June 12, 2015
Major Millworks, Inc., and Roy F. Roddam, Sr.
MAE Hardwoods, Inc., d/b/a American Hardwoods, Inc
[Copyrighted Material Omitted]
Opinion is subject to formal revision before publication in
the advanced sheet of the Southern Reporter.
from Shelby Circuit Court. (CV-11-900190).
Hardwoods, Inc., d/b/a American Hardwoods, Inc. (" MAE
Hardwoods" ), filed a complaint against Roy F. Roddam,
Sr. (" Roddam" ), and Major Millworks, Inc. ("
Millworks" ), in the Shelby Circuit Court (" the
trial court" ) seeking damages for breach of contract.
Following a trial, the trial court entered a judgment against
Roddam and Millworks, awarding damages that included attorney
fees. Roddam and Millworks appeal. Because the record does
not contain evidence to support MAE Hardwoods' claim
against Roddam or the award of attorney fees pursuant to the
contract at issue, we reverse those portions of the judgment.
We affirm all other portions of the judgment.
and Procedural History
Hardwoods is a manufacturer of custom wooden building
materials. The owner and president of MAE Hardwoods is Kerry
Mason. Through an agreement (" the purchase
agreement" ) dated March 19, 2006, Mason purchased the
assets of American Hardwoods, Inc., a company undergoing
liquidation in bankruptcy proceedings. The purchase agreement
specified that the assets purchased by Mason included the
goodwill of American Hardwoods, Inc., and the right to use
the name " American Hardwoods." Mason then formed a
new corporation, MAE Hardwoods, Inc. Thereafter, MAE
Hardwoods, Inc., conducted business using the name "
American Hardwoods." Mason testified that MAE Hardwoods,
Inc., had acquired his interests in American Hardwoods, Inc.,
including the right to use the name " American
is a company located in Alabama that provides services and
goods for homebuilding projects. In 2006, MAE Hardwoods
supplied materials to Millworks, and Millworks paid the
invoices for those materials. In 2009, MAE Hardwoods
delivered materials to a building project in Gadsden where
Millworks was performing work for the property owner and the
builder. A statement dated February 5, 2010, lists a number
of invoices billed to Millworks and Roddam, partial payments
for those invoices made by Millworks, and finance charges for
incomplete payment, reflecting a total amount due of
March 9, 2011, MAE Hardwoods filed a complaint in the trial
court seeking damages against Roddam and Millworks for breach
of contract. MAE Hardwoods did not allege any other grounds
for relief. MAE Hardwoods attached copies of the invoices
billed to Millworks and Roddam in 2009 and a document it
asserted was a contract between all of the parties ("
the contract" ). The invoices were sent to Millworks on
the letterhead of " American Hardwood, Inc.," and
the contract contained the same name. MAE Hardwoods alleged
that it had entered into the contract in 2006 with Roddam and
Millworks and that, pursuant to the contract, MAE Hardwoods
agreed to extend a line of credit to Roddam and Millworks for
supplied materials. MAE Hardwoods alleged that Roddam and
Millworks breached the contract by failing to pay for
materials, and it sought the unpaid amounts of the invoices.
MAE also sought late fees, interest, and attorney fees
pursuant to the terms of the contract.
contract contained the following statements and terms of
" STATEMENT: Purchase of goods will indicate the
acceptance of American
Hardwoods, Inc. credit terms. American Hardwoods, Inc. terms
are as follows: The entire Invoice amount is due in full by
the 10th day of the month following the month of Invoice. ...
If the account is not paid according to our terms, the amount
is past due and in default, and a late charge or finance
charge of 1.5% will be assessed to these invoices at the end
of the month when statements are run. The 1.5%
finance/service charge results in an annual percentage rate
of 18%. ...
" STATEMENT: Purchases and/or deliveries are herewith
authorized to be made without signature.
" STATEMENT: In the event this account is placed in the
hands of an attorney for collection, or suit is instituted to
collect same or any portion thereof, I and/or we agree and
promise to pay all attorney collection fees and court costs
and hereby waive all rights of exemption under the laws of
the State of Alabama or any other state of the United States.
