ORDER
LAWRENCE LEAVITT, Magistrate Judge
Before the court is defendants' Motion for Monetary Sanctions for Intentional Destruction of Evidence (#77). The court has considered the motion (#77), plaintiff's Opposition (#83), defendants' Reply (#84), and the evidence adduced at a hearing on December 2, 2009.
BACKGROUND
This employment discrimination action was removed to federal court on May 23, 2007. Petition (#1). On July 31, 2007, defendants, PN II, Inc., Pulte Home Corporation, and Pulte Homes, Inc. (collectively, "Pulte") propounded document requests which included a request to inspect plaintiff, Amy Coburn's ("Coburn") home computer. Mot. (#77) at 4; Exh. 1 to Mot. (#77) at ¶¶ 9-14. Coburn objected, in pertinent part, on the grounds that, "(1) her home computer contains matters not relevant to the proceeding before this Court; (2) her current employer is a business competitor of Defendants and computers in her possession, custody or control may contain trade secret or confidential information to which Defendants have no right of access. . . ." Id.
Over the next several months, Pulte and Coburn attempted to work out a solution to satisfy Coburn's legitimate privacy concerns while allowing Pulte the forensic examination it sought. Mot. (#77) at 4. Unable to reach an agreement, on December 31, 2007, Pulte filed a Motion to Compel (#30), seeking, among other discovery matters, a forensic inspection of Coburn's home computer. This court granted the motion on March 28, 2008, and set forth a specific protocol for the parties to follow. Order (#41). As part of the Order (#41), the parties were to agree on a computer expert to perform the forensic examination, who would act as an officer of the court. Id. The parties subsequently entered into a highly detailed Stipulated Protective Order Governing Forensics Examination of Plaintiff Amy Coburn's Personal Computer(s) (#43), ("Forensics Order") which this court entered on May 9, 2008.
The parties agreed to use the computer firm, Vestige Ltd., to perform the forensic inspection. On May 9, 2008, a representative from Vestige made a clone of Coburn's home computer hard drive, and pursuant to the Forensics Order, performed a keyword search of the cloned hard drive and analyzed the data, metadata, and artifacts on the hard drive. Mot. (#77) at 6-7. At the hearing, Vestige President/CEO, Damon Hacker ("Hacker") testified that the keyword list was designed to develop "a search strategy that finds the right information but at the same time tries to eliminate having a lot of false positives." He and defense counsel developed the list of keywords based on the Complaint and the EEOC filing, without input from plaintiff or her counsel, Robert Spretnak.
Artifacts are "data generated by the computer — including the operating system, file system, or applications — rather than by the user of the computer. . . . Metadata is electronically stored information that describes the history, tracking, or management of an electronic document." Declaration of Damon Hacker, Exh. 12 to Mot. (#77) at ¶ 4. "Metadata may include information on how, when and by whom a file was created, accessed or modified. Some examples include: a file's name, a file's location, . . ., file format or file type, file size, file dates (e.g., creation date, date of last data modification, date of last data access, and date of last metadata modification), and file permissions (e.g., who can read the data, who can write to, who can run it)." Declaration of Damon Hacker, Exh. 12 to Mot. (#77) at ¶ 4.
On June 25, 2008, Vestige sent its Electronic Evidence Production Summary ("Summary") to both parties, and pursuant to the Forensics Order, it sent the actual data to Spretnak for redaction. Exh. 13 to Mot. (#77). The Summary indicated that Vestige delivered to Spretnak data consisting of 5,413 files and 7,669 emails, all of which contained at least one of the key word search terms. Id. Of the 5,413 files that contained keywords, Vestige labeled 3,946 of the files "Non-Standard/Corrupted Files/Unallocated Clusters" (collectively, "Non-Standard Files"), indicating that they are "portions of files that existed on the computer, but had been deleted prior to the creation of the Forensics Image." Exh. 12 at ¶ 11. Vestige could only retrieve portions of the data because, in Hacker's opinion, the computer's operating system wrote over portions of it. Id. Hacker explained, "it is possible that some of the 3,946 [files] . . . were deleted by the execution of CCleaner [a computer cleaning application]," but "[b]ecause of the large volume of Non-Standard/Corrupted/Unallocated Clusters, it is likely that this content also included files that had been manually deleted." Id.
Vestige's July 21, 2008 Report of Relevant Artifacts indicates that a computer cleaning program, CCleaner, was run on Coburn's computer on May 7, 2008 — two days prior to the court-ordered forensics examination. Exh. 14 to Mot. (#77) at 6. In addition, the default configuration settings for CCleaner were manually modified at that time to add google toolbar. CCleaner had only been run twice since its installation in 2006 and was not set to run automatically, nor was the computer set to run CCleaner automatically; rather the program had to have been run manually. Coburn represents that she became aware of the existence of CCleaner on her home computer only as a result of the forensic exam, after which she learned that CCleaner was installed on her home computer as part of a service package she purchased from "My Computer Works" in July, 2006. Id. at 11; Exh. 1 to Opp'n (#83) at ¶ 6. It is unknown who ran CCleaner, who made the change to the default settings, or whether either of these actions were initiated remotely by My Computer Works.
Based largely on the outcome of Vestige's forensics exam, Pulte argues that Coburn "not only failed to preserve relevant evidence after the duty to do so had arisen, she intentionally and repeatedly destroyed such evidence." Mot. (#77) at 11. Pulte previously moved to dismiss the action as a sanction for spoliation of evidence while its motion for summary judgment was pending. While granting the Motion for Summary Judgment, Judge Dawson stated, "The [] allegations [of destruction of evidence] are sufficient that the Court would have held an evidentiary hearing were summary judgment not to be granted. Such a hearing may still be necessary in the event attorney fees or sanctions become an issue." Order (#68) at 9. The court then denied "the Motion to Dismiss as moot, but without prejudice to renewal on proper showing." Id. Pulte now moves this court for monetary sanctions against Coburn for intentional spoliation of evidence. Pulte estimates that it has incurred more than $150,000 in costs and fees as a result of plaintiff's alleged discovery violations. Mot. (#77) at 16 n. 10.
Three main allegations underlie Pulte's motion for sanctions pursuant to Rule 37 and the court's inherent power: (1) the running of CCleaner on Coburn's home computer on May 7, 2008 indicates an intent to destroy relevant evidence and was a direct violation of the Forensic Order; (2) the existence of the 3,946 Non-Standard Files, all of which contain keywords purportedly relevant to the litigation, indicates that Coburn regularly destroyed relevant evidence on her computer; and (3) Coburn destroyed relevant emails on her home computer between December, 2005 and April, 2006. Pulte additionally notes that Coburn has admitted to destroying audio tapes of secretly recorded conversations between her and some of her co-workers.
