P.T.S. III v. S.S. (Appeal from Lee Circuit Court: CV-23-23).

Rel: June 14, 2024

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
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ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2023-2024
_________________________

CL-2023-0673
_________________________

P.T.S. III

v.

S.S.

Appeal from Lee Circuit Court
(CV-23-23)

LEWIS, Judge.

P.T.S. III ("the stepson") appeals from an elder-abuse protection

order entered by the Lee Circuit Court ("the trial court"). We affirm the

trial court's order.
CL-2023-0673

Procedural History

S.S. ("the stepmother") was married to P.S., Jr. ("P.S."), at the time

of the filing of the petition. P.S. died during the pendency of this action.

The stepson is the son of P.S. and the stepson of S.S.

On January 25, 2023, the stepmother, who was 70 years old, filed

in the trial court a petition seeking an elder-abuse protection order

against the stepson. On January 26, 2023, the trial court issued an ex

parte elder-abuse protection order. On February 7, 2023, the stepson

filed a motion to dissolve the ex parte order, and the trial court granted

the motion on February 9, 2023. A trial was held on April 11, 2023. On

April 12, 2023, the trial court entered an elder-abuse protection order

against the stepson.

The elder-abuse protection order provides, in pertinent part:

"The [stepson] is enjoined from threatening to commit or
committing acts of abuse, as defined in the Elder Abuse
Protection Order and Enforcement Act, against the:
[stepmother].

"The [stepson] is restrained and enjoined from: Harassing[,]
Stalking[,] Annoying[,] Telephoning[,] Contacting: the
[stepmother]; OR Threatening or engaging in conduct that
would place the following in reasonable fear of bodily injury:
the [stepmother].

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"The [stepson] is ordered to stay away from: the
[stepmother]'s residence.

"The [stepson] is removed and excluded from the residence of
the [stepmother], regardless of ownership of the residence.

"The [stepson] is prohibited from transferring the funds,
benefits, property, resources, belongings, or assets of the
[stepmother] to any person other than the [stepmother].

"The [stepson] is restrained and enjoined from exercising
control over the funds, benefits, property, resources,
belongings, or assets of the [stepmother].

"The [stepson] is ordered to return custody or control of the
funds, benefits, property, resources, belongings, or assets to
the [stepmother].

"[The stepson] is to tender $25,000.00 to the [stepmother]'s
attorney within 30 days, the court finding that [the stepson]
had no ownership interest in the funds and was not acting on
behalf of either of the owners of said funds when he took the
funds."

(Capitalization in original.)

On May 10, 2023, the stepson filed a timely postjudgment motion

for a new trial and a motion for relief from judgment pursuant to Rules

59 and 60, Ala. R. Civ. P. In his postjudgment motion, the stepson alleged

that "[t]he [stepmother] offered no evidence to support that [the

stepson]'s actions rise to the level of abuse to require an elder abuse

protection order." Further, the stepson alleged that "[t]he law requires

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[the stepmother] to prove by a preponderance of the evidence that [the

stepson] committed acts [of] elder abuse against [the stepmother], and

[the stepmother] failed to do so." The stepson requested that his

postjudgment motion be set for a hearing pursuant to Rule 59(g), Ala. R.

Civ. P.

On May 11, 2023, the stepmother filed a response to the stepson's

postjudgment motion alleging that the stepson did not dispute any

testimony or other evidence presented at the trial and requested that the

trial court deny the stepson's postjudgment motion. To the extent that

the postjudgment motion sought relief under Rule 59, that motion was

denied by operation of law on August 8, 2023, pursuant to Rule 59.1, Ala.

R. Civ. P.1 On September 18, 2023, the stepson filed his notice of appeal

to this court.

Evidence

The sole witness at the trial was the stepmother. The following is

a summary of her testimony.

