author: BOLIN, Justice.

text:
    Ex parte LIGHTWAVE TECHNOLOGIES, L.L.C. (In re Lindburgh Jackson and Kathy Matthews v. City of Auburn, Alabama Power Company, and Lightwave Technologies, L.L.C.).
    1050996.
    Supreme Court of Alabama.
    April 27, 2007.

      Steven K. Herndon and Andrew W. Christman of Gidiere, Hinton, Herndon & Christman, Montgomery, for petitioner.
    Robert D. Drummond, Jr., Fairhope, for respondents Lindburgh Jackson and Kathy Matthews.
    James A. Byram, Jr., and Louis M. Cal-ligas of Balch & Bingham, LLP, Montgomery; and Edward S. Allen and Ed R. Haden of Balch & Bingham, LLP, Birmingham, for respondent Alabama Power Company.
   BOLIN, Justice.

Lightwave Technologies, L.L.C., petitioned this Court for a writ of certiorari to review the decision of the Court of Civil Appeals, in a plurality opinion, affirming the trial court’s summary judgment in part, reversing it in part, and remanding the cause. Jackson v. City of Auburn, 971 So.2d 696 (Ala.Civ.App.2006) (opinion on application for rehearing). We granted the petition specifically to consider the Court of Civil Appeals’ resolution of the issue whether, and to what extent, the holder of an easement obtained by prescription might “apportion” that easement for some additional use by another party.

Lindburgh Jackson owned property in Auburn, Alabama; Alabama Power Company (hereinafter “APCo”) has maintained power lines across the property and a utility pole on the property. Over the years since he first obtained an interest in the property in 1978, Jackson occasionally complained of APCo’s use and maintenance of the lines and the pole and threatened legal action against APCo. In October 1999, Jackson conveyed the property to his daughter, Kathy Matthews, although he continued to use the property for his business, and APCo’s lines and pole remained on the property. Sometime between November 2000 and March 2001, Lightwave, pursuant to a “pole-sharing” agreement with APCo, installed fiber-optic cable on the utility pole on the property. The City of Auburn had authorized Light-wave to install its cable in Auburn and by ordinance had established the route for such placement.

In September 2003, Jackson sued various parties, including APCo, Lightwave, and the City of Auburn asserting, among other things, that APCo had conspired with Lightwave to commit trespass on the property. In 2004, Matthews was added as a plaintiff. After considerable litigation, the trial court entered a summary judgment in favor of all the defendants. Jackson and Matthews appealed to this Court, which transferred the case to the Court of Civil Appeals pursuant to § 12-2-7(6), Ala.Code 1975.

After resolving a number of issues not relevant to the present petition with respect to the City of Auburn, the Court of Civil Appeals engaged in a detailed analysis of the plaintiffs’ claims against APCo and concluded that APCo, in light of undisputed evidence that it had maintained the power lines in opposition to Jackson’s objections from April 1983 until September 2003, had obtained an easement by prescription over the property in question under the requirements for establishing such easements set out in Bull v. Salsman, 435 So.2d 27, 29 (Ala.1983). The Court of Civil Appeals affirmed the summary judgment for APCo with respect to the plaintiffs’ trespass claim against it. The Court of Civil Appeals then addressed the trespass claim against Lightwave and the conspiracy-to-commit-trespass claim against both APCo and Lightwave. We conclude that the rationale in the plurality opinion of the Court of Civil Appeals in this regard was well reasoned and correct, and we adopt that court’s analysis as set out below as the opinion of this Court:

