide an accounting to the Personal Representative of any personal property sold or put up for sale since the date of decedent's death.
"4. Mark Robert Engel and Daniel Michael Engel are ORDERED to turn over to the Personal Representative any assets in their possession belonging to the Estate.
"5. The Personal Representative is ORDERED to file an inventory on or before November 18, 2016."

(Capitalization in original; emphasis added.)

On November 4, 2016, Mark and Daniel filed a notice of appeal to this Court.

Standard of Review

" 'Because the probate court's judgment is based, in part, upon testimony adduced at an ore tenus proceeding, we presume its judgment to be correct, and we will not reverse its judgment unless it is "palpably erroneous." Cox v. Logan, 262 Ala. 11, 13, 76 So.2d 169, 171 (1954). A more recent statement of the "ore tenus" rule, as applicable in an appeal from a probate court's judgment, appears in Craig v. Perry, 565 So.2d 171, 175 (Ala. 1990) (citations omitted):
" ' "[W]hen a court hears ore tenus evidence in a nonjury case, its ruling based on that evidence is presumed correct and will be overturned only if clearly erroneous or manifestly unjust. ... The presumption of correctness is especially applicable where ... the evidence was conflicting. The weight to be given the witnesses' testimony [is] for the trial judge, because he had the opportunity to view the witnesses and their demeanor." '
" Barron v. Scroggins, 910 So.2d 780, 782-83 (Ala. Civ. App. 2005)."

McGallagher v. Estate of DeGeer, 934 So. 2d 391, 401 (Ala. Civ. App. 2005).

*534Discussion

Mark and Daniel argue that the probate court erred in disqualifying them from being the co-executors of their mother's estate. Specifically, they contend that the probate court stated that it was disqualifying them because the heirs, which included them, did not get along and for "efficiency of administration," which they assert are not proper grounds for disqualifying them from serving as co-executors.

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Bluebook (online)
240 So. 3d 530, Counsel Stack Legal Research, https://law.counselstack.com/opinion/engel-v-amonett-ala-2017.