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SUPREME COURT OF ALABAMA
OCTOBER TERM, 2010-2011
Stuart C. DuBose, individually and as personal
representative of the estate of Joseph J. Sullivan, deceased
Appeal from Mobile Circuit Court
This case concerns a dispute between Cheryl Weaver and
Stuart C. DuBose, an attorney who represented Weaver and who
also served as the personal representative of the estate of
Joseph J. Sullivan, deceased ("the estate"), in which Weaver
had an interest.
We vacate the judgment of the Mobile Circuit
Court, dismiss the case, and dismiss the appeal.
Facts and Procedural History
The present case is not the first case before this Court
concerning the relationship between DuBose, Weaver, and the
See Ex parte Alabama State Bar, 3 So. 3d 178 (Ala.
2008)(staying disciplinary proceedings against DuBose that
arose out of his representation of Weaver and the estate).
this Court noted in Alabama State Bar: 1
"In April 2003 Cheryl Weaver asked Dubose, then
a practicing attorney, to prepare and draft a will
for Joseph J. Sullivan.
Sullivan, an elderly
widower, lived in Washington County and had no
immediate family living nearby.
Weaver had been
Sullivan's caretaker for more than a decade, and
when Sullivan became ill he eventually moved in with
Weaver, who continued to care for him.
informed Dubose that Sullivan was dying and that he
Sullivan's estate was substantial; it consisted of
various bank accounts, stocks in various companies,
and real property.
Dubose drafted a will naming
Weaver as the executor and sole beneficiary of
Sullivan's estate. According to Dubose, Weaver also
told him that she wanted him to be named in the will
as the attorney for the estate. Dubose included in
the will provisions naming himself as the successor
In the materials before this Court in Alabama State Bar,
the respondent's name was spelled "Dubose," with a lower case
"b." In this appeal, the appellant spells his name "DuBose."
personal representative as well as the attorney for
Dubose stated that he explained to
Weaver the proper procedure to effectuate the due
execution of the will by Sullivan. He also prepared
a certificate to be signed by Sullivan's physician
stating that Sullivan was competent and directed
Weaver to have it signed. Dubose did not meet with
or speak to Sullivan regarding the will or its
provisions before preparing the will.
"Sullivan signed the will on April 11, 2003; he
died on April 29, 2003. On May 6, 2003, Weaver and
Dubose, apparently in anticipation of an action by
Sullivan's heirs contesting the will, entered into
a contingency contract whereby Dubose was employed
to represent both Sullivan's estate and Weaver.
Sullivan's estate and Weaver agreed to pay Dubose
33% from the proceeds of any settlement obtained
before the filing of a will contest and 40% from the
proceeds of any settlement obtained after the filing
of any will contest.
The agreement also provided
that Sullivan's estate and Weaver would pay the cost
of any investigation that might be required."
In May 2003, with DuBose's assistance, Weaver filed in
the Washington Probate Court a petition to admit Sullivan's
will to probate and a petition for letters testamentary.
Sullivan's heirs filed a petition in the Washington Circuit
Court contesting the will ("the will-contest petition"). 2
We observe at this juncture that, pursuant to Ala. Code
1975, § 43-8-190, "before the probate thereof," a will may be
contested "in the court where it is offered for probate,"
which of course will usually be the probate court. But see
Allen v. Estate of Juddine, [Ms. 1090854, Sept. 30, 2010] ___
So. 3d ___ (Ala. 2010). On the other hand, Ala. Code 1975,
Contemporaneously, Sullivan's heirs filed in the probate
court a "Petition for Transfer and Removal of the Estate from
Probate Court to Circuit Court for Will Contest Proceedings"
petition specifically referenced Ala. Code 1975, § 43-8-198,
which provides for the transfer of a pending will contest by
the probate court to the circuit court.
petition also contained allegations, however, that "in the
§ 43-8-199, provides that a will contest may be filed in the
circuit court "at any time within six months after the
admission of such will to probate" (emphasis added).
