REL: 08/15/2014




Notice: This opinion is subject to formal revision before publication in the advance
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Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
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the opinion is printed in Southern Reporter.




          SUPREME COURT OF ALABAMA
                              SPECIAL TERM, 2014
                             ____________________

                                    1130609
                             ____________________

                           Franklin Leroy Stephens

                                           v.

                                   Hazel Colley

                      Appeal from Pike Circuit Court
                              (CV-13-900180)



STUART, Justice.

      Franklin Leroy Stephens, the defendant below, appeals

from an order of the Pike Circuit Court granting injunctive

relief to the plaintiff below, Hazel Colley.                        We reverse and

remand.
1130609

                               I.

    In late 2011, Sara Frances Dees was residing at Troy

Health and Rehabilitation Center following the amputation of

her second leg as a result of diabetes and related circulation

issues.    On approximately January 15, 2012, Stephens –– a

nephew of both Dees and Colley –– checked Dees out of the

rehabilitation center and moved her back into her house in

Troy.     Stephens and an unidentified female companion also

moved into the house and began caring for Dees.           Colley

alleges that Stephens thereafter began restricting access to

Dees, preventing Colley and Dees's friends from speaking with

her on the telephone or visiting with her outside his or his

female companion's presence.       Colley, who lives in Opelika,

alleges that she had previously had a close relationship with

her sister and had stayed with her for weeks at a time to help

with her medical needs; however, she alleges, once Stephens

moved into Dees's house Stephens would no longer allow her to

stay with Dees overnight.

    Over the course of 2012, Stephens's role in Dees's life

continued to increase.   In September 2012, Stephens scheduled

two separate appointments for Dees with an attorney.      At the


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1130609

first of those appointments on September 26, 2012, Dees

executed a durable power of attorney designating Stephens as

Dees's attorney-in-fact. At a second appointment on September

28, 2012, Dees executed a new will naming Stephens as executor

and   primary    heir   of   her   estate.    These   newly   executed

documents replaced a previous durable power of attorney naming

Colley as Dees's attorney-in-fact and a will naming Colley as

executor and primary heir of Dees's estate, both of which Dees

had executed in July 2011.1

      Beginning in October 2012, Stephens also began taking

Dees to the various financial institutions at which she had

deposits and requesting that he either be added to all her

accounts as a signatory or be named as the beneficiary on the

accounts.    The evidence in the record indicates that multiple

bank employees involved in those requests were alarmed by

Stephens's      actions.     For   example,   Kathryn   Faircloth,   a

personal banker at Troy Bank and Trust, made the following

statement in an affidavit submitted to the trial court:



      1
     Dees had also executed a document naming Colley as her
health-care proxy in July 2011.      There is no evidence
indicating that this document was subsequently revoked or
superseded by a later document.
                                    3
1130609

         "Mrs. Sara Dees has banked with Troy Bank and
    Trust for many years. In working with her on her
    banking needs, I met her sister, Hazel Colley, and
    have spoken with each of them often regarding Mrs.
    Dees   checking   accounts   as  well   as   several
    certificates of deposit. Mrs. Dees executed a power
    of attorney which named Mrs. Colley as her attorney-
    in-fact and supplied a copy of that to the bank.
    Mrs. Dees listed Hazel Colley as joint owner on her
    personal checking account and also as a pay-on-death
    beneficiary on certain certificates of deposit.
    Even when Mrs. Dees married Marion Dees, Hazel
    Colley remained on her checking account and some
    certificates of deposit as pay-on-death.[2] Marion
    was on the checking account for a period of time and
    then came off but Hazel remained on the checking
    account.

