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For Attorneys

APPOINTED LAWYER TRAINING - DECEMBER 19, 2024
Note: 1 hour of ethics included
Alabama Minor and Adult Adoption Code

Notice: Please note that the newly adopted Alabama Minor Adoption Code and the Alabama Adult Adoption Code became effective January 1, 2024. Please ensure that any petitions or pleadings filed with the Court are in compliance with same.

Alabama Minor and Adult Adoption Code

NOTICE FOR GAL ATTORNEYS IN INVOLUNTARY COMMITMENT MATTERS

Please note that EastPointe’s psychiatrists will now be making themselves available to discuss dispositions/discharge plans with the assigned GALs on Mondays, from 12:00 – 4:00 p.m. beginning June 3, 2024. The goal is to reduce the number of changing recommendations the morning of Court.

New Filing Requirements for Petitions as of 05/22/24

Mobile County Probate Court collects all court costs at the conclusion of a case in the vast majority of instances.  These assessed costs can include, among other things, fees for legal service as an appointed Guardian Ad Litem, Administrator Ad Litem or Court Representative.  In most instances, these fees are taxed against and paid by the estate at issue in the matter, but there are numerous cases where the court costs are taxed against the petitioner.

In an effort to assist in the collection of court costs and raise the awareness with petitioners of their ultimate responsibility to pay the cost associated with their case, we are implementing the use of the “Petitioner Financial Information Sheet.” (This form is available in the Attorney Forms bank in Benchmark, the Attorney’s section of the Court’s website, and the “Judicial” section of the public portion of the Court’s website.) The “Petitioner Financial Information Sheet” must be completed and filed contemporaneously with the filing of the following types of petitions: Administration, Testate, Summary Distribution, Adoption, Disposition of Decedent Remains, Guardianship/Conservatorship or Condemnation. (If the petition is a referral from the South Alabama Volunteer Lawyers, no financial form will need to be filed.)  Petitions filed after May 22, 2024 will require a completed “Petitioner Financial Information Sheet” be filed contemporaneously with the petition. The Court will not process any petition lacking the “Petitioner Financial Information Sheet.” Additionally, any individual filing an Objection to any type of petition will be required to complete and file a “Petitioner Financial Information Sheet” contemporaneously with the filing of their objection.

Please note that the “Petitioner Financial Information Sheet” contains confidential and sensitive information. It is the attorney’s responsibility to ensure that the form if filed electronically in Benchmark is filed using the “Petitioner Financial Information Sheet” document type tab. The use of this tab will automatically hide the document from public view. Any pleading filed with the “Petitioner Financial Information Sheet” scanned with it will be rejected.

Our hope is that this new form will ultimately result in a more timely collection of court costs and, in turn, shorter turn around on appointed attorney invoices.

Petitioner Financial Information Sheet

Degrees of relationship Chart

Please find the Degrees of Relationship Chart, courtesy of the Alabama Law Institute, linked below for ease of reference.

Degrees of Relationship Chart - Alabama Law Institute

Publication Fee Change - Effective December 1, 2023

Effective December 1st, 2023, publication fees for intestate and testate estates will be paid directly to Call News or Lagniappe.  Petitioners will no longer send publication checks to the Probate Court with the petition.  Contact Susan Powers, Judicial Division, at 251-574-6008 with questions.

CHANGE IN RULE 4 RELATING TO WHO CAN SERVE PROCESS IN CIVIL MATTERS:

On August 14, 2023 the Supreme Court of Alabama amended Rule 4(i)(2)(D) and 4 (i)(3) of the Alabama Rules of Civil Procedure.  PLEASE NOTE that Rule 4(i)(3) now permits service by a “commercial carrier.”  It is important to note that if a commercial carrier is utilized, the commercial carrier must be able to deliver to the sender a written or electronic receipt showing to whom the process (and pleading if appropriate) were delivered, the written or electronic signature of the recipient, the date of delivery, the address where delivered, and the person or entity effecting delivery.  The Supreme Court’s order amending Rule 4 can be found HERE.

