Orlando Bethel v. Brennan James Franklin, Mikki Franklin, and Hughes Funeral Home and Crematory ( 2023 )

Rel: February 24, 2023
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern
Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts,
300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other
errors, in order that corrections may be made before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2022-2023
_________________________
SC-2022-0787
_________________________
Orlando Bethel
v.
Brennan James Franklin, Mikki Franklin, and Hughes Funeral
Home and Crematory
Appeal from Baldwin Circuit Court
(CV-22-900287)
SELLERS, Justice.
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Orlando Bethel appeals from an order of the Baldwin Circuit Court
denying his motion for a preliminary injunction pursuant to Rule 65, Ala.
R. Civ. P. We reverse and remand.
I. Facts and Procedural History
On February 18, 2022, Zoe Sozo Bethel ("the decedent") died
intestate in Florida; she was survived by her spouse, Brennan James
Franklin ("the spouse"), and their five-year-old daughter. After the
decedent's death, the spouse arranged for the body to be cremated in
Florida and had the cremated remains ("the ashes") shipped to Hughes
Funeral Home and Crematory ("the funeral home") in Alabama, where
the spouse's mother, Mikki Franklin, was employed. Thereafter, a
dispute arose between the spouse and the decedent's father, Orlando
Bethel ("the father"), concerning the right to control the disposition of the
ashes.
On March 8, 2022, the father filed an emergency petition, pursuant
to § 34-13-11(b)(4), Ala. Code 1975, in the Baldwin Probate Court seeking
a determination that the spouse and the decedent had been estranged at
the time of the decedent's death and that the spouse had therefore
forfeited his right as an "authorizing agent" to control the disposition of
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ashes. The father requested that he, rather than the spouse, be granted
the right to control the disposition of the ashes. While the probate action
was pending, the father filed in the Baldwin Circuit Court a motion for a
temporary restraining order or, alternatively, for a preliminary
injunction enjoining the spouse, the spouse's mother, and the funeral
home ("the defendants") from further "dividing, diminishing, splitting up
or otherwise disposing of" the ashes; the proceeding on the father's
request for injunctive relief was assigned case no. CV-22-900248. The
circuit court entered a five-day temporary restraining order enjoining the
defendants from disposing of the ashes and scheduling a preliminary
hearing on the matter. Thereafter, the funeral home, through its owner,
Benjamin Hughes, Sr., filed a motion requesting that the funeral home
be dismissed from the action; in that motion, Hughes represented, in
relevant part, that he understood that the funeral home could not "take
any action [with regard to the ashes] until the pending Probate Court
action is completed through all of the Court's deliberation and any
subsequent appeals thereto that could possibly follow." Based on that
representation, the father voluntarily moved the circuit court to dismiss
his motion for injunctive relief. Accordingly, the circuit court entered an
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order dismissing the father's request for injunctive relief filed in case no.
CV-22-900248.
On March 16, 2022, the probate court entered a final order in the
probate action, dismissing the father's petition filed pursuant to § 34-13-
11(b)(4) as moot. The probate court opined that the purpose of § 34-13-11
is "to give direction and/or protection to a funeral home director as to who
has the legal authority to determine the manner in which the remains of
a deceased person may be disposed, i.e., buried or cremated." The probate
court reasoned that, because the decedent's remains had been disposed
of by cremation, the father's request to be awarded the right to control
the disposition of the remains was moot. Accordingly, the probate court
did not address the father's allegation that the spouse and the decedent
had been estranged at the time of the decedent's death.
On March 23, 2022, the father appealed the probate court's order to
the circuit court ("the probate appeal"). That appeal is presently pending
in the circuit court and is not currently before us. In that same action,
the father filed another motion for a preliminary injunction, the denial of
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which is the subject of this appeal.1 In support of his requested injunctive
relief, the father averred, among other things, that the funeral home had
possession of the ashes and that the spouse had communicated to the
father his intent to "split up" or otherwise dispose of the ashes, which,
the father claimed, would not only "violate the decedent's wishes and her
religious beliefs," but would also constitute a desecration of her ashes.