Boshell v. Lay, 596 So. 2d 581, 583 (Ala. 1992) ("In Alabama
a will may be contested in two ways: (1) before probate, a
contest may be instituted in the probate court pursuant to
Ala. Code 1975, § 43-8-190; or (2) after probate and within
six months thereof, a contest may be instituted by filing a
complaint in the circuit court of the county in which the will
was probated, pursuant to Ala. Code 1975, § 43-8-199. Stevens
v. Gary, 565 So. 2d 73 (Ala. 1990).
In order to contest a
will under either of these methods, the contestant must
strictly comply with the statutory language in order to
quicken jurisdiction of the appropriate court. Bullen v.
Brown, 535 So. 2d 76 (Ala. 1988).").
It does not appear from the record that Sullivan's heirs
also filed their will-contest petition in the probate court.
The copy of the will-contest petition contained in the record
on appeal is styled for the Washington Circuit Court and
includes the circuit court case number.
petition reflects the stamp of the Washington Circuit Court
clerk, and the prayer for relief is directed to the Washington
Although the style contains an additional
blank for the probate court case number, that blank is empty.
opinion of Contestants/Plaintiffs [i.e., Sullivan's heirs,]
the said estate can be better administered in the Circuit
Court of this County than in the Probate Court" and that
"there has been no final settlement of said decedent's estate,
and no proceedings have been taken in the Probate Court of
To the extent the transfer/removal petition is construed
as a petition for the transfer of a will contest, see Ala.
Code 1975, § 43-8-198, providing for transfer of a will
contest by the probate court to the circuit court.
purported will contest was filed only in the circuit court,
however, because no will contest was pending in the probate
court at the time the transfer/removal petition was filed,
then there was no will contest pending in the probate court
for that court to transfer to the circuit court. We also note
that § 43-8-198 provides that, "[a]fter a final determination
of the contest" that has been transferred by the probate court
to the circuit court, the circuit court is to transfer the
matter back to the probate court to allow the recording in the
probate court of the will, thus allowing the administration of
the estate to proceed at that juncture in the probate court.
To the extent the transfer/removal petition sought to
change the forum for the administration of the estate from the
probate court to the circuit court, see Ala. Code 1975, § 1211-41, providing the circuit court with authority to remove
the administration of an estate from the probate court "at any
time before a final settlement" based, in part, on an
allegation that "such estate can be better administered in the
circuit court than in the probate court."
The case-action-summary sheet of the Washington Circuit
Court does not reflect that the transfer/removal petition was
filed in that court.
The caption of the petition in the
On August 22, 2003, the probate court issued an order in
relation to the transfer/removal petition.
The order stated
administration of the said decedent's estate from the Probate
Court ... to the Circuit Court."
order states that "the Estate of Joseph J. Sullivan, deceased,
be and the same hereby is removed from the Probate Court of
Washington County, Alabama, and transferred to the Circuit
Court of Washington County, Alabama, to be administered and
processed according to the law and Court rule."
The order of the probate court makes no specific
reference to a will contest. 4
Thereafter, the Washington
record on appeal contains a blank for both the probate court
case number and the circuit court case number, but only the
blank for the probate court case number is completed. Also
the petition is date-stamped as having been filed in the
probate court in August 2003.
Thus, nothing in the record
supports the conclusion that the transfer/removal petition was
filed in the Washington Circuit Court in August 2003 or
(Although the transfer/removal petition also
bears an October 2007 date-stamp for the Mobile Circuit Court
(where the case was eventually transferred, see discussion,
transfer/removal petition was included as an exhibit to
Weaver's response in opposition to a motion filed by DuBose;
Weaver's response was filed in October 2007 in the Mobile
As indicated by the authority referenced in note 3,
supra, a probate court has authority to transfer to the
Circuit Court purported to appoint a special administrator of
the estate and to conduct proceedings concerning the will
contest; the probate court apparently took no further action
concerning the estate.