The evidentiary hearing was limited only to the question of alleged intentional spoliation of evidence regarding deleted and/or corrupted information on Coburn's home computer.
Coburn does not deny that CCleaner may have run prior to the forensics inspection but states that she never deleted a large volume of files from her computer, nor did she instruct anyone else to do so. Aff. of Coburn, Exh. 3 to Opp'n (#83) at ¶¶ 8-9. She argues that, in any event, the normal operation of CCleaner would fall within the "safe harbor" from sanctions provided by Rule 37(e). Finally, Coburn maintains that while she may have deleted emails from her home computer, she did so only after downloading and saving the contents to folders on her home computer, and that she did not delete any Pulte-related documents after May 23, 2007. Coburn admits to destroying some of the audio tapes.
DISCUSSION
Spoliation is the intentional destruction, mutilation, alteration, or concealment of evidence that may be used by another party in pending or future litigation. 7-37A Moore's Federal Practice — Civil § 37A.55. A party is not required to retain every document in its possession but must preserve evidence it knows or should know is relevant to a claim or defense of any party, or that may lead to the discovery of relevant evidence. Id. Monetary sanctions are available for obstruction of discovery and/or destruction of evidence under both Rule 37(b) and the court's inherent powers. See Chevron U.S.A., Inc. v. M M Petroleum Servs., 2009 U.S. Dist. LEXIS 68829 at *61 (C.D. Cal. August 6, 2009). Pursuant to Fed.R.Civ.P. 37(b)(2)(C), the court may impose monetary sanctions for failure to comply with a court order. If a party has failed to comply with a discovery order, "it becomes incumbent upon the disobedient party to show that his failure is justified or that special circumstances would make an award of expenses unjust." Id. (quoting David v. Hooker, Ltd., 560 F.2d 412, 419 (9th Cir. 1977). Notably, willfulness is not a necessary element for the imposition of expenses and attorney's fees under Rule 37. Id. at *61-62. To warrant sanctions for spoliation under Rule 37, clear and convincing evidence is required. 7-37A Moore's Federal Practice — Civil § 37A.55. In general, the responding party's culpability and the level of prejudicial harm caused by the destruction of relevant evidence are the most significant factors in determining the severity of sanctions to be imposed. Id.
Rule 37(e) provides a "safe harbor" from sanctions to a party who fails to provide electronically stored information. Rule 37(e) provides, "Absent exceptional circumstances, a court may not impose sanctions . . . on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system." If the routine operation of the computer system is likely to destroy electronically stored information that is relevant and not otherwise available on another source, a party must place a litigation hold suspending the destruction. The destruction of emails as part of a regular good-faith function of a software application may not be sanctioned absent exceptional circumstances.
While Rule 37(e) is more readily applicable to larger scale "electronic information systems," Coburn asserts, and Pulte does not dispute, that the Rule is also applicable to her home use of an electronic information system.
Under its "inherent powers," a district court may award sanctions in the form of attorney's fees against a party or counsel who acts "in bad faith, vexatiously, wantonly, or for oppressive reasons." Leon v. IDX Systems Corp., 464 F.3d 951, 961 (9th Cir. 2006) (citation omitted). Before awarding such sanctions, however, a court must make an express finding that the sanctioned party's behavior amounted to "bad faith." Leon v. IDX, 464 F.3d at 961. A party "demonstrates bad faith by delaying or disrupting the litigation or hampering enforcement of a court order." Id. Even if the court finds such "bad faith," the amount of monetary sanctions must be "reasonable." Id.
A party's destruction of evidence qualifies as "willful spoliation" if the party has "some notice that the documents were potentially relevant to the litigation before they were destroyed." Leon, 464 F.3d at 959 (emphasis in original) (citations omitted) (holding that inasmuch as Leon "knew he was under a duty to preserve all data on the [work] laptop," he engaged in willful spoliation when he intentionally deleted files, then wrote a program to overwrite the deleted documents). The duty to preserve relevant evidence can arise even before litigation commences, and sanctions may be imposed if a party knew or should have known that the evidence was potentially relevant. United States v. Maxxam, Inc., 2009 U.S. Dist. LEXIS 30743 at *21 (N.D. Cal. March 27, 2009). It is not necessary that the specific evidence has even been requested, and even "personal" documents may trigger a duty of preservation. See id.; see also Leon, 464 F.3d at 961 (rejecting Leon's argument that documents he deleted and wrote over were not relevant because they were "personal," observing that "`personal' documents are highly relevant to an employment discrimination claim'").
Pulte urges the court to levy heavy monetary sanctions on Coburn for intentional spoliation of evidence. The thrust of Pulte's argument is that CCleaner was run on Coburn's computer two days prior to the forensics exam; 3,946 Non-Standard Files containing keywords were discovered; and Coburn allegedly destroyed relevant discovery in the form of emails she sent and received prior to March 23, 2007 (most significantly, those sent and received between December, 2005 and April, 2006). Def. Arg. (#91) at 2. Pulte notes, also, that Coburn admitted to destroying some tape recordings she secretly made while speaking to coworkers.
A. The Effect of Running CCleaner
The fact that CCleaner was run on Coburn's computer two days prior to the court ordered forensics exam, standing alone, certainly gives rise to a suspicion that spoliation occurred, as does the specter of nearly 4,000 destroyed files that contain "key words relevant to the litigation." It is not clear, however, that the running of CCleaner on May 7, 2008, resulted in the destruction or overwriting of relevant documents. It very likely did not. The testimony adduced at the hearing indicates that CCleaner likely did not result in spoliation of evidence relevant to the litigation. Pulte nevertheless contends that the running of CCleaner cleaned the "registry," thereby reducing Vestige's ability to determine what other applications, such as wiping programs, were installed and run prior to May 7, 2008. This may be. Still, the question of who actually ran the cleaning program on May 7, 2008 is unresolved. Coburn categorically denied having done so. The record is simply without clear and convincing evidence that Coburn violated the Forensics Order by herself running or directing someone to run CCleaner on May 7, 2008. The court is therefore not convinced that the running of CCleaner alone compels the conclusion that Coburn destroyed relevant evidence "in bad faith, vexatiously, wantonly, or for oppressive reasons." Leon, 464 F.3d at 961.