" STATEMENT: In consideration of credit being extended
by American Hardwoods, Inc. to me/us/it, and/or we certify
the truthfulness and veracity of the statement appearing on
the application and agreement, and I and/or we guarantee and
bind ourselves to the faithful payment of all amounts owed,
now or in the future by me, us, either of us or any other
person, firm, or corporation for our benefit. If credit is
extended to a corporation in which we, either of us, or I am
an officer, shareholder, employee, or in which an interest
exist, I and/or we will personally and faithfully guarantee
the payment of all credit extended to said corporation."
contract is dated July 25, 2006, and is signed by Roddam. The
record does not indicate that Roddam received any monetary
compensation for signing the contract.
26, 2011, Roddam and Millworks filed an answer denying the
allegations of the complaint. MAE Hardwoods filed a motion
for a summary judgment on May 11, 2012, and a renewed motion
for a summary judgment on March 14, 2013. Roddam and
Millworks responded to both motions, arguing in part that the
only party entitled to enforce the contract was the company
in bankruptcy proceedings named " American Hardwoods,
Inc.," and not MAE Hardwoods, Inc. On April 2, 2013, the
trial court denied the motions for a summary judgment.
trial court conducted a bench trial over three days in 2013.
The trial court heard testimony from Mason and Hope Roddam,
an employee of Millworks. Mason testified that he purchased
the use of the name " American Hardwoods" as a part
of the overall purchase of the assets of a company in
bankruptcy proceedings because the name was well known. Mason
testified that he then formed MAE Hardwoods, Inc., and that,
by July 2006, MAE Hardwoods, Inc., was doing business as
" American Hardwoods, Inc." He testified that MAE
Hardwoods entered into the contract using the name "
American Hardwoods, Inc."
Roddam's daughter-in-law. She testified that Roddam's
role in Millworks was only as a passive investor and that he
had acquired the company in 2006 and had sold it to his son
and her a year later. She testified that Roddam had signed a
credit application to receive deliveries of materials for a
building project in 2006 that was unrelated to the 2009
project in Gadsden. She testified that Roddam had not had any
involvement with Millworks for several years by 2009 and that
he did not have any involvement with MAE Hardwoods, the
property owner, or the builder for the project in Gadsden in
testified to Millworks' involvement in the building
project in Gadsden. Millworks had installed doors and
windows, which were not provided by MAE Hardwoods. Hope
testified that she had contacted MAE Hardwoods after the
builder and the property owner had become interested in
specific types of moulding. She testified that she had
allowed the decorator and the homebuilder to make the
decisions regarding the moulding without her involvement. She
testified that, to her knowledge, the homebuilder had ordered
the materials from MAE Hardwoods. She testified that she did
not place the orders and that she could not find a copy of
the invoices in Millworks' records.
testified that, in 2009, Millworks ordered and took
possession of the materials supplied by MAE Hardwoods. Mason
testified that Hope had placed the first order and had
provided him with the directions to the location in Gadsden.
He testified that he had been present for the first delivery
to the Gadsden site and that he had met a Millworks
representative during the delivery. Mason testified that he
had contacted Millworks two or three times when the invoices
were not paid and that Millworks had responded by making two
partial payments of a thousand dollars each.
August 21, 2013, the trial court entered a judgment in favor
of MAE Hardwoods, finding that the parties had entered into
an enforceable contract on July 25, 2006, pursuant to which
MAE Hardwoods supplied building materials to Millworks. The
trial court found that Roddam and Millworks breached the
contract by failing to timely pay invoices totaling
$25,533.16. The judgment awarded MAE Hardwoods the amount of
the unpaid invoices and 18% percent interest on the unpaid
balance, as provided for in the contract, in the amount of
$13,787.90. The judgment also awarded attorney fees as
" The contract expressly calls for [Roddam and
Millworks] to pay attorney fees and court costs if any
balance is placed in the hands of an attorney for collection
or suit is instituted. Accordingly, the Court awards a
reasonable attorney fees to [MAE Hardwoods] in the amount of
total judgment amount is $46,821.06. On September 20, 2013,
Roddam and Millworks filed a motion to alter, amend, or
vacate judgment, and for other relief, asserting over 60
grounds that included the following arguments: 1) MAE
Hardwoods lacked standing because it was not a party to the
contract, 2) the trial court's findings were manifestly
against the weight of the evidence, and 3) MAE Hardwoods
failed to submit evidence to support the award of attorney
fees and interest. After conducting a hearing, the trial
court denied the postjudgment motion on November 26, 2013. On
January 7, 2014, Roddam and Millworks filed a timely notice
of appeal to this court.
