author: PER CURIAM. MURDOCK, Justice

text:
    Sheila MILLER, as administratrix of the estate of George Miller, M.D., deceased v. Velisa Lynn BAILEY. Velisa Lynn Bailey v. Sheila Miller, as administratrix of the estate of George Miller, M.D., deceased.
    1071624 and 1071665.
    Supreme Court of Alabama.
    Sept. 30, 2010.

      Scott M. Salter, Joseph S. Miller, and Laura H. Peck of Starnes & Atchison LLP, Birmingham, for appellant/cross-ap-pellee Sheila Miller, as administratrix of the estate of George Miller, M.D., deceased.
    William J. Baxley, Charles A. Dauphin, and Donald R. James, Jr., of Baxley, Dillard, Dauphin, McKnight & Barclift, Birmingham, for appellee/cross-appellant Veli-sa Lynn Bailey.

       Although Justice Bolin did not sit for oral argument of this case, he has viewed the video recording of that oral argument.

   PER CURIAM.

Sheila Miller (“Miller”), as administra-trix of the estate of George Miller, M.D. (“Dr. Miller”), deceased, appeals from an adverse judgment of the Etowah Circuit Court on Velisa Lynn Bailey’s claim of medical negligence regarding the second of two major surgeries Dr. Miller performed on Bailey while she was under his care (case no. 1071624). Bailey appeals from a judgment as a matter of law in favor of Miller on Bailey’s claim of wantonness against Dr. Miller arising out of the same surgery (case no. 1071665). In addition, Miller contends that the trial court erred in declining to submit her proposed verdict form to the jury. We affirm the judgment of the trial court as to each matter.

I. Facts and Procedural History

Before Bailey sustained the injuries she contends occurred at the hands of Dr. Miller, she was a registered nurse at Gadsden Regional Medical Center (“Gadsden Regional”). There is no dispute that Bailey suffered from gastroesophagal reflux disease, meaning that gastric juices from her stomach flowed up into her esophagus, causing severe heartburn. In order to alleviate the problem, on September 26, 2000, Dr. Miller, assisted by Dr. Tracy Lowery, performed a laparoscopic Nissen fundoplication (“stomach-wrap surgery”) on Bailey at Gadsden Regional.

The day after the surgery Bailey was released from the hospital. Sometime before midnight of that day, however, Bailey awoke suffering from shortness of breath and a “stabbing” pain in her chest. Bailey was readmitted to Gadsden Regional, evaluated by Dr. Miller, provided a shot of Demerol, and discharged. In the early morning of September 29, Bailey again awoke with a sharp pain in her chest and shortness of breath. She was again admitted to Gadsden Regional, but this time her condition deteriorated. Tests revealed that large amounts of fluid were accumulating in her chest and that opacification had occurred in her right chest cavity. On September 30, a pint of fluid was drained from Bailey’s chest.

On October 1, 2000, Dr. Miller performed a thoracotomy on Bailey in order to determine the source of her problems. In the surgery, Dr. Miller discovered, as he stated in his deposition, that Bailey had “a lot of inflammation and what we call an inflammatory peel around the [right] lung that comes from protein deposits that turn into — it’s almost like a scab, but it’s not a mature scab.” The inflammatory peel had caused Bailey’s right lung to be stuck to the wall of her chest. As a result, the inflammatory peel had to be scraped and removed in order to free her lung. In addition, as Dr. Miller’s notes on the surgery indicated, “the fundus of the stomach which had been plicated [wrapped] around the esophagus had a very tiny perforation in the right lateral portion of the [stomach] wrap. This had drained into the mediasti-num [] and into the right chest.” In his surgical notes, Dr. Miller described the perforation as “a very tiny (1 to 2 mm) perforation in the stomach.” Dr. Miller closed the perforation with two sutures and then folded over a portion of the me-diastinal wall and sutured it in place as extra covering for the perforation.