Clarification of policy and procedure regarding consent settlements

MEMO

TO:                  All Attorneys Practicing Before the Probate Court of Mobile County

FROM:            Don Davis

DATE:             September 8, 2023

SUBJECT:      Clarification of Policy and Procedure Regarding Consent Settlements

 

It has come to the Court’s attention that attorneys are filing “consent” settlements without consents and waivers from all the parties entitled to notice attached to the “consent petitions for settlement.”  A consent final settlement cannot be granted without all consents and waivers attached. If a petition for settlement is filed without all necessary consents attached, the Court has instructed court staff to treat the petition as a nonconsent settlement. This will include requiring a full accounting to be filed in accordance with Alabama law (Ala. Code§§ 43-2-502 and 507 (1975)) and the Court’s audit procedure. Additionally, if there is a post-deceased heir entitled to notice and a personal representative has not been yet been appointed, an AAL will be appointed for the post-deceased heir’s estate. Please note that an AAL cannot consent to a settlement as there is no accounting filed for the AAL to review. Only the post-deceased heir’s personal representative can execute a consent and waiver to a settlement.

2023 Change in Consumer price index - Pursuant to Section 43-8-116

On July 1, 2017, and at the end of each 3-year period thereafter, the State Treasurer shall adjust each dollar amount in this article or, for each adjustment after July 1, 2017, each adjusted amount, by an amount determined by the State Treasurer to reflect the cumulative change in the consumer price index, as published by the United States Department of Labor, or, if that index is no longer published, a generally available comparable index, for the 3-year period ending on the December 31 preceding the adjustment date and rounded to the nearest twenty-five dollars ($25.00). The adjusted amounts apply to exemptions claimed on or after April 1 following the adjustment date.

Please follow the link below for the current Consumer Price Index information from the State Treasurer's office.

CPI Information - Alabama State Treasurer

Adoption Code Act 2023-92

The new adoption code act 2023-92 may be found by visiting the link below.

Alabama Elder and Adult in Need of Protective Services Abuse Registry Clearance Form (DHR-APS-2270)

Individuals petitioning to become guardians for any incapacitated person must obtain a registry clearance from DHR utilizing the "Alabama Elder and Adult in Need of Protective Services Abuse Registry Clearance" form (DHR-APS-2270). The Court will not issue letters of guardianship until a completed clearance form has been filed with the Court. This requirement is in response to the Alabama Department of Human Resources recent establishment of an elder abuse conviction registry.

Common Law Spousal Issues

Courtroom Procedure for Involuntary Commitments

COVID Orders

Mobile County Probate Court's "Blocked" Account Program

To review the memorandum regarding Mobile County Probate Court's "Blocked" Account Program from Judge Don Davis dated October 25th, 2021, please follow the link below.

To access the Petition to Terminate Blocked Account Form, please follow the link below.

Court Docket Online

For your convenience and ease of reference, please find the latest Court Docket listed below.

Practice Tips for Filing a bond and/or rider in Probate Court
  • Judge Don Davis must be listed as the obligee on all bonds and riders.
  • The Principal must sign the bond.
  • The role (personal representative, conservator, etc.) must match the appointment.
  • The Power of Attorney must be attached to the bond or rider.
  • The bond or rider must contain the original signature of the bonding company's licensed producer in Alabama (a list of all licensed producers in Alabama can be found at ALDOI.gov).
  • The amount of the bond must be for the value of all assets of the estate minus the value of the real property plus 10%.
Lawsuit Settlement Approval Procedure
NOTICE REGARDING SERVICE BY CERTIFIED MAIL

Rule 4(i)(2) of the Alabama Rules of Civil Procedure addresses service by Certified Mail. Subpart (B)(i) states in part as follows:

“The clerk shall affix adequate postage and place the sealed envelope in the United States mail as certified mail with instructions to forward, return receipt requested, with instructions to the delivering postal employee to show to whom delivered, date of delivery and address where delivered.”

Subpart (B)(ii) [applicable where parties or their attorney are effectuating service by Certified Mail] contains the same language as that noted above and highlighted.

Courts across the State are recognizing that the United States Postal Service is not complying with the aforesaid provisions in many instances, in that they are writing in the blocks where the recipient is supposed to affix their signature to confirm receipt - various short hand notes – including “COVID 19” or “C19”. This matter was discussed at the Alabama Probate Judges Conference on January 13, 2021.