         "Mrs. Dees was brought to the bank by Leroy
    Stephens in 2012, who stated that he was to be added
    as beneficiary of every financial instrument held by
    Mrs. Dees at [Troy Bank and Trust]. This included
    all of her certificates of deposit and her checking
    account.   Mrs. Dees's appearance was drastically
    different from how she appeared in our interactions
    through the years.    She did not appear alert or
    fully aware of the changes stated by Stephens. This
    was very out of character for Mrs. Dees because she
    always listed her sister Mrs. Colley as beneficiary
    on all of her certificates of deposit, even when she
    was married to Marion Dees.     Mr. Stephens was so
    adamant to make these changes to Mrs. Dees's
    accounts that he called me regularly wanting to know
    when the paperwork on all certificates of deposit

    2
     The record indicates that Marion Dees died shortly after
Sara Dees, but it is otherwise silent regarding him and his
relationship with Dees. It is not clear whether he lived with
Sara Dees and Stephens throughout 2012 or whether he lived
somewhere else. However, it appears that he was not involved
in her life during this time, whether for health, personal, or
other reasons.
                              4
1130609

    and bank accounts would be completed and ready for
    Mrs. Dees's signature.

         "I grew concerned while making these changes
    because I noticed several large checks clearing out
    of her checking account. Each of the large checks
    were made payable to Leroy Stephens, most of them
    with the memo listed as 'bills.' Checks were also
    clearing her account for her bills in addition to
    these large checks made payable to Mr. Stephens. I
    immediately notified my supervisor of the large
    checks clearing her account that were abnormal from
    her typical usage. My supervisor then consulted the
    bank's security officer, who advised that absent any
    order from a judge that declared Mrs. Dees not
    competent, we could not refuse to add Stephens to
    her accounts or cash checks she signed made payable
    to Mr. Stephens."

It appears that Stephens was thereafter successfully added as

a signatory or beneficiary to all of Dees's accounts.

    On February 16, 2013, Dees passed away.      Thereafter,

Stephens began exercising control of those accounts on which

he had been listed as the payable-on-death beneficiary.    The

value of those accounts appears to have exceeded $300,000 at

that time.   On February 22, 2013, Stephens submitted Dees's

will to the Pike Probate Court and petitioned the probate

court to name him executor of Dees's estate consistent with

the terms of that will; on March 1, 2013, the probate court

granted that petition.   On March 8, 2013, Colley separately

moved both the probate court and the Pike Circuit Court to

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1130609

have the administration of Dees's estate removed to the

circuit court.      Colley simultaneously moved the circuit court

to remove Stephens as the executor of Dees's estate pursuant

to § 43-2-22(a), Ala. Code 1975, because Stephens had been

convicted in 1990 of manslaughter.3          On April 17, 2013, the

circuit    court    granted   Colley's      motion   and    ordered   the

administration of Dees's estate removed to the circuit court.

Following a hearing on April 24, 2013, the circuit court also

granted Colley's motion to remove Stephens as executor of

Dees's    estate.     Pursuant   to   the   terms    of    Dees's   will,

Stephens's daughter, Sonya S. Bolling, was eventually named as

successor executrix of Dees's estate.

    On August 26, 2013, Colley filed an amended complaint

seeking to set aside the power of attorney and will executed

by Dees in 2012, alleging that Dees was incompetent at the

time those documents were executed and that Stephens had


    3
        Section 43-2-22(a) provides, in pertinent part:

    "No person must be deemed a fit person to serve as
    executor who is under the age of 19 years, or who
    has been convicted of an infamous crime, or who,
    from   intemperance,  improvidence   or  want   of
    understanding, is incompetent to discharge the
    duties of the trust."


                                  6
1130609

procured     them    via    fraud,    misrepresentation,      and   undue

influence.4        On October 30, 2013, Colley initiated a new

action     asserting   multiple      undue-influence    and    breach-of-

fiduciary-duty claims against Stephens. Colley simultaneously

moved the circuit court to exhume Dees's remains and to

consolidate this new action with the already existing action;

the circuit court granted the motion to consolidate the next

day.