B. The 3,946 Non-Standard Files
Pulte is unable to establish that the 3,946 Non-Standard Files represent intentional destruction of relevant evidence. Hacker opines that the 3,946 Non-Standard Files were intentionally deleted from Coburn's computer, because "the location of the search terms . . . on the computer" indicated "the original files that contained the search terms were once "active files" on the computer's hard drive." Exh. 12 at ¶ 13, ¶ 10. Vestige could only retrieve portions of the data because, in Hacker's opinion, the computer's operating system wrote over portions of it. Id. Hacker continues, "[b]ecause of the large volume of Non-Standard/Corrupted/Unallocated Clusters, it is likely that this content also included files that had been manually deleted." Id.
Coburn submitted the available evidence on this issue to Patrick Fry ("Fry"), a computer consultant, who also testified at the hearing. Fry stated, "[i]t would be expected that a computer in regular use for years would have thousands of [such Non-Standard Files]." Exh. 10 to Opp'n (#83) at ¶ 10. Hacker similarly testified at the hearing that the number likely represents only a small fraction of such files on the computer. According to Fry, this is because an internet browser alone may maintain thousands of cached files at any one time and the Windows operating system itself automatically generates temporary files and logs, all of which may interfere with the use of the computer by making it sluggish. Id. at ¶ 5. Fry further testified at the hearing that while many such files are technically "intentionally deleted," they are not necessarily volitionally deleted; meaning that the computer may delete the files without any user intervention. Therefore, Fry maintains, "the raw number of Non-Standard Files/Corrupted Files/Unallocated Clusters in no way conveys how, when, or in what manner files were created, used or deleted." Id. at ¶ 10.
Pulte argues that even though the number of Non-Standard Files may represent only a small portion of all such files on the computer, it is significant that every Non-Standard File contained keywords relevant to the litigation. That the 3,946 files all contain "keywords" relevant to the litigation is not particularly significant, inasmuch as the chosen keywords very likely returned numerous "false positives" due to the inclusion of Coburn's husband's name in the list of keywords. Hacker testified that he intentionally did not include "Coburn" as a keyword in the keyword search, because as a user of the computer, the name would produce "too many false positives." Coburn's husband is named Michael Kelly Barnard. The names, "Kelly" and "Barnard" were both in the keyword search list. Def. Exh. 35. When asked whether the use of these keywords could have inflated the number of Non-Standard Files with keyword hits, Hacker admitted that they could.
Notably, the papers submitted in this matter and the testimony adduced at the hearing indicate that nobody knows which keyword(s) are in any single Non-Standard File, and therefore how many of these files contain "false positives." Pulte notes that when four or five of the Non-Standard Files were viewed during the hearing, one contained the string, "EEOC does not provide blank charge forms," indicating that relevant evidence on Coburn's computer had been deleted. None of the testimony adduced at the hearing, however, sheds light on the meaning of this file as it pertains to spoliation. The string could represent a temporary internet file created when a user looked at the EEOC website, or it could represent a portion of a document; if it was once a document, it could have been deleted by Coburn or it could have been deleted by Coburn's husband, and there is no telling when. Pulte urges the court to derive from this EEOC fragment, that potentially one in four Non-Standard Files represents a relevant file which was intentionally destroyed by Coburn and to levy sanctions accordingly. See Def. Arg. (#91) at 7. This the court cannot do. To do so would be to levy sanctions on the basis of an evidentiary estimate or "hunch."
C. The Emails
Pulte next argues that Coburn either failed to preserve or intentionally destroyed email relevant to the litigation after her duty to preserve such information was triggered — most significantly those between December 2005 and April 2006. Coburn freely admits that she deleted emails which may have at one time contained information relevant to the litigation, though she claims that she did not delete any Pulte-related documents after May 23, 2007 — the date the action was removed to this court. Coburn testified at the hearing that she regularly sent email from her Pulte account to her home email account which contained information she thought might be relevant to prove discrimination. For example, Coburn emailed her performance review to her home account, as well as business plan or other work projects that she turned in at Pulte. She testified that it was her practice to download whatever she'd sent to her home computer, then delete the email and retain the information in labeled folders on her hard drive. Similarly, there is evidence that Coburn, in her final days at Pulte, downloaded a large amount of files from her Pulte computer and then uploaded those files onto her home computer. Coburn's practice was to then delete any duplicative emails or files. All of the information was saved on her home computer. It is undisputed that Coburn produced this information.
Pulte points to evidence gained through third-party subpoenas and the forensic exam of emails it believes should have been produced by Coburn. See Mot. (#77) at 23-24; Exh. 30 to Mot. (#77). The content of the email indicates that while "personal" matters were at the heart of the communication, there was also conversation related to Pulte and the subject of this litigation. Pulte also notes that at one time Coburn told a coworker that she had "every email that I ever had, since starting here" on a DVD that she had made in November, 2005. As it turns out, however, the DVD was not readable on her home computer. Finally, Pulte asserts that while "in excess of 7,000 emails were located on Plaintiff's computer, only a small fraction of these are dated during the last five months of her employment," the implication being that Coburn must have hidden or destroyed them.
Pulte's protest that, in essence, it should have received more emails from a specific time period, is insufficient to support a claim that Coburn intentionally destroyed relevant evidence to be gained from the emails. See United States v. O'Keefe, 537 F. Supp. 2d 14, 22 (D.D.C. 2008); see also Margel v. E.G.L. Gem Lab Ltd., 2008 U.S. Dist. LEXIS 41754, at *3 (S.D.N.Y. May 29, 2008) ("[u]nder ordinary circumstances, a party's good faith averment that the items sought simply do not exist, or are not in his possession, custody or control, should resolve the issue of failure of production . . ."). Perhaps the wiser decision would have been to retain the emails, even though the information contained therein allegedly had been downloaded to her computer; surely had Coburn retained the emails, this matter would not be for the court to consider. The court acknowledges that this is a close issue; however, the court does not find that the evidence before it warrants the imposition of sanctions with regard to the alleged spoliation of email evidence.
D. The Audio Tapes
Coburn testified at her deposition that she destroyed tapes she made of conversations with some of her coworkers, because they were of "poor quality." Mot. (#77) at 12. Coburn ought not to have destroyed the tapes. She specifically made the tapes in order to preserve potentially relevant evidence. Her testimony that they did not contain any relevant information, inasmuch as they were of too poor a quality to understand, does not alter her duty to preserve them. To be sure, their destruction concomitantly destroyed any ability to determine their relevance. Coburn should have produced the "poor quality" tapes instead of simply destroying them. The court thus finds that Coburn failed in her duty to preserve evidence and will be sanctioned accordingly.