The advice we received at the APJA conference is that there is no COVID-19 exception to Rule 4 or suspension or modification of the Alabama Rules of Civil Procedure in effect. Consequently, the provisions of the Rules must be complied with in terms of service. It was noted that Alabama probate courts are courts with limited jurisdiction. Thus, service is fundamental for probate courts to have subject matter jurisdiction, as well as personal jurisdiction as to parties – depending on the nature of the matter before the probate court. If a court issues an order and it is later determined that the Court lacked jurisdiction (such as due to failure of service), the court's orders are null and void.

Accordingly, all lawyers and parties are advised that the Court will be following Rule 4(i)(2) in regards to service by Certified Mail as the Rule exists. If the United States Postal Service “green,” confirming delivery card is not properly completed in accordance with the Rule, service will be deemed to be ineffective.

NOTICE TO ALL LAWYERS PRACTICING IN THE MOBILE COUNTY PROBATE COURT
REVISED PROCEDURES RELATING TO REQUESTS FOR TEMPORARY PROTECTIVE ORDERS IN
GUARDIANSHIP AND CONSERVATORSHIP PROCEEDINGS

On July 2, 2020, the Alabama Supreme Court issued its opinion in the Ex parte Bashinsky, No. 1190193, 2020 WL 3581729 (Ala. July 2, 2020), a protective proceeding that was initiated in the Probate Court of Jefferson County. I encourage all lawyers who plan on filing a protective proceeding (guardianship or conservatorship) in this Court with a request for emergent relief to review the Bashinsky opinion before filing such request.

To ensure compliance with the Bashinsky decision, the Court's existing practices and procedures relating to temporary protective requests in guardianship and conservatorship cases are modified as follows:

  1. All requests for temporary protective orders must be sworn.
  2. NO request for a temporary protective order shall be set for hearing if the petitioner has not filed a “permanent” petition requesting the appointment of a permanent guardian and/or conservator.
  3. The Court will conduct an evidentiary hearing as to all requests for temporary protective orders, and sworn testimony will be required.
  4. In most instances, a current written letter or report from the alleged incapacitated person's attending physician must be submitted with the request. Ideally, this report should be sworn, i.e., executed in the presence of a notary public. At a minimum, when the appointment of a temporary guardian is requested, the physician must opine that the alleged incapacitated person is: (a) incapacitated, and (b) unable to care for themself. At a minimum, when the appointment of a temporary conservator is requested, the physician must opine that the alleged incapacitated person is: (a) incapacitated, and (b) unable to manage their business affairs and protect their assets.
  5. A guardian ad litem (“GAL”) and “court representative” will be appointed by the Court to represent the interests of the alleged incapacitated person, if the alleged incapacitated person does not have legal counsel.
  6. The GAL and court representative are expected to immediately commence investigation of the matters prompting the request for a temporary protective order and file a written report with the Court as soon as possible following appointment. This report can be filed with the Court under seal if the GAL or court representative believe their report contains confidential information that should not be openly available to others.
  7. The Court will set the request for a temporary protective order for hearing.
  8. In most instances, the party requesting the temporary protective order should serve a copy of the pleading requesting the temporary protective order AND notice of the scheduled hearing on the request for a temporary protective order on the alleged incapacitated person. If the alleged incapacitated person is known to have legal counsel, the party requesting the temporary protective order should also serve a copy of the pleading requesting the temporary protective order AND notice of the scheduled hearing on the request for a temporary protective order on said legal counsel.
  9. Proof of service upon the alleged incapacitated person (and lawyer, if the person has one) must be FILED with the Court at least 24 hours before the scheduled hearing.
  10. As much notice as possible should be afforded to respondents (i.e., the alleged incapacitated person) and their lawyers (if known) of such hearing.
  11. The GAL and court representative MUST be present at the hearing on the request for a temporary protective order.
  12. In most instances, the alleged incapacitated person should be present at the hearing on the request for a temporary protective order.
  13. If the alleged incapacitated person is not present at the hearing on the request for temporary protective relief, the petitioner must present evidence to the Court that the alleged incapacitated person's absence from the hearing is in the best interests of said person.
  14. An “emergency” sufficient to prompt temporary protective relief in a protective proceeding must be “a circumstance that likely will result in substantial harm to a respondent's health, safety, or welfare, and for which the appointment of a guardian or conservator is necessary because no other person has authority or is willing to act on the respondent's behalf.” See Ala. Code § 26-2B-201(a)(1) (1975).
  15. As noted by the Alabama Supreme Court, that a person makes an improvident agreement or decision, or is generally unthrifty in their business or unsuccessful in one or more business enterprises, does not, per se, prove that said person is incapacitated.
  16. If a request for a temporary protective order is granted, the hearing on the “permanent” petition for the appointment of a guardian and/or conservator must be conducted promptly. The Alabama Supreme Court suggests that this hearing should be conducted within weeks of such order, instead of months of such order.
  17. Temporary letters of guardianship or conservatorship shall be limited to a term of 30 days, and requests to extend such dates will be set for hearing and will be closely scrutinized by the Court.