February 14, 2005, after Sullivan's heirs and Weaver entered
Sullivan's heirs filed a motion to dismiss the will contest.
dismissing the will contest with prejudice.
Also on February 14, 2005, Weaver and DuBose filed a
petition to probate the will, along with what appears to be a
circuit court a will contest pending in the probate court.
See Ala. Code 1975, § 43-8-198; Ex parte McLendon, 824 So. 2d
700, 704 (Ala. 2001).
The probate court does not have
authority to transfer the administration of an estate to the
circuit court; the authority to remove the administration of
an estate from the probate court to the circuit court resides
in the circuit court.
See Ala. Code 1975, § 12-11-41; Ex
parte McLendon, supra. See generally Ex parte Boykin, 611 So.
2d 322, 326 (Ala. 1992) ("'"Unless expressly authorized so to
do, a court has no authority to transfer a cause from itself
to another court, and thereby give the other court possession
of the case to hear and determine it, although the other court
would have had jurisdiction of the cause if it had come to it
by due process."
21 C.J.S., Courts, § 502, p. 769....'"
(quoting Allen v. Zickos, 37 Ala. App. 361, 364, 68 So. 2d
841, 843 (1953))).
Contemporaneously, Weaver filed a renunciation of her right to
be appointed sole personal representative of the estate, and
she and DuBose filed a petition for letters testamentary,
requesting that they be appointed co-personal representatives
of the estate.
On the same date, the Washington Circuit Court
entered an order purporting to admit the will to probate and
an order granting Weaver and Dubose's petition for letters
An electronic stamp on the petition to probate
the will, on the copy of the will, on the renunciation, on the
petition for letters testamentary, and on the orders of the
Washington Circuit Court admitting the will to probate and
granting the petition for letters testamentary reflects that
those documents were recorded in the "Miscellaneous" records,
"Book #148," of the probate court after the Washington Circuit
Court entered the orders; the will was also recorded in the
book maintained by the probate court for the recording of
representatives of the estate, a dispute arose between Weaver
agreement he and Weaver had entered into concerning the will
contest, he was entitled to 40% of Weaver's portion of the
including corporate stock and real property.
that the value of the stock and the real property was not to
be included in calculating DuBose's fee and that DuBose was
entitled only to 40% of the cash assets of Weaver's portion of
Consequently, on February 18, 2005, DuBose filed
circuit court a verified claim against the estate claiming
that he was entitled to $127,630 for his services as copersonal representative and that he was entitled to "[f]orty
percent (40%) of all assets of the Estate[,] which for Estate
Tax Return purposes were valued at $2,566,975.00," as attorney
In response, Weaver, having obtained new counsel, filed
in the same proceeding a "Complaint and Objection to Verified
Statement" in which she objected to the verified claim and
asserted claims against DuBose alleging breach of fiduciary
duty, legal malpractice, misrepresentation/suppression, and
negligent administration of the estate. 5
Based on the materials filed with this Court in Alabama
State Bar, Weaver also filed an action in the Washington
estateadministration proceeding in which she alleged claims
The judges of the First Judicial Circuit, which includes
appearance of impropriety because DuBose, a party in a legal
action, regularly practiced law before the judges at issue.
Then Chief Justice Drayton Nabers assigned the case to Judge
John R. Lockett of the Mobile Circuit Court.
because DuBose was elected as a circuit judge in Washington
County, Judge Lockett granted a motion filed by Weaver to
transfer the case to the Mobile Circuit Court.
Weaver's and DuBose's claims were set for trial.
date of the scheduled trial, they informed the court that they
had reached a settlement, and DuBose read the settlement,
which he had written by hand, into the record.
court had the parties orally assent to each paragraph of the
settlement as it was read.
