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.
SC-2022-0787

2

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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3

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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4

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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5

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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6

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] 
SC-2022-0787

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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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8

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
SC-2022-0787

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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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11

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. 
SC-2022-0787

12

"(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 
SC-2022-0787

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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 factfinding 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
SC-2022-0787

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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 preliminaryinjunction 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 
SC-2022-0787

26

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).