Following the surgery, Bailey seemed to improve. The fluid that was drained from her chest became less opaque, and it decreased in volume. She began breathing better on her right side, and, according to his discharge summary, Dr. Miller “felt there was a good chance the leak had been closed.” Starting on October 6, however, Bailey started to feel more discomfort. By October 8, she had decreased breath sounds over her right lung and a persistent cough. Chest x-rays taken on October 9 revealed that Bailey again had free fluid in her right chest cavity, and the chest tubes that had been inserted were not satisfactorily draining it. Consequently, Dr. Miller performed another surgery in which he attempted to insert more chest tubes to drain the fluid, but he was unable to do so because Bailey’s lung was “tightly” stuck to the chest wall. On October 10, a radiologist inserted a chest tube with the use of CT guidance, and he removed more than one-half pint of fluid.

Despite the presence of the new drainage tube, additional fluid accumulated in Bailey’s chest. Because Bailey was not getting better, on October 11, 2000, Dr. Miller decided to transfer her to the care of Dr. Henry Laws at Carraway Methodist Medical Center (“Carraway”). Dr. Miller had been in communication with Dr. Laws for the preceding week concerning Bailey’s case because, unlike Dr. Miller, Dr. Laws previously had handled stomach-wrap patients who had sustained stomach perforations.

Upon arriving at Carraway, Bailey was immediately taken to surgery, where another chest tube was inserted in an effort to drain from her chest the fluid that was leaking from her stomach. The next day, Dr. Laws performed another thoracotomy on Bailey in order to scrape inflammatory peel off her right lung. He also inserted a feeding tube to enable Bailey to receive liquid nutrition, as well as two new chest tubes. Following this surgery, Bailey’s condition somewhat stabilized, and the second chest tube that had been inserted was removed on October 17.

Bailey remained at Carraway under the care of Dr. Laws for the majority of the next two months. She was discharged twice during that period, but she was forced to return because of persistent nausea. Dr. Laws eventually determined that the nausea was a symptom of withdrawal resulting from her body’s becoming addicted to the pain killer Demerol, which had been administered to her during her protracted stays in the hospital.

Swallowing studies periodically administered over this two-month period indicated additional leakage from Bailey’s stomach and fluid in her chest. In a patient history dated December 8, 2000, and entered into evidence, Dr. Laws concluded that the leakage of acidic fluid from Bailey’s stomach into her chest had eroded pulmonary tissue and had created a gastrobronchial fístula. He also noted that Bailey again had started to experience reflux from her stomach back into her esophagus, which he surmised was occurring because the stomach wrap had migrated from Bailey’s abdomen to her chest causing “inadequate valvular effect to avoid reflux.” As a result of these problems, Dr. Laws recommended that Bailey undergo another surgery to repair the fistula and to reverse and redo the stomach wrap. On December 11, 2000, Dr. Laws performed the recommended surgical procedures.

Following the December 11, 2000, surgery, Bailey began to recover. The second stomach wrap resolved the acid reflux, and the fístula repair stopped the remaining leakage from her stomach into her chest cavity. As a result of her injuries, Bailey was not able to return to her work as a nurse at Gadsden Regional, and she began receiving Social Security income based on a total disability.

On September 24, 2002, Bailey sued Dr. Miller and Dr. Joseph A. Foster, alleging, in pertinent part, that Dr. Miller had negligently and/or wantonly breached the standard of care by perforating Bailey’s stomach during the September 26, 2000, stomach-wrap surgery, and by attempting to repair the perforation during the October 1, 2000, thoracotomy by suturing inflamed tissue. Dr. Miller answered Bailey’s complaint and denied the allegations. Blue Cross and Blue Shield of Alabama filed a motion to intervene as a plaintiff based on a subrogation interest as a result of paying Bailey’s medical expenses, and the trial court granted its motion on May 27, 2003.

On October 11, 2006, a suggestion of death was entered into the record showing that Dr. Miller had died. Bailey filed a motion to appoint Sheila Miller, Dr. Miller’s widow, as administrator ad litem, which the trial court subsequently granted. Miller then filed a motion for a partial summary judgment, which the trial court granted only as to a claim not in issue before us.