In pertinent part, the settlement
provided that Weaver would receive from the estate $1,200,000
and approximately 600 acres of land, including Sullivan's
identical to the claims in the "Complaint and Objection to
DuBose filed a motion to dismiss the
separate action on the grounds that Weaver was attempting to
prosecute two actions for the same cause, and Weaver's
separate action was dismissed without prejudice.
DuBose would receive whatever remained of
the estate after Weaver received her share.
also stipulated that DuBose would be appointed sole personal
representative of the estate for the purpose of effectuating
the details of the settlement.
The settlement stated that
"[c]losing [is] to occur as soon as [DuBose, as personal
representative,] can transfer and sell all stock to provide
necessary funds to satisfy the [$]1.2 million."
agreement, the circuit court entered an order purporting to
appoint DuBose sole personal representative of the estate; to
grant letters testamentary to him; and to authorize DuBose to
"undertake the execution of the Will and conclude all matters
necessary in that endeavor and in the settlement agreement."
In the order, the circuit court also purported to award DuBose
According to Weaver, DuBose failed to timely fulfill his
obligations under the settlement agreement.
In May 2007,
Weaver filed a motion in the circuit court seeking to reduce
the settlement to a judgment; she alleged in her motion that
Weaver requested a hearing followed by a judgment
in her favor and "against the Estate and Judge DuBose pursuant
to the settlement agreement."
DuBose filed a response in
opposition to Weaver's motion, contending that he was in the
midst of dealing with the Internal Revenue Service ("IRS")
regarding a tax lien it had filed against the estate and that
enforcement of the settlement agreement would create problems
for resolving the tax-lien issue.
Weaver's attorneys alleged that DuBose had repudiated the
settlement by refusing to close the estate and by failing to
pay Weaver the full amount she was due from the estate under
the settlement agreement.
At the conclusion of the hearing,
the circuit court gave each side 30 days to submit briefs on
the issues addressed in the hearing.
The day after the hearing, DuBose transferred all the
cash in the estate to a bank account maintained by his law
firm, transferred 40% of the stock in the estate to a stock
account in the name of his law firm, and deeded 40% of all the
property in the estate to his law firm.
In a letter detailing
those transactions, DuBose stated that he executed them for
the purpose of proving to the IRS that attorney fees had been
paid by the estate, thus justifying a deduction the estate had
taken on the estate-tax return for those fees.
that he hoped that in exchange for proof of those actions he
would receive "a closing letter and all requisite IRS forms
releasing me individually and as [personal representative] or
any other capacity."
relief in which she alleged that DuBose's actions on the day
after the hearing constituted "a breach of his fiduciary duty
and further repudiation of the settlement agreement."
requested that the circuit court set aside DuBose's transfers,
that DuBose and his law firm be forced immediately to repay
the sums paid to them by the estate, that DuBose be removed as
appoint a replacement, that it be established that Weaver has
a lien on certain real property of the estate, and that the
circuit court enter a judgment against the estate and
Weaver's favor in the amount of $1,190,000. 6
On August 17, 2007, the circuit court entered an order
judgment and her subsequent motion for a judgment and other
The order states that "the actions of DuBose are in
derogation of the settlement agreement reached in this case"
and that the circuit court "hereby enters a judgment enforcing
the settlement agreement."
The order further states: (1) That
"[j]udgment is hereby entered in favor of Cheryl Weaver and
against the estate of Joseph J. Sullivan and Stuart DuBose,
million one hundred-ninety thousand dollars ($1,190,000.00)";
including mineral interests, that was part of the estate; and
(4) that DuBose must "take all necessary steps to ensure that
the conveyances" of real property to be made to Weaver "are
free from any encumbrance or lien of the IRS as pursuant to
the settlement agreement."
DuBose filed a motion to alter, amend, or vacate the
circuit court's judgment, and he requested a hearing on the
In part, DuBose argued that the Washington Circuit
Circuit Court was void.