If you have any questions concerning the aforesaid, please do not hesitate to contact Susan Powers, Chief Clerk of the Court's Judicial Division, at 251.574.6008.

Don Davis

New Alabama Medicaid Notice Law

For information on Ala Act 2019-489, which went into effect on September 01, 2019, please follow the link below.

NEW ALABAMA MEDICAID NOTICE LAW (Act 2019-489)


Mobile County - eFiling Judicial Pleadings; Status

On August 7, 2018 the Alabama Supreme Court accorded this Court's electronic filing of judicial pleadings facility “permanent” status. This is a VERY significant event in the “life” of the Court and culminates an effort that began around 1997-1998 by Judge Red Noonan, Joe McEarchern and others within the Court's operation at the time to facilitate the Court utilizing state of the art equipment, technology and procedures in the operations of the Court. We are the FIRST Alabama probate court to be granted this status (incidentally – currently we are the ONLY Alabama probate court that affords the opportunity for all persons to file pleadings in the judicial division of the court electronically – a couple of courts are experimenting with electronic filing – but only by their general conservator or general administrator). I appreciate all who have been involved in this endeavor during the past 20 years. To read the order click here.

Don Davis,

Judge of Probate

Judicial Forms for Attorneys

Forms for Attorneys are available on Benchmark WEB. Use of these forms is limited to Attorneys only. To find the Forms, please login to Benchmark WEB, click on "LINKS" and then the Judicial Forms link. Most forms are available in a fillable PDF format. New forms are added often and other forms are updated from time to time. Please check the Forms page often to ensure you have the latest version. Thank you!

ABA Article on Revised Uniform Fiduciary Access to Digital Assets Act

The Alabama Legislature recently passed the Revised Uniform Fiduciary Access to Digital Assets Act. The link below will take you directly to the ABA article that discusses the terms and implications of the Uniform Act:

ABA Article on Uniform Act

New Policy Regarding Appointed Attorneys

Effective immediately, attorneys on the list receive appointed cases will also be placed in the rotation to receive periodic appointments to pro bono cases. If you no longer want to receive appointed cases because of this policy change, please contact the Judicial Division at (251) 574-6008 to be removed.

 Court Costs and Fees

For many years, the Mobile County Probate Court had a policy of bundling court costs and fees in limited types of cases. Effective immediately, Mobile County Probate Court will no longer bundle court costs and fees in any cases. Instead, all court costs and fees will be individually itemized on the cost bill.

 E-Notices

We are very excited about the progress that we have made regarding our e-filing system. Beginning January 1st, 2018 all judicial notices and pleadings will be sent via email to attorneys. If you have not already done so, please fill out the form at the following link so that you will receive notices and pleadings. Pro se parties will continue to receive notices via U.S. mail.

LINK TO ATTORNEY/VENDOR FORM

*This change does not affect items that must be sent via U.S. mail, such as letters testamentary.

 Probate & Property Articles

The following articles were printed in the March/April 2017 issue of the Probate & Property magazine published by the American Bar Association's Real Property, Trust and Estate Law Section. I thought they might be of interest to you.

New IRS Release of Estate Tax Lien Requirements

Gun Trusts - What's All The Fuss?

Don Davis, Judge of Probate

Alabama Lawyer Article

Click here to read the article entitled: "Representation of an Estate and Client Identity" from the September 2016 issue of The Alabama Lawyer.

