from Baldwin Circuit Court (CV-15-900107) (CV-15-900307)
these consolidated appeals, Randolph Clay Cooper
("Clay") appeals from two summary judgments entered
in favor of his siblings, Garland Terrance Cooper
("Terry") and Rebecca Cooper Bonner
("Becky"). Case no. 1170270 concerns a petition for
letters of administration for the estate of Carol Evans
Cooper ("Mrs. Cooper"), who is the mother of Clay,
Terry, and Becky. Case no. 1170271 involves Clay's
petition to distribute any assets remaining in a trust
created by the will of Nolan P. Cooper ("Mr.
Cooper"), who was Mrs. Cooper's husband and is the
father of Clay, Terry, and Becky.
Facts and Procedural History
Cooper died in January 2002. Mr. Cooper's will directed
that an amount be put into a trust equal to the amount that
is free of federal estate tax (that amount was $1, 000, 000
in 2002) for the benefit of his wife, Mrs. Cooper. Based on
documents attached to the summary-judgment motions in the
present cases, it appears that the testamentary trust either
was or should have been funded with real property, including
a "farm" valued at $952, 000 and other real
property valued at $47, 900. Mr. Cooper's other assets
passed directly to Mrs. Cooper. The will appointed Becky as
the trustee of the trust. The trustee was instructed to
"distribute the net income and principal" of the
trust for the benefit of Mrs. Cooper. The trustee was
instructed to distribute the entire net income to Mrs.
Cooper, and, concerning the principal, the trustee was to
"pay or apply such amount or amounts of principal (even
to the extent of all the same) to or for the use of the
beneficiary as such trustee may deem necessary, proper or
desirable, in the absolute discretion of such trustee, for
the medical of dental expenses, drugs, nursing or hospital
expenses, other support and maintenance in reasonable
comfort, or for any financial burden or emergency of the
beneficiary." Upon Mrs. Cooper's death, the trust
was to terminate and any assets remaining in the trust were
to be divided and distributed equally among Clay, Terry, and
September 2008, Mrs. Cooper created a revocable living trust.
It appears that the $952, 000 farm was deeded to Mrs.
Cooper's trust around the same time that trust was
created. Mrs. Cooper was the trustee of her trust, and Becky
was the first successor trustee. At Mrs. Cooper's death,
the trust estate was to be distributed to Becky and Terry.
Clay was not included in the distribution. Mrs. Cooper died
in April 2012. A copy of what was purported to be Mrs.
Cooper's will was attached to the summary-judgment
motions. That will placed the entire residue of Mrs.
Cooper's estate in her trust.
2012, in a lawsuit that is completely separate from the
current litigation, Clay sued Becky, "individually and
(i) as trustee of Nolan P. Cooper testamentary trust, (ii)
trustee of the Carol Evans Cooper revocable living trust,
(iii) administratrix of the will and/or estate of Nolan P.
Cooper, and (iv) administratrix of the will and/or estate of
Carol Evans Cooper"; David Bonner, who is Becky's
husband; Terry; and Diane Porter, who is an attorney and
accountant. Clay's complaint alleged, among other things,
that, at Becky's direction, Mrs. Cooper reopened Mr.
Cooper's estate and wrongfully transferred property,
including property that should have been in Mr. Cooper's
trust, to Mrs. Cooper and/or Mrs. Cooper's trust. The
2012 lawsuit sought, among other things, a full accounting of
all assets "held by [Mr. Cooper's] trust or
rightfully belonging to [that trust], including those which
already have been dissipated, transferred, or sold."
Also, the lawsuit sought a judgment "requiring that
one-third of the assets which should have funded [Mr.
Cooper's trust], but which were instead diverted to the
Carol Cooper Revocable Trust(s), and thereafter to Becky and
[Becky's husband], be distributed to [Clay] (and likewise
to Terry)." Further, the lawsuit sought a judgment
"ordering the partition and sale, or alternatively the
equitable distribution of [Mr. Cooper's trust] assets, in
accordance with the Nolan Cooper will and [Mr. Cooper's
trust]." In November 2013, the circuit court entered a
summary judgment in favor of the defendants without stating
its reasons for doing so. That summary judgment was
unanimously affirmed, without an opinion, by the Court of
Civil Appeals, Cooper v. Bonner (No. 2130323, Sept.