The father also alleged that Hughes, the owner of the funeral home, had
informed him that the ashes had already been "split up," despite
Hughes's previous representation that the funeral home could take no
action regarding the ashes pending resolution of the issue regarding the
right of disposition. Accordingly, the father requested that the circuit
court enter a preliminary injunction enjoining the defendants from
1On appeal, the defendants unpersuasively argue that the doctrine
of res judicata barred the father's second request for injunctive relief.
There are four elements of res judicata, all of which must be present for
the doctrine to apply: (1) a prior judgment on the merits, (2) rendered by
a court of competent jurisdiction, (3) involving substantial identity of
parties, and (4) involving the same cause of action in both actions. See
Benetton S.p.A. v. Benedot, Inc., 642 So. 2d 394, 399 (Ala. 1994). In this
case, the defendants have not demonstrated that the order granting the
father's motion to voluntarily dismiss case no. CV-22-900248, in which
the father had requested injunctive relief, constituted a judgment on the
merits. See generally Rule 41, Ala. R. Civ. P. (regarding dismissal of
actions).
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further "dividing, diminishing, splitting up or otherwise disposing of" the
ashes.
On June 3, 2022, the circuit court held a hearing on the father's
request for a preliminary injunction, at which the father proceeded pro
se. Although the father elicited substantial testimony on the issue of
whether the spouse and the decedent had been estranged, we do not find
that testimony entirely relevant or dispositive of the issues in this appeal.
Nonetheless, the undisputed testimony at the hearing indicated that the
decedent and the spouse had been living apart since the end of 2020 but
that they were still legally married when the decedent died in February
2022. The spouse testified that, after the decedent died, he had her body
cremated and that he wanted to keep the ashes for their minor daughter.
Despite having knowledge of the ongoing dispute regarding the right to
control the disposition of the ashes, the spouse testified that he had
directed the funeral home to divide or split the ashes; however, he could
not remember the date he had done so. The spouse further stated that,
on April 9, 2022, he relinquished possession of the "divided" ashes to
"third parties." Notably, the spouse refused to disclose the names of those
individuals, stating that he was "not at liberty to discuss [their identity]
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under advice of counsel." A discussion then ensued off the record, after
which the circuit-court judge stated, "I'm going to order someone to file
under seal to me who's got [the ashes]," to which the spouse's attorney
stated, "I will be happy to file that under seal." The circuit-court judge
then stated, "I know you will because I'm ordering it, and then we'll
decide who gets [the ashes] at that point." Finally, near the conclusion
of the hearing, the father indicated his intent to testify, to which the
circuit-court judge replied, "[y]ou can certainly testify if you want to. I
can tell you that I'm inclined to grant the temporary [injunction] and
order all of the defendants to -- if they have possession of any of the
[ashes] not to dispose of them. … And it's just going to be temporary until
we get to the final hearing." Accordingly, the father did not testify.
Despite the circuit-court judge's representation that he planned to order
the defendants to file under the seal the names of the individuals who
had possession of the ashes and despite his representation that he was
"inclined" to issue the preliminary injunction pending a final hearing on
the merits, the circuit court, nonetheless, entered an order denying the
father's requested injunctive relief, without any stated reasons or
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explanation. The father filed a motion to reconsider, which the circuit
court denied. This appeal followed. See Rule 4(a)(1)(A), Ala. R. App. P.
II. Standard of Review
A party seeking a preliminary injunction must demonstrate (1) that
the party would suffer irreparable harm without the injunction, (2) that
the party has no adequate remedy at law, (3) that the party has at least
a reasonable chance of success on the ultimate merits of the case, and (4)
that the hardship that the injunction will impose on the opposing party
will not unreasonably outweigh the benefit accruing to the party seeking
the injunction. Holiday Isle, LLC v. Adkins, 12 So. 3d 1173, 1176 (Ala.
2008). Generally, " ' [t]he decision to grant or to deny a preliminary
injunction is within the trial court's sound discretion. In reviewing an
order granting [or denying] a preliminary injunction, the Court
determines whether the trial court exceeded that discretion.' " Holiday
Isle, 12 So. 3d at 1175-76 (quoting SouthTrust Bank of Alabama, N.A. v.