Coburn intentionally destroyed the tapes, though not necessarily with the intent to deprive Pulte of relevant evidence. Thus, although the court does not find that Coburn acted in bad faith when she destroyed the tapes, she did fail to preserve the evidence after her duty to do so was triggered. Hence, pursuant to the court's inherent powers to impose sanctions, the court shall impose reasonable monetary sanctions in the form of attorney's fees against Coburn for failing to preserve evidence in relation to this litigation. The assessment of sanctions depends most significantly on the blameworthiness of the offending party and the prejudice suffered by the opposing party. Trigon Ins. Co. v. United States, 204 F.R.D. 277, 288 (E.D. Va. 2001). The level of prejudice, if any, that Pulte suffered due to the destruction of the tapes is not alleged, and appears to be minor.
Accordingly, and for good cause shown,
IT IS ORDERED that defendant's Motion for Monetary Sanctions for Intentional Destruction of Evidence (#77) is granted, but only to the extent that plaintiff shall, not later than October 22, 2010, pay to defendants the sum of $1,500.00 as the reasonable attorney's fees incurred in making the motion.
DATED this 30th day of September, 2010.
mus to the probate
court in its order denying Regions' motion to dismiss or to stay the circuit court action. The circuit court's order issuing a writ of mandamus involves only questions of law. Therefore, the same standard of review applies to both the appeal and the petition: a de novo standard. See, e.g.,
George v. Sims, 888 So.2d 1224, 1226 (Ala. 2004) (observing in a case in which the plaintiff sought a petition for mandamus that "[b]ecause the facts are undisputed and we are presented with pure questions of law, our standard of review is de novo.").
III. Analysis
As a preliminary matter, the sisters have filed a motion to dismiss Regions' appeal of the circuit court's ruling on the sisters' petition for a writ of mandamus directed to the probate court (case no. 1081619). They contend that the circuit court's consolidation of that mandamus proceeding with the circuit court action caused the two actions to become one case. The sisters argue that the circuit court's ruling on the mandamus proceeding was not a final judgment because, they say, the claims in the original circuit court action remain to be adjudicated, and Regions did not obtain a certification under Rule 54(b), Ala. R. Civ. P., that the circuit court's ruling on the mandamus proceeding was final and appealable. Therefore, the sisters reason, it is incumbent upon this Court to dismiss as from a nonfinal judgment Regions' appeal of the circuit court's ruling on the sisters' petition for a writ of mandamus directed to the probate court, leaving before us only the mandamus petition filed by Regions in this Court.
The sisters' argument misapprehends the nature of a mandamus proceeding. A writ of mandamus is a remedy sought for correcting a particular ruling by a lower court. It is not an appeal of a party's claim that transfers jurisdiction of any portion of a case to the court in which the petition for the writ of mandamus is filed. As this Court explained in State v. Webber, 892 So.2d 869 (Ala,2004):
"The filing of a petition1, for a writ of mandamus against a trial `judge does not divest the trial court of jurisdiction, stay the case, or toll the running of any period for obeying an order or perfecting a filing in the case. The petition for a writ of mandamus, if meritorious, merely prompts the appellate court to exercise its supervisory power to tell the trial judge, as an official, as distinguished from the trial court itself, to do his or her duty when that duty is so clear that there are no two ways about it. Further, a petition for a writ of mandamus is not a substitute for an appeal."
892 So.2d at 871 (citations omitted).
Thus, the sisters' petition for a writ of mandamus in the circuit court did not transfer jurisdiction of the final-settlement action — or any particular claim involved in that action — to the circuit court. Rule 54(b), Ala. R. Civ. P., permits a trial court to "direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment." (Emphasis added.) Rule 54(b) provides a mechanism for appealing a judgment on fewer than all the claims that are before a trial court. The circuit court's issuance of a writ of mandamus to the probate court did not constitute a judgment on any claims brought by the parties. Regions appealed the issuance of the writ, not the disposition of one or more claims. Thus, the mechanism provided by Rule 54(b), Ala. R. Civ. P., for certification has no application here because there is no claim or party over which entry of a judgment was made by the circuit court in the mandamus proceeding.
Section 12-22-6, Ala. Code 1975, explicitly authorizes the appeal of a circuit court's issuance of a writ of mandamus. Section 12-22-6, provides, in pertinent part:
"Appeals may be taken to the appropriate appellate court from the judgment of the circuit court on application for writs of certiorari, supersedeas, quo warranto, mandamus, prohibition, injunction and other remedial writs as provided by the Alabama Rules of Appellate Procedure. . . . But this section shall not be construed as to prevent the presentation of an issue upon appeal taken after a final determination of the case."
See also Ex parte A.S., 3 So.3d 842, 845 (Ala. 2008) (citing § 12-22-6 for the proposition that "an appeal, not a petition for the writ of mandamus, is the proper avenue for challenging a circuit court's disposition of a petition for the writ of mandamus"). It follows from these authorities that the appeal of the circuit court's issuance of the writ of mandamus in this case is permitted. Accordingly, we deny the sisters' motion to dismiss Regions' appeal of the circuit court's ruling on the sisters' petition for a writ of mandamus.
The threshold question before us in both Regions' appeal and its petition for a writ of mandamus is whether § 19-3B-203(b), Ala. Code 1975, grants the probate court jurisdiction to hear the claims brought by the sisters in the circuit court action. Section 19-3B-203 provides:
"(a) Except as provided in subsection (b), the circuit court has exclusive jurisdiction of proceedings in this state brought by a trustee or beneficiary concerning the administration of a trust.
"(b) A probate court granted statutory equitable jurisdiction has concurrent jurisdiction with the circuit court in any proceeding involving a testamentary or inter vivos trust."
The Alabama Comment to § 19-3B-203 states, in part:
"Subsection (b) recognizes that by local acts, the probate courts of Jefferson and Mobile Counties have been granted equity jurisdiction. See
Jett v. Carter, 758 So.2d 526 (Ala. 1999), discussing Act No. 1144, Ala. Acts 1971 (Reg.Session) (Jefferson), and Act No. 91-131, Ala. Acts 1991 (amending Act No. 974, § 5, Ala. Acts 1961 (Regression)) (Mobile)."
As this Court has recognized, Act No. 1144, Ala. Acts 1971,
"grants to the Jefferson Probate Court `general jurisdiction concurrent with that of the Circuit Courts of this State, in equity, in the administration of the estates of deceased persons, minors and insane or non compos mentis persons, including testamentary trust estates.' (§ 1.) Thus, Act No. 1144 grants the Jefferson Probate Court broader jurisdiction than is otherwise granted to the probate courts of this state."
Jett v. Carter, 758 So.2d 526, 529 (Ala. 1999).