       Colley thereafter continued the discovery process, taking

depositions and subpoenaing Dees's financial records.                 On

February     19,    2014,   after    obtaining   and   reviewing    those

records, Colley moved the circuit court to enter a temporary

restraining order barring Stephens from spending any further

money that he had obtained from Dees's accounts or taking any

action that would affect the title to Dees's house, in which

Stephens continued to live after Dees's death.                Colley also

requested that Stephens be ordered to divulge where all assets

formerly held by Dees were located and that Troy Bank and

Trust and Wells Fargo be ordered to pay all funds in Dees's

       4
     Colley's March 2013 motion to remove Dees's estate to the
circuit court appears to have been treated as a complaint
initiating an action even though it did not formally assert
any cause of action.
                                      7
1130609

accounts, which were then held in Stephens's name, an amount

totaling          approximately      $72,000,   into     the    circuit      court.

Colley simultaneously moved the circuit court to enter a

preliminary injunction extending the terms of the temporary

restraining order until this litigation was resolved.                           The

circuit court issued the requested temporary restraining order

that       same    day   and   set    a   hearing   on    the    motion      for   a

preliminary injunction for February 24, 2014.

       Following         the   February    24   hearing,       which   consisted

entirely of arguments by counsel, Colley, on February 26,

submitted a supplemental motion for injunctive relief to the

circuit       court,      along   with    various   affidavits         and    other

documentary evidence. On February 27, 2014, the circuit court

entered an order granting Colley the injunctive relief she had

sought, stating:

            "Having  considered   [Colley's]   motion   for
       injunctive relief, this court finds said motion well
       taken. Accordingly, it is ordered that all funds
       not previously frozen or transferred in accordance
       with the temporary restraining order issued on
       February 19, 2014, from Troy Bank and Trust in Troy,
       Alabama, Wells Fargo Advisors in Troy, Alabama, and
       Trustmark National Bank in Brewton, Alabama,[5] in

       5
     Colley's initial application for injunctive relief filed
on February 19, 2014, identified only financial accounts held
by Stephens at Troy Bank and Trust and Wells Fargo. At the
                                          8
1130609

    the name of Leroy Stephens be immediately paid to
    the Circuit Clerk of Pike County, Alabama, who is
    ordered to hold said funds until a final judgment is
    entered in the above styled case.

         "It is further ordered that neither the Estate
    of Sara Dees nor Leroy Stephens shall transfer
    title, rent, lease, or dispense of the real property
    located at ... Avenue, Troy, Alabama, and that the
    aforementioned property shall remain in the name of
    Sara Dees, pending a final judgment in this matter.

         "Defendant Franklin Leroy Stephens is barred
    from transferring, selling, or dispensing of any
    property received from Dees during her lifetime, and
    is further ordered to provide a complete accounting
    of assets obtained through the estate of Sara
    Frances Dees at the time of her death, including but
    not limited to:        the 2010 Pontiac vehicle
    transferred to [Stephens] prior to Dees's death, all
    furnishings of Dees's home, all jewelry owned by
    Dees, and personal items of value.

         "A copy of this order shall be provided to all
    counsel of record and to the below listed banks."

On March 7, 2014, Stephens filed a notice of appeal to this

Court challenging the preliminary injunction entered by the

circuit court.6




February 24, 2014, hearing, Colley advised the trial court of
another account maintained by Stephens at Trustmark National
Bank.
    6
     Also on March 7, 2014, the trial court modified the terms
of the February 27 preliminary injunction to make it subject
to Colley's posting a $2,500 security bond.
                              9
1130609

                             II.

         "When this Court reviews the grant or denial of
    a preliminary injunction, '"[w]e review the ...
    [c]ourt's legal rulings de novo and its ultimate
    decision to issue the preliminary injunction for [an
    excess] of discretion."'     Holiday Isle, LLC v.
    Adkins, 12 So. 3d 1173, 1176 (Ala. 2008) (quoting
    Gonzales v. O Centro Espirita Beneficente Uniao do
    Vegetal, 546 U.S. 418, 428, 126 S.Ct. 1211, 163
    L.Ed.2d 1017 (2006))."

Monte Sano Research Corp. v. Kratos Defense & Sec. Solutions,

Inc., 99 So. 3d 855, 861-62 (Ala. 2012).