Webb-Stiles Co., 931 So. 2d 706, 709 (Ala. 2005)). We review the legal
rulings of the trial court, to the extent they resolve questions of law based
on undisputed facts, de novo. Id. at 1176.
III. Discussion
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The dispositive issue on appeal is whether the circuit court
exceeded its discretion in denying the father's request for a preliminary
injunction pending a final hearing on the merits of the probate appeal.
A. Reasonable Chance of Success on the Ultimate Merits
Chief among the factors to be considered in issuing a preliminary
injunction is the demonstration of a reasonable probability of success on
the merits. The father argues that he sufficiently demonstrated
entitlement to a preliminary injunction based on the plain language of §
34-13-11(b)(4), regarding estrangement; the testimony adduced at the
preliminary-injunction hearing regarding the spouse and the decedent's
estrangement; and his allegation that the probate court erred in
determining, as a matter of law, that cremation alone constitutes
"disposition" and, thus, dismissing his petition filed in that court as moot.
The defendants, on the other hand, argue that the father lacked
"standing" under § 34-13-11 to commence the probate-court action
because, they say, that statute provides that a surviving spouse has
priority status over a surviving parent to control the disposition of a
decedent's remains. Our resolution of whether the father has
demonstrated a reasonable probability of success on the ultimate merits
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hinges on the statutory interpretation of § 34-13-11. In this opinion, for
the purpose of providing guidance to the probate court and the circuit
court, this Court interprets § 34-13-11, specifically those sections of the
statute relevant to the facts presented in this appeal. 2
Section 34-13-11(a) begins by recognizing that any person "who is
at least 18 years of age and of sound mind may enter into a contract to
act as authorizing agent and direct the location, manner, and conditions
of disposition of deceased human remains and arrange for funeral and
2In McRae v. Booth, 938 So. 2d 432, 433 (Ala. Civ. App. 2006), the
Court of Civil Appeals was presented with an argument regarding § 34-
13-11. At the time McRae was decided, the version of the statute then in
effect contained only a priority structure for determining who possessed
the right to be an authorizing agent permitted to order cremation or final
disposition of the remains of a decedent, which is presently contained in
subsection (a). See Act No. 2002-239, 503 (§ 34-13-1(a)(5) and § 34-13-
123), Ala. Acts 2002. In 2011, the statute was essentially rewritten to
amend what is now subsection (a) to permit an authorizing agent to direct
"the location, manner, and conditions of disposition of remains and
arrange for funeral goods and services" and to add subsections (b), (c), (d),
and (e). See Act No. 2011-623, Ala. Acts 2011. Accordingly, in McRae,
the Court of Civil Appeals correctly stated that " 'Alabama does not have
a statute addressing the custody of the remains of deceased persons.' "
McRae, 938 So. 2d at 433 (quoting Cottingham v. McKee, 821 So. 2d 169,
171 (Ala. 2001) (emphasis added)). Following the 2011 amendment to the
statute, that is no longer the case.
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burial goods and services to be provided upon death." 3 Id. Subsection
(a) then continues:
"Except as otherwise provided in subsection (b), the right to
control the disposition of the remains of a deceased person as
an authorizing agent, including the location, manner, and
conditions of disposition and arrangements for funeral and
burial goods and services to be provided, shall vest in the
following persons in the priority listed and the order named,
provided the person is at least 18 years of age and of sound
mind:
"(1) The person designated by the decedent
as authorized to direct disposition pursuant to
Public Law No. 109-163, Section 564, … if the
decedent died while serving on active duty in any
branch of the United States Armed Forces, United
States Reserve Forces, or National Guard.
"(2)a. The person designated by the decedent
in an affidavit executed in accordance with
paragraph b.
"b. ...
"(3) The surviving spouse.
"(4) The sole surviving child [or children] of
the decedent ….
3Section 34-13-11 was amended effective May 1, 2022, after the
proceedings leading to the probate appeal were initiated. Because the
parties, in their briefs, have relied upon the current version of the
statute, and because the changes effected by the amendment were
relatively minor, we quote from the current version of the statute.
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"(5) The sole surviving grandchild [or
grandchildren] of the decedent ….
"(6) The surviving parent or parents of the
decedent. …
" …." 4
(Emphasis added.)
