Rogers v. Hansen

187 So. 3d 1108, 2015 Ala. LEXIS 96, 2015 WL 4876657
CourtSupreme Court of Alabama
DecidedAugust 14, 2015
Docket1140257
StatusPublished

This text of 187 So. 3d 1108 (Rogers v. Hansen) 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
Rogers v. Hansen, 187 So. 3d 1108, 2015 Ala. LEXIS 96, 2015 WL 4876657 (Ala. 2015).

Opinion

MOORE, Chief Justice.

Gerri Beth Rogers appeals from an order of the Madison County Probate Court removing her as the personal representative of the estate of Ilse Martha Nagel. Sigrid Hansen, the appellee, argues that Rogers’s appeal is due to be dismissed because Rogers failed to post bond as required by § 12-22-24, Ala.Code 1975. For the reasons stated herein, we agree with Hansen and we dismiss the appeal.

Ilse Martha Nagel passed away on January 27, 2012. On June 28, 2012, Rogers, who was not related to Nagel, filed in the Madison County Probate Court a petition to probate Nagel’s will, which was self-proving and which named Rogers as personal representative. Rogers was also named a beneficiary in Nagel’s will. On July 5, 2012, the probate court granted Rogers’s petition, appointed her personal representative of Nagel’s estate, and issued her letters testamentary. On January 11, 2013, Rogers petitioned the probate court for a final settlement of Nagel’s estate. The probate court held a hearing on March 7, 2013, and issued a “Decree on Final Settlement” the following day.

On April 8, 2013, Hansen, who was a relative of Nagel’s, filed in the probate [1109]*1109court a “Verified Motion to Alter, Amend, or Vacate Order, Motion to Strike Final Settlement Pleadings and Order, and Motion to Remove Personal Representative for Misconduct” (hereinafter referred to as “Hansen’s motion”). Hansen alleged that she had newly discovered evidence indicating that Rogers had committed fraud, that Rogers had become a beneficiary through the execution of undue influence,- and that Rogers had committed other misconduct. The probate court denied Hansen’s motion. Hansen appealed the probate court’s order to the Madison Circuit Court, which remanded the cause to the probate court for an evidentiary hearing on Hansen’s motion.

'On June 10, 2014, the probate court held a hearing on Hansen’s motion, at which it heard evidence ore tenus. On July 8, 2014, the probate court issued an order granting Hansen’s motion. Specifically, the probate court found that it had retained jurisdiction to consider Hansen’s motion. The probate court also found that Nagel’s will had been procured through undue influence on Rogers’s part and that Rogers had been negligent, had breached her fiduciary duties, -had committed conversion, and had perpetrated a fraud on the court. The probate court rescinded its previous judgment approving the final settlement, removed Rogers as personal representative of Nagel’s estate, appointed a new personal representative, and enjoined Rogers from wasting or disposing of any assets of the estate. On August 7, 2014, Rogers filed a postjudgment motion, which the probate court denied on October 27, 2014. Rogers, filed a notice of appeal to this Court on December 5, 2014.

Hansen filed a motion to dismiss Rogers’s appeal for failure to post bond as required by § 12-22-24, Ala.Code 1975. Whether an appeal must be dismissed if the appellant fails to post bond under that particular statute is an. issue of first impression for this Court. Section 12-22-24 provides: , -

“(a) No appeal can be taken from any order of the probate court removing an executor or administrator unless the applicant gives either a cash bond or a bond with at least two good and sufficient sureties, payable to the probate judge and in the amount fixed by him, not less than the’ amount of his bond as executor or administrator, conditioned to prosecute the appeal to effect and, until the same is decided, faithfully to discharge his duties as such executor or administrator.
“(b) If such appeal is decided against the appellant, any cash bond posted or part thereof may be ordered forfeited for costs, or, if other than a cash bond was given, execution for costs may issue against him and the sureties on such bond, their names being certified with the record to the appellate court.
“(c) Such bond also stands as security for the faithful discharge of his duties as such executor or administrator, from the time' the same is approved until the ap- ' peal is finally decided.”