The parties' divergent interpretations of § 19-3B-203(b) track the different interpretations offered by the probate court and the circuit court. Regions argues, as the probate court held, that § 19-3B-203(b) grants the probate court concurrent jurisdiction with the circuit court in proceedings involving testamentary or inter vivos trusts. Under this interpretation, the probate court has jurisdiction to hear any claim involving the subject trusts, including claims for money damages that concern "the liability of a trustee for an action relating to the trust" and to "compel redress of a breach of trust by any available remedy." § 19-3B-201(d)(13), Ala. Code 1975. Regions insists that this interpretation comports with the requirement in § 12-13-1(a), Ala. Code 1975, that probate courts "shall have original and general jurisdiction as to all matters mentioned in this section and shall have original and general jurisdiction as to all other matters which may be conferred upon them by statute, unless the statute so conferring jurisdiction expressly makes the jurisdiction special or limited." In short, Regions contends that § 19-3B-203(b) expands, rather than limits, the probate court's jurisdiction as it pertains to inter vivos trusts.
The sisters argue, as the circuit court held, that Alabama law provides that "[t]he circuit court shall have exclusive original jurisdiction of all civil actions in which the matter in controversy exceeds ten thousand dollars ($10,000)," § 12-11-30, Ala. Code 1975, and that § 19-3B-203(b) does not alter the circuit court's exclusive jurisdiction or enlarge the probate court's jurisdiction such that the probate court is permitted to hear claims for such money damages. Instead, according to the sisters, § 19-3B-203(b) limits the jurisdiction of the Jefferson Probate Court — and the probate courts of Mobile and Shelby Counties — to matters of equity in relation to trusts. According to the sisters, the majority of their claims against Regions are claims at law, not claims in equity, and thus § 19-3B-203(b) does not grant the probate court jurisdiction over those claims. The sisters contend that their interpretation of § 19-3B-203(b) is bolstered by the Alabama Comment to subsection (b), which mentions the "equity jurisdiction" of the Jefferson Probate Court and reiterates that the Jefferson Probate Court has been "granted equity powers."
"`"Words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says. If the language of the statute is unambiguous, then there is no room for judicial construction and the clearly expressed intent of the Legislature must be given effect."'
" Blue Cross Blue Shield v. Nielsen, 714 So.2d 293, 296 (Ala. 1998) (quoting I MED Corp. v. Systems Eng'g Assocs. Corp., 602 So.2d 344, 346 (Ala. 1992)).
"`Of course, the rule is well recognized that in the construction of a statute, the legislative intent is to be determined from a consideration of the whole act with reference to the subject matter to which it applies and the particular topic under which the language in question is found. The intent so deduced from the whole will prevail over that of a particular part considered separately.'
" Blair v. Greene, 246 Ala. 28, 30, 18 So.2d 688, 689 (1944).
"`It is well settled that when it is interpreting a statute this Court seeks to give effect to the intent of the Legislature, as determined primarily from the language of the statute itself.
Beavers v. County of Walker, 645 So.2d 1365, 1376 (Ala. 1994) (citing
Ex parte McCall, 596 So.2d 2 (Ala.Civ.App.199[l]));
Volkswagen of America, Inc. v. Dillard, 579 So.2d 1301 (Ala. 1991). Also, our rules of statutory construction direct us to look at the statute as a whole to determine the meaning of certain language that is, when viewed in isolation, susceptible to multiple reasonable interpretations.
McRae v. Security Pac. Hoits. Servs., Inc., 628 So.2d 429 (Ala. 1993).'
" Ex parte Alfa Fin. Corp., 762 So.2d 850, 853 (Ala. 1999).
"`"When interpreting a statute, [a court] must read the statute as a whole because statutory language depends on context; [a court] will presume that the Legislature knew the meaning of words it used when it enacted the statute."`
"
Ex parte USX Corp., 881 So.2d 437, 442 (Ala. 2003) (quoting
Bean Dredging, L.L.C. v. Alabama Dep't of Revenue, 855 So.2d 513, 517 (Ala. 2003))."
State Farm Mut. Auto. Ins. Co. v. Motley, 909 So.2d 806, 813-14 (Ala. 2005).
Subsection (a) of § 19-3B-203 provides the general rule: "[T]he circuit court has exclusive jurisdiction of proceedings in this state brought by a trustee or beneficiary concerning the administration of a trust." Subsection (a) begins, however, by noting that subsection (b) provides an exception to this general rule. A plain reading of § 19-3B-203 indicates that subsection (b) acknowledges that certain probate courts have been granted broader powers and that the exception referenced in subsection (a) is that those courts that have been granted those broader powers have the same jurisdiction to hear actions brought by trustees or beneficiaries concerning the administration of trusts as do the circuit courts of this State.
Although the statutory grant of authority in § 19-3B-203(b) would appear to be sufficient in and of itself to imbue the probate courts of Jefferson, Mobile, and Shelby Counties with the jurisdiction at issue, we also note that the statutory grant made by that statute serves to fulfill the provision of Ala. Code 1975, § 12-13-1(a), that the probate court "shall have original and general jurisdiction as to alt other matters which may be conferred upon them by statute." (Emphasis added.)
We acknowledge that § 12-11-30 provides for the circuit court to have exclusive original jurisdiction of civil actions in which the matter at controversy exceeds $10,000. We note, however, that this statute operates to distinguish between the jurisdiction of circuit courts and district courts as to civil actions generally. Section 19-3B-203, Ala. Code 1975, specifically addresses actions concerning the administration of trusts. "[A] specific statute relating to a specific subject is regarded as an exception to, and will prevail over, a general statute relating to a broad subject." Ex parte Jones Mfg. Co., 589 So.2d 208, 211 (Ala. 1991). Moreover, § 12-11-30 was last amended in 1996, whereas § 19-3B-203 was enacted in 2006. With respect to jurisdiction of actions concerning the administration of trusts, therefore, § 19-3B-203 is controlling.
Thus, the probate courts of Jefferson, Mobile, and Shelby Counties have concurrent jurisdiction with the circuit courts of those counties to hear any proceeding brought by a trustee or beneficiary concerning the administration of a trust. In other words, the reference in subsection (b) of § 19-3B-203 to probate courts that have been granted "statutory equitable jurisdiction" is an identifying reference, not a limitation on the jurisdiction of the courts so identified. It is those probate courts to which subsection (b) grants "concurrent jurisdiction" with the circuit courts to hear actions concerning the administration of a trust brought by a trustee or beneficiary.