“In order to determine whether the summary judgment in favor of Light-wave on the trespass and conspiracy claims against it and the summary judgment in favor of APCo on the conspiracy claim against it were proper ..., we must ... consider whether APCo has the right to apportion its prescriptive easement and whether its apportionment to Lightwave was within the scope of the prescriptive easement. If APCo has the right to apportion the easement and the apportionment was within the scope of the easement, then Lightwave could not have committed a trespass and APCo and Lightwave could not have conspired to commit a trespass. If, however, APCo cannot apportion its prescriptive easement, or if the apportionment to Lightwave exceeds the scope of the easement, Lightwave’s actions could amount to trespassing on the property and APCo could, depending on facts that would be developed on remand, be shown to have conspired with Lightwave to commit a trespass.
“Lightwave argues that the Alabama Supreme Court has already determined the issue of the apportionability of power-line easements in Cousins v. Alabama Power Co., 597 So.2d 683 (Ala.1992). Jackson and Matthews, however, argue that Cousins is distinguishable in that it involved two express easements and an easement acquired by condemnation and not a prescriptive easement. Discussions of Cousins and of the law regarding both the apportionability of easements and the scope of prescriptive easements will be necessary to decide whether APCo has the right to apportion the prescriptive easement in the present case and whether the apportionment to Lightwave is within the scope of APCo’s prescriptive easement.
“The term ‘apportionability’ in reference to easements refers to the easement owner’s right to divide the easement ‘to produce independent uses or operations.’ See Restatement of Property § 493 cmt. a. (1944). In general, an exclusive easement in gross is apportion-able to the extent the additional use is ‘authorized by the manner or terms of [the easement’s] creation.’ Id. at cmt. c. An easement in gross is an easement that ‘benefits a particular person or persons (or business or organization) whether or not they own another piece of land’; that is, the person or entity owning the easement is benefited personally rather than the benefit of the easement accruing to another piece of land. 7 Thompson on Real Property § 60.02(f)(2) (Thomas ed.1994); 4 Powell on Real Property § 34.02[2][d] (2000). ‘An exclusive easement grants unfettered rights to the owner of the easement to use the easement for purposes specified in the grant “to the exclusion of all others,”’ including the servient owner. Thompson on Real Property, supra, § 60.04(b)(2). APCo’s prescriptive easement in the present case is an exclusive easement in gross because it permits APCo to use the easement for the construction and maintenance of power lines and precludes, by its nature, Jackson and Matthews from using the easement for that purpose.
“Cousins involved whether APCo could apportion three exclusive easements in gross — two created by express grant and one created by condemnation. The express easements stated that APCo had the right to construct, operate, and maintain electric transmission lines and telegraph and telephone lines. Cousins, 597 So.2d at 686. The condemnation order granted APCo ‘ “the right to construct and erect over said lands such tower, pole and wire lines, and all appliances necessary, convenient and useful in connection therewith....’” Id. at 687. APCo desired to replace its existing ground wire cable across the easements at issue with a new ground wire cable containing some fiber-optic communication line. Id. at 685. A portion of the fiber-optic communication line was to be used for APCo’s internal communications network; however, APCo intended to share the other portion of the fiber-optic communication line with American Telephone and Telegraph Company (‘AT & T’). Id.
“The servient owners conceded that APCo had the right to string the new ground wire cable containing the fiber-optic communication line because, in the case of the express easements, such lines were equivalent to telephone lines, which were expressly permitted by the easement, and in the case of the condemnation order, the communication line would be permitted under its language insofar as the line was used for communication in connection with the distribution of power to the public. Id. However, the servient owners objected to APCo’s sharing its easements with AT & T without first obtaining the consent of or compensating the servient owners. Id. at 686. The trial court entered a summary judgment for APCo, stating that ‘“under the prevailing authorities and the facts of this case, [APCo] can lawfully share the use of its communication lines with another entity such as AT & T, regardless of whether its rights-of-way [were] obtained by deed or by condemnation proceedings.” ’ Id.
“In deciding that the trial court had properly determined that APCo was entitled to judgment as a matter of law on the issue whether it had the right to apportion its easements, the Cousins court stated that ‘[m]any courts have found that utility companies are authorized to share or apportion their easement rights with a third party, without obtaining the permission of, or compensating the owner of, the servient estate.’ Cousins, 597 So.2d at 687 (citing in a footnote Jolliff v. Hardin Cable Television Co., 26 Ohio St.2d 103, 269 N.E.2d 588 (1971); Hoffman v. Capitol Cablevision System, Inc., 52 A.D.2d 313, 383 N.Y.S.2d 674 (1976), app. den., 40 N.Y.2d 806, 390 N.Y.S.2d 1025, 359 N.E.2d 438 (1976); Faulkner v. Kingston Cablevision, Inc., 53 A.D.2d 948, 386 N.Y.S.2d 358 (1976), app. den., 40 N.Y.2d 805, 388 N.Y.S.2d 1025, 356 N.E.2d 1233 (1976); and Henley v. Continental Cablevision of St. Louis County, Inc., 692 S.W.2d 825 (Mo.Ct.App. 1985)). The Cousins court also commented that the language contained in the deeds and the condemnation order at issue in Cousins was similar to the language contained in easements in other cases in which courts had determined that the language indicated the grantor’s intent to convey the right to apportion. Cousins, 597 So.2d at 687. The court further stated that ‘[a]n apportionment such as the one contemplated by APCo in this case has been held not to constitute an additional servitude.’ Id. (citing Salvaty v. Falcon Cable Television, 165 Cal.App.3d 798, 212 Cal.Rptr. 31 (1985)).
“In deciding that the language of the easements and the condemnation order in question was sufficient to imply an intent to grant the right to apportion the easement to APCo, the Cousins court relied, in part, upon Centel Cable Television Co. of Ohio v. Cook, 58 Ohio St.3d 8, 567 N.E.2d 1010 (1991). According to the ‘Syllabus by the Court’ preceding the opinion in Cook, the servient owner in Cook had granted to the power company and ‘ “its successors and assigns forever, a right of way and easement ... for a line for the transmission and/or distribution of electric energy thereover, for any and all purposes for which electric energy is now, or may hereafter be used....’” Cook, 58 Ohio St.3d at 8, 567 N.E.2d at 1011. The Cook court explained that
“ ‘ “[where an easement in gross] is created by conveyance, apportionability depends upon the intention of the parties to the conveyance.” ... Jolliff v. Hardin Cable Television Co., [26 Ohio St.2d 103,] 107, 55 O.O.2d [203,] 205, 269 N.E.2d [588,] 590 [ (1971) ], citing 5 Restatement of the Law, Property (1944) 3053, Section 493, Comment &.’
“Cook, 58 Ohio St.3d at 10, 567 N.E.2d at 1013 (footnotes omitted). Although the Cook court did not hold that the language in the easement was ‘sufficient to express the grantor’s clear intent to grant [the power company] the right to apportion its easement,’ 58 Ohio St.3d at 11, 567 N.E.2d at 1013-14, the court continued its analysis to determine the intent of the grantor, finally determining that the easement was intended to be apportionable. 58 Ohio St.3d at 11, 567 N.E.2d at 1014. The Cook court further determined that the intended use of the easement was similar to the use granted in the easement and that the apportionment of the easement would not place an additional burden on the servient tenement. 58 Ohio St.3d at 11-12, 567 N.E.2d at 1014-15.
“The Cook court relied upon an earlier Ohio case, Jolliff v. Hardin Cable Television Co., 26 Ohio St.2d 103, 107, 269 N.E.2d 588, 590 (1971), that relied, in part, on the Restatement of Property § 493 (1944), which explains that ‘[t]he apportionability of an easement in gross is determined by the manner or the terms of its creation.’ As explained in the Restatement, the intent of the parties to an easement by conveyance controls whether an easement is apportiona-ble. Restatement of Property § 493 cmt. b. (1944). However, ‘[w]hen an easement in gross is created by prescription, the question of its apportiona-bility is decided in light of the reasonable expectation of the parties concerned in its creation as inferred from the nature of the use by which it was created.’ Id.
“Thus, although Cousins does indeed hold that express easements and easements acquired by condemnation may be apportioned when the language in the document or condemnation order creating the easement indicates an intention to convey or to grant the right to apportion and when the apportionment does not constitute an additional servitude, it cannot stand for the proposition, as urged by Lightwave, that the prescriptive easement in this case is apportiona-ble to Lightwave as a matter of law without further inquiry. In fact, although we agree that APCo’s prescriptive easement may indeed be apportioned, the question that remains — what rights APCo has to apportion — is not decided by Cousins.
“The ground wire containing the fiber-optic communication line in Cousins was conceded to be within the scope of both the express easements and the easement by condemnation. Cousins, 597 So.2d at 685. The cable line at issue in the present case, however, has not been conceded to be within the scope of APCo’s prescriptive easement. Lightwave’s cable line is not contained within the replacement of a preexisting cable strung by APCo like the fiber-optic communication line was in Cousins. See id. As mentioned above, an exclusive easement in gross is generally considered to be apportionable to the extent the additional use is ‘authorized by the manner or terms of [the easement’s] creation.’ Restatement of Property § 493 cmt. c. (1944). We must therefore consider the parameters — or the scope — of APCo’s prescriptive easement.
“In Alabama, the scope of an easement established by prescription is determined by the extent of the use. Wright & Rice v. Moore, 38 Ala. 593, 598 (1863).; Roundtree v. Brantley, 34 Ala. 544, 552 (1859); see also 4 Powell on Real Property § 34.13 (2000) (‘the scope of [a prescriptive] easement is necessarily a primary function of the continued use or uses by which it was generated’). In addition, our supreme court has recognized that ‘ “it is elementary law respecting easements that neither the dominant owner nor the servient owner is permitted to materially alter the character of the servitude.” ’ Blalock v. Conzelman, 751 So.2d 2, 6 (Ala.1999) (quoting Gerber v. Appel, 164 S.W.2d 225, 228 (Mo.Ct.App.1942), quashed in part on other grounds, State ex rel. Appel v. Hughes, 351 Mo. 488, 173 S.W.2d 45 (1943)). In Blalock, our supreme court reversed a trial court’s judgment permitting an easement holder to prevent the servient owner from cutting trees and other vegetation from the easement in order to further the ser-vient owner’s use of the easement area. Blalock, 751 So.2d at 7. The court explained that the easement holder, by seeking permission to prevent the removal of the vegetation, was attempting to ‘change the essential character of the easement from that of a right of way, to — in effect — one of shade and air.’ Id. at 6. The trial court’s judgment restraining the servient owner from removing the trees and vegetation, said the court, was in error because it wrongfully allowed the easement holder to change the character of the easement.