Weaver filed a response, and DuBose
asked for and received permission to file a reply to Weaver's
Following those submissions, on December 11, 2007,
December 20, 2007.
On December 19, 2007, however, the circuit
court issued an order stating that DuBose's motion to alter,
operation of law on December 17, 2007, and it canceled the
hearing on the motion.
DuBose appealed to this Court.
In part, DuBose argues that the Washington Circuit Court
did not acquire jurisdiction over the administration of the
estate because "no removal for administration was ever filed
or ordered" by that court.
Thus, according to DuBose, the
enforcing the parties' settlement agreement.
Matters of subject-matter jurisdiction are subject to
de novo review.
Solomon v. Liberty Nat'l Life Ins. Co., 953
So. 2d 1211, 1218 (Ala.2006).
Also, "[l]ack of subject matter
jurisdiction may not be waived by the parties."
Smith, 438 So. 2d 766, 768 (Ala. 1983).
In regard to the administration of estates, the probate
court is a court of general and original jurisdiction.
Ala. Const. 1901, § 144; Ala. Code 1975, § 12-13-1(b).
administration from the probate court to the circuit court
pursuant to Ala. Code 1975, § 12-11-41; see Ex parte Terry,
957 So. 2d 455, 457-58 (Ala. 2006); Ex parte McLendon, 824 So.
2d 700, 704 (Ala. 2001).
Section 12-11-41 provides:
"The administration of any estate may be removed
from the probate court to the circuit court at any
time before a final settlement thereof, by any heir,
administrator or administrator with the will annexed
of any such estate, without assigning any special
equity; and an order of removal must be made by the
court, upon the filing of a sworn petition by any
such heir, devisee, legatee, distributee, executor,
administrator or administrator with the will annexed
of any such estate, reciting that the petitioner is
such heir, devisee, legatee, distributee, executor,
administrator or administrator with the will annexed
and that, in the opinion of the petitioner, such
estate can be better administered in the circuit
court than in the probate court."
In Ex parte Smith, 619 So. 2d 1374, 1376 (Ala. 1993),
this Court stated that "[t]he circuit court cannot initiate
the administration of an estate, because the initiation of
administration is a matter exclusively in the jurisdiction of
the probate court."
As this Court more recently explained in
Ex parte Berry, 999 So. 2d 883 (Ala. 2008):
"In stating in Ex parte Smith that '[t]he
circuit court cannot assume jurisdiction over the
administration of an estate when the administration
has not yet begun,' 619 So. 2d at 1375-76, this
Court was referring to subject-matter jurisdiction.
'Subject matter jurisdiction concerns a court's
power to decide certain types of cases.' Ex parte
Seymour, 946 So. 2d 536, 538 (Ala. 2006).
decision in Ex parte Smith relied on § 12-13-1, Ala.
Code 1975, which grants probate courts 'original and
general jurisdiction' over all matters enumerated in
that statute, including the probate of wills and
999 So. 2d at 887-88 (emphasis omitted).
Further, the administration of an estate does not begin
merely upon the filing in the probate court of a petition for
letters of administration or of a petition for probate of a
will and for letters testamentary.
As to the former, this
Court has recognized that "the mere filing of a petition for
the administration of an estate does not in itself begin the
administration; rather, the probate court must act upon the
Ex parte Smith, 619 So. 2d at 1376; see also, e.g., Allen v.
Estate of Juddine, [Ms. 1090854, Sept. 30, 2010] ___ So. 3d
___, ___ (Ala. 2010) ("The administration of the estate was
initiated by the probate court when it granted Willie Jr.
letters of administration."); Ex parte Berry, 999 So. 2d at
886 ("[T]his Court in Ex parte Smith[, 619 So. 2d 1374 (Ala.
1993),] held that removal of the will proceeding from the
probate court to the circuit court was premature because the
probate court had not initiated the administration of the
estate by acting on the petition."); and Ex parte Kelly, 243
Ala. 184, 187, 8 So. 2d 855, 857 (1942).