1To the extent that the postjudgment motion requested relief under

Rule 60(b), Ala. R. Civ. P., we note that "[A Rule 60(b) motion] does not
affect the finality of a judgment or suspend its operation." Ex parte
R.S.C., 853 So. 2d 228, 233-34 (Ala. Civ. App. 2002).
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On March 31, 2022, the stepmother and P.S. received a statement

regarding an account they held jointly with a right of survivorship ("the

joint account") and discovered that $25,000 had been debited from that

account. Thereafter, the stepmother and P.S. asked a bank employee to

inform them who had made the withdrawal. A document provided by a

bank employee indicated that the stepson had made the $25,000

withdrawal from the joint account via cashier's check. The stepmother

and P.S. were designated as the account owners of the joint account and

the stepson was designated as an authorized signer.2

The stepson had never deposited money into the joint account, and,

based on the instructions of P.S., the stepson had not received any checks

for the joint account. Neither the stepmother nor P.S. had given the

stepson permission to withdraw $25,000 from the joint account.

2An exhibit introduced into evidence indicated that an authorized

signer is an "[a]gent … [who] may make account transactions for parties
but ha[s] no ownership or rights at [the account owner's] death unless
named as a P.O.D. (Payable on Death) account beneficiary." See Ala.
Code 1975, § 5-24-11(d) ("An agent in an account with an agency
designation has no beneficial right to sums on deposit.") Here, the
stepson was also listed as a P.O.D. beneficiary; however, neither of the
account holders had died at the time of the withdrawal. See Ala. Code
1975, § 5-24-11(c) ("A beneficiary in an account having a POD designation
has no right to sums on deposit during the lifetime of any party.")
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Upon discovering that the stepson had withdrawn $25,000 from the

joint account, the stepmother and P.S. telephoned the stepson. The

stepson acknowledged that he had taken the $25,000 from the joint

account without the permission of P.S. or the stepmother; that he knew

it was not his money to withdraw; and that he would return the money.

During the telephone conversation, the stepson said that he wished he

had taken the entire balance of the joint account. Once the stepmother

and P.S. talked to the stepson, as a safeguard, they decided to close the

joint account and to open a new account. The stepson did not return the

$25,000.

Approximately nine months later, on December 31, 2022, P.S., who

suffered from Parkinson's Disease, was hospitalized at East Alabama

Medical Center. That day, the stepmother telephoned the stepson to

inform the stepson of P.S.'s hospitalization. Four days later, the stepson

burst into P.S.'s hospital room; walked directly toward the stepmother;

and, in a demanding manner, began yelling at the stepmother, asking

where P.S.'s phone was located, and telling her to leave the hospital room.

The stepmother testified that she had been frightened because the

stepson has such a "hot temper." Therefore, she walked to the nurse's

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desk and asked the nurse to come to the hospital room. The nurse walked

into the hospital room and told the stepson that he should not upset P.S.

The stepson thereafter expressed to P.S. that he wanted the stepmother

out of the hospital room and stated that the stepmother was a liar. The

stepson pointed his finger in the stepmother's face and called her a

"picture of evil" and "crazy," which prompted P.S. to attempt to get the

stepson to stop. That exchange between the stepmother and the stepson

upset P.S., and, a few days after the incident in the hospital room, P.S.

encouraged the stepmother to file the petition for an elder-abuse

protection order.

The stepmother has been fearful of the stepson because he called

her names and acted aggressively towards her. She is afraid that, when

the stepson's temper is triggered, he might inflict bodily harm on her. At

the trial, the stepmother requested that the stepson be required to stay

away from her and to reimburse her for the $25,000 that he withdrew

from the joint account.

Jurisdiction

"Section 12-3-10, Ala. Code 1975, provides for the
exclusive appellate jurisdiction of the Court of Civil Appeals:

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" 'The Court of Civil Appeals shall have
exclusive appellate jurisdiction of all civil cases
where the amount involved, exclusive of interest
and costs, does not exceed $50,000, all appeals
from administrative agencies other than the
Alabama Public Service Commission, all appeals
in workers' compensation cases, all appeals in
domestic relations cases, including annulment,
divorce, adoption, and child custody cases and all
extraordinary writs arising from appeals in said
cases.

