THOMAS, Judge.
Eric DeWayne Taylor appeals from the Mobile Probate Court's denial of his motion to set aside previously entered orders of the probate court. We affirm.
Jimmy Patrick Newman died intestate on March 11, 2005, as the result of an automobile accident. On March 17, 2005, Jerry Wayne Newman, Jimmy's brother, petitioned the probate court for letters of administration for Jimmy's estate ("the estate"). The probate court granted Jerry's petition and issued letters of administration for the estate appointing Jerry as administrator on March 23, 2005. The probate court included in the letters of administration a provision restricting Jerry from settling any litigation on behalf of the estate without the approval of the probate court; the estate had filed a wrongful-death action against the other party involved in the automobile accident in which Jimmy had been killed. Notice of the issuance of letters of administration was published in the Mobile Press Register newspaper for three consecutive weeks, as required by § 43-2-61(2), Ala. Code 1975. Jerry filed an inventory of the estate with the probate court on April 4, 2005; the inventory did not include the wrongful-death action, which had not yet reached a conclusion.
On May 15, 2005, Jerry moved the probate court to approve the settlement of the wrongful-death action; Jerry attached to his motion a listing of Jimmy's "next of kin and heirs at law," which listed Wendy Marie Newman, who was Jimmy's daughter, along with Jimmy's three brothers and four sisters. The probate court conducted a hearing on Jerry's motion, at which it heard testimony from Jerry and Wendy. Jerry testified that he had retained an attorney to represent the estate in the wrongful-death action and that, through that attorney's negotiations, the estate had reached a proposed settlement with the liable party for the policy limits of its insurance — $1,000,000. Jerry testified that he desired for the probate court to approve the settlement. The court questioned the estate's counsel regarding his fees and expenses relating to the settlement of the wrongful-death action, which amounted to $405,448.88, leaving $594,551.12 to be distributed to the estate. Wendy testified that she desired for the probate court to approve the settlement of
At the conclusion of the hearing, the probate court approved the settlement of the wrongful-death action.
On May 4, 2006, Jerry petitioned the probate court for a final settlement of the estate and to discharge Jerry as the administrator of the estate. In his petition, Jerry asserted that more than 6 months had passed since the probate court issued letters of administration, that it had been more than 5 months since the publication of notice of the issuance of letters of administration, and that more than 30 days had passed since actual notice had been given to all known creditors. Jerry further asserted that no claims had been filed against the estate and that all the assets of the estate had been delivered to Wendy, who, Jerry alleged, was the only heir of Jimmy. Jerry attached to his petition an affidavit of Wendy, in which she stated that she consented to the final settlement of the estate and that she had received all the assets of the estate. The probate court granted Jerry's petition on May 8, 2006, closing the estate and discharging Jerry as the administrator of the estate.
On February 21, 2011, Taylor filed a motion to set aside the probate court's order discharging Jerry as the administrator of the estate and to set aside its order approving the settlement of the wrongful-death action; Taylor's motion indicated that it was brought under Rule 60(b), Ala. R. Civ. P. Taylor claimed in his motion that he was an heir of Jimmy because Jimmy was Taylor's father.
Taylor alleged that Jerry and Wendy had falsely represented to the probate court that Wendy was Jimmy's only heir and that Jerry and Wendy knew or should have known that Taylor was also Jimmy's heir. Taylor alleged that the probate court's settlement of the estate was based on the allegedly false representations of Jerry and Wendy. Taylor requested that the probate court set aside its order dismissing Jerry as the administrator of the estate and its order approving the wrongful-death settlement, require Wendy to return half of the wrongful-death settlement proceeds to the probate court, and distribute those proceeds to Taylor. Taylor also requested an award against Jerry, Wendy, and Fidelity and Deposit Company of Maryland
The probate court held a hearing on Taylor's motion on March 30, 2011, at which it heard testimony from Jerry, Wendy, Taylor, and Mary Newman, who is Taylor's mother. Mary testified that she became pregnant by Jimmy when she was 16 years old and that Jimmy had moved away not knowing that she was pregnant. According to Mary, Jimmy returned when Taylor was approximately 10 months old; Jimmy and Mary married in August 1984, when Taylor was approximately 1 year old. Mary testified that Jimmy referred to Taylor as his son and held himself out to the community as Taylor's father. Mary also testified that Jerry knew that Jimmy and Mary had married and that she had a child. Mary further testified that she had told Jerry that Taylor was Jimmy's son; however, Mary stated that she did not know whether Jimmy had represented to Jerry or other members of Jimmy's family that Taylor was his son. According to Mary, she also had told other members of Jimmy's family that Taylor was Jimmy's son. Mary and Jimmy divorced in April 1987. Mary testified that she had infrequent encounters with Jimmy after the divorce. According to Mary, Jimmy approached her and Taylor at a gas station when Taylor was 15 years old and introduced himself to Taylor as his father. Mary did not recall any conversations she had had with Jerry from the time that she and Jimmy divorced in 1987 until after Jimmy's death in 2005.