“Under Alabama law as explained above, the scope of a prescriptive easement is determined by the scope of the use that established the prescriptive right, and an easement holder is not entitled to materially alter the scope (or character) of its easement. Lightwave contends that APCo’s right to divide its easement does not arise from the source of APCo’s right, be it by deed, prescription, or otherwise. That is indeed true; as also explained above, the right to apportion typically depends on the type of easement involved and the exclusivity of that easement. As also noted above, however, the Restatement differentiates between easements acquired by conveyance and those acquired by prescription in its discussion of the apportionability of easements. Restatement of Property § 493 cmt. b. (1944). Specifically, the Restatement indicates that exclusive easements in gross are apportionable to the extent the additional use is within the scope of the easement. Id. at cmt. c. Two reported decisions from other states have considered whether a power company can properly apportion its prescriptive easements to other companies, such as telephone or cable companies; these cases reached different results. See Ogg v. Mediacom, L.L.C., 142 S.W.3d 801 (Mo.Ct.App.2004); and Hise v. BARC Elec. Coop., 254 Va. 341, 492 S.E.2d 154 (1997).
“In Rise, the Virginia Supreme Court considered, among other things, whether the telephone lines and cable lines of third-party companies that had been strung on the power poles maintained by BARC Electric Cooperative (‘BARC’) in its prescriptive easement over the Hises’ property could be moved to the new power poles constructed by BARC over another portion of the Hises’ property acquired in an eminent-domain proceeding. Rise, 254 Va. at 344, 492 S.E.2d at 157. In deciding that the telephone and cable lines could be moved to the new poles, the court discussed the apportion-ability of prescriptive easements, noting that the Restatement concludes that the reasonable expectation of the parties should be considered. 254 Va. at 346, 492 S.E.2d at 158. The court pointed out that, during the prescriptive period, BARC had permitted the telephone and cable companies to string their lines on its poles and that ‘[s]uch attachments had been made without objection from the Hises for more than 16 years before this controversy arose’; the court also noted that the Hises had used the cable line for television reception for 8 of those years. Id. Based on those facts, the court concluded that BARC had construed its easement to be both exclusive and apportionable and that the Hises had acquiesced in that construction by failing to object and in using the cable line. Id. Thus, the court concluded that the prescriptive easement was appor-tionable and that the telephone and cable wires could be properly affixed to the new poles. Id.
“In Ogg, however, the cable company fared far differently. The Oggs owned and lived on a family farm over which Platte Clay Electric Cooperative, Inc. (‘Platte Clay Electric’), held a longstanding prescriptive easement upon which its poles and power lines were maintained at a height of approximately 18 to 20 feet above the ground. Ogg, 142 S.W.3d at 804-05. In early 1999, Mediacom placed fiber-optic cable at a height of approximately 12 to 14 feet above the ground on the poles under a pole-sharing agreement with Platte Clay Electric; Mediacom did not seek permission from, acquire an easement from, or compensate the Oggs for the use of the property. Id. The Oggs objected and sued Mediacom alleging trespass. Id. at 806. Among the Oggs’ arguments was that even if Platte Clay Electric had granted Mediacom a license to use Platte Clay Electric’s easement, the license was ‘unlawful in that it would create a right beyond the scope of the original easement.’ Id. at 808.
“The trial court had entered a summary judgment in favor of Mediacom, holding that whether Mediacom could use the license granted by Platte Clay Electric ‘ “turn[ed] entirely on whether the addition of Mediacom’s cable to utility poles already containing an electric wire impose[d] an additional unreasonable burden.” ’ Id. The Missouri Court of Appeals agreed with the Oggs that the trial court erred by focusing exclusively on the burden imposed by Media-com’s use of the easement, stating that ‘[wjhile “the owner of an easement may, in some circumstances, license or authorize third persons to use its right of way,” the licensor “may not create a right in excess of [that] held by it, nor ... a right which as against the owner of the servient estate is an additional burden or servitude upon the fee simple title.” ’ Id. (quoting Eureka Real Estate & Inv. Co. v. Southern Real Estate & Fin. Co., 355 Mo. 1199, 1206, 200 S.W.2d 328, 332 (1947))(footnote omitted). The Missouri court explained that ‘the licensing agreement between Platte Clay Electric and Mediacom could, at most, lawfully confer on Mediacom only the rights Platte Clay Electric itself held under its prescriptive easement.’ Id. at 808-09 (footnote omitted).
“The Missouri court stated that, under Missouri law, the rights of the holder of a prescriptive easement are ‘defined solely by the character and extent of the use made thereof during the prescriptive period.’ Id. at 809 (quoting Stickle v. Link, 511 S.W.2d 848, 854 (Mo.1974)) (footnote omitted). As the court further explained, ‘ “[Prescriptive] easements arise by reason of use. It is rational that an easement that exists because of use, which falls short of possession, may not be extended in its character and extent beyond the use which existed when the prescription arose.” ’ Id. (quoting 18 Theodore H. Hellmuth, Mis souri Practice: Real Estate Law— Transactions § 420, at 430 (2d ed.1998)). Based on those legal principles, the Missouri court determined that neither Platte Clay Electric nor Media-corn ‘had the legal right to unilaterally expand, in character or extent, the prior prescriptive use,’ which, according to the court was ‘to operate and maintain electrical power cables on poles at a height of approximately eighteen to twenty feet.’ Id. at 810.
“The present case is much more akin to Ogg than to Hise. Certainly, Jackson and Matthews allowed APCo to gain a prescriptive easement over the disputed property. However, although Light-wave may have affixed its line to the power pole nearly 3 years before Jackson filed this action, one can hardly conclude that a relatively short 3-year delay amounts to the clear acquiescence apparent in a delay of 16 years like that in Hise.
“Lightwave argues, like Mediacom did in Ogg, that it is entitled to share APCo’s existing prescriptive easement. Like Missouri law, Alabama law bases the scope of a prescriptive easement on the extent of the use that established the prescriptive right. Alabama law also prohibits an easement holder from changing the character of the easement. Therefore, although we agree with Lightwave that prescriptive, exclusive easements in gross like APCo’s are ap-portionable, we, like the court in Ogg, must conclude that only those rights acquired by APCo may be apportioned.
“APCo acquired the right to string power lines across the disputed property. APCo did not acquire a right to string any line or cable providing something other than, or related to, electrical power over the easement. The trial court’s summary-judgment order does not specify the parameters of APCo’s prescriptive easement; however, based on the arguments presented to the trial court and its decision to enter a summary judgment in favor of Lightwave, we conclude that the trial court determined, based on Cousins, that APCo’s prescriptive easement could be apportioned as a matter of law with Light-wave. As explained above, Cousins does not stand for the proposition that a prescriptive easement is absolutely ap-portionable without limitation. Thus, the trial court’s conclusion that Light-wave, by virtue of APCo’s right to apportion its prescriptive easement, acquired the right to string its cable on APCo’s pole is incorrect, and the summary judgment on that issue was improperly entered. Withers v. Mobile Gas Serv. Corp., 567 So.2d 253, 256-57 (Ala.1990) (reversing a summary judgment on, among other things, a trespass claim in favor of the gas company where the gas company used land outside the temporary 20-foot easement to which it was entitled).
“At this point we must discuss the defense of laches, asserted both by APCo and Lightwave as an independent ground upon which to affirm the summary judgment in their favor. ‘To establish the application of the doctrine of laches, [a defendant] ha[s] to show that [the plaintiff] delayed in asserting his right or claim, that his delay was unex-cusable, and that his delay caused the [defendant] undue prejudice.’ Ex parte Grubbs, 542 So.2d 927, 929 (Ala.1989). ‘For the doctrine of laches to bar a claim it must be said that “from delay, any conclusion the court may arrive at must at best be conjectural, and the original transactions have become so obscured by lapse of time, loss of evidence, and death of parties as to render it difficult if not impossible to do justice.” ’ Salter v. Hamiter, 887 So.2d 230, 241 (Ala.2004) (quoting Ussery v. Darrow, 238 Ala. 67, 71, 188 So. 885, 888 (1939)).
“Because we have determined that APCo established a prescriptive easement, we need not consider whether the defense of laches is applicable to the trespass claim against it. In its summary-judgment motion, Lightwave incorporated APCo’s summary-judgment argument concerning the 20-plus-year delay between Jackson’s knowledge of the power pole and lines on the disputed property and the institution of this action; Lightwave made no separate argument of its own. Lightwave’s first trespass on the disputed property would have been, at the earliest, in November 2000, only three years before the institution of this action. Therefore, we can safely determine that Lightwave did not establish how the shorter, three-year delay between its stringing its cable in 2000 or 2001 and [the filing of the complaint and the amended complaint] in 2003 and 2004 prejudiced it in any manner or made it ‘difficult if not impossible to do justice.’ Accordingly, laches is not an alternate ground upon which to affirm the summary judgment in favor of Lightwave on the trespass claim. Likewise, any conspiracy claim based on APCo’s and Lightwave’s conduct in regard to the fiber-optic cable must have arisen approximately three years before the institution of this action, and neither APCo nor Lightwave argued or presented evidence negating any issue of fact concerning whether the three-year delay caused either defendant any prejudice; thus, laches is not an appropriate alternative ground for affirmance of the summary judgment on the conspiracy claims against Lightwave and APCo.
“Because APCo’s prescriptive easement is limited in scope to the extent of the use that created it, APCo’s apportionment of the prescriptive easement does not serve to insulate APCo from the conspiracy claim against it. Nor does APCo’s attempt to apportion its prescriptive easement insulate Light-wave from either the trespass claim or the conspiracy claim against Light-wave ....

