Rel: June 14, 2024

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. 

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ALABAMA COURT OF CIVIL APPEALS

OCTOBER TERM, 2023-2024

_________________________

CL-2023-0673

_________________________

P.T.S. III 

v. 

S.S.

Appeal from Lee Circuit Court

(CV-23-23)

LEWIS, Judge.

P.T.S. III ("the stepson") appeals from an elder-abuse protection 

order entered by the Lee Circuit Court ("the trial court"). We affirm the 

trial court's order.
CL-2023-0673

2

Procedural History

S.S. ("the stepmother") was married to P.S., Jr. ("P.S."), at the time 

of the filing of the petition. P.S. died during the pendency of this action. 

The stepson is the son of P.S. and the stepson of S.S. 

On January 25, 2023, the stepmother, who was 70 years old, filed 

in the trial court a petition seeking an elder-abuse protection order 

against the stepson. On January 26, 2023, the trial court issued an ex 

parte elder-abuse protection order. On February 7, 2023, the stepson 

filed a motion to dissolve the ex parte order, and the trial court granted 

the motion on February 9, 2023. A trial was held on April 11, 2023. On 

April 12, 2023, the trial court entered an elder-abuse protection order 

against the stepson. 

The elder-abuse protection order provides, in pertinent part:

"The [stepson] is enjoined from threatening to commit or 

committing acts of abuse, as defined in the Elder Abuse 

Protection Order and Enforcement Act, against the: 

[stepmother].

"The [stepson] is restrained and enjoined from: Harassing[,] 

Stalking[,] Annoying[,] Telephoning[,] Contacting: the 

[stepmother]; OR Threatening or engaging in conduct that 

would place the following in reasonable fear of bodily injury: 

the [stepmother].
CL-2023-0673

3

"The [stepson] is ordered to stay away from: the 

[stepmother]'s residence.

"The [stepson] is removed and excluded from the residence of 

the [stepmother], regardless of ownership of the residence.

"The [stepson] is prohibited from transferring the funds, 

benefits, property, resources, belongings, or assets of the 

[stepmother] to any person other than the [stepmother].

"The [stepson] is restrained and enjoined from exercising 

control over the funds, benefits, property, resources, 

belongings, or assets of the [stepmother].

"The [stepson] is ordered to return custody or control of the 

funds, benefits, property, resources, belongings, or assets to 

the [stepmother].

"[The stepson] is to tender $25,000.00 to the [stepmother]'s 

attorney within 30 days, the court finding that [the stepson] 

had no ownership interest in the funds and was not acting on 

behalf of either of the owners of said funds when he took the 

funds."

(Capitalization in original.) 

On May 10, 2023, the stepson filed a timely postjudgment motion 

for a new trial and a motion for relief from judgment pursuant to Rules

59 and 60, Ala. R. Civ. P. In his postjudgment motion, the stepson alleged 

that "[t]he [stepmother] offered no evidence to support that [the 

stepson]'s actions rise to the level of abuse to require an elder abuse 

protection order." Further, the stepson alleged that "[t]he law requires 
CL-2023-0673

4

[the stepmother] to prove by a preponderance of the evidence that [the 

stepson] committed acts [of] elder abuse against [the stepmother], and 

[the stepmother] failed to do so." The stepson requested that his 

postjudgment motion be set for a hearing pursuant to Rule 59(g), Ala. R. 

Civ. P. 

On May 11, 2023, the stepmother filed a response to the stepson's 

postjudgment motion alleging that the stepson did not dispute any 

testimony or other evidence presented at the trial and requested that the 

trial court deny the stepson's postjudgment motion. To the extent that 

the postjudgment motion sought relief under Rule 59, that motion was 

denied by operation of law on August 8, 2023, pursuant to Rule 59.1, Ala. 

R. Civ. P.1 On September 18, 2023, the stepson filed his notice of appeal 

to this court.

Evidence

The sole witness at the trial was the stepmother. The following is 

a summary of her testimony. 

