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Colley v. Estate of Dees

Supreme Court of Alabama

June 15, 2018

Stephen Colley, as executor of the Estate of Hazel Colley, deceased
The Estate of Sara Dees and Franklin Leroy Stephens

          Appeal from Pike Circuit Court (CV-13-900041)


         Following the death of Sara Dees in February 2013, her nephew Franklin Leroy Stephens produced a will executed by Dees in September 2012 in which she bequeathed to him the vast majority of her estate. Dees's sister Hazel Colley ("Hazel"), who had been a named beneficiary in a previous will executed by Dees, initiated an action challenging the validity of the September 2012 will. Hazel passed away while the will contest was pending, and the executor of her estate, her son Stephen Colley ("Colley"), was ultimately substituted as plaintiff. Following a jury trial, a verdict was returned in favor of Stephens and Dees's estate, and the Pike Circuit Court accordingly entered a judgment in their favor. Colley appeals; we affirm.


         A more detailed recitation of the facts at the heart of this case can be found in Stephens v. Colley, 160 So.3d 278 (Ala. 2014) ("Stephens I"), in which this Court reversed a preliminary injunction that had been issued by the trial court. The facts essential to this appeal may be summarized as follows. In January 2012, Dees was residing in a rehabilitation center in Troy following the amputation of her second leg when Stephens checked her out and returned her to her house, moving in with her to help with her care. Over the course of the next year, Stephens arranged appointments for Dees with an attorney, who drafted a durable power of attorney designating Stephens as Dees's attorney-in-fact and the September 2012 will designating Stephens as the executor of Dees's estate and making him her primary heir. Stephens also drove Dees to various financial institutions in the area at which Dees maintained accounts and took steps to be added as either a signatory or beneficiary to those accounts.

         In February 2013, Dees passed away. Stephens thereafter submitted her September 2012 will to the Pike Probate Court and was named executor of her estate. On March 12, 2013, Hazel initiated the underlying action by petitioning the trial court and asking it to take over the administration of Dees's estate; Hazel also simultaneously asked the trial court to remove Stephens as executor based on his 1990 conviction for manslaughter, which, she alleged, rendered him unfit pursuant to § 43-2-22(a), Ala. Code 1975, which bars any individual "convicted of an infamous crime" from serving as an executor. The trial court thereafter granted both of Hazel's requests, and Stephens's daughter Sonya Bolling was appointed the new executrix of Dees's estate. In August 2013, Hazel amended her initial pleading, asserting claims against Stephens and Dees's estate and asking the trial court to set aside both the September 2012 will and actions taken pursuant to the power of attorney because, she alleged, they had been procured by fraud, misrepresentation, and undue influence. In October 2013, Hazel initiated a new action asserting additional undue-influence and breach-of-fiduciary-duty claims against Stephens; upon Hazel's request, this new action was consolidated with the existing action. None of Hazel's pleadings through this time requested a trial by jury on her claims.

         In February 2014, Hazel moved the trial court to enter a temporary restraining order barring Stephens from spending any more money from Dees's accounts or taking any action affecting the title to Dees's house. Hazel also requested that Stephens be required to identify where all assets formerly held by Dees were located and that certain funds that had previously been identified be paid into the trial court for holding. The trial court thereafter issued the requested temporary restraining order and, following a subsequent hearing, issued a preliminary injunction extending the terms of the restraining order until the litigation was resolved. Stephens appealed to this Court, and, in Stephens I, we reversed the trial court's order entering the preliminary injunction because it failed to comply with Rule 65(d)(2), Ala. R. Civ. P. 160 So.3d at 284.

         While Stephens I was pending, Hazel passed away. On remand, Colley was substituted as the plaintiff, and the trial court issued another preliminary injunction, the terms of which were similar to the preliminary injunction reversed on appeal but with additional explanation so as to comply with Rule 65(d)(2). Stephens appealed that preliminary injunction also; however, in March 2015, this Court affirmed the trial court's preliminary injunction without an opinion. See Stephens v. Colley, 210 So.3d 1091 (Ala. 2015) (table) ("Stephens II").