The case was tried before a jury beginning on May 5, 2008. At the close of Bailey’s case and at the close of all the evidence, Miller moved for a judgment as a matter of law on Bailey’s negligence and wantonness claims, contending that Bailey had failed to present substantial evidence showing that any act or omission of Dr. Miller proximately caused Bailey’s injuries and that Bailey’s wantonness claims also were not supported by substantial evidence. Finally, Miller requested that the trial court hold § 6-5-543, Ala.Code 1975, a part of the Alabama Medical Liability Act, constitutional and that the verdict form reflect the periodic-payments provision of that section regarding any future damages awarded to Bailey.

The trial court entered a judgment as a matter of law in favor of Miller on Bailey’s wantonness claims, but denied Miller’s motion in all other respects. The trial court also declined to submit Miller’s proposed verdict form regarding future damages to the jury. The jury returned a verdict in favor of Bailey and awarded damages in the amount of $2 million. Miller filed a renewed motion for a judgment as matter of law, which the trial court denied.

Miller timely appealed the judgment on Bailey’s medical negligence claim. As in the trial court, she contends that there was insufficient evidence of causation as to that claim and that the trial court erred in its ruling related to the constitutionality of § 6-5-543, Ala.Code 1975. Bailey timely appealed the trial court’s judgment as a matter of law on her wantonness claim related to the thoracotomy performed by Dr. Miller.

II. Standard of Review

“ ‘When reviewing a ruling on a motion for [a judgment as a matter of law], this Court uses the same standard the trial court used initially in granting or denying the [judgment as a matter of law]. Palm Harbor Homes, Inc. v. Crawford, 689 So.2d 3 (Ala.1997). Regarding questions of fact, the ultimate question is whether the nonmovant has presented sufficient evidence to allow the case or issue to be submitted to the jury for a factual resolution. Carter v. Henderson, 598 So.2d 1350 (Ala.1992). The nonmovant must present substantial evidence to withstand a motion for [a judgment as a matter of law]. See § 12-21-12, Ala.Code 1975; West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). A reviewing court must determine whether the party who bears the burden of proof has produced substantial evidence creating a factual dispute requiring resolution by the jury. Carter, 598 So.2d at 1353. In reviewing a ruling on a motion for [a judgment as a matter of law], this Court views the evidence in the light most favorable to the nonmovant and entertains such reasonable inferences as the jury would have been free to draw. Id. Regarding a question of law, however, this Court indulges no presumption of correctness as to the trial court’s ruling. Ricwil, Inc. v. S.L. Pappas & Co., 599 So.2d 1126 (Ala.1992).’ ”

National Ins. Ass’n v. Sockwell, 829 So.2d 111, 125-26 (Ala.2002) (quoting State Farm Fire & Cas. Co. v. Slade, 747 So.2d 293, 302-03 (Ala.1999)).

III. Analysis

A. The Trial Court’s Judgment on Bailey’s Claim of Medical Negligence

At the outset, we note that Miller does not dispute that Bailey presented substantial evidence of medical negligence in relation to the stomach-wrap surgery Dr. Miller performed on September 26, 2000. Rather, Miller contends solely that Bailey failed to present substantial evidence that any act or omission by Dr. Miller during the thoracotomy performed on October 1, 2000, caused injuries to Bailey.

“To prevail on a medical-malpractice claim, a plaintiff must prove ‘ “1) the appropriate standard of care, 2) the doctor’s deviation from that standard, and 3) a proximate causal connection between the doctor’s act or omission constituting the breach and the injury sustained by the plaintiff.” ’ Pruitt [v. Zeiger], 590 So.2d [236,] 238 [(Ala.1991) ] (quoting Bradford v. McGee, 534 So.2d 1076, 1079 (Ala.1988)).”

Giles v. Brookwood Health Servs., Inc., 5 So.3d 533, 549 (Ala.2008).