1To the extent that the postjudgment motion requested relief under 

Rule 60(b), Ala. R. Civ. P., we note that "[A Rule 60(b) motion] does not 

affect the finality of a judgment or suspend its operation." Ex parte 

R.S.C., 853 So. 2d 228, 233-34 (Ala. Civ. App. 2002).
CL-2023-0673

5

On March 31, 2022, the stepmother and P.S. received a statement 

regarding an account they held jointly with a right of survivorship ("the 

joint account") and discovered that $25,000 had been debited from that 

account. Thereafter, the stepmother and P.S. asked a bank employee to 

inform them who had made the withdrawal. A document provided by a 

bank employee indicated that the stepson had made the $25,000 

withdrawal from the joint account via cashier's check. The stepmother

and P.S. were designated as the account owners of the joint account and 

the stepson was designated as an authorized signer.2 

The stepson had never deposited money into the joint account, and,

based on the instructions of P.S., the stepson had not received any checks 

for the joint account. Neither the stepmother nor P.S. had given the

stepson permission to withdraw $25,000 from the joint account. 

2An exhibit introduced into evidence indicated that an authorized 

signer is an "[a]gent ... [who] may make account transactions for parties 

but ha[s] no ownership or rights at [the account owner's] death unless 

named as a P.O.D. (Payable on Death) account beneficiary." See Ala. 

Code 1975, § 5-24-11(d) ("An agent in an account with an agency 

designation has no beneficial right to sums on deposit.") Here, the 

stepson was also listed as a P.O.D. beneficiary; however, neither of the 

account holders had died at the time of the withdrawal. See Ala. Code 

1975, § 5-24-11(c) ("A beneficiary in an account having a POD designation 

has no right to sums on deposit during the lifetime of any party.")
CL-2023-0673

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Upon discovering that the stepson had withdrawn $25,000 from the 

joint account, the stepmother and P.S. telephoned the stepson. The 

stepson acknowledged that he had taken the $25,000 from the joint 

account without the permission of P.S. or the stepmother; that he knew 

it was not his money to withdraw; and that he would return the money. 

During the telephone conversation, the stepson said that he wished he 

had taken the entire balance of the joint account. Once the stepmother

and P.S. talked to the stepson, as a safeguard, they decided to close the

joint account and to open a new account. The stepson did not return the 

$25,000. 

Approximately nine months later, on December 31, 2022, P.S., who 

suffered from Parkinson's Disease, was hospitalized at East Alabama 

Medical Center. That day, the stepmother telephoned the stepson to 

inform the stepson of P.S.'s hospitalization. Four days later, the stepson 

burst into P.S.'s hospital room; walked directly toward the stepmother;

and, in a demanding manner, began yelling at the stepmother, asking 

where P.S.'s phone was located, and telling her to leave the hospital room. 

The stepmother testified that she had been frightened because the 

stepson has such a "hot temper." Therefore, she walked to the nurse's 
CL-2023-0673

7

desk and asked the nurse to come to the hospital room. The nurse walked 

into the hospital room and told the stepson that he should not upset P.S. 

The stepson thereafter expressed to P.S. that he wanted the stepmother 

out of the hospital room and stated that the stepmother was a liar. The 

stepson pointed his finger in the stepmother's face and called her a 

"picture of evil" and "crazy," which prompted P.S. to attempt to get the

stepson to stop. That exchange between the stepmother and the stepson

upset P.S., and, a few days after the incident in the hospital room, P.S. 

encouraged the stepmother to file the petition for an elder-abuse 

protection order. 

The stepmother has been fearful of the stepson because he called

her names and acted aggressively towards her. She is afraid that, when 

the stepson's temper is triggered, he might inflict bodily harm on her. At 

the trial, the stepmother requested that the stepson be required to stay 

away from her and to reimburse her for the $25,000 that he withdrew 

from the joint account. 

Jurisdiction

"Section 12-3-10, Ala. Code 1975, provides for the 

exclusive appellate jurisdiction of the Court of Civil Appeals:
CL-2023-0673

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"'The Court of Civil Appeals shall have 

exclusive appellate jurisdiction of all civil cases 

where the amount involved, exclusive of interest 

and costs, does not exceed $50,000, all appeals 

from administrative agencies other than the 

Alabama Public Service Commission, all appeals 

in workers' compensation cases, all appeals in 

domestic relations cases, including annulment, 

divorce, adoption, and child custody cases and all 

extraordinary writs arising from appeals in said 

cases.

