Summary
The Alabama Supreme Court held that Emory L. Terry had an adequate remedy by direct appeal from the circuit court's order remanding the estate administration to the probate court, so mandamus relief was unavailable. The court further held that removal under Alabama Code § 12-11-41 was untimely because the probate court had already assumed jurisdiction over final settlement proceedings. The court denied the mandamus petition and affirmed the circuit court's order.
Topics
Practice areas
Questions Presented
- Whether mandamus was available to review the circuit court's order retransferring estate administration to the probate court when the administrator could obtain review by direct appeal.
- Whether an estate may be removed from the probate court under Ala. Code § 12-11-41 after the probate court has assumed jurisdiction over final-settlement proceedings and taken steps toward final settlement.
Holdings
- Mandamus is unavailable when the petitioner has an adequate alternative remedy, and a circuit court order remanding estate administration to the probate court is a final decree supporting a direct appeal.
- Under Ala. Code § 12-11-41, removal of estate administration from the probate court to the circuit court is cut off once the probate court has assumed jurisdiction over final-settlement proceedings and taken steps toward final settlement.
Key quotations
“Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.” (402)
“Despite the wide latitude afforded under § 12-11-41, Ala. Code 1975, to interested parties who may petition for removal of the administration of an estate to the circuit court, this Court has consistently held that once final settlement proceedings have been commenced by the probate court's assumption of jurisdiction, removal is cut off.” (404)
Factual background
Craig and Kendrick Terry objected to the administrator's final settlement of Fay Sewell Terry's estate, disputing the inventory and distribution of estate assets. Emory Terry filed a final-settlement petition, an accounting, and a statement of heirs in the probate court, which issued notice, held a hearing, ordered discovery, set a trial date, and ruled on motions. Terry later sought removal of the administration to the circuit court, but the circuit court ultimately returned the matter to the probate court because final-settlement proceedings had already commenced.
Procedural history
Emory Terry initiated final-settlement proceedings in the Mobile Probate Court in May 2005 by filing a petition, accounting, and statement of heirs. After the probate court issued notice, held a hearing, and took further steps including discovery and trial-related orders, Terry sought removal to the circuit court under Ala. Code § 12-11-41. The circuit court initially granted removal but later retransferred the administration to the probate court after finding the removal untimely because final-settlement proceedings had begun. The Supreme Court denied mandamus and affirmed the retransfer order.