“A plaintiff in a medical-malpractice action must ... present expert testimony establishing a causal connection between the defendant’s act or omission constituting the alleged breach and the injury suffered by the plaintiff. Pruitt v. Zeiger, 590 So.2d 236, 238 (Ala.1991). See also Bradley v. Miller, 878 So.2d 262, 266 (Ala.2003); University of Alabama Health Servs. Found., P.C. v. Bush, 638 So.2d 794, 802 (Ala.1994); and Bradford v. McGee, 534 So.2d 1076, 1079 (Ala.1988). To prove causation in a medical-malpractice case, the plaintiff must demonstrate ‘ “that the alleged negligence probably caused, rather than only possibly caused, the plaintiffs injury.” ’ Bradley, 878 So.2d at 266 (quoting University of Alabama Health Servs., 638 So.2d at 802).”

Sorrell v. King, 946 So.2d 854, 862 (Ala.2006).

At trial, Bailey argued that Dr. Miller erred in attempting to repair the perforation in her stomach during the thoracoto-my he performed on October 1, 2000, by using sutures because the tissue surrounding the perforation was inflamed and thus, she says, too weak to hold together with sutures. Bailey contended the result was that, instead of healing, the perforation became larger and acidic fluid from Bailey’s stomach continued to leak into her chest cavity until Dr. Laws remedied the problem through his course of treatment at Carraway.

Miller contends that Bailey failed to demonstrate that Dr. Miller’s actions during the thoracotomy probably caused injuries in addition to those she sustained as a result of the stomach-wrap surgery. Specifically, she argues that the expert testimony elicited by Bailey at trial was insufficient to establish that Bailey sustained injuries as a result of Dr. Miller’s suturing of the perforation in Bailey’s stomach.

Bailey’s primary expert witness on the issue of Dr. Miller’s breach of the standard of care during the thoracotomy was Dr. Joseph Colella. In pertinent part, Doctor Colella testified with regard to this second surgery as follows:

“Q. [Bailey’s counsel:] Do you have an opinion ... as to how Dr. Miller’s approach to this repair violated the standard of care?
“A. Ido.
“Q. What is that opinion, please, sir? Explain to us.
“A. I think he tried to close a hole in an inflammatory area with inflammatory tissue.
“Q. What’s wrong with that?
“A. It’s just not going to hold the stitches. Those tissues are not in their normal state. They are not of the appropriate viability. Or they are not of the appropriate life-sustaining character that they have under normal circumstances to be able to place the stitch, tie the stitch, and not have that stitch either pull through or slowly but surely pull through or keep the tissues together and make them stick to each other.
“Q. Well, how else are you going to close it if you’re in the cavity and the chest cavity is bathed in these gastric juices and everything is inflamed and angry, how are you going to close suture — I mean, close the hole in the stomach?
“A. Somehow find healthy tissue to close it.
“Q. And what does the term ‘dissection’ mean?
“A. It means exposed or cut around or get to healthy tissue surgically. Or get to exposed, identify, deliver into—
“Q. In this context and in this operation, if you were going to dissect something, what would you dissect?
“A. Well, I would dissect this area or mobilize it such that I could find healthy tissue to put over the hole.
“Q. Is there any indication in this note at all that this doctor did any dissection of the inflamed material to get down to the healthy tissue?
“A. There isn’t.
“Q. Could any board certified surgeon have reasonably expected that these two sutures, covering it with the mediastinal wall that had been bathed in gastric juices would hold?
“A. Not the way it was done here. If it’s not healthy tissue, it’s not going to hold.
“Q. Well, if there’s no healthy tissue in the chest cavity, what do you do to repair the hole?
“A. You can choose not to repair it and just drain it and get appropriate drainage. If that wasn’t the chosen option— or the other option is to completely undo the wrap, bring it to a position in the body, whether that be in the abdomen or the chest, most likely the abdomen where you have healthy tissue to work with. Replacing sutures in inflamed area where the tissue is angry and not prepared to hold those sutures basically guarantees ongoing trouble.
“Q. From looking at the records, that’s what she had, was ongoing trouble, isn’t it?
“A. It is.
“Q. We talked about [the October 1 surgery] earlier; I’m not going to go back through all that. [Dr. Miller’s] choice was to try to stitch it up or, as you said, an alternative way would be to leave it alone and do nothing?
“A. With adequate drainage.
“Q. With adequate drainage. You said really the way you looked back on this, the way you added it up was that the tissue really was like wet paper towels and wasn’t going to hold anything, true?
“A. That’s consistent with my experience, yes, sir.
“Q. Here’s my point: It really wouldn’t make any sense for a surgeon to try to sew into something that looked and felt like wet paper towels, would it?
“A. Would not.
“Q. It just doesn’t make any sense?
“A. That’s correct.”