Changes to the Alabama Rules of Civil Procedure Effective July 1, 2016

Note: The excerpt below is from the Alabama State Bar's Addendum Issue; April 2016

In two separate orders, the Alabama Supreme Court has amended Rule 4, "Process: General and Miscellaneous Provisions;' and Rule 45(b)(1), Alabama Rules of Civil Procedure. The amendment of these rules is effective July 1, 2016. The orders amending Rules 4 and 45(b)(1) appear in an advance sheet of Southern Reporter dated on or about March 3, 2016. The amendment to Rule 4 makes certain changes to service of process, including, among others, providing that a judgment of default is a possible consequence of a served defendant's failure to respond rather than an automatic result; changing the age of a minor who must be served personally, including an incarcerated minor, from over the age of 12 years to over the age of 16 years; stating the manner for acceptance or waiver of service of process; increasing the age of persons designated to serve process to 19 years and providing that persons designated to serve process not be related within the third degree by blood or marriage to the party seeking service of process; setting out new, specific requirements as to how service of process and the return of service is to be made; and increasing to 60 days the timeframe for failure of service. The amendment to Rule 45(b)(1) increases to 19 years the age at which a person can serve a subpoena and to further provide that such person shall not be related within the third degree by blood or marriage to the person seeking service. The text of these rules can be found at https://judicial.alabama.gov/rules/index, "Quick Links-Rule Changes:' -Bilee Cauley, reporter of decisions, Alabama Appellate Courts

Abolishment Of Common Law Marriage In Alabama Effective January 1, 2017

Please note that the Alabama Legislative enacted Ala. Act 2016-306 which abolishes common law marriage in the State of Alabama prospectively on January 1, 2017. Any "otherwise valid common-law marriage entered into before January 1, 2017, shall continue to be valid in this state."

Click here for a link to said Act.

Notice of Changes in Probate Court Effective April 1, 2016

Attorneys practicing before the Probate Court of Mobile County are hereby given notice of the following changes in various procedures effective April 1, 2016. Attorneys should note these changes and coordinate appropriate actions to comply with each with their clients. Should there be any questions, please do not hesitate to contact the Court.

To review the list of changes, please click here: NOTICE OF CHANGES

Don Davis, Judge of Probate

eFiling in Judicial

The Probate Court of Mobile County is pleased to announce that EFFECTIVE JANUARY 4, 2016, LAWYERS will be able to file certain judicial pleadings in the Court through electronic means. To eFile, please visit the Court's BENCHMARK WEB portal, login with your attorney-access account credentials, and follow the screen prompts in the "e-File " portion of the Benchmark Web interface.

Should you have any issues, please contact the Court as noted below:

Technical/computer-related, non-Judicial questions may be directed to the Court's IT Division via email at: helpdesk@probate.mobilecountyal.gov or by phone at: (251) 574-6090.

Judicial-related questions, pleading-specific matters and all other non-technical, non-computer related inquiries should be directed to the Court's Judicial Division. They may be contacted by phone via the Court's switchboard at: (251) 574-6001.

Credit Card Service for Judicial Court Costs

Effective, December 7th, 2015, court costs may be paid by credit card at the service/intake window on the first floor of the Mobile County Government Center Annex. Please note that there will be a 3.5% credit card fee added for each transaction.

Effective January 20th, 2016, you may now pay court costs by telephone at 1-855-436-6812. When paying by phone, please note that a 5% fee will be assessed in addition to the court cost amount.

Effective January 21st, 2016, you may pay court costs online through the Court's Benchmark website. Instructions for paying judicial court costs online are detailed below:

To begin: Visit the Court's Benchmark website, where all Judicial-related information can be found. Please note that you are required to register for site access upon your first visit. Once you have registered (or if you have previously registered), simply login using your email address and password.

To make an online payment: Search for the case number using the Case Search function and the correct case format, example: 2015-0515. Open the case to review the file. If there are any outstanding fees on the case, a green “PAY Online” button will appear in the case summary section. Click on the “PAY Online” button to begin the payment transaction. The payment window will open and display a list of the outstanding bills in the case. Please note that you must select the bill you wish to pay, even if there is only one bill shown on the screen. Once you have selected the bill you wish to pay, you will be prompted to provide valid Name and Credit Card information. Follow the prompts on the screen to complete the payment process and submit your payment once all information has been entered. Upon completion of this step, the transaction will be verified and a receipt will be displayed for you to print for your records.