The Alabama Comment to § 19-3B-203 is consistent with this understanding of the language in § 19-3 B-2 03(b) referencing probate courts that have been granted statutory equitable jurisdiction as an identifying reference and not a limitation on jurisdiction. The Alabama Comment to subsection (b) notes that "[s]ubsection (b) recognizes that by local acts, the probate courts of Jefferson and Mobile Counties have been granted equity jurisdiction" and that "[t]he effect of subsection (b) is to give original jurisdiction over both testamentary and inter vivos trusts to those probate courts granted equity powers."
The sisters insist that even if the probate court has been granted jurisdiction under § 19-3B-203(b), Ala. Code 1975, to hear any proceeding involving an inter vivos trust brought by a trustee or beneficiary, allowing the probate court to hear the claims they brought in the circuit court action would deprive them of their right to a trial by jury, which is protected by Art. I, § 11, Ala. Const. 1901. The sisters argue that some of the claims in their complaint — such as the negligence, wantonness, fraud, negligent indemnity, and conspiracy claims — are tort claims seeking money damages that carry with them a right to trial by jury. They observe that, in contrast,
"`[t]here is no common law right to a trial by jury in the probate court. . . .'
Ex parte Floyd, 250 Ala. 154, 157,
33 So.2d 340, 342 (1947);
Hanks v. Hanks, 281 Ala. 92,
199 So.2d 169 (1967). The right to a jury trial in probate court depends upon a statutory grant of that right."
Kemp v. Kroutter, 531 So.2d 854, 855 (Ala. 1988).
The problem with the sisters' argument is that the clear gravamen of their complaint in the circuit court action with regard to their claims against Regions as trustee or cotrustee involves "essentially the administration of a trust, when a trial by jury is not allowed. See Ex parte Floyd, [ 250 Ala. 154, 33 So.2d 340 (1947)]." Hanks v. Hanks, 281 Ala. 92, 98, 199 So.2d 169, 174 (1967). Their claims of negligence, wantonness, fraud, and the like are derivatives of their claim of the breach of fiduciary duty. For example, in their negligence claim, the sisters allege that Regions "acted negligently" by "fail[ing] to manage the assets held in trust for [the sisters] in the manner that a reasonably prudent investment manager would have managed said funds under the same or similar circumstances." In their fraud claim, the sisters allege that Regions "represented to [the sisters] that the investments in The Funds were solid, safe, low-risk investments that would safely provide a secure income stream [to the sisters]" when, in fact, this representation was false. In short, all the claims against Regions as trustee involve the maladministration of the assets of the various trusts.
"A violation by a trustee of a duty the trustee owes to a beneficiary is a breach of trust." § 19-3B-1001(a), Ala. Code 1975.
"It has long been the law in Alabama that where a trustee does not perform his duty to protect the trust, the beneficiaries may sue in equity to protect their rights. Supervising the administration of trusts is a well-recognized ground of equity, and the regulation and enforcement of trusts is one of the original and inherent powers of the equity court."
First Alabama Bank of Montgomery, N.A. v. Martin, 425 So.2d 415, 423 (Ala. 1982). In First
Alabama Bank of Huntsville, N.A. v. Spragins, 475 So.2d 512 (Ala. 1985), this Court provided a thorough explanation as to why even claims for money damages alleging the breach of a trust do not carry a right to trial by jury:
"This case involves two separate appeals: the first appeal is from a judgment in a suit by beneficiaries of a trust against First Alabama Bank of Huntsville, N.A., acting as trustee under a written trust agreement, claiming mismanagement of the trust fund and breach of a fiduciary duty, and requesting removal of the trustee and an accounting of the subject trust. . . .
"The Bank strenuously insists that the Plaintiffs' claim for money damages, grounded on the allegation that the Bank, as a professional trustee, breached
its fiduciary duty in its management of the trust estate, is not such a claim for money damages, cognizable at common law, as to entitle the Plaintiffs to a jury trial. We agree. While, generally speaking, a trust, created by written instrument, partakes of many of the same legal incidents as other written agreements, historically, remedies to enforce rights arising under a trust have been relegated to the exclusive jurisdiction of equity.
". . . .
"Both [2] Scott [
on Trusts § 164 (3d ed. 1967)] and the Restatement (Second) of Trusts (1959) recognize exclusive equitable jurisdiction over remedies for a beneficiary against a trustee, with two exceptions: `(1) If the trustee is under a duty to pay money immediately and unconditionally to the beneficiary, the beneficiary can maintain an action at law against the trustee to enforce payment. (2) If the trustee of a chattel is under a duty to transfer it immediately and unconditionally to the beneficiary and in breach of trust fails to transfer it, the beneficiary can maintain an action at law against him.' Restatement (Second) of Trusts, § 198 (1959). The courts of Alabama have consistently recognized and applied this common law development.
Ex parte Garner, 280 Ala. 111,
190 So.2d 544 (1966). For a case applying the `at law' exception, see
Ex parte Davis, 465 So.2d 392 (Ala. 1985).
". . . .
"Applying this rule to the Plaintiffs' complaint, the trial court held that the Plaintiffs were not entitled to a jury trial with respect to their demands to remove the Bank as trustee and to require an accounting of the Bank. As to the remaining request for money damages, however, the trial court held that this did create a legal issue that entitled Plaintiffs to a trial by jury.
"While the rule, as here applied, is generally correct, it is not correct with respect to trusts. As seen by the historical background, the court of equity embraced the full jurisdiction of trusts, save for the two exceptions referred to above, neither of which is applicable here.
"We recognize that the application of pure logic presents a persuasive argument for including a third exception: a claim for money damages only, based on an alleged breach of fiduciary duty. We are persuaded, however, to adhere to precedent and leave all matters pertaining to trusts, other than the two recognized exceptions, within equity's exclusive jurisdiction.
"Because remedies of money damages based on a claim for breach of trust were not cognizable at law, we are constrained to reverse the judgment from which the first appeal is taken and to remand this cause for further consideration by the trial court."
475 So.2d at 513-14. See also
Ex parte Holt, 599 So.2d 12, 14-15 (Ala. 1992) (noting that "`"[t]he basically equitable nature of an action . . . for an accounting is not changed by the inclusion of a claim for damages. Such a claim only restates the basic equitable action, and in no way creates a right to trial by jury. Indeed it would make no sense that the claim for damages could change an equitable action into one at law. Damages can only be determined after an accounting of whether or not money is owed to or from [the defendant]. . . . ("`"quoting
Sanders v. Kirkland Co., 510 So.2d 138, 141 (Ala. 1987), quoting in turn
Bonnell v. Common-wealth Realty Trust, 363 F.Supp. 1392, 1393 (E.D.Pa. 1973)) (emphasis omitted)).