Relevant to the facts here, under subsection (a), a decedent's
"surviving spouse" has priority status over a "surviving parent" of a
decedent with regard to the right of disposition. It is undisputed that the
decedent died without a written directive regarding the disposition of her
remains; thus, except as otherwise provided in subsection (b), the spouse,
rather than the father, was entitled to the right to control the disposition
of the decedent's remains, "including the location, manner, and
conditions of disposition and arrangements for funeral and burial goods
and services to be provided."5 § 34-13-11(a).
4The statute lists in priority 13 classes of persons entitled to the
right of disposition.
5Contrary to the probate court's findings, the plain language of §
34-13-11 does not restrict "disposition of the remains" to deciding merely
whether the remains should be buried or cremated. The plain wording
of the statute also provides that the right to control the disposition of
remains would also include the right to control "arrangements for funeral
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But, § 34-13-11(b) sets forth the following five circumstances in
which the right of disposition "shall be forfeited and passed to the next
qualifying person listed in subsection (a)":
"(1) [When the] person is charged with murder or
manslaughter in connection with the death of the decedent
and the charges are known by the mortician. If the charges
against the person are dismissed or the person is acquitted of
the charges, the right of disposition shall be reinstated.
"(2) [When the] person does not exercise his or her right
of disposition within two days after notification of the death
of the decedent or within three days after the death of the
decedent, whichever is earlier.
"(3) If the person is the spouse of the decedent and a
petition to dissolve the marriage was pending at the time of
death of the decedent.
"(4) If the judge of probate court determines, pursuant
to subsection (c), that the person entitled to the right of
disposition and the decedent were estranged at the time of
death. For the purposes of this subdivision, estranged means
a physical and emotional separation that has existed for such
a period of time that an absence of affection, trust, and regard
for the decedent is clearly demonstrated."
(Emphasis added.)
Subsection (b)(4) contemplates that the probate court will employ a
fact-finding analysis regarding whether there was an estrangement, i.e.,
and burial goods and services to be provided." § 34-13-11(a); see also § 34-
13-1(22), Ala. Code 1975 (defining "funeral arrangements").
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whether there was "a physical and emotional separation." Because the
probate court erroneously determined that cremation of the remains
rendered the father's requested relief moot, it never engaged in a fact-
finding analysis regarding whether the decedent and the spouse were
estranged at the time of the decedent's death.
Section 34-13-11(c) provides:
"[1.] Notwithstanding subsections (a) and (b), the judge of
probate of the county of residence of the decedent may award
the right of disposition to the person the judge of probate
determines to be the most fit and appropriate to manage the
right of disposition, and may make decisions regarding the
remains of the decedent if the persons possessing the right of
disposition do not agree. [2.] If two or more persons who
possess an equal right of disposition are not able by majority
vote to agree upon the disposition of the remains of the
decedent, any of those persons or the funeral establishment
with custody of the remains may file a petition asking the
judge of probate to make a determination in the matter. In
making such a determination, the judge of probate shall
consider all of the following:
"(1) The reasonableness and practicality of
the proposed funeral and disposition
arrangements.
"(2) The degree of the personal relationship
between the decedent and each person possessing
a right of disposition.
"(3) The financial ability and willingness of
each person possessing a right of disposition to pay
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the cost of the funeral and disposition
arrangements.
"(4) The convenience and needs of other
family members and friends who wish to pay their
respects and the degree to which the funeral
arrangements would allow maximum
participation by all who wish to pay their respects.
"(5) The desires of the decedent."
Subsection (c) clearly empowers the probate court to resolve
disputes and to make decisions regarding the right of disposition. The
first sentence of subsection (c) contemplates that, notwithstanding the
priority structure set forth in subsection (a), and notwithstanding the
circumstances constituting forfeiture listed in subsection (b), the probate
court may still award the right of disposition to "the person" the probate
court determines "to be the most fit and appropriate to manage the right
of disposition …." Applying the statute to the facts, if the spouse was
entitled to control the right of disposition under subsection (a), but he
forfeited that right under subsection (b) based on a probate court's finding
of estrangement, the probate court could still determine, pursuant to
subsection (c), that the spouse would be the "most fit and appropriate"
person to manage the right of disposition. In summary, the first sentence
of subsection (c) contemplates that a person with a lower priority status
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under subsection (a) may challenge another person's priority status
under the statute; therefore, in this case, the father was permitted to
challenge the spouse's priority status based on an allegation of
estrangement.