Bailey also questioned Dr. Lowery — who had assisted Dr. Miller in the stomach-wrap surgery and who served as an expert for Miller — about the attempt to repair Bailey’s stomach perforation with sutures. In pertinent part, Dr. Lowery testified as follows:

“Q. Now, let’s talk for a minute to the thoracotomy on [October 1], You have reviewed the medical records because you, I guess, may be called as an expert also; is that correct?
“A. That’s correct.
“Q. And that repair that Miller did on the 1st, it was leaking seven to ten days later, wasn’t it?
“A. “When the fluid reaccumulated in the chest on the 8th or 9th, yes, sir.
“Q. It was leaking seven to ten days later?
“A. Correct.
“Q. Now, did the tissue — Back up. He stitched together two stitches where the hole in the stomach was, didn’t he?
“A. Yes, sir.
“Q. Now, if the tissue where those stitches go in was inflamed, you would agree that it’s probable that if that stitch doesn’t hold, the hole gets bigger?.
“A. No, sir. I disagree with that.
“Q. Do you remember being asked that in your deposition?
“A. No, sir, I don’t.
“Q. Look at line 10. Where you [were] asked, What was the point of stitching the perforation?’ Is that the question?
“A. Yes, sir.
“Q. Did you answer: ‘In hopes of helping it heal. I think it was acceptable to do that. I think it would have - been acceptable not to have done that.’ Was that your answer?
“A. Yes, sir.
“Q. Then we ask this question: ‘Assume for me that that one millimeter perforation was inflamed. If you applied a stitch to that perforation, would that have a probability of making the hole larger if the stitch doesn’t hold?’ You were asked that question, and you answered — did you not answer under oath: ‘If the tissue where the actual stitch goes in is inflamed, then yes, I would agree.’
“A. Yes, sir. That’s what I answered.
“Q. And that’s true today, isn’t it?
“A. Yes, sir.
“Q. If there’s a lot of inflammation and if that tissue is inflamed that he stitched over, if the tissue where the actual stitch goes in is inflamed, then yes, you would agree that when it breaks, the hole gets larger?
“A. Yes, but to stitch it through inflamed tissue would also not be correct.
“Q. It would be an absolute gross violation of the standard of care, wouldn’t it?
“A. Dr. Miller did not do that.
“Q. If Dr. Miller closed with the two stitches on that opening in an inflamed area, that would be a gross breach of the standard of care, wouldn’t it?
“A. I apologize for not just saying yes or no. If the stitches went through nonhealthy tissue, yes, sir.
“Q. It would be a gross breach of the standard of care?
“A. It would be — Yes, sir.
“Q. But it would be easier to fix that leak, wouldn’t it, if you had good healthy tissue?
“A. Good healthy tissue is always better than unhealthy tissue, yes, sir.
“Q. And if you fix the leak with good, healthy tissue, there’s no reason to think it’s going to reopen, is there?
“A. You would anticipate it remaining closed, yes, sir.
“Q. In this case, that repair didn’t remain closed, did it?
“A. No, sir.
“Q. Now, you state that Dr. Miller wouldn’t have done this because in your opinion he’s a very highly qualified surgeon. Isn’t that the reason that you give as to why he wouldn’t have stitched together inflamed tissue?
“A. One of the reasons, yes, sir.
“Q. Well, if he had left the hole alone and not done anything, the hole wouldn’t have gotten any larger, would it?
“A. No, sir, would not have expected the hole to get any larger.
“Q. But if he did in fact stitch the hole together in inflamed areas and it came undone, then it’s probable that the hole got larger, isn’t it?
“A. In the theoretical situation that you have just described, the possibilities of it getting larger are there, yes, sir.
“Q. So if that in fact did happen, what Dr. Miller did was make the situation worse, didn’t it?
“A. No, sir. I don’t think it would have made the situation worse, because I don’t think the original hole would have sealed.
“Q. Well, isn’t a larger hole worse than a smaller hole?
“A. There’s no indication there was a larger hole.
“Q. I know. But if we get back to that tissue being inflamed and it was stitched together and it was stitched together and it came undone, it’s probable that the hole was larger, isn’t it?
“A. Sounds like we’re talking about a different case now, because it’s a theoretical situation that didn’t exist. But in your theoretical situation, yes, sir.”