"... That Code section further describes 'the amount 

involved' as follows:

"'Where there is a recovery in the court below of 

any amount other than costs, the amount of such 

recovery shall be deemed to be the amount 

involved; otherwise, the amount claimed shall be 

deemed to be the amount involved; except, that in 

actions of detinue the alternate value of the 

property as found by the court or jury shall be 

deemed to be the amount involved.'"

McCullough v. Windyke Country Club, Inc., [Ms. SC-2023-0408, Aug. 11, 

2023] ___ So. 3d ___, ___ (Ala. 2023). Here, because the amount 

recovered, i.e., $25,000, does not exceed $50,000, this court has appellate 

jurisdiction.

Standard of Review

"'Because the [trial] court received evidence ore tenus, 

[appellate] review is governed by the following principles:
CL-2023-0673

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"'"'"'[W]hen a trial court 

hears ore tenus testimony, its findings on 

disputed facts are presumed correct and its 

judgment based on those findings will not be 

reversed unless the judgment is palpably 

erroneous or manifestly unjust.'"' Water Works & 

Sanitary Sewer Bd. v. Parks, 977 So. 2d 440, 443 

(Ala. 2007) (quoting Fadalla v. Fadalla, 929 So. 2d 

429, 433 (Ala. 2005), quoting in turn Philpot v. 

State, 843 So. 2d 122, 125 (Ala. 2002)). '"The 

presumption of correctness, however, is rebuttable 

and may be overcome where there is insufficient 

evidence presented to the trial court to sustain its 

judgment."' Waltman v. Rowell, 913 So. 2d 1083, 

1086 (Ala. 2005) (quoting Dennis v. Dobbs, 474 So. 

2d 77, 79 (Ala. 1985)). 'Additionally, 

the ore tenus rule does not extend to cloak with a 

presumption of correctness a trial judge's 

conclusions of law or the incorrect application of 

law to the facts.' Waltman v. Rowell, 913 So. 2d at 

1086."

"'Retail Developers of Alabama, LLC v. East Gadsden Golf 

Club, Inc., 985 So. 2d 924, 929 (Ala. 2007).'"

Washington v. Johnson, [Ms. SC-2023-0464, Apr. 19, 2024] ___ So. 3d ___, 

___ (Ala. 2024) (quoting Bond v. Estate of Pylant, 63 So. 3d 638, 643-44 

(Ala. Civ. App. 2010)).

Discussion

I.

On appeal, the stepson first raises the issue of whether the trial 

court erred in entering the elder-abuse protection order based upon the 
CL-2023-0673

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sufficiency of the evidence and the application of the law to the facts. The 

stepson argues that the evidence does not support the trial court's 

determination that the stepson committed elder abuse, specifically, 

financial exploitation, theft, abuse, or harassment. 

The Elder Abuse Protection Order and Enforcement Act ("the Act"), 

Ala. Code 1975, § 38-9F-1 et seq., was enacted in 2017 to promote all of 

the following purposes:

"(1) To maximize protection of victims of elder abuse.

"(2) To create a flexible and expeditious method of 

obtaining a protection order against an individual who has 

committed elder abuse.

"(3) To expand the ability of law enforcement officers to 

assist victims, to enforce the law effectively in cases of elder 

abuse, and to prevent further incidents of abuse."

§ 38-9F-2, Ala. Code 1975. 

Section 38-9F-3(2) defines "elder abuse" to include "[t]he 

commission of [certain] acts or the intent to commit [certain acts] against 

an elderly person."3 One of the acts that meets the definition of "elder 

abuse" under § 38-9F-3(2) is "financial exploitation." Section 38-9F-3(2)g.