According to Mary, Wendy, who is older than Taylor, also knew of Taylor's existence because, Mary stated, Jimmy had exercised weekend visitation with Wendy during the time that Jimmy and Mary were married. Mary stated that after she and Jimmy had divorced she had once encountered Wendy at a supermarket where Wendy was then working and that, at that time, she had asked Wendy whether she remembered Taylor. According to Mary, Wendy asked whether Taylor was Mary's son, to which Mary responded that Taylor was Wendy's brother. Mary also stated that she had had conversations with Jimmy's brothers and sisters in which Mary had represented that Taylor was Jimmy's son.
Mary testified that she heard about Jimmy's death in 2005, shortly after Jimmy's funeral. Mary stated that she was unaware at that time of the probate proceedings or the wrongful-death action. According to Mary, she first learned of the settlement in the wrongful-death action in January 2010, when she was informed of the settlement by one of Jimmy's sisters. Mary testified that she telephoned Jerry a few months later and that Jerry stated to Mary that he did not know that Taylor was Jimmy's son or that Jimmy and Mary had actually been married.
Taylor testified that he was 26 years old at the time of the hearing on his motion. According to Taylor, Mary informed him of Jimmy's death in 2005. Taylor testified that he had not had a close relationship with Jimmy. Taylor stated that, like Mary, he also recalled the conversation with Jimmy at the gas station; Taylor stated that he did not know Jimmy's identity until Jimmy told him that Jimmy was his father. Taylor testified that he had not met Jerry until 2010, when they underwent testing to determine if Jimmy was Taylor's father. According to Taylor, he did not find out about the probate-court
Jerry testified that he did not know Mary well. According to Jerry, he knew that Jimmy and Mary had been involved in a relationship and that the two had lived together; however, he stated that he did not know that they had been married. Jerry also testified that Jimmy never told him that Jimmy had a son; according to Jerry, Wendy was the only child that he knew that Jimmy had fathered. Jerry testified that he did not recall any conversations with Mary in which she told him that Taylor was Jimmy's child until Mary telephoned him in 2010. Jerry also testified that none of his sisters had told Jerry that he should have known that Taylor was Jimmy's child. When pressed by Taylor's counsel regarding whether he knew that Jimmy had any children other than Wendy, Jerry responded:
Jerry testified that he did not investigate all of Jimmy's former relationships to determine whether Jimmy had any additional children; Jerry stated that Wendy was the only child of Jimmy's of which he had any knowledge.
Wendy testified that she was born in April 1978 and that Jimmy was her father. Wendy testified that she did not recall spending time with Mary and that she had not had much involvement with the Newmans. Wendy stated that she did not know whether Jimmy was at one time married to Mary. Wendy further stated that she did not recall seeing Mary before and that she had never met Taylor; according to Wendy, she did not recall the conversation in the supermarket of which Mary had testified. Wendy testified that she had not had a close relationship with Jimmy and that Jimmy had never told her that he had any other children. Wendy also testified that neither her mother nor Jimmy's sisters had mentioned the existence of any other children.
On April 5, 2011, the probate court entered a judgment denying Taylor's motion. Taylor appealed to the Alabama Supreme Court. Our supreme court transferred the appeal to this court, pursuant to § 12-2-7(6), Ala.Code 1975.
DaLee v. Crosby Lumber Co., 561 So.2d 1086, 1089 (Ala.1990) (citations omitted). However,
Orix Fin. Servs., Inc. v. Murphy, 9 So.3d 1241, 1244 (Ala.2008) (quoting Insurance Mgmt. & Admin., Inc. v. Palomar Ins. Corp., 590 So.2d 209, 212 (Ala.1991)).
Taylor brought his action in the probate court by filing a motion under Rule 60(b). On appeal, he characterizes his motion as falling under Rule 60(b)(4), Rule 60(b)(6), and the provision allowing an independent action under Rule 60(b)(3).
Taylor brought this action asserting, among other claims, a claim under Rule 60(b)(3), which allows a court to entertain an independent action seeking to have a judgment or order set aside on the basis of fraud if that independent action is brought within three years of the date of the entry of the judgment or order.