NOTE: Credit Card payments can only be made once a case AND cost bill have been created by the Judicial Division.

NOTICE OF ABILITY OF LAWYERS TO FILE CERTAIN JUDICIAL PLEADINGS ELECTRONICALLY IN THE PROBATE COURT OF MOBILE COUNTY 

On June 23, 2015, the Supreme Court of Alabama entered an order authorizing a group of Alabama probate courts to serve as participants in a test - pilot program that would permit the electronic filing of judicial pleadings in Alabama probate courts. Mobile County was one of the designated participants in this program.  The Probate Court of Mobile County is pleased to announce that EFFECTIVE JANUARY 4, 2016, lawyers will be able to file certain judicial pleadings in the Court through electronic means.

Rules approved by AOC pursuant to the Administrative Order of the Alabama Supreme Court dated June 23, 2015 regarding e-filing of pleadings in certain probate courts may be found below.

Mobile County eFiling Administrative Policies and Procedures

Technical/computer-related, non-Judicial questions may be directed to the Court's IT Division via email at: helpdesk@probate.mobilecountyal.gov or by phone at: (251) 574-6091.

Judicial-related questions, pleading-specific matters and all other non-technical, non-computer related inquiries should be directed to the Court's Judicial Division. They may be contacted by phone via the Court's switchboard at: (251) 574-6001.

Don Davis, Judge of Probate

CLAIMING EXEMPTIONS AND ALLOWANCES PRIOR TO ADMINISTRATION

Friends,

You will recall that certain family members of a decedent can claim exemptions and allowances prior to (and practically speaking in lieu of) the commencement of an estate administration proceeding. The Alabama Legislature increased the amounts that can be claimed exempt. We have updated the form requesting exemptions and allowances. The revised form is now included in the Court's form bank. If you have any questions concerning this, please contact the Judicial Division Chief.

Don Davis, Judge of Probate

NOTICE TO LAWYERS OF RECENT ALABAMA APPELLATE DECISION
REGARDING SERVICE OF PROCESS BY PUBLICATION

Friends,

As a result of Duane Graham's research (printed in the December 2015 issue of the Mobile Bar Bulletin, I became informed of the Alabama Court of Civil Appeals' decision dated July 10, 2015 entitled Lovell v. Costigan (docket number 2140522). This appellate decision caught my attention because we have NUMEROUS requests for service by publication when an effort to serve by the Sheriff's Dept and/or U. S. Certified Mail has failed. Prior to today – when we receive a motion for service by publication and the necessary affidavit is attached – we processed it and once we received proof of publication - we entered in the appropriate docket that service on the person in question was perfected. Heretofore, our clerks have NOT been reading the affidavits submitted in support of publication requests as to content. If you aren't familiar with the Lovell case – I encourage you to become familiar with it quickly. None of us want to have situations to arise where the Court's rulings are later declared null and void because of the lack of service on an interested parties – for obvious reasons.

The Lovell case arose out of the Baldwin County Circuit Court – but would have application to all Alabama trial courts – including Alabama probate courts where service of process must be perfected upon a party in interest. In this case an effort to serve a defendant by United States Certified Mail, Return Receipt Requested FAILED with the Postal Service noting “FORWARDING ORDER EXPIRED”. The Circuit Court's docket sheet also reflected that personal service FAILED with the notation “return not found”. Thereafter, the plaintiff's lawyer filed an affidavit in support of a motion for service by publication. In the affidavit, the plaintiff's lawyer stated in pertinent part as follows:

“The address used [to attempt to serve the defendant] was the only address known by [the plaintiff] and it was the last one used in correspondence to [the defendant]. In the ensuing months, attempts have been made to ascertain [the defendant's] place of residence through telephone and internet. It is known that [the defendant] still lives in this area.”

