Estate of Wells v. Motte

117 So. 3d 710, 2013 WL 203523
CourtCourt of Civil Appeals of Alabama
DecidedJanuary 18, 2013
Docket2120100
StatusPublished

This text of 117 So. 3d 710 (Estate of Wells v. Motte) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Estate of Wells v. Motte, 117 So. 3d 710, 2013 WL 203523 (Ala. Ct. App. 2013).

Opinion

THOMAS, Judge.

Cathy Wells, as personal representative of the estate of her late husband, James Robert Wells, Jr. (“the personal representative”), petitions this court for a writ of mandamus ordering the Jefferson Circuit Court to vacate its September 20, 2012, order transferring the administration of the estate and another, consolidated action initiated by the personal representative against the sisters of James Robert Wells, Jr., Janice Motte and Susan Wells (“the sisters”), arising from the sisters’ failure to provide the estate with its share of proceeds from the sale of items the sisters and James had jointly inherited from their father, to the Blount Circuit Court. We grant the petition and issue the writ.

In April 2010, the Jefferson Probate Court admitted James’s will to probate; Cathy was issued letters testamentary. In July 2011, the administration of the estate was removed to the Jefferson Circuit Court. In early 2012, the sisters sued Cathy in the Blount Circuit Court, seeking a sale for division of certain real property inherited in common by the sisters and James, which real property Cathy had since inherited an interest in from James (the sisters’ action is hereinafter referred to as “the sale-for-division action”). In March 2012, the personal representative sued the sisters in the Jefferson Circuit Court; she sought to recover from the sisters the estate’s share of the proceeds from the sale of certain property that had been inherited in common by the sisters and James from their father on the theories of conversion and money had and received (“the conversion action”). The estate-administration action and the conversion action were consolidated by the Jefferson Circuit Court (the estate-administration action and the conversion action are hereinafter referred to collectively as “the consolidated action”).

The sisters filed an answer to the conversion action, in which they asserted that the conversion action should be transferred to the Blount Circuit Court. The answer specifically stated:

“In the interest of judicial economy, this action is due to be transferred to [the] [712]*712Blount [Circuit Court] to be consolidated with the [sale-for-division] action pending there which was filed prior to the instant action. [The sisters] assert that venue is more appropriate where the pending action on the real property is being prosecuted (wherein the sisters are Co-Plaintiffs in Blount County CV-12-900029 and Cathy Wells (Personal Representative/Plaintiff in the instant action) is Defendant).”

The sisters also filed a motion to dismiss or, in the alternative, to change venue. In that motion, among other things, the sisters requested that the conversion action be transferred to the Blount Circuit Court

“for consolidation with the pending [sale-for-division] action between the parties (CV-12-900029) which was filed prior to the instant action and for the [estate] to petition for the re-opening of the Estate of James Robert Wells, Sr. (Probate Case No.2003-148) in order to challenge the effectiveness of the waiver executed by James Robert Wells, Jr. Blount County is where the original estate was administered, where the personal property at issue was located, where the real property suit is pending and is an appropriate forum for the instant action to be heard (after consolidation).”

The personal representative opposed the motion to dismiss or, in the alternative, to change venue. She specifically argued in response to the request to change venue that venue of the conversion action was proper in Jefferson County under Ala. Code 1975, § 6-3-2, and that no basis for a transfer of the conversion action existed.

On September 20, 2012, the Jefferson Circuit Court entered a lengthy order in which it denied the motion to dismiss but granted the motion to change venue of the consolidated action to the Blount Circuit Court. In that order, the Jefferson Circuit Court analyzed whether, under Rule 42, Ala. R. Civ. P., the conversion action and the sale-for-division action pending in the Blount Circuit Court should be consolidated. In the order, the court specifically noted that the two actions involved the disposition of property from the estate of the sisters and James’s father and that the two actions involved some of same facts and same parties. Based on its analysis under Rule 42, the Jefferson Circuit Court transferred the consolidated action to the Blount Circuit Court. The personal representative filed a motion seeking reconsideration of the September 20, 2012, order, but she also timely filed this petition for the writ of mandamus with this court.

As a preliminary matter, we note that the personal representative has filed a motion to dismiss this petition. On December 7, 2012, the Jefferson Circuit Court purported to enter an order setting aside the September 20, 2012, order transferring the consolidated action to the Blount Circuit Court. The personal representative indicates in her motion that the relief she requested has been granted to her by virtue of the December 7, 2012, order. The sisters have notified this court that they will not file an answer because, they say, the issue raised in this petition is now moot. We disagree.

Based on the caselaw concerning transfers of actions, the December 7, 2012, order purporting to set aside the September 20, 2012, order transferring the consolidated action to the Blount Circuit Court is a nullity. Ex parte MedPartners, 820 So.2d 815, 821 (Ala.2001). Once an action has been transferred by the transferor court and docketed by the transferee court, the only means of seeking to have the transfer set aside is a petition for a writ of mandamus. Ex parte MedPart-ners, 820 So.2d at 821. The transferor court lacks jurisdiction to set aside its [713]*713transfer order, and the transferee court cannot entertain a motion seeking to have the action transferred back to the transfer- or court. Ex parte MedPartners, 820 So.2d at 821. Thus, because the Jefferson Circuit Court lacked jurisdiction to set aside its September 20, 2012, order transferring the consolidated action, we decline to dismiss the petition.

Turning now to the merits of the petition, we note that

“ ‘[a] petition for the writ of mandamus is the appropriate means by which to challenge a trial court’s order regarding a change of venue. Ex parte Sawyer, 892 So.2d 898, 901 (Ala.2004). The writ of mandamus is an extraordinary remedy; it will not be issued unless the petitioner shows “ ‘ “(1) a clear legal right in the petitioner 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) properly invoked jurisdiction of the court.” ’ ” Ex parte Inverness Constr. Co., 775 So.2d 153, 156 (Ala.2000) (quoting Ex parte Gates, 675 So.2d 371, 374 (Ala.1996)); Ex parte Pfizer, Inc., 746 So.2d 960, 962 (Ala.1999).’ ”

Ex parte Vest, 68 So.3d 881, 884 (Ala.Civ.App.2011) (quoting Ex parte Children’s Hosp. of Alabama, 931 So.2d 1, 5-6 (Ala.2005)).

As the personal representative points out, § 6-3-2 governs what is the appropriate venue for actions against individuals. That statute reads:

“(a) In proceedings of a legal nature against individuals:

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Related

Ex Parte Sawyer
892 So. 2d 898 (Supreme Court of Alabama, 2004)
Ex Parte Children's Hospital of Alabama
931 So. 2d 1 (Supreme Court of Alabama, 2005)
Ex Parte Inverness Construction Company
775 So. 2d 153 (Supreme Court of Alabama, 2000)
Ex Parte Sharpe
513 So. 2d 609 (Supreme Court of Alabama, 1987)
Ex Parte Gates
675 So. 2d 371 (Supreme Court of Alabama, 1996)
Ex Parte Pfizer, Inc.
746 So. 2d 960 (Supreme Court of Alabama, 1999)
Ex Parte MedPartners, Inc.
820 So. 2d 815 (Supreme Court of Alabama, 2001)
Ex Parte Vest
68 So. 3d 881 (Court of Civil Appeals of Alabama, 2011)
State ex rel. C.M. v. C.H.
828 So. 2d 291 (Supreme Court of Alabama, 2002)

Cite This Page — Counsel Stack

Bluebook (online)
117 So. 3d 710, 2013 WL 203523, Counsel Stack Legal Research, https://law.counselstack.com/opinion/estate-of-wells-v-motte-alacivapp-2013.