The Commentary to § 43-8-5 notes that "[t]his is an overriding provision that provides an exception to the procedures and limitations provided in this act or otherwise in the Code of Alabama." Thus, the express provision in § 43-8-5 displaces the provisions of Rule 60(b)(3), which would otherwise be applicable pursuant to § 12-13-12, with regard to the time limitations for the filing of an independent action challenging a judgment or order of the probate court based on an allegation of fraud.
Although Jerry and Wendy raise the issue of the statute of limitations on appeal, albeit with regard to the tolling provisions in § 6-2-3 rather than the limitations period in § 43-8-5, they did not raise the issue of the statute of limitations at any time in the probate court.
Wallace v. Alabama Ass'n of Classified Sch. Emps., 463 So.2d 135, 136-37 (Ala. 1984). Because Jerry and Wendy never raised the issue of the statute of limitations in the probate court, they have waived the issue; therefore, we cannot consider whether Taylor's action was barred by the time limitations provided in § 43-8-5.
On appeal, Taylor presents arguments pertaining to the two types of fraud defined in § 6-5-101, Ala.Code 1975, which provides: "Misrepresentations of a material fact made willfully to deceive, or recklessly without knowledge, and acted on by the opposite party, or if made by mistake and innocently and acted on by the opposite party, constitute legal fraud." In Christian v. Murray, 915 So.2d 23, 28 (Ala.2005), our supreme court held that the species of fraud that the legislature intended to be considered in an action brought under § 43-8-5 "must be that kind of fraud that would allow relief for `fraud on a court.'" The Christian court noted:
915 So.2d at 28. Therefore, we will consider only whether the probate court abused its discretion in determining that Jerry and Wendy had not committed fraud on the court and, therefore, erred in denying Taylor's motion.
The probate court heard conflicting evidence regarding whether Jerry knew that Taylor was Jimmy's child. Faced with conflicting evidence, the probate court had to determine the credibility of the witnesses and what weight to give each witness's testimony. This court is not allowed to reweigh the evidence or to determine the credibility of witnesses.
J.C. v. State Dep't of Human Res., 986 So.2d 1172, 1184 (Ala.Civ.App.2007). Jerry and Wendy testified that they had no knowledge that Taylor was Jimmy's child. It was within the discretion of the probate court to assign greater weight and credibility to their testimony than to the testimony of Mary and Taylor. Because the probate court had sufficient evidence before it to support a determination that neither Jerry nor Wendy had committed fraud on the court with respect to the probate proceedings, we cannot conclude that the probate court abused its discretion when it denied Taylor's motion.
Taylor next argues that the probate court erred in denying his motion because, he says, the orders of the probate court are void.
Section 43-2-61, Ala.Code 1975, prescribes the type of notice that the administrator of an estate must give to those who have claims against the decedent. That section provides:
Taylor argues that Jerry was required to notify Taylor of Jerry's receipt of letters of administration for the estate by first-class mail, as required by § 43-2-60(1), because, Taylor says, his identity as an heir was reasonably ascertainable.
The question whether Taylor was known or reasonably ascertainable to Jerry or Wendy as an heir is a question of fact. The probate court heard ore tenus evidence concerning whether Jerry or Wendy knew that Jimmy was Taylor's father.
Retail Developers of Alabama, LLC v. East Gadsden Golf Club, Inc., 985 So.2d 924, 929 (Ala.2007). The probate court heard testimony from Jerry that Jimmy had never mentioned to Jerry that he had any children other than Wendy. Jerry also testified that he had had little contact with Mary and that none of his sisters had ever mentioned to him that Taylor was Jimmy's child. The probate court also heard testimony from Wendy that she had no knowledge of Taylor's existence or that he was Jimmy's child. Wendy and Jerry's testimony was sufficient to support a determination by the probate court that Taylor was not known or reasonably ascertainable to Jerry as Jimmy's heir. Because Taylor was not known or reasonably ascertainable as an heir, Jerry had no duty to notify Taylor of Jerry's appointment as administrator of the estate by first-class mail; notification by publication, as allowed in § 43-2-61(2), was sufficient. Accordingly, the probate court did not err when it denied Taylor's motion insofar as he alleged that the probate court's earlier orders were void.
Because we find no reversible error, we affirm the probate court's judgment denying Taylor's Rule 60(b) motion.
AFFIRMED.
THOMPSON, P.J., and PITTMAN, BRYAN, and MOORE, JJ., concur.