971 So.2d at 709.

The judgment of the Court of Civil Appeals is affirmed.

AFFIRMED.

SEE, LYONS, STUART, SMITH, and PARKER, JJ., concur.

COBB, C.J., and MURDOCK, J., recuse themselves.

      . In response to Lightwave's petition and after we had issued the writ of certiorari, APCo submitted a brief in which it argued that we should quash the writ of certiorari and not consider the apportionment issue. APCo argues that, because Lightwave agreed in the pole-sharing agreement to secure from the landowner its own right to use the subject property, APCo "did not authorize Lightwave to use its rights and did not apportion its easement rights to Lightwave....” (APCo’s brief, p. 8.) Lightwave argues that APCo initially advised the Court of Civil Appeals that Lightwave could share APCo's rights. Thereafter, according to Lightwave, APCo first modified its position on that issue in its application for rehearing to that court when APCo stated: "It is not appropriate for APCo to take a position on whether Lightwave's telecommunications use is within the scope of APCo’s [pole-sharing] agreement-” (APCo’s application for rehearing, p. 23 n. 5.) We reject APCo’s invitation to quash the writ. For the purposes of this proceeding, we address the apportionment issue as framed by Lightwave because APCo did not question the appropriateness of apportionment under its agreement with Lightwave until APCo filed its application for rehearing in the Court of Civil Appeals. See Water Works & Sewer Bd. of Selma v. Randolph, 833 So.2d 604, 608 (Ala.2002) (opinion on application for rehearing) (well-settled rule of appellate procedure precludes consideration of arguments made for the first time on rehearing).

      . In an amended answer to Jackson’s original complaint, in which Jackson identified himself as the owner of the property, Lightwave asserted that Jackson lacked standing. Jackson subsequently filed an amended complaint adding Matthews as a plaintiff and stating that the "plaintiffs were and are the owners and/or had or have possessory control of the real property.” Whether Jackson had standing to file this action as having "possessory control” of the property in question is not an issue on appeal, and no one questioned Matthews’s standing as owner of the property, even though she was not an original plaintiff.

      “4 Although the Cousins court did not define the easements as being exclusive or in gross, they clearly were.

      “5The other cases cited in Cousins also involved express easements.

      “6 While Lightwave argues in its brief that these cases have no bearing on the present case because of their precise holdings relating to the prescriptive easements sought in each case, the principle for which the cases were cited by Jackson and Matthews — that prescriptive easements are limited to the extent of the use that established them — is indeed relevant to a determination of whether APCo’s prescriptive easement may be apportioned in the manner APCo and Lightwave intended it to be in the present case.

      “7 Mediacom also installed underground fiber-optic cable on a portion of the Oggs’ property; the portion of Ogg involving the underground cable is not pertinent to the resolution of this appeal and will not be discussed.”


source: Caselaw Access Project

author:
MURDOCK, Judge.
      PITTMAN, Judge,

license: Public Domain

text:
    SHONEY’S, INC. v. Sachiko RIGSBY.
    2041069.
    Court of Civil Appeals of Alabama.
    Jan. 12, 2007.
    Rehearing Denied April 6, 2007.

      Amy K. Myers and George R. Parker of Bradley Arant Rose & White, LLP, Birmingham, for appellant.
    Gatewood A. Walden, Montgomery, for appellee.
   MURDOCK, Judge.

Shoney’s, Inc., appeals from a judgment of the Montgomery Circuit Court awarding workers’ compensation benefits to Sa-chiko Rigsby for a permanent and total disability arising from carpal tunnel syndrome.

In January 2002, Rigsby filed this action seeking workers’ compensation benefits. This case was tried ore terms on May 10, 2004. On May 31, 2005, the trial court entered a judgment awarding Rigsby workers’ compensation benefits for a permanent and total disability based on its findings that Rigsby suffered from carpal tunnel syndrome in both wrists and that her carpal tunnel syndrome was caused by her employment.

Shoney’s filed a postjudgment motion under Rule 59(e), Ala. R. Civ. P. On August 17, 2005, the trial court entered an amended judgment that made detailed findings about the repetitive nature of many of Rigsby’s job tasks and Rigsby’s constant use of her hands at work. Regarding the testimony of Dr. Edward E. Palmer, Rigsby’s treating orthopedic surgeon, the trial court stated:

“[Dr. Palmer] suspected [Rigsby] would have continued pain if she tries to do heavy manual-type work. He defined heavy manual-type work as ‘gripping, lifting type activity.’ On cross-examination, when asked if there were doctors who hold to the opinion that repetitive motion is the cause of, or can be the cause of carpal tunnel syndrome, Dr. Palmer answered in the affirmative. Dr. Palmer also testified that Mrs. Rigs-by was truthful about her complaints and about all other aspects of her problems, and he agreed that it is common for his patients who are suffering carpal tunnel syndrome to complain to him that some repetitive work or motion that they were doing caused their carpal tunnel syndrome.
“The Court has observed Mrs. Rigsby during the trial of this cause, and has interrogated her, and finds her to be credible.... Accordingly, the Court finds this to be clear and convincing evidence that she suffered injuries to her left and right arms, wrist, hands, commonly referred to as carpal tunnel syndrome, and an injury to her left thumb called a trigger-finger. The Court further finds from the clear and convincing evidence that the proximate cause of these injuries was the repetitive type work Mrs. Rigsby performed as a kitchen worker for Shoney’s over a period of twenty-nine and one-half years. The Court also takes note of the fact that Shoney’s produced no evidence to refute Mrs. Rigsby’s claim that she sustained the injuries that she claims to have sustained, nor has it produced any evidence to refute Mrs. Rigsby’s claim that her injuries were proximately caused by the repetitive type work she did at Shoney’s during her period of employment.”

Shoney’s filed a timely appeal, contending (1) that Rigsby’s injury was a cumulative-physical-stress disorder and that she did not prove by clear and convincing evidence that her injury was caused by her employment, (2) that the trial court erred in awarding Rigsby permanent and total disability when her injury was solely to a scheduled member, her right hand and/or her right arm, and (3) that the trial court erred in determining that Rigsby was totally disabled.

Rigsby was 54 years old at the time of the trial in 2004. Rigsby worked for Sho-ney’s from 1972 until April 2001 as a kitchen “prep” worker and, more recently, as a “kitchen manager.” Most of Rigsby’s job duties throughout her career required constant use of her hands, including cutting, chopping, peeling, cooking, washing pots, pans, and utensils, mopping, sweeping, and lifting sacks and boxes weighing as much as 50 pounds. Rigsby regularly worked between 55 and 60 hours per. week.