The two exceptions to the general rule discussed in Spragins — a duty of an immediate and unconditional money payment by the trustee to the beneficiary or a duty of an immediate and unconditional transfer of chattel by the trustee to the beneficiary — are not applicable here. Moreover, the fact that the sisters have couched some of their claims in terms of torts such as negligence makes no difference.
"We believe Alabama law to be clear: that the plaintiffs claims here are exclusively within the realm of equity jurisdiction. This conclusion is especially compelling in this case, in which the beneficiary of the trust, until her death, was also a co-trustee. We have diligently searched for cases that would make an exception in a case where, as in this case, the beneficiary, to whom payments were to be made, was also a co-trustee, but we have found none.
"We realize, of course, that Land's complaint is based upon SouthTrust's alleged negligence in failing to exercise supervision and control over Payne or to employ measures sufficient to detect embezzlement of the royalties. However, we find no significant difference between the facts alleged in this case and those alleged in
Spragins, . . ."
Ex parte SouthTrust Bank of Alabama, N.A., 679 So.2d 645, 649 (Ala. 1996).
Thus, the sisters' claims for money damages do not entitle them to a trial by jury. The claims brought by the sisters in this case concern alleged breaches by the trustee of its fiduciary duties in relation to the trust, claims that sound in equity. As a result, the probate court retains jurisdiction over the sisters' claims against Regions as trustee or cotrustee.
It follows from the fact that § 19-3B-203(b) grants the probate court jurisdiction over the sisters' claims against Regions concerning the trusts as to which Regions served as trustee or cotrustee that the circuit court erred in granting the sisters' petition for a writ of mandamus to the probate covert. There remains, however, the matter of Regions' petition to this Court for a writ of mandamus concerning the circuit court's denial of Regions' motion to dismiss or stay the circuit court action (case no. 1081712).
Regions contends that, because the probate court has jurisdiction to hear the sisters' claims against Regions, as a trustee or cotrustee, concerning the trusts involved in the final-settlement action, the circuit court action is due to be dismissed under § 6-5-440, Ala. Code 1975. As a preliminary matter, we note that Regions' motion to dismiss based on abatement depends in part upon the assumption that the claims brought by the sisters in the circuit court are in the nature of compulsory counterclaims to the final-settlement action; thus, the sisters would have to bring them in the final-settlement action or they would be waived. This assumption is, of course, correct with regard to the claims brought by the sisters in the circuit court action that pertain to the trusts for which Regions served as trustee or cotrustee, because those claims "arise[] out of the transaction or occurrence that is the subject matter of the opposing party's claim." Rule 13(a), Ala. R. Civ. P.
This assumption is not correct, however, with regard to the sisters' claims concerning the Mother Trusts created for the benefit of Reed and Haynes. Regions is not a trustee or cotrustee of those trusts; therefore, those claims are not involved in the final-settlement action filed in the probate court by Regions. The claims brought by the sisters concerning the Mother Trusts created for the benefit of Reed and Haynes are not compulsory counterclaims in the final-settlement action in the probate court.
As for Regions' contention that the sisters' claims in circuit court against Regions involving the trusts at issue in the final-settlement action should be abated, the sisters first argue that Regions waived this defense in the circuit court because it did not plead abatement in its original answer to the sisters' complaint.
"Although Ala. Code 1975, § 6-5-440, prohibits simultaneous actions for the same cause against the same parties, the statute constitutes an affirmative defense, and if that defense is not raised by the defendant in a motion to dismiss,
Benson v. City of Scottsboro, 286 Ala. 315, 317,
239 So.2d 747, 748-49 (1970) (stating that the defense must be raised by a `plea in abatement,' the procedural predecessor of the motion to dismiss), it is waived.
Chappell v. Boykin, 41 Ala. App. 137, 141,
127 So.2d 636, 639 (1960)."
Veteto v. Yocum, 793 So.2d 814, 815 n. 1 (Ala.Civ.App. 2001).
"`Typically, if a party fails to plead an affirmative defense, that defense is deemed to have been waived.
Robinson v. Morse, 352 So.2d 1355, 1356 (Ala. 1977) (citing 5 Charles Alan Wright Arthur R. Miller,
Federal Practice Procedure § 1278, pp. 339-52); see also Rule 8(c), Ala. R. Civ. P. However, there are exceptions to this rule, one of which is that an affirmative defense can be revived if a party is allowed to amend his pleading to add the defense.
Piersol v. ITT Phillips Drill Din, Inc., 445 So.2d 559, 561 (Ala. 1984) (stating that "where no actual prejudice to the opposing party is shown, and no undue delay is demonstrated, a court may permit the amendment of the answer to include a defense of the running of the period of the statute of limitations, though Rule 8(c) of the Alabama Rules of Civil Procedure requires such a defense to be pleaded as an affirmative defense").'"
Ziade v. Koch, 952 So.2d 1072, 1075 (Ala. 2006) (quoting
Ex parte Liberty Nat'l Life Ins. Co., 858 So.2d 950, 953 (Ala. 2003)).
As we noted in the rendition of the facts, Regions filed an answer to the sisters' complaint on January 8, 2009. The first answer did not contain a plea of abatement. Regions filed an amended answer on February 9, 2009, however, in which it asserted abatement as a defense to the action. On the same date, Regions filed its motion to dismiss or to stay the circuit court action based on § 6-5-440. The sisters filed a motion on March 4, 2009, to strike the amended complaint, arguing that Regions had waived the defense of abatement. The circuit court did not rule on the sisters' motion to strike Regions' amended answer, and in its order denying Regions' motion to dismiss the circuit court action, the circuit court did not list waiver of the abatement defense as a reason for denying the motion. Thus, under the authority of Ex parte Liberty National Life Insurance Co., Regions revived the affirmative defense of abatement through the amendment of its complaint.
We noted in note 4 supra that § 6-5-440, Ala. Code 1975, provides that
"[n]o plaintiff is entitled to prosecute two actions in the courts of this state at the same time for the same cause and against the same party. In such a case, the defendant may require the plaintiff to elect which he will prosecute, if commenced simultaneously, and the pendency of the former is a good defense to the latter if commenced at different times."