apply the following standard of review:
" When evidence is presented ore tenus, the trial court
is '" unique[ly] position[ed] to directly observe
the witnesses and to assess their demeanor and
credibility." ' Ex parte T.V., 971 So.2d 1,
4 (Ala. 2007) (quoting Ex parte Fann, 810 So.2d 631,
633 (Ala. 2001)). Therefore, a presumption of correctness
attaches to a trial court's factual findings premised on
ore tenus evidence. Ex parte J.E., 1 So.3d 1002,
1008 (Ala. 2008). When evidence is taken ore tenus and the
trial judge makes no express findings of fact, this Court
will assume that the trial judge made those findings
to support the judgment. Transamerica Commercial Fin.
Corp. v. AmSouth Bank, N.A., 608 So.2d 375, 378 (Ala.
1992) (citing Fitzner Pontiac--Buick--Cadillac, Inc. v.
Perkins & Assocs., Inc., 578 So.2d 1061 (Ala.
1991)). We will not disturb the findings of the trial court
unless those findings are 'clearly erroneous, without
supporting evidence, manifestly unjust, or against the great
weight of the evidence.' Gaston v. Ames, 514
So.2d 877, 878 (Ala. 1987) (citing Cougar Mining Co. v.
Mineral Land & Mining Consultants, Inc., 392 So.2d
1177 (Ala. 1981)). '" The trial court's judgment
[in cases where evidence is presented ore tenus] will be
affirmed, if, under any reasonable aspect of the testimony,
there is credible evidence to support the judgment."
' Transamerica, 608 So.2d at 378 (quoting
Clark v. Albertville Nursing Home, Inc., 545 So.2d
9, 13 (Ala. 1989), and citing Norman v. Schwartz,
594 So.2d 45 (Ala. 1991)); see also Ex parte
Perkins, 646 So.2d 46 (Ala. 1994)."
Espinoza v. Rudolph, 46 So.3d 403, 412 (Ala. 2010).
and Millworks argue that MAE Hardwoods was not a party to the
contract and that, therefore, MAE Hardwoods lacked standing
to pursue its breach-of-contract claim or the right to
enforce the contract. Based on the assertion that MAE
Hardwoods is a stranger to the contract, Roddam and Millworks
also argue that the trial court erred in finding that a
written contract existed between MAE Hardwoods and Millworks
and that, as a result, the trial court erred in awarding MAE
Hardwoods interest on the unpaid amount of the invoices
pursuant to the contract. All of those arguments depend on
the contention that any contract to pay for the materials
delivered was with American Hardwoods, Inc., and not with MAE
Hardwoods argues that it entered the contract using the name
" American Hardwoods, Inc." A domestic corporation
" has the same powers as an individual to take action
necessary or convenient to carry out its business and
affairs." § 10A-1-2.11, Ala. Code 1975; see also
§ 10A-1-7.32, Ala. Code 1975 (" A foreign nonfiling
entity or a foreign filing entity registered under this
article enjoys the same but no greater rights and privileges
as the domestic entity to which it most closely
corresponds." ). " '" Without abandoning
his real name a person may adopt any name, style or signature
wholly different from his own name by which he may transact
business, execute contracts, issue negotiable paper and sue
and be sued." '" State v. Taylor, 415
So.2d 1043, 1046-47 (Ala. 1982) (quoting Ingram v.
Watson, 211 Ala. 410, 413, 100 So. 557, 559, (1924),
quoting in turn 29 Cyc. 270); see Jordan Undertaking Co.
v. Asberry, 230 Ala. 97, 98-99, 159 So. 683, 684 (1935)
(" A person may adopt any name or style different from
his own by which he may transact business ...." (citing
29 Cyc. 270, and Carlisle v. People's Bank, 122
Ala. 446, 26 So. 115 (1899)). " A person may adopt what
name he pleases, and if he deals with others, or goes to
court in a name, no matter what, no harm is done. No one with
whom he deals or litigates can complain ...." Milbra
v. Sloss-Sheffield Steel & Iron Co., 182 Ala. 622,
630, 62 So. 176, 179 (1913); see also Wilson v.