In April 2000, Rigsby visited Dr. Palmer, complaining of pain and numbness in her hands and wrists. Dr. Palmer diagnosed Rigsby as having (1) “trigger thumb” that caused her left thumb to pop and lock up, (2) carpal tunnel syndrome in her right wrist, and (3) tendinitis in her left wrist. Dr. Palmer treated Rigsby with cortisone injections, which did not alleviate the pain in Rigsby’s wrists.

In June 2000, Dr. Palmer performed a carpal-tunnel-release surgery on Rigsby’s right wrist. In July 2000, Rigsby reported to Dr. Palmer that her condition had much improved and he released her to return to work without restriction. Rigsby returned to work at her job at Shoney’s from July 2000 until April 2001. After Rigsby returned to work, she again complained of pain and numbness in her hands and wrists, and Rigsby quit work in April 2001 because of the pain in her hands and wrists. Rigsby has not worked since April 2001. Rigsby testified that she is able to do some housework, to drive on occasion, and to shop for groceries, but her hands hurt if she does too much. Rigsby takes pain medication because of the pain in her hands and wrists.

We first address Shoney’s argument regarding the sufficiency of the evidence. Rigsby’s condition is a “cumulative physical stress disorder.” Consequently, the trial court’s judgment in her favor had to be based upon evidence that the trial court could and did find to clearly and convincingly establish medical causation. Section 25-5-81(c) provides:

“(c) Evidence. The decision of the court shall be based on a preponderance of the evidence as contained in the record of the hearing, except in cases involving injuries which have resulted from gradual deterioration or cumulative physical stress disorders, which shall be deemed compensable only upon a finding of clear and convincing proof that those injuries arose out of and in the course of the employee’s employment.
“For the purposes of this amendatory act, ‘clear and convincing’ shall mean evidence that, when weighted against evidence in opposition, will produce in the mind of the trier of fact a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion. Proof by clear and convincing evidence requires a level of proof greater than a preponderance of the evidence or the substantial weight of the evidence, but less than beyond a reasonable doubt.”

(Emphasis added.)

We also are mindful that “[t]his court is precluded from weighing the evidence presented before the trial court” and that “[w]e merely examine the record to determine if the conclusion of the trial court is reasonably supported by the evidence.” Fryfogle v. Springhill Mem’l Hosp., Inc., 742 So.2d 1255, 1258 (Ala.Civ.App.1998), aff'd, 742 So.2d 1258 (Ala.1999). We have carefully examined the evidence presented in the present case, including the testimony of Rigsby, the testimony of Dr. Palmer, and the medical records. We cannot conclude as a matter of law that that evidence, particularly given the dearth of evidence in opposition, was insufficient to support the trial court’s finding of causation. The trial court’s judgment is therefore not due to be reversed on this ground.

We turn now to Shoney’s second argument. Shoney’s contends, and we agree, that the trial court erred in treating Rigsby’s injury as an unscheduled injury to the body as a whole, rather than as a scheduled injury under § 25 — 5—57(a)(3), Ala.Code 1975. Although Shoney’s argues that Rigsby’s injury was only to her right hand and wrist, the trial court found that Rigsby had suffered injuries to “her left and right arms, wrist, hands.” Subsections 25-5-57(a)(3)a.l2, -a.13, -a.15, -a.24, -a.25, and -a.28, Ala.Code 1975, prescribe the compensation to be awarded for various losses relating to hands and arms. Section 25 — 5—57(a)(3)d., Ala.Code 1975, governs the loss of use of a scheduled member and provides:

“The permanent and total loss of the use of a member shall be considered as equivalent to the loss of that member, but in such cases the compensation specified in the schedule for such injury shall be in lieu of all other compensation, except as otherwise provided herein. For permanent disability due to injury to a member resulting in less than total loss of use of the member not otherwise compensated in this schedule, compensation shall be paid at the prescribed rate during that part of the time specified in the schedule for the total loss or total loss of use of the respective member which the extent of the injury to the member bears to its total loss.”

In Ex parte Drummond Co., 837 So.2d 831 (Ala.2002), our Supreme Court restated the test for determining when an injury to a scheduled member should result in an award of compensation beyond the scheduled amount. The Supreme Court held:

“We renew our commitment to the policy that underlay the Bell[ v. Driskill, 282 Ala. 640, 213 So.2d 806 (1968),] test and that is recognized in the current edition of 4 Lex K. Larson, Larson’s Workers’ Compensation Law § 87.02 (2001):
“ ‘The great majority of modern decisions agree that, if the effects of the loss of the member extend to other parts of the body and interfere with their efficiency, the schedule allowance for the lost member is not exclusive.’
“.... [W]e today adopt the language recited above from Larson, Workers’ Compensation Law § 87.02 as the test for determining whether an injury to a scheduled member should be treated as unscheduled....”

Ex parte Drummond Co., 837 So.2d at 834-35.

In Masterbrand Cabinets, Inc. v. Johnson, [Ms. 2030409, June 3, 2005] — So.2d -(Ala.Civ.App.2005), this court applied Ex parte Drummond Co. to affirm a trial court’s judgment finding an employee to be permanently and totally disabled as a result of “swelling and constant, throbbing pain in her hands and arms that often reached a level of 8 on a scale of 10.” Masterbrand Cabinets, — So.2d at-. This court explained:

“[T)he Drummond Court did not have before it a case that required it to address an abnormal or unusual pain that, although isolated to a scheduled member, caused a more general, debilitating effect on the body as a whole. The ongoing pain experienced by the worker in Ex parte Drummond was not unusually severe; nor was it constant. Furthermore, it was pain that largely was precipitated by the worker’s use, or overuse, of the scheduled member. In such a case, the worker, by refraining from the use of that member, may largely avoid the pain in question with the result being that the worker is in no worse a position due to his inability to use the affected member than if the member had been completely lost.
“Clearly, pain isolated to a scheduled member might be sufficiently constant and severe, even when the worker refrains from using the scheduled member, that it would cause a debilitating effect to the body as a whole that is greater than the disability resulting from the loss of, or the loss of use of, that scheduled member as contemplated by § 25-5-57(a)(8). The Legislature undoubtedly assumed that there could be ongoing pain associated with the loss of or a permanent injury to a scheduled member. The question becomes whether the pain associated with a lost member, or with a permanently injured member even when the worker avoids the use of that member to the extent he or she reasonably can do so, ... extends to other parts of the body and interferes with their efficiency or[, in other words,] is sufficiently abnormal in its frequency or continuity and in its severity that it has a debilitating effect on the body as a whole [greater than that contemplated by § 25 — 5—57(a)(3) ].”

Masterbrand Cabinets, — So.2d at -(footnotes omitted). See also Stone & Webster Constr., Inc. v. Lanier, 914 So.2d 869, 877 (Ala.Civ.App.2005) (discussing Masterbrand Cabinets, Inc. v. Ruggs, 891 So.2d 869 (Ala.Civ.App.2004)).

In contrast to the record in Masterbrand Cabinets, Inc. v. Johnson, the record in the present case does not reveal substantial evidence indicating that pain from Rigsby’s injuries “extends to other parts of [her] body and interferes with their efficiency” so as to warrant a recovery of benefits outside the schedule. The trial court found that Rigsby used her prescription pain medication two times per week on average. Moreover, as in Masterbrand Cabinets, Inc. v. Johnson, the evidence indicates that Rigsby’s pain is “largely ... precipitated by [her] use, or overuse, of the scheduled member,” — So.2d at-, and there is not substantial evidence from which the trial court could find to the contrary. “In such a case, the worker, by refraining from the use of that member, may largely avoid the pain in question with the result being that the worker is in no worse a position due to his inability to use the affected member than if the member had been completely lost.” Masterbrand Cabinets, Inc. v. Johnson, — So.2d at -(footnote omitted).