                            III.

    When reviewing a preliminary injunction, this Court must

consider both whether the evidence in the record supports the

issuance of the preliminary injunction and whether the form of

the preliminary-injunction order itself complies with the

requirements of Rule 65(d)(2), Ala. R. Civ. P.   We review the

evidence to determine whether the following elements set forth

in Perley ex rel. Tapscan, Inc. v. Tapscan, Inc., 646 So. 2d

585, 587 (Ala. 1994), were established:

         "In order for a trial court to grant a
    preliminary injunction, the plaintiff must show all
    of the following: 1) that without the injunction
    the plaintiff would suffer immediate and irreparable
    injury; (2) that the plaintiff has no adequate
    remedy at law; (3) that the plaintiff has at least
    a reasonable chance of success on the ultimate
    merits of his case; and (4) that the hardship

                             10
1130609

    imposed on the defendant by the injunction would not
    unreasonably outweigh the benefit accruing to the
    plaintiff."

(Citing Martin v. First Fed. Sav. & Loan Ass'n of Andalusia,

559 So. 2d 1075 (Ala. 1990); Board of Dental Exam'rs of

Alabama v. Franks, 507 So. 2d 517 (Ala. Civ. App. 1986), writ

quashed, 507 So. 2d 521 (Ala. 1987)). Rule 65(d)(2) meanwhile

sets forth the elements that every preliminary-injunction

order must contain:

    "Every order granting an injunction shall set forth
    the reasons for its issuance; shall be specific in
    terms; shall describe in reasonable detail, and not
    by reference to the complaint or other document, the
    act or acts sought to be restrained; and is binding
    only upon the parties to the action, their officers,
    agents, servants, employees, and attorneys, and upon
    those persons in active concert or participation
    with them who receive actual notice of the order by
    personal service or otherwise."

    On appeal, Stephens argues both that Colley failed to

establish by competent evidence the four elements set forth in

Perley and that the circuit court's preliminary-injunction

order does not comply with Rule 65(d)(2). In this case, it is

clear on its face that the circuit court's order does not

comply with Rule 65(d)(2).   Accordingly, we need not consider

whether the evidence ultimately supports the issuance of the

preliminary injunction because the order is due to be reversed

                              11
1130609

regardless of whether the evidence supports the issuance of

the injunction.          See Marathon Constr. & Demolition, LLC v.

King Metal Recycling & Processing Corp., 129 So. 3d 272, 276

n. 3 (Ala. 2013) ("The defendants make other complaints about

the trial court's November 28, 2012, order ....                  Because the

trial court's failure to comply with the requirements of Rule

65 is dispositive, we need not reach the other arguments.").

       "Pursuant        to    Rule   65,    it    is   mandatory    that   a

preliminary-injunction order give reasons for the issuance of

the injunction, that it be specific in its terms, and that it

describe in reasonable detail the act or acts sought to be

restrained."       Monte Sano Research Corp., 99 So. 3d at 863.

The February 27, 2014, order in this case is sufficiently

specific in its terms and describes in reasonable detail the

acts    sought     to    be   restrained;    however,     it    contains   no

explanation of the reasons for its issuance.                    Instead, the

order    opens     by    stating     that   the   court   has    "considered

[Colley's] motion for injunctive relief [and] finds said

motion well taken."           Then the order immediately proceeds to

detail the specific acts that it requires or prohibits.                 What




                                       12
1130609

is missing from the order is any discussion of the reasons

Colley's motion for injunctive relief was "well taken."

    In her brief to this Court, Colley acknowledges this flaw

in the order but argues that the preliminary injunction is

nevertheless due to be upheld:

    "While the order does not specifically state the
    reasons for granting the injunction, the order does
    state that 'having considered plaintiff's motion for
    injunctive relief, this court finds said motion well
    taken,' a clear sign that the trial court has
    considered all evidence and is granting [Colley's]
    motion for the reasons stated and evidence provided
    in   [her]   motion   for  injunctive   relief   and
    supplemental motion for injunctive relief, and the
    arguments raised at the motion for injunctive relief
    hearing."

