Keeling v. Keeling, 145 So. 3d 763

Background

Neita Keeling died in 2009; her sons were Rex (deceased 2010) and James; Jamie is Rex’s widow and personal representative of Rex’s estate.
Neita’s estate filed a verified claim in probate (Dec 2010) seeking return of stock, dividends (~$200K), and personal property allegedly converted by Rex.
Rex’s estate removed administration to chancery/trial court (CV-11-219); James and Neita’s estate separately sued Jamie and Rex’s estate for conversion and equitable remedies (CV-11-286), later amending to assert constructive/resulting trust theories and undue influence allegations.
Defendants moved to dismiss or for summary judgment arguing statute of limitations and failure to state a claim; the trial court granted summary judgment for defendants and taxed costs as paid; plaintiffs post-judgment motions were denied.
On appeal, this court affirmed the summary judgment as to plaintiffs’ constructive-trust claims (plaintiffs waived arguments about underlying causes of action), but held the trial court erred in refusing to tax allowable costs under Ala. Code § 43-2-354 and remanded to identify and tax such costs; attorney’s fees were held not recoverable as part of those costs.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether plaintiffs’ constructive-trust/resulting-trust claims survive summary judgment despite statute-of-limitations and related defenses	The April 14, 2004 memorandum and later acknowledgments created or confirmed a constructive trust and defendants never repudiated it, so statute never ran (or repudiation occurred within limitations)	Claims barred by statute(s) of limitations and plaintiffs failed to plead/support a valid resulting-trust theory; constructive trust is a remedy that must be tied to an underlying wrong	Affirmed for defendants: plaintiffs waived appellate challenges to the underlying causes of action; resulting-trust theory inapplicable on facts; constructive trust requires a viable underlying claim and plaintiffs failed to properly argue/rely on those causes on appeal
Whether a resulting trust was adequately pleaded/available	Plaintiffs asserted resulting trust interchangeably with constructive trust as basis for relief	Defendants argued plaintiffs alleged no purchase-money or failed-express-trust facts required for a resulting trust	Held: Resulting-trust theory inapplicable; plaintiffs did not allege payment by one person with title in another or failure of an express trust
Whether costs must be taxed against a claimant who fails to recover on a disputed probate claim under Ala. Code § 43-2-354	Plaintiffs did not directly contest that statute; argued other defenses on merits	Defendants argued the statute’s mandatory “shall” requires taxation of costs when a claimant fails to recover and that costs include attorney’s fees	Court held § 43-2-354 requires taxation of costs against the unsuccessful claimant; trial court erred in declining to tax costs and case remanded to determine allowable costs
Whether attorney’s fees are includable as “costs” under § 43-2-354	Plaintiffs opposed including attorneys’ fees as costs	Defendants urged that probate statutes and legislative intent permit attorney’s fees to be taxed as costs here	Held: Attorney’s fees are not recoverable as part of costs under § 43-2-354; affirmed exclusion of attorney’s fees. (Concurring judge would also find failure to preserve fee amount/evidence for appellate review.)

Key Cases Cited

Smith v. Davis, 352 So.2d 451 (Ala. Civ. App. 1977) (distinguishes constructive and resulting trusts)
Beasley v. Mellon Fin. Servs. Corp., 569 So.2d 389 (Ala. 1990) (constructive trust is an equitable remedy to prevent unjust enrichment)
McClellan v. Pennington, 895 So.2d 892 (Ala. 2004) (purchase-money resulting trust arises where one pays and title is taken in another)
Radenhausen v. Doss, 819 So.2d 616 (Ala. 2001) (constructive trust is remedial and must attach to an underlying wrong)
Gulf States Steel, Inc. v. Lipton, 765 F. Supp. 696 (N.D. Ala. 1990) (constructive trust is a remedy, not a freestanding cause of action)
Honeycutt v. Sherman, 806 So.2d 401 (Ala. Civ. App. 2001) (allowable costs may include certain out-of-pocket expenses regardless of payment to the clerk)
Ex parte Prudential Ins. Co. of Am., 721 So.2d 1135 (Ala. 1998) (the word "shall" in a statute is mandatory)
IMED Corp. v. Systems Eng’g Assocs. Corp., 602 So.2d 344 (Ala. 1992) (statutory language should be given its plain meaning)
Low v. Low, 52 So.2d 218 (Ala. 1951) (attorney’s fees are not part of costs absent contract, statute, or recognized equity ground)
Hart v. Jackson, 607 So.2d 161 (Ala. 1992) (addressing statutory award of attorneys’ fees under a different probate provision)
CH2M Hill Southeast, Inc. v. Sanders Lead Co., 450 So.2d 450 (Ala. 1984) (remand for hearing on reasonable attorney’s fees where contractual entitlement unclear)