Miller contends that Dr. Colella’s testimony that Bailey encountered “ongoing trouble” as a result of Dr. Miller’s attempt to repair the perforation in Bailey’s stomach was too generalized to establish that Dr. Miller caused Bailey additional injury. She also observes that in Dr. Lowery’s testimony concerning the “hole getting larger” Dr. Lowery actually stated that he did not believe that the perforation became larger. Moreover, Miller argues, Dr. Lowery’s testimony did not establish that, even if the perforation was larger, it caused more problems for Bailey than she otherwise would have had. In short, Miller contends that, at best, the expert testimony from Dr. Colella and Dr. Lowery simply established that Bailey continued to have the same problems she had developed following the stomach-wrap surgery or that she experienced a general worsening of her condition that, Miller contends, is not compensable.

Miller’s arguments do not correlate with the inferences the jury could draw from the evidence presented at trial. First, Bailey presented substantial evidence through the testimony of Dr. Colella and Dr. Lowery that, if Dr. Miller sutured the perforation with inflamed tissue, he breached the standard of care. She also presented substantial evidence that the tissue Dr. Miller sutured was inflamed. It was undisputed that there was a lot of inflammation in the chest cavity when Dr. Miller performed the thoracotomy: the pleura (the chest cavity surrounding the lungs), the mediastinum (the portion of the chest cavity containing the heart), the chest wall, and the lungs were all inflamed. Indeed, the day before the October 1, 2000, surgery, a pint of fluid had been drained from Bailey’s chest. Because the medical records indicated the entire area was inflamed by gastric juices, Dr. Colella surmised that Dr. Miller sutured the stomach perforation together using inflamed tissue, and both he and Dr. Lowery testified that inflamed tissue would not hold together with sutures. Dr. Lowery also testified that, if healthy tissue had been used to support the sutures, “[y]ou would anticipate [the perforation] remaining closed.” The evidence indicated that Bailey’s condition improved for approximately a week following the October 1, 2000, surgery, but then it began to worsen and fluid once again started draining from her chest. Thus, the evidence supported Dr. Colella’s theory that Dr. Miller sutured inflamed tissue in closing the perforation, which held for a brief period but then gave way, resulting in new leakage from Bailey’s stomach to her chest cavity.

Dr. Colella testified that sutures placed in inflamed tissue will not hold, and Dr. Lowery confirmed that testimony. Dr. Colella further testified that the fact that the sutures would not hold “basically guarantee[d] ongoing trouble” for Bailey.

Following the October 1, 2000, thoraco-tomy, Bailey spent over two months in the hospital because additional stomach acid was leaking into her chest cavity and it constantly had to be drained from her body. Bailey testified that, as a result, she suffered from debilitating pain and a persistent cough during her treatment. In addition, Dr. Laws noted that Bailey suffered from bouts of nausea during the two occasions over her two months of treatment at Carraway that she was discharged, a condition that Dr. Laws eventually traced to her body having become addicted to the pain medication being administered during her hospital stays. Dr. Laws also discovered that a further problem had developed — a fístula between Bailey’s stomach and her right lung as a result of the damage being inflicted by the stomach fluid. The jury reasonably could have found that all of these conditions constituted injuries Bailey suffered as a direct result of Dr. Miller’s negligence in the attempted repair of Bailey’s stomach perforation during the October 1, 2000, thoracotomy.