Colley's brief, at p. 23.           However, accepting this argument

would   require   us    to    ignore   the    clear   language   of   Rule

65(d)(2), and we are not inclined to do so.             "This Court has

repeatedly   held      that   the   language     of   Rule   65(d)(2)   is

mandatory and requires that an order issuing a preliminary

injunction state reasons for issuing the injunction and that

it be specific in its terms."              Butler v. Roome, 907 So. 2d

432, 434 (Ala. 2005). Moreover, we have repeatedly reaffirmed

the mandatory nature of Rule 65(d)(2) in every case in which

we have considered the issue.             See, e.g., Marathon Constr. &


                                     13
1130609

Demolition, 129 So. 3d at 279 (concluding that the trial court

"exceeded the scope of its discretion in issuing the ...

preliminary injunction because it did not comply with the

requirements set forth in Rule 65"); Monte Sano Research

Corp., 99 So. 3d at 863 ("[A]n examination of the trial

court's order reveals that it violated Rule 65(d)(2), Ala. R.

Civ. P., by failing to provide the reasons for the issuance of

the injunction ...."); Walden v. ES Capital, LLC, 89 So. 3d

90, 111 (Ala. 2011) ("Because the reasons for the issuance of

the injunction were clearly indicated on the face of the order

and because those reasons were, as demonstrated by the present

case, well founded, we reject [the appellant's] contentions

that the trial court's order fails to satisfy the mandatory

requirements of Rule 65(d)(2)."); and Hall v. Reynolds, 27 So.

3d 479, 481 (Ala. 2009) ("Although the trial court may have

intended to grant injunctive relief by simply entering a

judgment in favor of the [appellees], it did not do so, and it

followed none of the mandatory requirements of Rule 65(d)(2),

Ala. R. Civ. P.").   In sum, the circuit court's failure to

include in the preliminary-injunction order the reasons for

granting Colley's motion for injunctive relief requires the


                             14
1130609

reversal of that order regardless of the fact that the circuit

court presumably had its reasons for granting the order,

though those reasons were not articulated in the order.

                                   IV.

    Following the entry of a preliminary injunction against

him by the circuit court, Stephens appealed to this Court,

arguing that the order entering the preliminary injunction was

invalid because, he said, it failed to comply with Rule

65(d)(2) and was due to be reversed because, he alleged, it

was not supported by competent evidence.            Because the circuit

court failed to state its reasons for entering the preliminary

injunction in the order doing so, the order must be reversed

for noncompliance with Rule 65(d)(2).               This noncompliance

obviates the need to consider Stephens's other argument that

there was insufficient evidence before the circuit court to

merit the entry of a preliminary injunction. We further note,

however,    that   our   holding   in    this    regard   should   not    be

construed    as    precluding   Colley    from    requesting   that      the

circuit court again issue a preliminary injunction should she

still deem such an injunction advisable.            Any such injunction

that might be entered, however, is subject to further review


                                   15
1130609

to determine its compliance with Rule 65(d)(2), as well as to

determine whether competent evidence exists to conclude that

the elements set forth in Perley were established.7

    REVERSED AND REMANDED.

    Moore, C.J., and Parker and Wise, JJ., concur.

    Shaw, J., concurs in the result.




    7
      In other words, this case is distinguishable from
Bankruptcy Authorities, Inc. v. State, 620 So. 2d 626 (Ala.
1992), in which this Court, after reversing an order entering
a preliminary injunction for failure to comply with Rule
65(d)(2), declined to consider in a subsequent appeal whether
there was sufficient evidentiary support for a newly entered
and Rule 65(d)(2)-compliant preliminary injunction because the
appellant had not asserted a sufficiency-of-the-evidence
argument in its initial appeal decided on Rule 65(d)(2)
grounds.
                             16
1130609

SHAW, Justice (concurring in the result).

