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Blose v. Balentine

Alabama Court of Civil Appeals

November 17, 2017

Melissa Blose, as personal representative of the estate of Dorothy Lois Purser, deceased
v.
Arnold Glenn Balentine

         Appeal from Lauderdale Circuit Court (CV-15-900226)

          PITTMAN, JUDGE.

         AFFIRMED. NO OPINION.

         See Rule 53(a)(1) and (a)(2)(A), Ala. R. App. P.; Adams v. Boan, 559 So.2d 1084, 1088 (Ala. 1990); Rickard v. Trousdale, 508 So.2d 260, 261 (Ala. 1987); Piel v. Brown, 361 So.2d 90, 93-95 (Ala. 1978); and Dunning v. Mayhew, [Ms. 2160248, June 16, 2017] So.3d (Ala. Civ. App. 2017).

          Thompson, P.J., and Thomas and Donaldson, JJ., concur.

          MOORE, Judge, dissenting.

         On April 21, 2015, Melissa Blose filed a petition in the Lauderdale Probate Court ("the probate court"), seeking her appointment as the administrator ad litem of the estate of Dorothy Lois Purser ("Dorothy"), deceased; she asserted in the petition and in her accompanying affidavit, among other things, that Dorothy was her aunt and that "persons who are not family members or heirs of the estate of" Dorothy were occupying real property located in Florence that had belonged to Dorothy. The trial court granted Blose's petition and appointed her as administrator ad litem of Dorothy's estate. Blose filed a motion seeking the assistance of law-enforcement officials to gain entrance to Dorothy's real property; that motion was granted by the probate court. On April 29, 2015, Arnold Glenn Balentine ("Glenn") filed in the probate court an answer and an opposition to Blose's petition for appointment as administrator ad litem; he asserted, among other things, that he was Dorothy's surviving spouse and requested that the probate court vacate its order appointing Blose as administrator ad litem of Dorothy's estate. Blose filed a response to Glenn's answer. She also filed in the probate court a petition for the probate of Dorothy's will and a petition for letters testamentary, among other things. The probate court entered a judgment admitting Dorothy's will to probate and granted letters testamentary to Blose.

         On July 7, 2015, Glenn filed a complaint in the Lauderdale Circuit Court ("the circuit court"), seeking to remove the administration of Dorothy's estate from the probate court, and, on July 29, 2015, the administration of the estate was removed to the circuit court. Before the administration of the estate was removed, Glenn filed in the probate court a petition to set aside statutory exemptions and allowances as Dorothy's surviving spouse and a petition for his elective share of Dorothy's estate, and Blose filed an objection to those petitions. Following the removal of the administration of the estate to the circuit court, a trial was conducted on the issue whether Glenn and Dorothy had been married at common law; the circuit court entered an order concluding that they had been husband and wife and set the case for a hearing on Glenn's petition for his elective share and to set aside statutory exemptions. Blose filed her notice of appeal to this court on November 30, 2016; that appeal was docketed as case no. 2160157. This court dismissed that appeal, however, as having been taken from a nonfinal judgment. See Blose v. Balentine (No. 2160157, Feb. 24, 2017), So.3d (Ala. Civ. App. 2017) (table).

         On March 10, 2017, before this court issued its certificate of judgment in case no. 2160157 on March 14, 2017, the circuit court entered an order purporting to certify as final, pursuant to Rule 54(b), Ala. R. Civ. P., its judgment concluding that Glenn and Dorothy had been married at common law. Blose again appealed to this court. This court transferred the appeal to the Alabama Supreme Court for lack of subject-matter jurisdiction; that court then transferred the appeal to this court, pursuant to Ala. Code 1975, § 12-2-7(6). This court reinvested the circuit court with jurisdiction to reenter its March 10, 2017, order, which the circuit court did on May 10, 2017. See Raybon v. Hall, 17 So.3d 673, 675 (Ala. Civ. App. 2009) (concluding that entry of judgment before this court has issued certificate of judgment regarding a pending appeal in the same case results in entry of a void judgment that will not support an appeal).

         In its no-opinion order of affirmance, this court cites Rickard v. Trousdale, 508 So.2d 260 (Ala. 1987), and implicitly determines that, in light of the circuit court's direction of the entry of a final judgment, pursuant to Rule 54(b), as to its determination regarding the existence of a common-law marriage between Glenn and Dorothy, this court has jurisdiction to hear Blose's current appeal. Because I disagree, I respectfully dissent.

         Although the supreme court in Rickard, and this court in Melton v. Jenkins, 92 So.3d 105 (Ala. Civ. App. 2012), proceeded to consider the appeals in those cases following Rule 54(b) certifications of orders concluding, like the one in the present case, that a common-law marriage existed, neither court made any express finding of appellate jurisdiction. See Cochran v. Chapman, 21 So.3d 1244, 1246 n.1 (Ala. Civ. App. 2008) (concluding that, although an implied finding of jurisdiction may arise from an earlier case, it does not control the resolution of the question of jurisdiction in the present case). In Cochran, a divorce case, the trial court certified as final an order concluding only that the parties had entered into a common-law marriage. 21 So.3d at 1245. With regard to whether this court had jurisdiction over the appeal, we stated, in pertinent part:

"'An appeal ordinarily will lie only from a final judgment -- i.e., one that conclusively determines the issues before the court and ascertains and declares the rights of the parties involved.' Bean v. Craig, 557 So.2d 1249, 1253 (Ala. 1990). Rule 54(b), Ala. R. Civ. P., provides an exception to this rule. It reads, in pertinent part:
"'When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.'

         "Discussing the propriety of a Rule 54(b) certification of finality, this ...


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