"… That Code section further describes 'the amount
involved' as follows:

" 'Where there is a recovery in the court below of
any amount other than costs, the amount of such
recovery shall be deemed to be the amount
involved; otherwise, the amount claimed shall be
deemed to be the amount involved; except, that in
actions of detinue the alternate value of the
property as found by the court or jury shall be
deemed to be the amount involved.' "

McCullough v. Windyke Country Club, Inc., [Ms. SC-2023-0408, Aug. 11,

2023] ___ So. 3d ___, ___ (Ala. 2023). Here, because the amount

recovered, i.e., $25,000, does not exceed $50,000, this court has appellate

jurisdiction.

Standard of Review

" 'Because the [trial] court received evidence ore tenus,
[appellate] review is governed by the following principles:

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" ' " ' " '[W]hen a trial court
hears ore tenus testimony, its findings on
disputed facts are presumed correct and its
judgment based on those findings will not be
reversed unless the judgment is palpably
erroneous or manifestly unjust.' " ' Water Works &
Sanitary Sewer Bd. v. Parks, 977 So. 2d 440, 443
(Ala. 2007) (quoting Fadalla v. Fadalla, 929 So. 2d
429, 433 (Ala. 2005), quoting in turn Philpot v.
State, 843 So. 2d 122, 125 (Ala. 2002)). ' " The
presumption of correctness, however, is rebuttable
and may be overcome where there is insufficient
evidence presented to the trial court to sustain its
judgment." ' Waltman v. Rowell, 913 So. 2d 1083,
1086 (Ala. 2005) (quoting Dennis v. Dobbs, 474 So.
2d 77, 79 (Ala. 1985)). 'Additionally,
the ore tenus rule does not extend to cloak with a
presumption of correctness a trial judge's
conclusions of law or the incorrect application of
law to the facts.' Waltman v. Rowell, 913 So. 2d at
1086."

" 'Retail Developers of Alabama, LLC v. East Gadsden Golf
Club, Inc., 985 So. 2d 924, 929 (Ala. 2007).' "

Washington v. Johnson, [Ms. SC-2023-0464, Apr. 19, 2024] ___ So. 3d ___,

___ (Ala. 2024) (quoting Bond v. Estate of Pylant, 63 So. 3d 638, 643-44

(Ala. Civ. App. 2010)).

Discussion

I.

On appeal, the stepson first raises the issue of whether the trial

court erred in entering the elder-abuse protection order based upon the

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sufficiency of the evidence and the application of the law to the facts. The

stepson argues that the evidence does not support the trial court's

determination that the stepson committed elder abuse, specifically,

financial exploitation, theft, abuse, or harassment.

The Elder Abuse Protection Order and Enforcement Act ("the Act"),

Ala. Code 1975, § 38-9F-1 et seq., was enacted in 2017 to promote all of

the following purposes:

"(1) To maximize protection of victims of elder abuse.

"(2) To create a flexible and expeditious method of
obtaining a protection order against an individual who has
committed elder abuse.

"(3) To expand the ability of law enforcement officers to
assist victims, to enforce the law effectively in cases of elder
abuse, and to prevent further incidents of abuse."

§ 38-9F-2, Ala. Code 1975.

Section 38-9F-3(2) defines "elder abuse" to include "[t]he

commission of [certain] acts or the intent to commit [certain acts] against

an elderly person." 3 One of the acts that meets the definition of "elder

abuse" under § 38-9F-3(2) is "financial exploitation." Section 38-9F-3(2)g.