This Court has stated:

“[A] theory of causation is not mere conjecture, when it is deducible as a reasonable inference from ‘known facts or conditions,’ Alabama Power Co. v. Robinson, 447 So.2d 148, 153-54 (Ala.1983). ‘ “[I]f there is evidence which points to any one theory of causation, indicating a logical sequence of cause and effect, then there is a judicial basis for such a determination, notwithstanding the existence of other plausible theories with or without support in the evidence.” ’ Griffin Lumber Co. v. Harper, 247 Ala. 616, 621, 25 So.2d 505, 509 (1946) (quoting Southern Ry. v. Dickson, 211 Ala. 481, 486, 100 So. 665, 669 (1924)).”

Dixon v. Board of Water & Sewer Comm’rs of Mobile, 865 So.2d 1161, 1166 (Ala.2003). Dr. Colella’s theory of causation, which was supported by general statements from Dr. Lowery’s testimony, was deducible as a reasonable inference from the known facts and conditions of Bailey’s situation. Given that in reviewing Miller’s motion for a judgment as a matter of law we are to view the evidence in the light most favorable to Bailey and to entertain such reasonable inferences as the jury would have been free to draw, we conclude that the trial court did not err in finding that Bailey presented substantial evidence that Dr. Miller’s actions during the October 1, 2000, thoracotomy caused injuries to Bailey.

B. The Trial Court’s Judgment as a Matter of Law on Bailey’s Claim of Wantonness

Bailey contends that the trial court erred in dismissing her wantonness claim against Dr. Miller regarding his actions during the thoracotomy. Bailey contends that her wantonness claim should have been submitted to the jury because, she says, she presented evidence indicating that the tissue surrounding her stomach was inflamed, that Dr. Miller knew that sutures stitched into inflamed tissue would not hold, and that the failure of such sutures would result in a larger hole in her stomach. She also notes that Dr. Lowery testified that if Dr. Miller had sutured an inflamed area “that would be a gross breach of the standard of care,” and that Dr. Colella testified that no “board certified surgeon [could] have reasonably expected that these two sutures ... would hold” if the tissue was inflamed.

Wantonness, however, is “not merely a higher degree of negligence; instead, it is a ‘qualitatively different tort concept of actionable culpability.’ ” Cessna Aircraft Co. v. Trzcinski, 682 So.2d 17, 19 (Ala.1996) (quoting Lynn Strickland Sales & Serv. Inc. v. Aero-Lane Fabricators, Inc., 510 So.2d 142, 145 (Ala.1987)).

“‘“Gross negligence” is negligence, not wantonness.
“ ‘Before one can be convicted of wantonness, the facts must show that he was conscious of his conduct and conscious from his knowledge of existing conditions that injury would likely or probably result from his conduct, that with reckless indifference to consequences, he consciously and intentionally did some wrongful act or omitted some known duty which produced the injury.’ ”

Smith v. Roland, 243 Ala. 400, 403, 10 So.2d 367, 369 (1942) (quoting 5 Mayfield’s Digest, p. 711, § 6). Our legislature has defined wanton conduct as “[cjonduct which is carried on with a reckless or conscious disregard for the rights or safety of others,” § 6 — 11—20(b)(3), Ala.Code 1975, and, to justify an award of punitive damages, must be proven by “clear and convincing evidence,” § 6-ll-20(a), Ala.Code 1975. See also § 6-U-20(b)(4), Ala.Code 1975 (defining “clear and convincing evidence”).

We cannot conclude that the record before us contains sufficient evidence from which a jury could conclude under the aforesaid statutes that Dr. Miller had engaged in conduct that was “carried on with a reckless or conscious disregard for the rights or safety” of Bailey. Thus, the trial court did not err in entering a judgment as a matter of law in favor of Miller on Bailey’s wantonness claim.

IV. Conclusion

On the basis of the forgoing, the trial court’s judgment is due to be affirmed in all respects.

1071624 — AFFIRMED.

COBB, C.J., and LYONS, WOODALL, SMITH, BOLIN, PARKER, and SHAW, JJ., concur.

STUART and MURDOCK, JJ., dissent.

1071665 — AFFIRMED.

COBB, C.J, and LYONS, WOODALL, STUART, SMITH, BOLIN, PARKER, MURDOCK, and SHAW, JJ., concur.

MURDOCK, Justice

(dissenting in case no. 1071624 and concurring in case no. 1071665).