         While Stephens II was pending, Colley moved the trial court to sever the claims against Dees's estate, which had not appealed either of the preliminary injunctions entered, so that those claims could proceed to trial. In October 2014, the trial court separated the claims. Thereafter, Colley moved the trial court to remove Bolling as the executrix of Dees's estate. That motion was vigorously opposed by Dees's estate, and the trial judge ultimately recused himself from the case before Colley withdrew his request to remove Bolling so that, he stated, the litigation could move toward a resolution.

         After a new trial judge was appointed, a hearing was held in October 2015 at which the trial court ordered the parties to mediation and stated that, if mediation was unsuccessful, a bench trial would be scheduled. In November 2015, Colley moved for the first time for a trial by jury, arguing that the previous trial judge had indicated that he would use an advisory jury and that no party would accordingly be prejudiced if a jury heard the case. Stephens and Dees's estate responded by arguing that any right to a jury trial had been waived because it had not previously been asserted. The parties were thereafter unable to agree to dates and details for any mediation proceedings, and, in March 2016, Colley moved the trial judge to recuse himself, citing the trial court's management of the jury-trial and mediation issues, as well as its indication that it would attempt to narrow the scope of the issues at trial and its apparent "personal relationship" with defense counsel. In July 2016, the trial judge denied the motion to recuse in a written order addressing each of the concerns raised by Colley; however, the trial court also subsequently agreed to receive additional briefs on the jury-trial issue. In February 2017, the trial court entered an order granting Colley's request for a jury trial, stating:

"The court finds that pursuant to Rule 38(d), Ala. R. Civ. P., there has been a waiver of right to trial by jury. [However, ] Rule 39(b), Ala. R. Civ. P., allows discretion in allowing an untimely jury demand. A trial court should exercise its discretion liberally in favor of granting a jury trial in absence of strong and compelling reasons to the contrary. A right to a trial by jury is fundamental and courts should indulge every reasonable presumption against waiver. Aetna Ins. Co. v. Kennedy ex rel. Bogash, 301 U.S. 389 (1937).
"Since the undersigned judge never set this matter for a bench trial after reassignment and since there would be no significant prejudice to the defendants should the court grant the jury demand, it is ordered that the plaintiff's request for a jury demand is granted. The clerk shall transfer this case to the jury docket. As previous[ly] ordered, the court will first address 'only' the will contest in a bifurcated trial.[1] A will contest is limited to the issue of whether the writing in question is a valid will of the decedent. Ray v. Huett, 225 So.3d 30 (Ala. 2016)."

(Emphasis in original.) On March 3, 2017, the case was set for the jury term beginning June 7, 2017.

         On June 2, 2017, Stephens and Dees's estate filed a motion in limine asking the trial court to bar Colley from discussing at trial Stephens's 1990 manslaughter conviction or the fact that that conviction had served as the basis for his removal as the executor of Dees's estate; the trial court granted the motion, holding that the prejudicial effect of such evidence would substantially outweigh any probative value. On June 12, 2017, the case finally proceeded to trial. Before opening statements, Colley requested that he also be allowed to try his fraud and undue-influence claims relating to the power of attorney and Dees's financial accounts; however, the trial court denied the request, subsequently issuing a written order in which it stated that "[t]his court has made it abundantly clear from assignment that the court would try only the will contest first and that all pending counts of both complaints would remain pending for another trial."

         Following the completion of Colley's case-in-chief, Stephens and Dees's estate moved the trial court to enter a judgment as a matter of law in their favor on all counts. The trial court granted that motion in part, holding that, although "there is a prima facie case that's been presented with regards to undue influence and mental capacity ..., I've not heard any evidence of [fraud that would make the will invalid]." Accordingly, the trial court entered a judgment as a matter of law in favor of Stephens and Dees's estate on the claim that Dees's September 2012 will was the product of fraud. Stephens and Dees's estate thereafter presented their defense, and, after they rested their case, the trial court denied the parties' respective motions seeking judgments as a matter of law and submitted the case to the jury. Shortly after the jury began its deliberations, it asked the trial court for legal pads and for a written copy of the jury instructions it had been given. After supplying the legal pads and discussing the other request with counsel for the parties, the trial court informed the jury that it could not give it any written instructions to take into deliberations, but further explained that "the actual instructions I've given you are the guidelines or the law you are to apply to this case. But it does involve the issue of whether or not it's a valid will, whether or not Ms. Dees had mental capacity, and whether or not there was undue influence by Leroy Stephens."