12, 2014), 190 So.3d 60 (Ala. Civ. App. 2014) (table), and
the certificate of judgment was issued on October 1, 2014.
petition for letters of administration for Mrs. Cooper's
estate was filed in the Baldwin Probate Court on October 2,
2014, by Harry D'Olive, Jr., who is an
attorney.The probate court granted the letters of
administration to D'Olive on October 21, 2014. In
November 2014, Becky and Terry moved the probate court to set
aside its order granting the letters of administration. An
inventory of the estate filed by D'Olive in January 2015
stated that Mrs. Cooper's estate did not include any real
property or personal property. In January 2015, Clay
petitioned the circuit court to remove the administration of
the estate to the circuit court, and the circuit court did
March 2015, a petition to distribute any remaining trust
assets in Mr. Cooper's trust was filed in the circuit
court. The petition sought termination of the testamentary
trust pursuant to the terms of Mr. Cooper's will and
distribution of the corpus of the testamentary trust,
"including the appreciated value of any assets which
this court determines should have been included as assets of
the testamentary trust," to Clay, Terry, and Becky, the
beneficiaries of the trust. The petition also sought a
complete accounting of the trust since the day it was funded.
April 2015, Becky and Terry moved the circuit court to
consolidate the administration of Mrs. Cooper's estate
and the petition to distribute any assets remaining in Mr.
Cooper's trust, and they moved the court to transfer both
cases to Judge J.W. Bishop, the circuit judge who had
presided over the 2012 litigation. Also, Becky and Terry
filed a "motion to dismiss cases and/or motion for
summary judgment" in both cases. In that motion, Becky
and Terry argued that "Clay should be estopped from
pursuing his most recent frivolous two lawsuits where the
issues have been previously decided in earlier litigation
between the same parties involving the same two
2015, in the case concerning the administration of Mrs.
Cooper's estate, Judge Joseph Norton denied the motion to
consolidate and the motion to dismiss the case. Also, in the
same month, in the case concerning the distribution of the
assets of Mr. Cooper's testamentary trust, Judge Langford
Floyd ruled that the motion to consolidate was moot and that
the "motion to dismiss, or in the alternative summary
judgment filed by [Terry] and [Becky] is hereby moot, pending
March 1, 2016, in both cases, Becky and Terry moved the
circuit court to order mediation. On March 3, 2016, in the
case concerning the distribution of the assets of Mr.
Cooper's testamentary trust, Judge Floyd referred the
case to mediation. On March 8, 2016, Judge Norton referred
the estate-administration case to mediation. On April 26,
2016, Judge Floyd issued an order stating that the parties do
not wish to mediate, and he withdrew his earlier mediation
order. On May 18, 2016, Judge Norton modified his mediation
order and stated that "any in-court proceedings as to
the dispute in mediation shall be stayed as to the parties in
mediation for a period of 60 days from the date of this
25, 2016, in the case concerning the distribution of the
testamentary-trust assets, Clay, acting pro se, filed a
"motion for summary judgment and/or declaratory
judgment." In that motion, Clay argued that (1) "as
a matter of law the legitimate corpus of the Nolan P. Cooper
testamentary trust is due to be distributed and the trust
terminated," (2) that "as a matter of law the
trustee has a duty of loyalty to the trust, and to protect
trust assets, declaratory judgment is appropriate where the
trustee has not fulfilled this duty," (3) that
"removal of testamentary trustee is appropriate to
protect trust assets, to account for trust assets, to
equitably distribute trust assets, and to terminate the
testamentary trust," and (4) that he is entitled to
September 9, 2016, Judge Floyd denied Clay's
summary-judgment motion. On that same day, Judge Floyd
transferred the case concerning the distribution ...