The Baldwin County Circuit Court issued a default judgment against the defendant after service by publication was deemed to have been perfected IN 2006. IN MARCH 2015 (note the time lapse) , the Defendant filed a motion to set aside the default judgment for failure to properly serve him and argued that in the absence of proper service of process, the Baldwin County Circuit Court never obtained personal jurisdiction over the Defendant. The Baldwin County Circuit Court denied the motion and an appeal was made.

The Alabama Court of Civil Appeals AGREED WITH THE DEFENDANT and declared the Baldwin County Circuit Court judgment VOID and ordered that the judgment be VACATED. The Court of Civil Appeals stated that the above quoted language from the plaintiff's lawyer's affidavit did NOT show that the defendant was avoiding service.

In support of its ruling the Court of Civil Appeals noted that in Wagner v. White, 985 So.2d 458 (Ala.Civ.App. 2007), the Court held that the fact that a defendant had changed residences twice and the plaintiff's inability to serve the plaintiff because of the moves did NOT constitute avoidance of service. The Lovell Court stated:

“in the present case … [the plaintiff's] attorney's affidavit states that he attempted to serve [the defendant] with process at [the defendant's] only known address and that he had made attempts to ascertain [the defendant's] residence via telephone and the Internet. It may be, though we cannot know with certainty, that [the plaintiff's] attorney … went to great lengths to locate [the defendant]. However, even if he did, there is simply no allegation that Lovell attempted to avoid service of process, nor are there any facts set forth in [the plaintiff's] attorney's affidavit that would support such a finding. Our caselaw and Rule 4.3 are clear that an affidavit submitted in support of a motion requesting service of process by publication must set forth facts showing that the defendant has avoided service (emphasis in opinion – not added). Service of process by publication is not proper simply because the defendant may be difficult to locate; there must be some element of culpability on the part of the defendant, and that culpability must be shown by facts set forth in an affidavit submitted in support of a motion requesting service of process by publication.”

I would note that in the Adoption Code there is a notice statute that addresses service by publication. It is a little different from the procedure outlined in the Alabama Rules of Civil Procedure.

EFFECTIVE IMMEDIATELY:

The Judicial Division Clerk's Office will be reviewing all affidavits submitted in support of a motion to serve by publication to insure compliance with Lovell.

If a clerk does not believe a submitted affidavit complies with the Lovell decision, it will be forwarded to the Court's Judicial Division Chief (and a lawyer) for review. If they concur with said assessment, the lawyer will be notified by United States Mail and/or electronic mail that the affidavit does not support the motion.
No action will be taken on the motion until an affidavit with the appropriate supporting statements is submitted to the Court.

We have prepared a revised form affidavit. For use in ALL CASES other than ADOPTIONS.

If you have any questions concerning the aforesaid or the new revised affidavit forms, please contact the Judicial Division at 251.574.6008.

Thanks,

Don Davis

Judicial Case File Request Form

Probate Court's Judicial case file copy request procedure has been changed effective 01/02/15. The Court's Records Division will now process any request for case file information or copies of same. The link below will provide you with an online request form to easily submit your request to the Court's Records Division supervisors. Please complete all fields applicable to your request and use the "Submit by e-mail" button to send the completed form. You will be contacted once your request has been completed with instructions and costs associated with your request.

Copies are $1.00 per page. Certified copies are $2.00 and Acts of Congress are an additional $6.00 added to the total.

Judicial Case File Request Form

Request Form For Attorney/Vendor Information Change

Please use this substitute W-9 form to make any changes to your attorney/vendor information. Please make sure that you are specific in your remittance information and include your appropriate tax identification number for 1099 purposes. This information will be updated in our computer system and will be used in all departments. The information provided will be used to process future payments and correspondence sent to you or your firm. Please make sure the form is signed. When any change is needed, you must fill out a new form and send it to rclarke@probate.mobilecountyal.gov or fax to 251-574-6100.

Attorney Request Form For Attorney/Vendor Information Change

Notice To All Appointed Lawyers Assigned to Mental Health Cases

Please refer to these two attachments for important information concerning the Court's mental health commitment docket. If you have any questions, please contact the Court's Judicial Division at 251.574.6008. 

Thanks,

Don Davis, Judge of Probate

 
Real Estate Sales Validation Form - Recording Division

To view the Real Estate Sales Validation Form or to fill out and download a copy, please click here.

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