         The next day, the jury sent the trial court another note stating that it could not agree on a verdict; the trial court released the jury for lunch and instructed it to continue deliberations when it returned. After lunch and further deliberations, the jury did reach a verdict -- in favor of Stephens and Dees's estate -- and, on June 15, 2017, the trial court entered a judgment consistent with that verdict, further certifying that judgment as final pursuant to Rule 54(b), Ala. R. Civ. P. After his postjudgment motions were denied, Colley filed a notice of appeal to this Court.


         Colley argues that the judgment entered against him and in favor of Stephens and Dees's estate should be reversed for six reasons. First, he argues that the trial court erred by not entering a judgment as a matter of law in his favor at the close of all the evidence. This Court has stated:

"When reviewing a ruling on a motion for a [judgment as a matter of law], this Court uses the same standard the trial court used initially in deciding whether to grant or deny the motion for a [judgment as a matter of law]. Palm Harbor Homes, Inc. v. Crawford, 689 So.2d 3 (Ala. 1997). Regarding questions of fact, the ultimate question is whether the nonmovant has presented sufficient evidence to allow the case to be submitted to the jury for a factual resolution. Carter v. Henderson, 598 So.2d 1350 (Ala. 1992). The nonmovant must have presented substantial evidence in order to withstand a motion for a [judgment as a matter of law]. See § 12-21-12, Ala. Code 1975; West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala. 1989). A reviewing court must determine whether the party who bears the burden of proof has produced substantial evidence creating a factual dispute requiring resolution by the jury. Carter, 598 So.2d at 1353. In reviewing a ruling on a motion for a [judgment as a matter of law], this Court views the evidence in the light most favorable to the nonmovant and entertains such reasonable inferences as the jury would have been free to draw. Id."

Waddell & Reed, Inc. v. United Investors Life Ins. Co., 875 So.2d 1143, 1152 (Ala. 2003). Colley specifically argues that he was entitled to a judgment as a matter of law because, he says, after he presented his case-in-chief, the trial court specifically held that he had established a prima facie case both that Dees lacked the mental capacity to execute the September 2012 will and that she executed it only because of the undue influence Stephens executed over her, and, Colley further alleges, Stephens and Dees's estate thereafter failed to present any medical evidence that would rebut his evidence indicating that Dees lacked the mental capacity to execute a will in September 2012. This argument is misguided.

         Colley contends in his brief that the trial court's ruling that he had established a prima facie case left "no genuine issue of fact remaining to be resolved at the end of [his] case." Colley's brief at p. 20. In fact, however, the trial court's ruling meant exactly the opposite -- that he had produced substantial evidence creating a factual dispute. Carter v. Henderson, 598 So.2d 1350, 1353 (Ala. 1992). Therefore, Colley was entitled to have his claims submitted to the jury, but the jury was entitled to decide those claims as it saw fit. Colley claims that Stephens and Dees's estate failed to refute the evidence he submitted of Dees's mental incompetency when they presented their case -- a claim Stephens and Dees's estate refute; however, this argument overlooks the fact that evidence was also presented during the presentation of Colley's case from which a jury might have concluded that Dees was competent when she executed the September 2012 will. For example, Colley himself testified that, although he visited Dees three times while Stephens was living with her, he was never aware that she was incompetent and she, in fact, "seemed to be okay." Moreover, although the medical records introduced by Colley contained evidence of Dees's diminished mental capacity, they also contained some evidence indicating that Dees was not permanently incompetent. Notably, a March 21, 2012, medical record contained the following entry:

"Ms. Dees is noted with orientation to all spheres. She voices her needs. And Ms. Dees was able to provide accurate responses during her cognitive assessment. She did not require any cueing interventions during her cognitive assessment. Ms. Dees is cognitively able ...

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