As to the latter,
administration have issued from the probate court and where
the decedent's will has not yet been admitted to probate, the
removing the administration of the estate from the probate
court to the circuit court.
Ex parte Pettus, 245 Ala. 349,
351, 17 So. 2d 409, 410-11 (1944).
In the present case no administration of the estate was
initiated in the probate court.
No general administrator of
estate was appointed by the probate court before the
probate and issue letters testamentary before the circuit
court purported to proceed with the estate administration.
other words, there was no pending estate administration that
probate court pursuant to § 12-11-41.
administration of the estate was pending in the probate court
jurisdiction over it, it does not appear that Sullivan's heirs
filed their transfer/removal petition in the circuit court,
and at no time did the circuit court enter an order purporting
to remove the administration of the estate from the probate
The estate administration arrived in the Washington
Circuit Court based
upon an order from the probate court
purporting to transfer proceedings to the circuit court.
noted above, however, see notes 3 and 4, the filing of a
petition for removal in the circuit court and the entry of an
order of removal by that court are prerequisites to
court's acquisition of jurisdiction over the administration of
an estate pursuant to § 12-11-41.
See Ex parte Terry, supra;
Nelson v. Nelson, 10 So. 3d 603, 604 (Ala. Civ. App. 2008);
see also Ex parte Boykin, 611 So. 2d 322, 326 (Ala. 1992)
("'"Unless expressly authorized
so to do, a court has no
authority to transfer a cause from itself to another court,
and thereby give the other court possession of the case to
hear and determine it, although the other court would have had
21 C.J.S., Courts, § 502, p. 769....'" (quoting
Allen v. Zickos, 37 Ala. App. 361, 364, 68 So. 2d 841, 843
Weaver relies upon Norton v. Liddell, 280 Ala. 353, 194
So. 2d 514 (1967), for the proposition that the procedural
requirements regarding transfer of the administration of an
estate may be waived.
The procedural history in Norton is
somewhat confusing and in some respects reflects an erroneous
description as to the removal of the administration of an
estate from the probate court to the circuit court.
Ultimately, Norton is inapposite. What was at issue on appeal
in Norton was whether the circuit court had properly acquired
jurisdiction over a claim for services rendered that was filed
in the probate court, where the administration of the estate
was pending when the claim was filed, and subsequently tried
in the circuit court, which had concurrent jurisdiction over
such claims. After noting that the claim at issue fell within
the equity jurisdiction of the circuit court, but that the
record failed "to show a proper transfer of the cause to the
Circuit Court," the Norton Court concluded that "the appellant
waived the antecedent procedural steps for bringing the cause
jurisdiction of the subject matter." 280 Ala. at 357, 194 So.
2d at 517.
Based on the foregoing, the circuit court should have
granted DuBose's motion requesting that it void the judgment
enforcing the parties' settlement agreement because it lacked
administration in which the judgment was entered. 8
JUDGMENT VACATED; CASE DISMISSED; AND APPEAL DISMISSED.
Cobb, C.J., and Woodall, Bolin, and Main, JJ., concur.
In light of what was at issue in Norton, we do not read
that case as standing for the proposition that a party can
waive the requirements that a petition for removal of the
administration of an estate be filed in the circuit court and
that the circuit court enter an order of removal. Indeed, to
do so would eviscerate the line of precedent concerning the
removal of the administration of an estate hereinabove
discussed. (Even if we were to so read Norton, that would not
change the fact that in the present case, unlike in Norton, no
estate administration was ever initiated in the probate court,
i.e., no subject matter over which the Washington Circuit
Court or the probate court properly could have exercised
jurisdiction ever came into being.)
We express no opinion concerning whether the alleged
settlement agreement entered into by Weaver and DuBose can be
enforced either in a separate action or as part of a properly
initiated estate-administration proceeding.