Based on the foregoing, we conclude that the trial court erred in awarding Rigs-by benefits based on an injury to the body as a whole, rather than awarding benefits based on the loss of use of scheduled members as contemplated by § 25-5-57(a)(3). We therefore reverse the judgment and remand the cause for the trial court to enter a judgment that applies that statutory provision and that otherwise is in accordance with this opinion.

REVERSED AND REMANDED.

CRAWLEY, P.J., and THOMPSON, J., concur.

PITTMAN, J., concurs in the result, with writing.

BRYAN, J., concurs in the result, without writing.

PITTMAN, Judge,

concurring in the result.

I concur in the result. See Alabama Workmen’s Comp. Self-Insurers Guar. Ass’n v. Wilson, [Ms. 2040523, June 16, 2006] — So.2d - (Ala.Civ.App.2006), which I believe properly states the governing law in this area.

      . Rigsby was born in Japan and moved to the United States when she was 15 years old. Rigsby has the equivalent of a ninth-grade education; she has limited proficiency in the English language and poor reading skills.

      . We take this opportunity to correct a mistaken assertion in Masterbrand Cabinets, Inc. v. Johnson, [Ms. 2030409, June 3, 2005] - So.2d -(Ala.Civ.App.2005) (plurality opinion). The opinion in Masterbrand Cabinets, which was written by the author of the present opinion, made note of the test established by the Supreme Court in the 1968 case of Bell v. Driskill, 282 Ala. 640, 213 So.2d 806 (1968), namely:
      " ' "[Although the injury itself is to only one part or member of the body, if [ (1) ] the effect of such injury extends to other parts of the body, and produces a greater or more prolonged incapacity than that which naturally results from the specific injury, or [ (2) ] the injury causes an abnormal and unusual incapacity with respect to the member, then the employee is not limited in his recovery under the [Workers’] Compensation Law to the amount allowed under the schedule for injury to the one member.”

        Masterbrand Cabinets, - So.2d at - (quoting Ex parte Drummond Co., 837 So.2d 831, 833 (Ala.2002), quoting in turn Bell, 282 Ala. at 646, 213 So.2d at 811) (some emphasis omitted). After noting that our Supreme Court in Ex parte Drummond Co. had articulated the new test quoted in the text of this opinion, the opinion in Masterbrand Cabinets then continued by stating:
      "We do not read Ex parte Drummond as foreclosing compensation outside the schedule when an injury, although to a scheduled member, entails 'an abnormal and unusual incapacity with respect to the member’ — in particular, a debilitating pain — that impairs the body as a whole in a manner not contemplated by the schedule.”

        Masterbrand Cabinets, - So.2d at - (emphasis added). To the extent the foregoing statement asserts that Ex parte Drummond Co. does not foreclose the employment of the so-called second prong of the Bell test — the allowance for compensation outside the schedule for "an abnormal and unusual incapacity with respect to the [scheduled] member” — the opinion in Masterbrand Cabinets failed to adequately consider footnote 10 and the accompanying text of the Ex parte Drummond Co. opinion. (Likewise incorrect was the similar implication in the main opinion in Stone & Webster Construction, Inc. v. Lanier, 914 So.2d 869, 877 (Ala.Civ.App.2005).) As the Supreme Court stated in Ex parte Drummond Co., "we decline to consider the so-called second prong of the Bell test a part of the test that we adopt today.” 837 So.2d at 835 n. 10.
      On the other hand, to the extent the above-quoted statement from Masterbrand Cabinets asserts that Ex parte Drummond Co. does not foreclose the awarding of compensation outside the schedule "when an injury ... to a scheduled member[ ] entails ... a debilitating pain ... that impairs the body as a whole in a manner not contemplated by the schedule,” it is correct. The Ex parte Drummond Co. Court itself noted that its opinion did not foreclose such compensation:
      "This case does not present a situation in which the pain, although isolated to the scheduled member, causes a disability to the body as a whole. We recognize that pain can be totally, or virtually totally, debilitating, but this case does not present such a situation; therefore, we decline to address that situation here.”
      837 So.2d at 836 n. 11. The test adopted in Ex parte Drummond Co. would indeed appear to admit of such compensation. See Masterbrand Cabinets, - So.2d at - n. 3 (Noting "[b]y way of example, [that] a worker could experience ongoing pain from an injured member that is so continuous and severe, even when the worker refrains from the use of that member, as to materially adversely affect the worker's ability to use his mind or to concentrate to the degree necessary to accurately or safely perform various tasks. In a real sense, the effect of such pain could properly be considered as 'extending] to other parts of the body and interfering] with their efficiency.'"). Similarly, it is conceivable that a worker’s pain could be of such frequency and severity as to adversely affect his or her ability to sleep, thereby resulting in a material deterioration of his mental or physical health, or both.

      . The last-quoted sentence has been modified with the use of an ellipsis and bracketed phrases to avoid the suggestion of a test other than that articulated in Ex parte Drummond Co.


author: WOODALL, Justice. COBB, Chief Justice

text:
    Ex parte Sachiko RIGSBY. (In re Shoney’s, Inc. v. Sachiko Rigsby).
    1061026.
    Supreme Court of Alabama.
    May 25, 2007.
    Gatewood Walden, Montgomery, for petitioner.
    Submitted on petitioner’s brief only.
   WOODALL, Justice.

WRIT DENIED. NO OPINION.

SEE, LYONS, STUART, BOLIN, and PARKER, JJ., concur.

COBB, C.J., and SMITH, J., dissent.

MURDOCK, J., recuses himself.

COBB, Chief Justice

(dissenting).

This petition properly presented itself for review by this Court because it states conflict as a ground for certiorari review under Rule 39(a)(1)(D), Ala. R.App. P., asserting a conflict between the decision issued by the Court of Civil Appeals in this case and Kohler Co. v. Miller, 921 So.2d 436 (Ala.Civ.App.2005), which discusses Masterbrand Cabinets, Inc. v. Johnson, [Ms. 2030409, June 3, 2005] - So.2d -(Ala.Civ.App.2005), which in turn discusses factually analogous case authority. Conflict between the petitioner’s case and another decided case is adequately stated when a petitioner points out that the two cases reach different results upon the application of the same principles of law to situations where there is no significant factual distinction. I believe that the petitioner has met that burden here. The Court’s rigorous application of the particularity and specificity requirements of Rule 39(a)(l)(D)(2) to the petition in this case prevents our review, on a hypertechnieal basis, of an issue that may well prove to be meritorious. I believe that this decision to avoid further review in this case flies in the face of the governing principle of the appellate rules as expressed in Rule 1, Ala. R.App. P.:

“These rules shall not be construed to extend or limit the jurisdiction of these appellate courts as established by constitution or law. They shall be construed so as to assure the just, speedy, and inexpensive determination of every appellate proceeding on its merits.”

Accordingly, I dissent from the denial of this petition.


author: COBB, Judge.

text:
    Jason Lee HOLLOWAY v. STATE of Alabama.
    CR-05-0185.
    Court of Criminal Appeals of Alabama.
    Sept. 29, 2006.

      Jason Lee Holloway, pro se.
    Troy King, atty. gen., and Andy Scott Poole, asst. atty. gen., for appellee.
   COBB, Judge.