In comparison, the second sentence of subsection (c) relates solely
to disputes between persons possessing an "equal" right of disposition,
such as siblings or parents. That sentence states that, if two or more
persons possessing an equal right of disposition are not able to agree
upon the right of disposition, "any of those persons or the funeral
establishment with custody of the remains may file a petition asking the
judge of probate to make a determination in the matter." Immediately
thereafter, subsection (c) provides that, "[i]n making such a
determination, the judge … shall consider" the five factors listed.
Subsection (c), then, clearly requires a specific analysis by the probate
court in deciding disputes among persons possessing an equal right of
disposition.
Notably absent from subsection (c) is any language authorizing
persons who do not possess an equal right of disposition, such as the
father and the spouse in this case, to file a petition in the probate court
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seeking a determination regarding the right of disposition. However,
nothing in the statute expressly precludes persons not possessing an
equal right of disposition from filing such a petition. The fact that the
statute contemplates that a probate court may determine that the person
entitled to the right of disposition and the decedent were estranged at the
time of the decedent's death implies that a petition seeking such a
determination is permitted. The legislature has dictated that we should
liberally construe the statute. See § 34-13-2, Ala. Code 1975 (noting that
Chapter 13 of Title 34 "shall be construed liberally and in a manner to
carry out its obvious intents and purposes"). 6 Thus, contrary to the
defendants' argument, the father had the capacity to petition the probate
court for a determination on the issue of estrangement.
In summary, subsection (a) lists in priority those persons legally
authorized to control the disposition of a decedent's remains, subsection
(b) lists specific circumstances in which a person entitled to the right of
disposition forfeits that right to the next qualifying person listed in
6Section 34-13-2 was amended effective May 1, 2022, after the
proceedings leading to the probate appeal were initiated. Before that
amendment, the statute provided, in relevant part, that "all the
provisions of [Chapter 13 of Title 34] shall be construed liberally and in
a manner to carry out its obvious intents and purposes."
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subsection (a), and subsection (c) empowers a probate court to resolve
disputes regarding the right of disposition.7 Based on the foregoing, we
agree with the father that the plain language of § 34-13-11(b)(4), coupled
with the evidence presented at the preliminary-injunction hearing,
demonstrated that the father has a reasonable chance of success on the
ultimate merits of the probate appeal.
B. Irreparable Harm for Which There is No Adequate Remedy at Law
The father asserts that he demonstrated a level of irreparable harm
that would support injunctive relief because, he says, if the defendants
destroy the ashes, he will have no adequate remedy at law. We agree
that the father has met his burden of demonstrating irreparable harm
for which there is no adequate remedy at law. In Water Works & Sewer
Board of Birmingham v. Inland Lake Investments, LLC, 31 So. 3d 686,
692 (Ala. 2009), this Court stated that
" ' "[i]rreparable injury" is an injury that is not redressable in
a court of law through an award of money damages.' Perley v.
Tapscan, Inc., 646 So. 2d 585, 587 (Ala. 1994). The Court has
likewise stated that '[a] plaintiff that can recover damages has
an adequate remedy at law and is not entitled to an
injunction.' SouthTrust Bank of Alabama, N.A. v. Webb-Stiles
Co., 931 So. 2d 706, 709 (Ala. 2005). Thus, 'a conclusion that
7Although § 34-13-11 also contains subsections (d) and (e), those
subsections are irrelevant to the facts presented in this appeal.
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the injury is irreparable necessarily shows that there is no
adequate remedy at law.' Fleet Wholesale Supply Co. v.
Remington Arms Co., 846 F.2d 1095, 1098 (7th Cir. 1988)."
(Footnote omitted.)
The defendants do not dispute that the father would have an
inadequate remedy at law should the injunction not issue. Rather, the
defendants argue that, because the evidence confirms that none of the
defendants had possession of the ashes at the time of the preliminary-
injunction hearing, the relief sought by the father could not be compelled.