It is undisputed that Rogers did not post bond when she filed her notice of appeal to this Court. Rogers did provide security for costs of the appeal. However, as Hansen correctly argues, although giving security for costs is permissible for other appeals under § 12-22-25, Ala.Code 1975,1 [1110]*1110§ 12-22-24 does not permit this Court to take an appeal “from any order of the probate court removing an executor or administrator” unless the appellant provides a bond.

Rogers argues that § 12-22-24 does not apply to this case because, she says, she is not appealing her removal as personal representative of Nagel’s estate but is appealing only the probate court’s finding that it had subject-matter jurisdiction to entertain Hansen’s motion. Rogers contends that Hansen’s motion, even though styled, in part, as a motion to vacate, was in actuality contesting the mil. Rogers therefore, concludes that the probate court lacked subject-matter jurisdiction to consider Hansen’s motion and to remove Rogers as personal representative because Hansen failed to file her will contest in the circuit court within six months after the will was admitted to probate, as required by § 43-8-199, Ala.Code 1975. Thus, Rogers characterizes her appeal only as a challenge to the probate court’s subject-matter' jurisdiction, which, she argues, is an issue that is not waivable and “ ‘may be raised on appeal.’” Flannigan v. Jordan, 871 So.2d 767, 769 (Ala.2003) (quoting Norton v. Liddell, 280 Ala. 353, 356, 194 So.2d 514, 517 (1967)).

Although Rogers is correct that questions of subject-matter jurisdiction certainly may be raised on appeal without having been preserved below, Rogers overlooks the threshold issue: "Whether her appeal is properly before this Court. “ ‘An appeal is not a vested right, but exists by the grace of statute or a supreme court rule and must be perfected pursuant to the time and manner prescribed therein.’ ” Greystone Close v. Fidelity & Guar. Ins. Co., 664 So.2d 900, 902 (Ala.1995) (quoting Ex parte Thrailkill, 543 So.2d 1201, 1202 (Ala.Civ.App.1989)). Pertinent to this case, § 12-22-24 expressly provides: “No appeal can be taken from any order of the probate court removing an executor or administrator unless the applicant gives either a cash bond or a bond with at least two good and sufficient sureties....” (Emphasis added.) Even if Rogers challenges on appeal only the issue of the probate court’s subject-matter jurisdiction, she is asking this Court to take the appeal “from [the] order of the probate court removing [her as] executor” of the estate. Section 12-22-24 does not allow this Court to do so unless Rogers provides an appropriate bond, which she has failed to do.

Although this Court has not previously construed § 12-22-24, it has held, in other contexts, that failure to post a bond as required by statute can be fatal- to an appeal. In Denson v. First National Bank of Birmingham, 276 Ala. 146, 159 So.2d 849 (1964), the Winston County Board of Equalization (“the Board”) increased the assessed valuation of land in which the First National Bank of Birmingham (“the Bank”) owned mineral rights. The Bank protested, but, after a hearing, the Board decided not to change the valuation.

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Related

Denson v. First National Bank of Birmingham
159 So. 2d 849 (Supreme Court of Alabama, 1964)
Greystone Close v. Fidelity & Guar. Ins. Co.
664 So. 2d 900 (Supreme Court of Alabama, 1995)
Flannigan v. Jordan
871 So. 2d 767 (Supreme Court of Alabama, 2003)
Ex Parte Thrailkill
543 So. 2d 1201 (Court of Civil Appeals of Alabama, 1989)
Norton v. Liddell
194 So. 2d 514 (Supreme Court of Alabama, 1967)
Lumpkin v. State
171 So. 3d 599 (Supreme Court of Alabama, 2014)
Thompson v. Lea
28 Ala. 453 (Supreme Court of Alabama, 1856)

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Bluebook (online)
187 So. 3d 1108, 2015 Ala. LEXIS 96, 2015 WL 4876657, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rogers-v-hansen-ala-2015.