    The preliminary-injunction order in this case does not

explicitly state the reasons for its issuance; instead, it can

be read to incorporate, by reference, the reasons provided in

Hazel Colley's motion for injunctive relief.

    Rule 65(d)(2), Ala. R. Civ. P., states that an "order

granting an injunction shall set forth the reasons for its

issuance ...."   I am concerned that this language does not

necessarily preclude incorporating those reasons from another

document.   Specifically, I note that Rule 65(d)(2) only

explicitly forbids incorporation by reference of a description

of the acts to be restrained: "[the order] shall describe in

reasonable detail, and not by reference to the complaint or

other document, the act or acts sought to be restrained ...."

On the other hand, the rule states that the "reasons for its

issuance" are to be "set forth," but this requirement does not

include a prohibition on referring to another document.

    Because there is an explicit prohibition on referring to

other documents as to one component of the order (the act

sought to be restrained), but not another (the reasons for its

issuance), one could reasonably conclude that reference to


                             17
1130609

another document might be acceptable for the latter.8                Such a

distinction    is     reasonable:   the    party      restrained    by    the

injunction needs to know precisely what acts are or are not

permitted; thus, the issuing court should independently state

the restrictions to ensure that they are clear.9                 However, a

party   does   not,    necessarily,      need   the    issuing    court    to

independently describe the reasons for the injunction.                     An

appellate court is more than able to review in the record any

documents referred to that might provide the issuing court's

reasons.   Under this analysis, the trial court's order in the

instant case is sufficient to comply with Rule 65(d)(2).

    The caselaw, however, is not on my side.                     See, e.g.,

Monte Sano Research Corp. v. Kratos Defense & Sec. Solutions,

Inc., 99 So. 3d 855, 863 (Ala. 2012) ("[A]n examination of the

trial court's order reveals that it violated Rule 65(d)(2),

Ala. R. Civ. P., by failing to provide the reasons for the

issuance of the injunction ...."); Butler v. Roome, 907 So. 2d

    8
     Because Rule 65 is a rule of this Court, I do not believe
that separation-of-powers concerns require us to apply the
plain-language rule of statutory construction.
    9
     See also Rule 65(d)(1), which provides that the acts to
be restrained by a restraining order shall be "describe[d] in
reasonable detail, and not by reference to the complaint or
other document ...."
                                    18
1130609

432, 435 (Ala. 2005) ("[T]he trial court's order in this case

does not contain the reasons for its issuance ...."); and

Teleprompter of Mobile, Inc. v. Bayou Cable TV, 428 So. 2d 17,

20 (Ala. 1983) ("It is apparent the order does not comply with

Rule 65(d)(2). There are no reasons given for the issuance of

the preliminary injunction ....").10       These precedents are not

challenged on appeal; therefore, stare decisis advises me to

follow them.    Moore v. Prudential Residential Servs. Ltd.

P'ship, 849 So. 2d 914, 926 (Ala. 2002) ("Stare decisis

commands, at a minimum, a degree of respect from this Court

that makes it disinclined to overrule controlling precedent

when it is not invited to do so."), and Clay Kilgore Constr.,

Inc. v. Buchalter/Grant, L.L.C., 949 So. 2d 893, 898 (Ala.

2006)    (noting the   absence   of   a   specific   request   by   the

appellant to overrule existing authority and stating that,

"[e]ven if we would be amenable to such a request, we are not


    10
      As to this point, the decision in Marathon Construction
& Demolition, LLC v. King Metal Recycling & Processing Corp.,
129 So. 3d 272 (Ala. 2013), cited in the main opinion, was
joined by only four Justices: As to "that part of the
discussion that addresses the lack of compliance with Rule
65(d)(2), Ala. R. Civ. P.," I expressed no opinion. 129 So.
3d at 280 (Shaw, J., concurring in part and concurring in the
result). My concerns in Marathon were those I express now.


                                 19
1130609

inclined to abandon precedent without a specific invitation to

do so").   I therefore concur in the result.




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