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Ex parte Chmielewski

Supreme Court of Alabama

December 21, 2018

EX PARTE Mary CHMIELEWSKI, as Personal Representative of the Estate of Yvonne Speer Hoover, Deceased; Grace Ellis; and Roger Stone
v.
Grace Ellis and Roger Stone) (In re Tere Mills

         Petition for Writ of Mandamus (Baldwin Circuit Court, CV-18-900261), Joseph C. Stankoski, J.

         David F. Daniell of Daniell, Upton & Perry, P.C., Daphne, for petitioner Estate of Yvonne Speer Hoover; Steve C. Olen of Cunningham Bounds, LLC, Mobile, for petitioner Grace Ellis; and Robert Mudd, Jr., Mobile, for petitioner Roger Stone.

         Jmaes P. Coleman III, Robertsdale, for respondent.

          OPINION

         SELLERS, Justice.

Page 387

          Mary Chmielewski, as personal representative of the estate of Yvonne Speer Hoover, deceased; Grace Ellis; and Roger Stone petition this Court for a writ of mandamus directing the Baldwin Circuit Court ("the circuit court") to vacate an order purporting to set aside its earlier dismissal of a will contest. We grant the petition and issue the writ.

         Hoover executed a will in May 2017. Hoover’s will designated Tere Mills as a beneficiary of Hoover’s estate. A codicil to Hoover’s will was executed shortly before Hoover died in July 2017. The codicil eliminated Mills as a beneficiary of Hoover’s estate and added Ellis and Stone as beneficiaries. After Hoover died, her will, along with the codicil, was admitted to probate in the Baldwin Probate Court ("the probate court"), and letters testamentary were issued to Chmielewski. Thereafter, pursuant to § 43-8-199, Ala. Code 1975, Mills filed a petition in the circuit court contesting the validity of Hoover’s will, as amended by the codicil.

          In support of her assertion that the codicil was invalid, Mills alleged in her petition that Stone and Ellis had unduly influenced Hoover to execute the codicil, that Hoover lacked the capacity to understand the effect of the codicil, that Hoover’s signature on the codicil had been forged, that Stone and Ellis had committed a fraud on the probate court by testifying to the validity of the codicil, and that Ellis had engaged in the unauthorized practice of law by allegedly drafting the codicil. Based on those averments, Mills requested the circuit court to "determine whether said document is the codicil of the decedent."

         The will-contest petition indicates that it was formally served only on Stone and Ellis. Nevertheless, on March 23, 2018, Chmielewski and Ellis filed a joint motion to dismiss Mills’s petition.[1] In support of their motion to dismiss, Chmielewski and Ellis argued that Mills had failed to join all parties required by § 43-8-200, Ala. Code 1975, which provides, in part, that, in the event of a will contest, "all parties interested in the probate of the will, as devisees, legatees or otherwise, as well as those interested in the testator if he had died intestate, as heirs, distributees or next of kin, shall be made parties to the contest." Chmielewski and Ellis identified 22 individuals and organizations that, they asserted, should have been made parties. For his part, Stone submitted a separate filing adopting the arguments in Chmielewski and Ellis’s motion to dismiss.

         Chmielewski and Ellis later filed an amendment to their motion to dismiss, in which they argued that the circuit court never acquired subject-matter jurisdiction over the will contest because Mills had failed to name Hoover’s estate as a party to the contest within six months of the admission of Hoover’s will to probate. In support, they pointed to a portion of § 43-8-199, Ala. Code 1975, which provides that a will contest may be filed "at any time within the six months after the admission of [the] will to probate."[2] In the amendment

Page 388

to their motion, Chmielewski and Ellis requested the circuit court "to dismiss the Petition of Mills in its entirety."[3]

         On May 22, 2018, the circuit court entered an order stating: "Motion to dismiss, or in the alternative summary judgment filed by Estate of Yvonne Speer Hoover, deceased is hereby granted." The order did not expressly mention Ellis. The same day, the circuit court entered an order stating: "Motion to dismiss, or in the alternative summary judgment filed by [Roger Stone] is hereby disposed by separate order." On June 12, 2018, however, the circuit court entered an additional order stating: "Motion to dismiss, or in the alternative summary judgment, filed by respondent Roger Stone is hereby granted."[4]

         On June 22, 2018, 31 days after entry of the May 22, 2018, orders, Mills filed a postjudgment motion. In that motion, Mills cited Rule 59, Ala. R. Civ. P., and requested the circuit court to alter, amend, or vacate the May 22, 2018, order granting Chmielewski and Ellis’s motion to dismiss. On July 6, 2018, Mills filed a second ...


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