Jason Lee Holloway appeals the circuit court’s denial of his petition for postconviction relief filed pursuant to Rule 32, Ala. R.Crim. P. The petition sought relief from his July 2003 convictions for the capital murder of Rodney and Angela Brown (count I), the intentional murder of Rodney Brown (count II), and the capital murder of Angela Brown during the course of a burglary (count III). Holloway was sentenced to life imprisonment without the possibility of parole for the convictions on counts I and III and was sentenced to life imprisonment for his conviction on count II.This Court affirmed Holloway’s convictions in an unpublished memorandum. Holloway v. State, 920 So.2d 608 (Ala.Crim.App.2004) (table).

Holloway initially filed his Rule 32 petition for postconviction relief while his direct appeal was pending before this Court. The Chambers Circuit Court dismissed Holloway’s petition as untimely filed. (C. 22.) Holloway appealed the dismissal to this Court. Noting that the trial court lacked jurisdiction over the case because the direct appeal was currently pending before this Court, this Court dismissed Holloway’s appeal of the dismissal of his Rule 32 petition and directed the trial court to set aside its dismissal and hold Holloway’s petition in abatement until this Court issued its certificate of judgment on the direct appeal. (C. 27.) This Court issued a certificate of judgment on the direct appeal on September 1, 2004. (C. 29.) On or about December 20, 2004, Holloway amended his Rule 32 petition alleging that the trial court failed to grant him an allocution during the sentencing hearing. (C. 35-36.) The trial court dismissed Holloway’s petition on October -12, 2005, stating that all the issues raised in Holloway’s petition were either raised and addressed on direct appeal or should have been raised in that appeal. (C. 44.)

On appeal, Holloway does not present all of the allegations stated in his petition regarding the trial court’s lack of jurisdiction to render judgment or to impose a sentence and ineffective assistance of counsel. Thus, we will address only those issues presented in his brief; the other issues are deemed abandoned. See Brownlee v. State, 666 So.2d 91 (Ala.Crim.App.1995).

I. Jurisdictional Claims

In his brief to this Court, Holloway argues that the trial court lacked jurisdiction to render judgment or to impose a sentence because the indictment charging Holloway with capital murder of Rodney Brown and Angela Brown during the course of a crime (count II) did not state specifically what crime Holloway intended to commit in the dwelling when the murders occurred and because the trial court allegedly amended the indictment by its oral instructions to the jury. Although a defective indictment that did not allege all the elements of a crime formerly divested a court of jurisdiction, that is no longer the case. In Ex parte Seymour, 946 So.2d 536, 539 (Ala.2006), the Alabama Supreme Court held that “a circuit court has subject-matter jurisdiction over a felony prosecution, even if that prosecution is based on a defective indictment.”

Holloway also argues that the trial court lacked jurisdiction to impose a sentence upon him because, he says, he was deprived of the right to allocution. Assuming, for the sake of argument, that Holloway was deprived of the right to allocution, that omission does not deprive the trial court of jurisdiction. As this Court' recently held: “A claim that a defendant was not afforded the opportunity to address the court before the sentence is imposed is not a" jurisdictional claim.” Shaw v. State, 949 So.2d 184, 187 (Ala.Crim.App.2006). Thus, Holloway is not entitled to any relief as to his alleged jurisdictional claims.

II. Ineffective-Assistance-of-Counsel-Claims

Holloway argues that he received ineffective assistance from his trial counsel becaúse trial counsel (1) failed to move to dismiss the capital-murder indictments that failed to specify the crime Holloway had committed contemporaneous to the murders, (2) failed to object to the trial court’s omission of a jury instruction on the statutory elements of capital murder as defined in § 13A-5-40(a)(10), and (3) failed to object to the amendment of the indictment by the trial court’s jury instructions. He also alleges that he received ineffective assistance of appellate counsel because, he says, appellate counsel did not raise the issue of trial counsel’s ineffectiveness on direct appeal.

In order to prevail on an ineffective-assistance-of-counsel claim, Holloway must satisfy the two-pronged test set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Holloway must show not only that counsel’s performance was deficient, but must also show that the deficiency prejudiced .him. Strickland, supra. “This Court indulges the presumption that trial counsel’s representation was sufficient and that counsel’s assistance was effective.” Bowen v. State, 899 So.2d 310, 312 (Ala.Crim.App.2004).

Holloway’s claims of ineffective assistance of counsel are without merit because he is unable to show that he was prejudiced by his counsel’s performance. Holloway argues that trial counsel should have moved the trial court to dismiss the capital-murder indictments because the indictments failed to specify the crime Holloway committed contemporaneous to the murders. Even if his trial counsel had moved to dismiss the indictments, however, the trial court could have, as it actually did during the jury charges, amended the indictment. In Carruth v. State, 927 So.2d 866 (Ala.Crim.App.2005), we noted:

“Although the indictment did not allege the specific crime Carruth intended to commit inside the dwelling, see, e.g., Lanier v. State, 733 So.2d 931, 936 (Ala.Crim.App.1998), and Popwell v. State, 480 So.2d 41, 45 (Ala.Crim.App.1985) (both holding that a burglary indictment must allege the specific crime the accused intended to commit in the dwelling), the trial court amended the indictment during its jury instructions when it instructed the jury that to find Carruth guilty of capital murder during a burglary it had to find that Carruth intended to commit the crime of theft inside the dwelling. See, e.g., Ash v. State, 843 So.2d 213 (Ala.2002) (a trial court can amend an indictment through its jury instructions), and Hampton v. State, 815 So.2d 571 (Ala.Crim.App.2001) (holding that an indictment that fails to charge a mens rea element but otherwise validly charges a crime may be amended to add the mens rea element).”

927 So.2d at 878-79, n. 6. Such amendment may be made over the objection of a defendant. Rule 13.5(a), Ala. R.Crim. P., states:

“A charge may be amended by order of the court with the consent of the defendant in all cases, except to change the offense or to charge new offenses not contemplated by the original indictment. The court may permit a charge to be amended without the defendant’s consent, at any time before verdict or finding, if no additional or different offense is charged and if the substantial rights of the defendant are not prejudiced.”

(Emphasis added.) Thus, Holloway could not have been prejudiced by his attorney’s failure to move to dismiss the indictment.

Likewise, Holloway’s claim that trial counsel was ineffective for not objecting to the trial court’s failure to instruct the jury as to the statutory elements of capital murder as defined in § 13A-5-40(a)(10) is without merit. When considering a trial court’s jury instructions, this Court must review the instructions as a whole, and not in isolation. See, e.g., Yeomans v. State, 898 So.2d 878, 898 (Ala.Crim.App.2004). The trial court’s instructions to the jury as to count I were as follows:

“Ladies and Gentlemen, that concludes some general principles of law that applies to any criminal case. Now, I will go over with you specific law pertaining to this case. And, I’m going to begin with count one.
“The defendant is charged with capital murder. The law states that the intentional murder of two or more persons is capital murder. A person commits an intentional murder of two or more persons, if he causes the death of two or more persons and in performing the act that causes the death of those persons, he intends to kill each of those people.
“To convict, the State must prove beyond a reasonable doubt each of the following elements of an intentional murder of two or more persons.
“One, that Rodney Brown is dead.
“Two, that Angela Brown is dead.
“Three, that the defendant Jason Holloway caused the deaths of Rodney Brown and Angela Brown by shooting Rodney Brown with a pistol or gun and by shooting Angela Brown with a pistol or gun and/or stabbing her with a knife, or knife-like object, and/or beating her with a bat or stick-like object.
“Four, that in committing the act which caused the deaths of both Rodney and Angela Brown, the defendant intended to kill the deceased persons.
“A person acts intentionally when it is his purpose to cause the death of another person. The intent to kill must be real and specific.
“If you find from the evidence that the State has proved beyond a reasonable doubt each of the above elements of the offense of intentionally [sic] murder of two or more persons as charged then you shall find the defendant guilty of capital murder.
“If you find the State has failed to prove beyond a reasonable doubt any one or more of the elements of the offense of intentional murder of two or more persons, then you cannot find the defendant guilty of capital murder.
“Ladies and Gentleman, I’m going straight through this charge as I said with the counts as they are found in the indictment. And then I’m going to explain to you what, if any, lesser-included offenses may apply to each of the three counts of the indictment.
“In further connection with the charge that I have just given you on the law as it pertains to the murder of two or more persons by a single act, I charge you that a knife, when used to cut or stab a person, is a deadly weapon.
“Because the element of intent being a state of mind or mental purpose is usually incapable of direct proof, it may be inferred from the character of the assault, the use of a deadly weapon, and other attendant circumstances.
“Now count one covers the murder of two or more persons by one act or one scheme of conduct.”

