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Harbin v. Estess

Supreme Court of Alabama

July 27, 2018

Charlotte Harbin
Glenn E. Estess, Jr., as Personal Representative of the Estate of Lecil V. Thomas, et al.

          Appeal from Colbert Circuit Court (CV-14-000038)

          WISE, JUSTICE.

         The plaintiff below, Charlotte Harbin, appeals from the Colbert Circuit Court's judgment in favor of the defendants below, Glenn E. Estess, Jr., as personal representative of the estate of Lecil V. Thomas; Richard Thomas; and Roger Thomas (hereinafter collectively referred to as "the appellees").[1]

         Facts and Procedural History

         Lecil and Tommie Thomas were married and had three children, one of whom predeceased them. They had two surviving sons -- Richard Thomas and Roger Thomas (hereinafter collectively referred to as "Lecil's sons"). Lecil executed a will on November 30, 1995, and executed a codicil to that will on December 3, 2003. Tommie died on February 10, 2005. Lecil executed a second codicil to his will on February 13, 2008.

         According to Harbin, she and Lecil started dating after Tommie's death. She also asserted that they lived together off and on until September 2009, when, she says, they started living together as husband and wife.

         Lecil died on April 28, 2013. On May 30, 2013, Estess filed a petition for probate of Lecil's will in the Colbert County Probate Court. The petition listed Harbin as Lecil's "putative common-law wife." On May 30, 2013, the probate court admitted the will to probate and granted Estess letters testamentary.

         On May 14, 2014, Harbin filed a petition in the probate court seeking an omitted spouse's share of Lecil's estate pursuant to § 43-8-90, Ala. Code 1975. In her petition, Harbin asserted that she was Lecil's common-law wife at the time of his death and that she had become Lecil's common-law wife after he had executed the will that had been admitted to probate.[2] On July 3, 2014, Estess filed an objection to Harbin's petition. Harbin filed her response to that objection on July 7, 2014. Estess filed a petition for removal, and the administration of the estate was removed to the Colbert Circuit Court on October 7, 2014.

          On April 30, 2015, Estess filed a renewed objection to Harbin's petition seeking a share as an omitted spouse, arguing that the circuit court did not have jurisdiction to consider her petition. Specifically, Estess asserted that, pursuant to § 43-2-350, Ala. Code 1975, Harbin was required to file her petition within six months after letters testamentary were granted; that Harbin did not file her petition within that six-month period; and that her petition thus was barred. Estess also asserted that Harbin could not establish that she was Lecil's common-law wife.

         On May 5, 2015, Harbin filed a response. She asserted that, because § 43-8-90 does not include a time-bar, the circuit court had jurisdiction over her petition. She also asserted that "43-2-350(b), Ala. Code 1975, reaffirms [Harbin's] position by stating, 'The provisions of this subsection do not apply to heirs or devisees claiming as heirs or devisees.'" Harbin further asserted that she submitted clear and convincing evidence that would support a finding that a common-law marriage existed between her and Lecil.

         On May 15, 2015, Estess filed a motion to dismiss or, in the alternative, for a summary judgment. Estess attached to the motion his affidavit and various supporting documents. On June 15, 2015, Harbin filed her response to Estess's motion. Harbin attached to her response her affidavit and several supporting documents.

         On November 1, 2015, Lecil's sons filed a motion to intervene as defendants. They also filed a proposed answer and a proposed counterclaim seeking a judgment declaring that Harbin was not Lecil's common-law wife at the time of his death on April 28, 2013; that Harbin thus was not an omitted spouse; and that Harbin was not entitled to a share of Lecil's estate. On April 4, 2016, the circuit court granted the motion to intervene and deemed the answer and counterclaim as filed as of that date. Harbin subsequently filed an answer to Lecil's sons' counterclaim.