This statutory directive means that "where two or more courts have concurrent jurisdiction, the one which first takes cognizance of a cause has the exclusive right to entertain and exercise such jurisdiction, to the final determination of the action and the enforcement of its judgments or decrees." Ex parte Burch, 236 Ala. 662, 665, 184 So. 694, 697 (1938); see also Ex parte McMichael, [Ms. 1090150, Sept. 24, 2010] ___ So.3d ___ (Ala. 2010). A compulsory counterclaim is an "action" for purposes of § 6-5-440. See, e.g., Ex parte J.C. Duke Assocs., 4 So.3d 1092 (Ala. 2008); Penick v. Cado Sys. of Cent. Alabama, Inc., 628 So.2d 598, 599 (Ala. 1993). Moreover, it does not matter that one court is a probate court and the other is a circuit court. See, e.g., Martin v. Clark, 554 So.2d 1030, 1032 (Ala. 1989) (observing that "[o]nce Mr. Clark invoked the jurisdiction of the probate court in Shelby County, he could not simultaneously bring an action involving the same subject matter in another court, even one having concurrent jurisdiction"). Accordingly, abatement is applicable in the context of these actions.
The final-settlement action was the first filed action. Consequently, the claims against Regions filed by the sisters in the circuit court action concerning the trusts at issue in the final-settlement action are due to be dismissed pursuant to § 6-5-440, Ala. Code 1975. The sisters' claims concerning the Mother Trusts established for the benefit of Reed and Haynes, for which Regions served as custodian of the assets of the trusts and the agent of trustee Stockham, are not compulsory counter-claims; therefore, the circuit court properly denied Regions' motion to dismiss as to those claims.
Both the sisters in their briefs and Judge Graffeo in his response to Regions' petition for a writ of mandamus suggest that there were procedural defects in Regions' petition for final settlement that caused it not to be the first action filed — namely, that Regions did not file accounting documents with its petition and that it did not attached any summonses to the complaint before it served the complaint upon the sisters. Judge Graffeo did not list these alleged defects as a reason for granting the sisters' petition for a writ of mandamus even though the sisters raised them in their petition, nor did he list them as a reason for denying Regions' motion to dismiss the circuit court action even though the sisters raised them in their response to Regions' motion to dismiss. Moreover, the probate court expressly concluded that "Regions' Petition for Final Settlement was properly and timely filed." The probate court's order concerning the sisters' motion to dismiss thoroughly addressed these procedural issues and we see no reason to revisit them.
Finally, there remains the matter of the sisters' claims against MAM as the investment advisor sto Regions in managing the assets of all the trusts at issue. In the last count of their complaint, the sisters charge MAM with "aiding and abetting" Regions "in carrying out each of the breaches of duty, including breach of fiduciary duty, and including each of the violations of law and obligation, committed by Regions" listed in the previous counts of the complaint. Thus, the sisters' claims against MAM are derivative of the sisters' claims against Regions. Accordingly, the claims against MAM that involve the trusts that are the subject of the final-settlement action concern the administration of those trusts; therefore, those claims should be brought in the probate court. The claims against MAM that involve the Mother Trusts established for the benefit of Reed and Haynes must remain in the circuit court, where the sisters' claims against Regions concerning those trusts originated.
We recognize there may be duplication of litigation efforts as between the. proceedings that will be tried in the probate court and those that will be tried in the circuit court. We are dealing here with matters of jurisdiction, however. The remedy for the jurisdiction-driven result in this or any similar case must lie with the legislature, not this Court. Compare, e.g., Ala. Code 1975, § 12-11-41 (providing for the removal of the administration of an estate from the probate court to the circuit court); Ala. Code 1975, § 26-2-2 (providing for the removal of the administration of a guardianship or a conservatorship from the probate court to the circuit court).
IV. Conclusion
The sisters' motion to dismiss Regions's appeal of the circuit court's writ of manda mus directed to the probate court is due to be denied. Section 19-3B-203, Ala. Code 1975, gives the probate court jurisdiction to hear Regions' action for final settlement of the trusts for which it served as trustee or cotrustee, as well as the counterclaims by the sisters against Regions concerning those trusts. Accordingly, the circuit court erred in granting the sisters' petition for a writ of mandamus and ordering the probate court to dismiss the final-settlement action for lack of jurisdiction. We reverse the judgment of the circuit court and direct it to vacate its writ of mandamus directed to the probate court.
We grant Regions' petition for a writ of mandamus with respect to the circuit court's denial of its motion to dismiss the circuit court action as to the sisters' claims against Regions and MAM that involve the trusts at issue in the final-settlement action because the abatement rule requires the dismissal of those claims. We deny the petition, however, with respect to the circuit court's denial of Regions' motion to dismiss the circuit court action as to the sisters' claims against Regions and MAM that involve the trusts for which Regions served only as custodian and agent because those claims are not part of the final-settlement action.
1081619 — MOTION TO DISMISS DENIED; REVERSED AND REMANDED WITH INSTRUCTIONS.
1081712 — PETITION GRANTED IN PART AND DENIED IN PART; WRIT ISSUED.
COBB, C.J., and WOODALL, STUART, PARKER, and SHAW, JJ., concur.
LYONS and BOLIN, JJ., concur specially.
LYONS, Justice (concurring specially).
I concur fully in the main opinion. I write specially concerning the construction of § 19-3B-203, Ala. Code 1975, which provides:
"(a) Except as provided in subsection (b), the circuit court has exclusive jurisdiction of proceedings in this state brought by a trustee or beneficiary concerning the administration of a trust.
"(b) A probate court granted statutory equitable jurisdiction has concurrent jurisdiction with the circuit court in any proceeding involving a testamentary or inter vivos trust."
Subsection (a) refers to the exclusive jurisdiction of the circuit courts over proceedings "brought by a trustee or beneficiary concerning the administration of a trust," subject to an exception found in subsection (b). Subsection (b) defines the scope of the exception for "[a] probate court granted statutory equitable jurisdiction" and then permits the exercise of jurisdiction by such probate courts, concurrent with the circuit court, "in any proceeding involving a testamentary or inter vivos trust." (Emphasis added.) Obviously, the scope of the exclusive jurisdiction of the circuit court provided for in subsection (a) is narrower than the grant of concurrent jurisdiction in subsection (b) for probate courts granted statutory equitable jurisdiction.
Prior to enactment of § 19-3B-203(a), a circuit court, as a court of general jurisdiction, had jurisdiction in any proceeding involving a testamentary or inter vivos trust. Subsection (a) makes no change in such jurisdiction other than to make it exclusive in proceedings brought by a trustee or beneficiary concerning the administration of a trust.
The net effect of the unambiguous language of § 19-3B-203 is to confine proceedings brought by a trustee or beneficiary concerning the administration of a trust to the circuit court except as to those probate courts exercising statutory equitable jurisdiction and, as to such courts, they now enjoy concurrent jurisdiction with a circuit court over, not only proceedings brought by a trustee or beneficiary concerning the administration of a trust, but also any other proceeding involving a testamentary or inter vivos trust.
BOLIN, J., concurs.