(Direct appeal R. 1333-35.) Although not the model of clarity, the instructions did inform the jury that to constitute a capital offense the two murders must have arisen out of the same scheme or conduct. Thus, Holloway’s claim is without merit.

Similarly, Holloway’s claim that trial counsel failed to object to the amendment of the indictment by the trial court’s jury instructions is without merit. As stated previously, a trial court may amend an indictment by giving a jury instruction and such an amendment may take place over the objection of the defendant. See, e.g., Carruth v. State, 927 So.2d 866 (Ala.Crim.App.2005), and Rule 13.5(a), Ala. R.Crim. P.

Because the aforementioned claims of ineffective assistance of trial counsel are without merit, it logically follows that appellate counsel did not err by not raising these issues on appeal. Thus, Holloway’s claim of ineffective assistance of appellate counsel are likewise without merit. Therefore, Holloway is not entitled to relief as to his claims of ineffective assistance of counsel.

III. Double-Jeopardy Concerns

Additionally, we find it necessary to address Holloway’s convictions and sentence ex mero motu. See Thompson v. Board of Pardons & Paroles, 806 So.2d 374, 375 (Ala.2001). (“ ‘[I]t is the duty of an appellate court to consider lack of subject matter jurisdiction ex mero motu.’ ” (quoting Ex parte Smith, 438 So.2d 766, 768 (Ala.1983))). According to the briefs of the parties as well as the record on direct appeal, Holloway was convicted of (1) capital murder of Rodney Brown and Angela Brown, (2) intentional murder of Rodney Brown, and (3) capital murder of Angela Brown during the course of a burglary. He was sentenced to life imprisonment without the possibility of parole as to the two capital-murder convictions and to life imprisonment as to the intentional murder conviction. The conviction and sentence for both intentional murder and capital murder as to one victim violate the principles of double jeopardy.

This Court addressed a similar situation recently in Cooper v. State, 912 So.2d 1150 (Ala.Crim.App.2005), in which we stated:

“ ‘Section 13A-l-8(b), Ala.Code 1975, provides, in pertinent part, as follows:
“ ‘ “(b) When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense. He may not, however, be convicted of more than one offense if:
“ ‘ “(1) One offense is included in the other, as defined in Section 13A-1-9.”
“ ‘Intentional murder, as defined in § 13A-6-2(a)(l), Ala.Code 1975, is a statutory element of the capital offense of murder committed during first-degree robbery, as that offense is defined in § 13A-5-40(a)(2), Ala.Code 1975; therefore, the State must prove the element of intentional murder to support a conviction for the capital offense of murder committed during a first-degree robbery. See, e.g., Mangione v. State, 740 So.2d 444, 449 (Ala.Crim.App.1998).’
“Watson v. State, 875 So.2d 330, 333 (Ala.Crim.App.2003).
“Thus, in Cooper’s case, as in Watson, intentional murder is a lesser offense to the offense of capital murder. Because the intentional murder of Herman Daniels as charged in count I of the indictment was an element of the capital offense of the murder of Daniels during the course of a burglary, as charged in count II of that same indictment, Cooper could not be convicted of both counts.
“ ‘As we noted in Borden v. State, 711 So.2d 498, 503 (Ala.Crim.App.1997), aff'd, 711 So.2d 506 (Ala.1998):
“ ‘ “We recognize that the trial court may, and indeed should, properly submit to the jury all counts of an indictment and lesser included offenses reasonably supported by the evidence, notwithstanding the fact that some of the lesser included offenses constitute the ‘same offense’ for double jeopardy purposes. Rolling [v. State], 673 So.2d [812] at 815 n. 1 [ (Ala.Crim.App.1995) ], citing Ball v. United States, 470 U.S. 856, 865, 105 S.Ct. 1668, 1673-74, 84 L.Ed.2d 740 (1985), and King v. State, 574 So.2d 921, 935-36 (Ala.Cr.App.1990) (Bowen, J., concurring specially). See § 13A-l-8(b). However, where, as here, the jury returns guilty verdicts for both a capital offense alleged in one count of the indictment and the lesser included offense of intentional murder ... [as] alleged in another count of the indictment, and the same murder was an element of the capital offense and the intentional murder conviction, the trial court should enter a judgment on only one of the offenses. See Coral [v. State ], 628 So.2d [954] at 958 [ (Ala.Crim.App.1992) ].”
“‘(Footnote omitted.) See also Simmons v. State, 797 So.2d 1134, 1184 (Ala.Crim.App.1999); Ingram v. State, 779 So.2d 1225, 1241 (Ala.Crim.App.1999), aff'd, 779 So.2d 1283 (Ala.2000).’
“Watson v. State, 875 So.2d at 333.”

912 So.2d at 1152-53.

We therefore remand this cause for the trial court to vacate Holloway’s conviction and sentence based on count II of the indictment, i.e., intentional murder of Rodney Brown, which is a lesser-included offense of the capital murder of two or more people pursuant to the same scheme or course of action. We note, however, that Holloway’s convictions under counts I and III of the indictment for capital murder were proper, “and thus [they] stand.” Coral v. State, 628 So.2d 954, 958 (Ala.Crim.App.1992).

For the foregoing reasons, the trial court’s denial of Jason Lee Holloway’s Rule 32 petition is affirmed. However, we remand this cause so the trial court may enter a new order vacating Holloway’s conviction for intentional murder. The return to remand shall be filed within 28 days of this opinion. The convictions for capital murder stand.

AFFIRMED; REMANDED WITH INSTRUCTIONS.

McMILLAN, P.J., and BASCHAB, SHAW, and WISE, JJ., concur.

      . Holloway was indicted on three counts. Count I charged Holloway with the murder of Angela and Rodney Brown made capital because it was committed "pursuant to one scheme or course of conduct,” § 13A-5-40(a)(10), Ala.Code 1975. Count II charged Holloway with the murder of Rodney Brown made capital because it was committed during a burglary, § 13A-5~40(a)(4). Count III charged Holloway with the murder of Angela Brown made capital because it was committed during a burglary, § 13A-5-40(a)(4). The jury found Holloway guilty of counts I and III and of the lesser-included offense of intentional murder as to count II.

       Note from the reporter of decisions: On January 16, 2007, this case was submitted on return to remand. By order issued January 30, 2007, the Court of Criminal Appeals again remanded the case to the trial court. On March 9, 2007, on return to second remand, the Court of Criminal Appeals affirmed, without opinion. On March 23, 2007, that court denied rehearing, without opinion. On May 11, 2007, the Supreme Court denied certiora-ri review, without opinion (1060972).