Thomason, 406 So.2d 871, 872 (Ala. 1981) (" [I]t
has been said that a person may adopt what name he pleases if
no harm has been done." (citing Milbra, supra). "
'Absent a statute to the contrary, an individual has the
right to be known by any name that he chooses, and a judgment
entered for or against that individual in either an assumed
name or a trade name is valid.'" Lifestar
Response of Alabama, Inc. v. Lemuel, 908 So.2d 207, 215
(Ala. 2004) (quoting Hughes v. Cox, 601 So.2d 465,
471 (Ala. 1992)).
" 'corporations may acquire good will, just as
natural persons, and an assignee of the corporate good will
and business may use the old corporate name, either with or
without an incorporation.' Hopkins on Trade-Marks, etc.,
221." G.B. McVay & Son Seed Co. v. McVay Seed
& Floral Co., 201 Ala. 644, 646, 79 So. 116, 118
(1918). " '[T]he abbreviation " Inc.,"
meaning " incorporated," and is equivalent to
" (a corporation)." '" Irvin v.
State, 44 Ala.App. 101, 106, 203 So.2d 283, 288 (1967)
(quoting Indian Ref. Co. v. Royal Oil Co., 102
Cal.App. 710, 712, 283 P. 856, 857 (1929), citing in turn
Goldberg, Bowen & Co. v. Dimick, 169 Cal. 187,
188-89, 146 P. 672, 673 (1915)). According to the purchase
agreement, Mason purchased assets including goodwill of
American Hardwoods, Inc., and the right to use the name
" American Hardwoods." Roddam and Millworks do not
contend that the use of the name " American Hardwoods,
Inc." by MAE Hardwoods, Inc., was fraudulent or
confusing, nor do they contend that a separate entity known
as " American Hardwoods, Inc.," supplied the
materials that were the basis of the invoices. Stated
otherwise, there is no evidence in the record that Roddam or
Millworks risk owing any other entity for the materials
delivered in 2009. Therefore, MAE Hardwoods' addition of
" Inc." to " American Hardwoods" as the
name used in the contract is of no consequence under the
particular circumstances of this case. The evidence was
sufficient for the trial court to find that supplies were
delivered to Millworks by MAE Hardwoods, Inc., using the name
American Hardwoods, Inc. In this case, MAE Hardwoods, Inc.,
was not prohibited from using the name " American
Hardwoods, Inc.," in its contractual dealings with
Roddam and Millworks, nor was it prohibited from using the
name " MAE Hardwoods, Inc., d/b/a American Hardwoods,
Inc.," in filing the complaint against them.
and Millworks argue that MAE Hardwoods, Inc., was not free to
use the name " American Hardwoods, Inc.," citing
§ 10A-1-5.03, Ala. Code 1975. Section 10A-1-5.03
prohibits the registration of a company name with the Office
of the Secretary of State that is indistinguishable from
another registered name unless the previously registered
company consents to the use of its name and submits a
satisfactory change in name to the Office of the Secretary of
State. However, Roddam and Millworks failed to show a
violation of that statute by, for example, presenting
evidence as to the registered names of MAE Hardwoods, Inc.,
and American Hardwoods, Inc.
and Millworks further argue that the existence of an entirely
separate corporation named American Hardwoods, Inc., in 2006
defeats MAE Hardwoods' contention that it was a party to
the contract. Roddam and Millworks cite Med Center Cars,
Inc. v. Smith, 727 So.2d 9, 16 (Ala. 1998), in which our
supreme court concluded that Serra Automotive, Inc., could
not enforce an arbitration agreement against Vivian Smith
because the agreement was between Smith and a separate and
distinct entity known as Serra Mitsubishi, Inc. Unlike in
that case, in this case the company named American Hardwoods,
Inc., sold to Mason the right to use its name. Mason
testified that MAE Hardwoods, Inc., subsequently acquired the
right to use that name and that MAE Hardwoods, Inc., doing
business as " American Hardwoods, Inc." had entered
into the contract with Roddam and Millworks.
Roddam and Millworks offer no facts to show that Roddam had
actually contracted with another entity or that another
company had supplied the materials ordered by Millworks in
2006 and the materials for the project in Gadsden in 2009. We
conclude that Roddam and Millworks have failed to show
reversible error regarding the trial court's
determination that MAE Hardwoods was the proper party to the
complaint, MAE Hardwoods' only claim against Roddam, as
well as Millworks, is a claim alleging breach of contract.