In other words, the defendants contend that, because they voluntarily
ceased the challenged conduct in this case, appellate review is moot. For
the reasons discussed below, we disagree.
In Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013), the United
States Supreme Court elaborated on the voluntary-cessation doctrine,
explaining:
"We have recognized, however, that a defendant cannot
automatically moot a case simply by ending its unlawful
conduct once sued. City of Mesquite v. Aladdin's Castle, Inc.,
455 U.S. 283, 289 (1982). Otherwise, a defendant could engage
in unlawful conduct, stop when sued to have the case declared
moot, then pick up where he left off, repeating this cycle until
he achieves all his unlawful ends. Given this concern, our
cases have explained that 'a defendant claiming that its
voluntary compliance moots a case bears the formidable
burden of showing that it is absolutely clear the allegedly
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wrongful behavior could not reasonably be expected to recur.'
Friends of the Earth, Inc. v. Laidlaw Environmental Services
(TOC), Inc., 528 U.S. 167, 190 (2000)."
See also City News & Novelty, Inc. v. City of Waukesha, 531 U.S. 278,
284 n.1 (2001) (noting that the voluntary-cessation doctrine "traces to the
principle that a party should not be able to evade judicial review, or to
defeat a judgment, by temporarily altering questionable behavior"); see
also Knox v. Service Emps. Int'l Union, Local 1000, 567 U.S. 298, 307
(2012) (noting that the voluntary cessation of challenged conduct "must
be viewed with a critical eye").
The challenged conduct here is the spouse's relinquishing
possession of the ashes during an ongoing dispute concerning who has
the right to control the disposition of the ashes under § 34-13-11. During
the preliminary-injunction hearing, the spouse offered no evidence as to
why he had relinquished possession of the ashes to nonparties, and he
provided no evidence indicating that he did not intend to regain
possession of the ashes. In fact, it appears more likely than not that the
spouse will at some point regain possession of the ashes based on his
testimony that he wanted the ashes for his minor daughter. More
critically, this lack of evidence calls into question the spouse's motivation
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in relinquishing possession of the ashes before the scheduled
preliminary-injunction hearing and while the probate appeal concerning
competing claims to the right to control the disposition of the ashes is still
pending. Under these circumstances, we conclude that the spouse's
relinquishing possession of the ashes creates a presumption of his intent
to evade not only the circuit court's injunctive power over the defendants
or the ashes, but also this Court's appellate review. Accordingly, the
defendants have not demonstrated that the father's request for injunctive
relief was moot under the voluntary-cessation doctrine. See Ellis v.
Brotherhood of Ry., Airline, and Steamship Clerks, 466 U.S. 435, 442
(1984) ("[A]s long as the parties have a concrete interest, however small,
in the outcome of the litigation, the case is not moot.").
C. Whether the Hardships to the Defendants Unreasonably Outweigh
the Benefits to the Father
Finally, the father argues that any harm imposed on the defendants
as a result of the issuance of a preliminary injunction would clearly be
outweighed by the benefit accruing to him. We agree. The father asserts
that the issuance of the injunction would simply maintain the status quo
by requiring the defendants to take no further action regarding the ashes
pending a final hearing on the merits of the probate appeal. See Irwin v.
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Jefferson Cnty. Pers. Bd., 263 So. 3d 698, 702-03 (Ala. 2018) (noting that
the purpose of a preliminary injunction "is to maintain the status quo
pending the resolution of the action on its merits"). The father points out
that, despite having knowledge of the pending litigation over the right of
disposition, the funeral home, at the spouse's direction, divided the ashes
and that the spouse thereafter relinquished possession of the ashes to
"third parties" on his own initiative, seemingly in an attempt to defeat
the interest of the father and to avoid any accountability for his actions.
The father also asserts that the benefit flowing from the issuance of a
preliminary injunction pending a final hearing on the merits of the
probate appeal will ensure that he will be able to "lay his decedent's
cremains in a final resting place according to her wishes." Finally, the
father reasserts that, in the event the defendants dispose of the ashes, he
will suffer irreparable damage for which there is no adequate remedy at
law. Thus, the father argues that he does not have any other means by
which to maintain the integrity of the ashes pending a final hearing on
the merits of the probate appeal. Notably, the defendants do not dispute
the father's argument that they would not suffer any hardship if a
preliminary injunction issued pending a final hearing on the merits of
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the probate appeal. Accordingly, the father has demonstrated that any
harm imposed on the defendants by the issuance of a preliminary
injunction would not unreasonably outweigh the benefit accruing to him.