3Section 38-9F-3(4) defines an elderly person as "[a] person 60 years 

of age or older." The stepmother, who was 70 years old when she filed 

her petition, meets that definition. 
CL-2023-0673

11

refers to Ala. Code 1975, §§ 13A-6-191 and 8-6-171 for the definition of 

"financial exploitation." Section 13A-6-191 defines "financial 

exploitation" as 

"[t]he use of deception, intimidation, undue influence, force, 

or threat of force to obtain or exert unauthorized control over 

an elderly person's property with the intent to deprive the 

elderly person of his or her property or the breach of a 

fiduciary duty to an elderly person by the person's guardian, 

conservator, or agent under a power of attorney which results 

in an unauthorized appropriation, sale, or transfer of the 

elderly person's property."

Section 8-6-171(5)a., Ala. Code 1975, defines "financial exploitation" to 

include "[t]he wrongful or unauthorized taking, withholding, 

appropriation, or use of money, assets, or property of a vulnerable adult." 

Vulnerable adult is defined by § 8-6-171(10)a., Ala. Code 1975, to include 

"[a] person 65 years of age or older." The stepmother, who was 70 years 

old when she filed her petition, meets that definition.

In this case, the trial court specifically found that the stepson "had 

no ownership interest in the funds and was not acting on behalf of either 

of the owners of said funds when he took the funds." That finding is 

supported by: (1) the stepmother's testimony that the stepson admitted 

that he withdrew the funds without the permission of the account holders 

and stated that he would return the money and (2) the documentation 
CL-2023-0673

12

from the bank indicating that the stepson was only an agent for the 

owners of the joint account and only had an ownership interest upon the 

death of both owners. 

In his brief to this court, the stepson argues that the stepmother 

failed to prove that the stepson did not make the withdrawal on behalf of 

P.C. However, as noted previously, the stepmother testified that both 

she and P.C. had been surprised by the withdrawal and that the stepson

had admitted that he had withdrawn the $25,000 without permission. 

Therefore, we conclude that the stepson's argument on this point is 

without merit. 

Based on the foregoing, the trial court could have properly found

that the stepson committed an unauthorized taking of the stepmother's 

money, see § 8-6-171(5)a., Ala. Code 1975, which constitutes "elder 

abuse" under the Act. Therefore, we pretermit discussion of the stepson's 

arguments that there was insufficient evidence that he committed other 

acts that constitute elder abuse under the Act.

II.

On appeal, the stepson also raises the issue of whether the trial 

court erred in denying the stepson's motion for new trial by operation of 
CL-2023-0673

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law without holding a hearing. However, "[t]he failure to hold a hearing 

on a posttrial motion is not always reversible error." Cunningham v. 

Edwards, 25 So. 3d 475, 477 (Ala. Civ. App. 2009). 

" '"[I]f a party requests a hearing on its motion for a new trial, 

the court must grant the request." Ex parte Evans, 875 So. 2d 

297, 299-300 (Ala. 2003) (citing Rule 59(g), Ala. R. Civ. P., and 

Walls v. Bank of Prattville, 554 So. 2d 381, 382 (Ala. 1989)). 

Although it is error for the trial court not to grant such a 

hearing, this error is not necessarily reversible error. "This 

Court has established, however, that the denial of a 

postjudgment motion without a hearing thereon is harmless 

error, where (1) there is ... no probable merit in the grounds 

asserted in the motion, or (2) the appellate court resolves the 

issues presented therein, as a matter of law, adversely to the 

movant, by application of the same objective standard of 

review as that applied in the trial court." Historic Blakely 

Auth. v. Williams, 675 So. 2d 350, 352 (Ala. 1995) (citing 

Greene v. Thompson, 554 So. 2d 376 (Ala. 1989)).'"

Id. (quoting Chism v. Jefferson Cnty., 954 So. 2d 1058, 1086 (Ala. 2006)). 

As he did on appeal, in his postjudgment motion, the stepson 

asserted that the stepmother failed to prove that the stepson had 

committed "elder abuse" under the Act. We have already concluded that 

the stepson's argument that he did not commit financial exploitation is 

without merit. Because there was "no probable merit in the grounds 

asserted in the [stepson's postjudgment] motion," the trial court's failure 
CL-2023-0673

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to hold a hearing on the postjudgment motion was harmless error. See

id. 

Conclusion

Based on the foregoing, the trial court's elder-abuse protection 

order is affirmed. 

AFFIRMED.

Moore, P.J., and Edwards, Hanson, and Fridy, JJ., concur.