Roddam and Millworks argue that, even if there was a contract
between the parties, MAE Hardwoods failed to present evidence
of Roddam's liability pursuant to the contract. "
'In order to establish a breach-of-contract claim, a
plaintiff must show " (1) the existence of a valid
contract binding the parties in the action, (2) his own
performance under the contract, (3) the defendant's
nonperformance, and (4) damages." '" Cool
Temp, Inc. v. Pennsylvania Nat'l Mut. Cas. Ins. Co.,
148 So.3d 448, 455 (Ala.Civ. 2013)(quoting Ex parte Alfa
Mut. Inc. Co., 799 So.2d 957, 962 (Ala. 2001), quoting
in turn Southern Med. Health Sys., Inc. v. Vaughn,
669 So.2d 98, 99 (Ala. 1995)). MAE Hardwoods, thus, had the
burden of proving Roddam's liability pursuant to the
contract. The following provision of the contract addressed
" I and/or we guarantee and bind ourselves to the
faithful payment of all amounts owed, now or in the future by
me, us, either of us or any other person, firm, or
corporation for our benefit. If credit is extended to a
corporation in which we, either of us, or I am an officer,
shareholder, employee, or in which an interest exist, I
and/or we will personally and faithfully guarantee the
payment of all credit extended to said corporation."
responsibility was not unconditional. His liability was
limited to amounts owed for purchase orders that he placed.
He was also liable as a surety for orders made either for his
benefit or for as long as he had an interest in Millworks.
Hope testified that, by 2009, Roddam had no involvement in
Millworks after having sold the company to her and her
husband and that Roddam was not involved in the 2009 building
project in Gadsden. MAE Hardwoods failed to present evidence
to the trial court that refutes Hope's testimony. No
evidence in the record shows that Roddam ordered the
materials for the 2009 project, that those orders were for
his benefit, or that he had an interest in Millworks at that
time. We, therefore, hold that MAE Hardwoods failed to show
Roddam's liability pursuant to the contract.
and Millworks also argue that the trial court's award of
attorney fees was unsupported by any evidence and must be
" '" The determination of whether an attorney
fee is reasonable is within the sound discretion of the trial
court and will not be disturbed on appeal absent an abuse of
that discretion." Ex parte Edwards, 601 So.2d
82, 85 (Ala. 1992). Our deference to the trial court in
attorney-fee cases is based upon our recognition that the
trial court, which has presided over the entire litigation,
has a superior understanding of the factual questions that
must be resolved in fee determinations. See Hensley v.
Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 76 L.Ed.2d
40 (1983). Nevertheless, the trial court's order
regarding an attorney fee must allow for meaningful review by
articulating the decisions made, the reasons supporting those
decisions, and the
performance of the attorney-fee calculation. American
Civil Liberties Union of Ga. v. Barnes, 168 F.3d 423,
427 (11th Cir. 1999); see also Hensley, 461 U.S. at
437, 103 S.Ct. 1933.'"
Beal Bank, SSB v. Schilleci, 896 So.2d 395, 404
(Ala. 2004) (quoting City of Birmingham v. Horn, 810
So.2d 667, 681-82 (Ala. 2001)).
" The complete list of criteria used in the estimation
of the value of an attorney's services now includes the
following: (1) the nature and value of the subject matter of
the employment; (2) the learning, skill, and labor requisite
to its proper discharge; (3) the time consumed; (4) the
professional experience and reputation of the attorney; (5)
the weight of his responsibilities; (6) the measure of
success achieved; (7) the reasonable expenses incurred; (8)
whether a fee is fixed or contingent; (9) the nature and
length of a professional relationship; (10) the fee
customarily charged in the locality for similar legal
services; (11) the likelihood that a particular employment
may preclude other employment; and (12) the time limitations
imposed by the client or by the circumstances. Of course, not
all of the criteria will be applicable. 'Indeed, there
would hardly ever be a case where the [determination] of
attorney's fees brought into play every criterion.'
Graddick v. First Farmers & Merchants National Bank
of Troy, 453 So.2d 1305, 1311 (Ala. 1984)."
Van Schaack v. AmSouth Bank, N.A., 530 So.2d 740,
749 (Ala. 1988). " Although all of the criteria set
forth must be taken into consideration (though all criteria
need not be met) it has been generally recognized that the
amount of time consumed should be the first yardstick used by
the trial court." Clement v. Merchants Nat'l
Bank of Mobile, 493 So.2d 1350, 1355 (Ala. 1986) (citing
Peebles v. Miley, 439 So.2d 137 (Ala. 1983), and
Graddick v. First Farmers & Merchants Nat'l Bank
of Troy, 453 So.2d 1305 (Ala. 1984)).