3Section 38-9F-3(4) defines an elderly person as "[a] person 60 years

of age or older." The stepmother, who was 70 years old when she filed
her petition, meets that definition.
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refers to Ala. Code 1975, §§ 13A-6-191 and 8-6-171 for the definition of

"financial exploitation." Section 13A-6-191 defines "financial

exploitation" as

"[t]he use of deception, intimidation, undue influence, force,
or threat of force to obtain or exert unauthorized control over
an elderly person's property with the intent to deprive the
elderly person of his or her property or the breach of a
fiduciary duty to an elderly person by the person's guardian,
conservator, or agent under a power of attorney which results
in an unauthorized appropriation, sale, or transfer of the
elderly person's property."

Section 8-6-171(5)a., Ala. Code 1975, defines "financial exploitation" to

include "[t]he wrongful or unauthorized taking, withholding,

appropriation, or use of money, assets, or property of a vulnerable adult."

Vulnerable adult is defined by § 8-6-171(10)a., Ala. Code 1975, to include

"[a] person 65 years of age or older." The stepmother, who was 70 years

old when she filed her petition, meets that definition.

In this case, the trial court specifically found that the stepson "had

no ownership interest in the funds and was not acting on behalf of either

of the owners of said funds when he took the funds." That finding is

supported by: (1) the stepmother's testimony that the stepson admitted

that he withdrew the funds without the permission of the account holders

and stated that he would return the money and (2) the documentation

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from the bank indicating that the stepson was only an agent for the

owners of the joint account and only had an ownership interest upon the

death of both owners.

In his brief to this court, the stepson argues that the stepmother

failed to prove that the stepson did not make the withdrawal on behalf of

P.C. However, as noted previously, the stepmother testified that both

she and P.C. had been surprised by the withdrawal and that the stepson

had admitted that he had withdrawn the $25,000 without permission.

Therefore, we conclude that the stepson's argument on this point is

without merit.

Based on the foregoing, the trial court could have properly found

that the stepson committed an unauthorized taking of the stepmother's

money, see § 8-6-171(5)a., Ala. Code 1975, which constitutes "elder

abuse" under the Act. Therefore, we pretermit discussion of the stepson's

arguments that there was insufficient evidence that he committed other

acts that constitute elder abuse under the Act.

II.

On appeal, the stepson also raises the issue of whether the trial

court erred in denying the stepson's motion for new trial by operation of

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law without holding a hearing. However, "[t]he failure to hold a hearing

on a posttrial motion is not always reversible error." Cunningham v.

Edwards, 25 So. 3d 475, 477 (Ala. Civ. App. 2009).

" ' " [I]f a party requests a hearing on its motion for a new trial,
the court must grant the request." Ex parte Evans, 875 So. 2d
297, 299-300 (Ala. 2003) (citing Rule 59(g), Ala. R. Civ. P., and
Walls v. Bank of Prattville, 554 So. 2d 381, 382 (Ala. 1989)).
Although it is error for the trial court not to grant such a
hearing, this error is not necessarily reversible error. "This
Court has established, however, that the denial of a
postjudgment motion without a hearing thereon is harmless
error, where (1) there is ... no probable merit in the grounds
asserted in the motion, or (2) the appellate court resolves the
issues presented therein, as a matter of law, adversely to the
movant, by application of the same objective standard of
review as that applied in the trial court." Historic Blakely
Auth. v. Williams, 675 So. 2d 350, 352 (Ala. 1995) (citing
Greene v. Thompson, 554 So. 2d 376 (Ala. 1989)).' "

Id. (quoting Chism v. Jefferson Cnty., 954 So. 2d 1058, 1086 (Ala. 2006)).

As he did on appeal, in his postjudgment motion, the stepson

asserted that the stepmother failed to prove that the stepson had

committed "elder abuse" under the Act. We have already concluded that

the stepson's argument that he did not commit financial exploitation is

without merit. Because there was "no probable merit in the grounds

asserted in the [stepson's postjudgment] motion," the trial court's failure

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to hold a hearing on the postjudgment motion was harmless error. See

id.

Conclusion

Based on the foregoing, the trial court's elder-abuse protection

order is affirmed.

AFFIRMED.

Moore, P.J., and Edwards, Hanson, and Fridy, JJ., concur.

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