Erskine, etc. v. Guin and Hawley; McKleroy and Townsend v. Ash and Erskine, etc., [Ms. 1200401; 1210153, Jan. 6, 2023] __ So. 3d __ (Ala. 2023). In a per curiam opinion, the Court (1200401 – Bryan, Sellers, Mendheim, and Stewart, JJ., concur; Parker, C.J., concurs in part and concurs in the result; Bolin, J., dissents; Shaw, Wise, and Mitchell, JJ., recuse; 1210153 – Parker, C.J., and Bolin, Bryan, Sellers, Mendheim, and Stewart, JJ., concur; Shaw, Wise, and Mitchell, JJ., recuses) dismisses an appeal by Tamera Erskine, as the personal representative of the estate of Joann Bashinsky (“Ms. Bashinsky”), deceased, from orders entered by the Jefferson Probate Court.
Regarding the personal representative’s appeal from a December 11, 2020 order awarding fees to Gregory A. Hawley, a temporary guardian purportedly appointed for Ms. Bashinsky, the Court rejects the personal representative’s argument that the order was appealable pursuant to 12-22-21(5), Ala. Code 1975, as a final settlement of a temporary conservatorship. The Court explains we held in a prior mandamus proceeding that “the order appointing Hawley was void….Hawley never possessed valid legal authority to assume control of Ms. Bashinsky’s life decisions and personal assets because the probate court did not adhere to the legal requirements necessary to bestow such authority. Logically, there can be no ‘final settlement’ of a nonexistent conservatorship.” Ms. **24-25. The December 11, 2020, order was not a “final judgment” appealable under § 12-22-20 “because there were several other outstanding issues in this case at the time Judge Tucker entered that order, including the pending petition for a permanent guardianship and conservatorship.” Ms. *28.
The January 22, 2021, order awarding a guardian ad litem fee to J. Kenneth Guin, Jr. although purportedly certified as final under Rule 54(b) Ala. R. Civ. P. was not appealable by the personal representative because it “did not dispose of a claim or any actual party in this case.” Ms. *32.