IV. Conclusion
Based on the foregoing, we conclude that the circuit court exceeded
its discretion in denying the father's motion for a preliminary injunction
pending a final hearing on the merits of the probate appeal. Accordingly,
the order of the circuit court denying the father's motion for a preliminary
injunction is reversed, and the cause is remanded for proceedings
consistent with this opinion.
REVERSED AND REMANDED.
Wise, Mendheim, Stewart, Mitchell, and Cook, JJ., concur.
Parker, C.J., concurs in part and concurs in the result, with opinion.
Shaw and Bryan, JJ., concur in the result.
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PARKER, Chief Justice (concurring in part and concurring in the result).
I agree that the decedent's father's request for a preliminary
injunction is not moot, but for reasons different from those in the main
opinion. I do not believe that the voluntary-cessation doctrine is relevant
here. That doctrine is relevant when a litigant has voluntarily complied
with the relief sought by the opposing party. See, e.g., City of Mesquite
v. Aladdin's Castle, Inc., 455 U.S. 283, 289 (1982); Friends of the Earth,
Inc. v. Laidlaw Env't Servs. (TOC), Inc., 528 U.S. 167, 189-90 (2000).
Here, the father sought the relief of an order prohibiting the defendants
(and anyone acting in concert with them) from handling or disposing of
-- or allowing or facilitating anyone else to handle or dispose of -- the
decedent's ashes during the pendency of the appeal of the probate court's
order. In effect, the father sought to maintain the status quo during that
appeal. The defendants do not argue that they have voluntarily complied
with that requested relief. Instead, they argue that they have already
done what the father sought to prohibit -- i.e., that they have already
altered the status quo -- by the funeral home's transferring the ashes to
the decedent's spouse and the spouse's transferring the ashes to
nonparties. That type of conduct is the opposite of voluntary cessation.
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Cf. Mead v. Eagerton, 255 Ala. 66, 72, 50 So. 2d 253, 257 (1951) ("In our
case, instead of abandoning the matter sought to be enjoined, the
respondents proceeded to do it.").
I believe that the father's requested relief is not moot because that
relief is still within the circuit court's power. When an injunction request
concerns the disposition of property or objects, the court's power is not
limited to prohibiting parties to the case from altering or transferring the
property or objects. The injunction power extends well beyond that: The
court may command parties to regain possession, see Mead, 255 Ala. at
70-72, 50 So. 2d at 256-58; Paris v. United States Dep't of Hous. & Urb.
Dev., 713 F.2d 1341, 1344-45 (7th Cir. 1983), and may even control the
conduct of nonparties who are sufficiently connected to the case, see Rule
65(d), Ala. R. Civ. P.; Ex parte Richardson, 380 So. 2d 831 (Ala. 1980).
Thus, even after the defendants transferred the ashes, the father's
requested relief of directing the defendants and connected persons to
maintain the status quo of the ashes -- whatever that status quo
currently is -- was within the circuit court's power. Moreover, the
defendants' intent and motives in transferring the ashes are not relevant
to the question of mootness. The sole issue is whether their transfers of
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the ashes (for whatever reasons, good or bad) were sufficient to moot the
father's requested relief. For the above reasons, they were not.
In addition, I agree with the main opinion's conclusion that the
elements for obtaining a preliminary injunction were satisfied and with
the opinion's analysis of the disposition-of-remains statute, § 34-13-11,
Ala. Code 1975. However, the opinion intermixes its analysis of three of
the elements for obtaining a preliminary injunction -- irreparable injury,
no adequate remedy at law, and balancing of hardships and benefits. I
believe that those elements are conceptually separate. See State ex rel.
Marshall v. TY Green's Massage Therapy, Inc., 332 So. 3d 413, 427-30
(Ala. 2021) (Parker, C.J., concurring in the result).
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