         On October 25, 2017, apparently following a hearing, [3] the circuit court entered the following order:

"Lecil V. Thomas ('Mr. Thomas') died on April 28, 2013. On May 30, 2013, the Probate Court admitted Mr. Thomas's Last Will and Testament to probate and granted Letters Testamentary to Glenn E. Estess, Jr. ('Mr. Estess'). Ms. Harbin is a beneficiary of Mr. Thomas's estate.
"As a beneficiary, Ms. Harbin was entitled to, and received notice of, the will's admission to Probate Court. Additionally, notice to 'all persons having claims against [Mr. Thomas's estate]' was published in the Colbert County Reporter Standard and Times informing potential claimants that they were required to file itemized and verified statements of claims in the office of the Judge of Probate by November 30, 2013 'or said claim will be barred and payment prohibited.' It is undisputed that Ms. Harbin communicated with Mr. Estess before the will was admitted to probate regarding a potential claim she had against Mr. Thomas's Estate. Ms. Harbin suggested 'if the estate [honored a $1, 000[, 000].00[4] check written during Mr. Thomas's lifetime], I will make no further claim against it.' It is also undisputed that Mr. Estess told Ms. Harbin that he could not honor the check. The matter was never discussed again, and Ms. Harbin did not file a claim by November 30, 2013.
"Over a year after Mr. Thomas's death, and almost six months after the claim period closed, Ms. Harbin filed a petition in the Probate Court's administration of Mr. Thomas's estate. The petition asks the Probate Court to declare that Ms. Harbin was the common-law spouse of Mr. Thomas, was omitted from Mr. Thomas's will, and as 'an omitted spouse of the decedent ... [is] therefore entitled to her intestate share.' Mr. Estess moved to dismiss Ms. Harbin's petition arguing that the Court lacked jurisdiction to hear Ms. Harbin's petition because it was filed more than six months after the will was admitted to probate. Ms. Harbin objected, alleging that her petition is the claim of an heir and therefore is not barred by § 43-2-350.
"Ms. Harbin filed her petition in the Probate Court as part of the probate administration of the Estate of Lecil V. Thomas. Regardless of how it is titled, Ms. Harbin's 'Petition' is legal assertion that she is Mr. Thomas's common-law spouse and her petition asks the Court to recognize her as such. The effect of such a recognition would necessarily impact the speedy, safe, and settlement [sic] of Mr. Thomas's estate, which is the very purpose of § 43-2-350. Moody v. Battle, 368 So.2d 20 (Ala. 1979). There is only one way to invoke the Court's jurisdiction to make such a declaration within the confines of an estate administration, and that is under § 43-2-350. And, until it is determined that Ms. Harbin is a common-law spouse, she is not an heir excepted from the requirements of § 43-2-350.
"Having read all of the submissions and heard oral arguments on the motion to dismiss, the Court finds:
"(1) That Ms. Harbin's petition constitutes a claim against the Estate of Lecil V. Thomas;
"(2) That the claim was filed after November 30, 2013; and
"(3) Is therefore barred by § 43-2-350." This appeal followed.

         Standard of Review

         Because the circuit court indicated that it considered matters outside the pleadings, Estess's motion to dismiss was more properly treated as a motion for a summary judgment. See Lloyd Noland Found., Inc. v. HealthSouth Corp., 979 So.2d 784 (Ala. 2007).

          "In Bruce v. Cole, 854 So.2d 47, 54 (Ala. 2003), this Court stated:

"'Summary judgment is appropriate only when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Rule 56(c)(3), Ala. R. Civ. P., and Dobbs v. Shelby County Econ. & Indus. Dev. Auth., 749 So.2d 425 (Ala. 1999). The court must accept the tendencies of the evidence most favorable to the nonmoving party and must resolve all reasonable doubts in favor of the nonmoving party. System Dynamics Int'l, Inc. v. Boykin, 683 So.2d 419 (Ala. 1996). "[W]here the evidence is in conflict, the issue must [be tried to the fact-finder]." Kitchens v. Winn-Dixie Montgomery, Inc., 456 So.2d 45, 47 (Ala. 1984). In reviewing a summary judgment, an appellate court, de novo, applies the same standard as the trial court. Dobbs, supra.'
"([E]mphasis added.)"

Blackmon v. Brazil, 895 So.2d 900, 904 (Ala. 2004).


         Harbin argues that the circuit court erroneously found that her claim was barred by § 43-2-350, Ala. Code 1975, ...

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