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Rodgers v. McElroy

Alabama Court of Civil Appeals

August 10, 2012

Samuel Rodgers
v.
Elizabeth McElroy

Released for Publication April 2, 2014.

As Corrected September 24, 2013.

Appeal from Jefferson Circuit Court. (CV-10-2979). Helen Shores Lee, Trial Judge.

Appellant: Stewart E. Burns of Burns, Burns & Garner, Gadsden.

Appellee: Carol Ann Smith and A. Mark Bahakel of Smith & Pace, P.C., Birmingham.

Amicus curiae Frank H. Kruse, in support of the appellee: Duane A. Graham of Armbrecht Jackson LLP, Mobile.

Amicus curiae Probate Judges Association, in support of the appellee: Algert S. Agricola, Jr., of Ryals, Plummer, Donaldson, Agricola & Smith, P.C., Montgomery.

THOMPSON, Presiding Judge. Pittman, J., concurs. Bryan and Thomas, JJ., concur in the result, without writings. Moore, J., dissents, with writing.

OPINION

Page 1031

THOMPSON, Presiding Judge.

Samuel Rodgers appeals from a judgment awarding Elizabeth McElroy a fee to compensate her for serving as the personal representative of the estate of Ron'Drequez Cortez White.

The record indicates the following. In July 2009, White was killed in a motor-vehicle accident caused by a drunk driver. White, who was 20 years old at the time of the accident, died intestate. On February 4, 2010, McElroy, the county administrator for Jefferson County, filed a petition in the Jefferson County Probate Court (" the probate court" ) seeking to administer White's estate. The probate court appointed McElroy to serve as personal representative of White's estate, and it granted her letters of administration. McElroy posted the $50,000 bond required by law. On April 7, 2010, McElroy filed an inventory of White's estate, which she determined had no assets. She also identified White's mother, Sandey Greene, as White's only known heir.

As part of her duties as personal representative, McElroy hired John Stamps, an attorney who already represented Greene, to pursue a wrongful-death action in connection with White's death. Stamps was able to reach a settlement of $150,000 with White's underinsured-motorist insurance carrier without having to file a lawsuit. He did, however, file a wrongful-death action against Tony Ferrell and Edna Ferrell. The Ferrells' liability-insurance carrier settled for $25,000. Ultimately, a

Page 1032

judgment of $300,000 was entered against Tony Ferrell.

Meanwhile, on June 18, 2010, Samuel Rodgers filed a petition in the probate court seeking an order establishing that he had the right to inherit from White because, Rodgers said, he was White's father.[1] Greene contested Rodgers's petition, and the matter was moved to the Jefferson Circuit Court (" the trial court" ). After a jury trial in October 2011, the jury returned a verdict finding that Rodgers was White's father and, therefore, that he was entitled to inherit from White. On October 13, 2011, the trial court entered a judgment on the verdict and ruled that, in addition to being entitled to inherit from White under the laws of intestate succession, Rodgers also was entitled to a distribution of the wrongful-death proceeds.

Rodgers immediately filed a motion asking that the trial court order McElroy to release the wrongful-death proceeds that had been collected. In his motion, Rodgers contended that McElroy was not entitled to be compensated for her services as personal representative from the wrongful-death proceeds. McElroy objected, and the matter was litigated. After a hearing, the trial court entered an order finding that McElroy was entitled to compensation for her services as personal representative and awarded her $15,750, which equaled 9% of the total of $175,000 in wrongful-death proceeds that had been collected. The balance of the proceeds was divided evenly between Greene and Rodgers.[2] Rodgers appealed.

Rodgers contends that the trial court had no discretion to award McElroy a fee in this case. Specifically, he argues that White's estate had no value and that because, he says, wrongful-death proceeds are not part of the estate and cannot be used to pay estate-administration fees, there was no money from which the trial court could have awarded McElroy fees for her work as the personal representative in this case.

This issue presents this court with a question of law, which we review de novo.

" '[W]here the facts before the trial court are essentially undisputed and the controversy involves questions of law for the court to consider, the court's judgment carries no presumption of correctness.' Allstate Ins. Co. v. Skelton, 675 So.2d 377, 379 (Ala. 1996). Questions of law are reviewed de novo. BT Secs. Corp. v. W.R. Huff Asset Mgmt. Co., L.L.C.., 891 So.2d 310 (Ala. 2004).'
"Alabama Republican Party v. McGinley, 893 So.2d 337, 342 (Ala. ...

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