Parties seeking " an attorney fee bear the burden of
proving their entitlement to an award and documenting their
appropriately expended hours." Beal Bank, 896
So.2d at 408 (citing City of Birmingham v. Horn,
supra). " [A] trial court may not order one party
to pay another party's attorney's fees without first
receiving evidence of the amount of those fees and then
determining the reasonableness of that amount." A.B.
v. J.B., 40 So.3d 723, 735 (Ala.Civ. 2009) (reversing an
order requiring wife to pay husband's attorney fees that
was entered without any evidence as to the amount of fees).
Even though MAE Hardwoods asserted a claim for attorney fees
in its complaint, " '[i]t is well settled that
" the statements of counsel in a pleading or brief are
not evidence." '" Wehle v. Bradley,
[Ms. 1101290, March 14, 2014] __ So.3d __, __, *36 (Ala.
2014) (quoting Watson v. Whittington Real Estate,
LLC, 16 So.3d 802, 809 (Ala.Civ. 2009), quoting in turn
State Dep't of Revenue v. Wells Fargo Fin. Acceptance
Alabama, Inc., 19 So.3d 892, 897 (Ala.Civ. 2008)).
Wehle v. Bradley, our supreme court reversed an award of
sought pursuant to § 43-2-849, Ala. Code 1975, because
there was no testimony or other evidence presented at trial
regarding the fees. The supreme court held that "
[t]he '[a]pplicants for an attorney fee bear the burden
of proving their entitlement to an award and documenting
their appropriately expended hours,' City of
Birmingham v. Horn, 810 So.2d 667, 682 (Ala. 2001), and
'it has been generally recognized that the amount of time
consumed should be the first yardstick used by the trial
court.' Clement [v. Merchants Nat'l Bank of
Mobile], 493 So.2d [1350,] 1355 [(Ala. 1996)]."
Wehle, __ So.3d at __. Consequently, the supreme
court held that the award of attorney fees was due to be
reversed based on the failure to present proof of the fees
case, although the contract provided a legal basis from which
attorney fees could be awarded, MAE Hardwoods had the burden
to show that it was entitled to attorney fees through the
presentation of appropriate proof. See Wehle, __
So.3d at __; Beal Bank, 896 So.2d at 408; and
Horn, 810 So.2d at 682. The only testimony regarding
attorney fees is the following answer by Mason on direct
" Q. ... [I]f you were forced to turn any unpaid balance
over to an attorney for collection, it was your understanding
per [the contract] signed by Roy Roddam that Major Millworks
was to be responsible for any attorney's fees; is that
" A. That's correct."
Hardwoods did not present any testimony or documentation to
support the attorney fees awarded, nor any evidence
indicating that MAE Hardwoods even incurred attorney fees in
this case. Although evidence regarding all the factors listed
in Van Schaack need not be presented, the party seeking an
award of attorney fees must present sufficient evidence to
the trial court to support the amount awarded and to provide
the party against whom fees are sought a meaningful basis
from which the fees awarded can be challenged. See, e.g.
Wehle, __ So.3d at __, Id. at *39("
'[T]he trial court's order regarding an attorney fee
must allow for meaningful review by articulating the
decisions made, the reasons supporting those decisions, and
the performance of the attorney-fee calculation.'"
(quoting City of Birmingham v. Horn, 810 So.2d at
682)). Because MAE Hardwoods did not meet its burden of proof
as to this issue, the award of attorney fees to MAE Hardwoods
must be reversed.
reasons stated, we reverse the judgment entered against
Roddam, and we reverse that part of the judgment awarding
attorney fees to MAE Hardwoods. We affirm the judgment in all
other aspects. We remand the cause to the trial court for
proceedings consistent with this opinion.
IN PART; REVERSED IN PART; AND REMANDED.
P.J., and Pittman, Thomas, and Moore, JJ., concur.
Section 43-2-849 provides:
" If any personal representative or
person nominated as personal representative defends
or prosecutes any proceeding in good faith, whether
successful or not, the personal representative is entitled
to receive from the estate necessary expenses and
disbursements, including, but not limited to, reasonable
attorneys' fees incurred."