I respectfully dissent as to the main opinion’s affirmance of the judgment on Bailey’s medical-negligence claim (case no. 1071624). I concur as to the affirmance by the main opinion of the trial court’s judgment as a matter of law on Bailey’s wantonness claim (case no. 1071665).

STUART, J., concurs.

      .A Nissen fundoplication involves wrapping the fundus of the stomach around the esophagus in order to prevent the gastric juices from flowing up into the esophagus.

      .- A thoracotomy is an exploratory surgery of the chest area.

      . The mediastinum is the portion of the chest cavity containing the heart.

      . A fistula is an abnormal tissue connection between one organ and another. In Bailey’s case, a connection had formed between her stomach and her right lung.

      . On March 30, 2004, the trial court dismissed Dr. Foster as a defendant with prejudice pursuant to a stipulation by all the parties.

      . In Lloyd Noland Hospital v. Durham, 906 So.2d 157 (Ala.2005), this Court declared § 6-5-543(b), the future-damages provision of the Alabama Medical Liability Act, to be unconstitutional because it violated Art. I, § 11, Ala. Const. 1901, which protects the right to trial by jury.

      . As this Court has repeatedly stated, "substantial evidence” is "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).

      . Miller also contends that the trial court erred in refusing to submit a verdict form to the jury in compliance with § 6-5-543, Ala. Code 1975, otherwise known as the future-damages provision of the Alabama Medical Liability Act. The trial court declined to do so because, as we mentioned in note 6 supra, this Court declared § 6-5-543 to be unconstitutional in Lloyd Noland Hospital v. Durham, 906 So.2d 157 (Ala.2005). Miller invites us to revisit our holding in Durham to this effect and our holding to the same effect in Clark v. Container Corp. of America, Inc., 589 So.2d 184 (Ala.1991), upon which Durham relied, an invitation we decline.


source: Caselaw Access Project

author: MURDOCK, Justice. LYONS, Justice

license: Public Domain

text:
    REGIONS BANK v. Jean W. REED, individually and as cotrustee of the Clement S. Walter Trust; Mary W. Haynes, individually and as cotrustee of the Clement S. Walter Trust; and Susan W. Stockham, individually and as trustee and cotrustee of various family trusts. Ex parte Regions Bank. (In re Jean W. Reed, individually and as cotrustee of the Clement S. Walter Trust; Mary W. Haynes, individually and as cotrustee of the Clement S. Walter Trust; and Susan W. Stockham, individually and as trustee and cotrustee of various family trusts v. Regions Bank et al.).
    1081619 and 1081712.
    Supreme Court of Alabama.
    Sept. 30, 2010.

      Daniel H. Markstein III, Kirby Sevier, Luther M. “Rusty” Dorr, Jr., and Cynthia G. Lamar of Maynard, Cooper & Gale, P.C., Birmingham, for appellant/petitioner Regions Bank.
    John M. Fraley, Thomas L. Krebs, J. Michael Rediker, and Michael C. Skotnicki of Haskell Slaughter Young & Rediker, LLC, Birmingham, for respondents Jean W. Reed, Mary W. Haynes, and Susan W. Stockham.
    Judge Michael G. Graffeo, Birmingham, as respondent.
   MURDOCK, Justice.

This consolidated appeal and petition for a writ of mandamus concerns two rulings by the Jefferson Circuit Court (“the circuit court”). First, Regions Bank (“Regions”) appeals a writ of mandamus issued by the circuit court ordering the Jefferson Probate Court (“the probate court”) to dismiss a petition for final settlement filed by Regions concerning its administration of certain trusts (case no. 1081619). Second, Regions petitions this Court for a writ of mandamus directing the circuit court to dismiss or stay an action filed in the circuit court by Jean W. Reed, Mary W. Haynes, and Susan W. Stockham, individually and as trustees of various family trusts (hereinafter referred to collectively as “the sisters”). With respect to the appeal, we reverse the circuit court’s issuance of the writ of mandamus to the probate court. We grant in part and deny in part Regions’ petition to this Court for a writ of mandamus directed to the circuit court.

I. Facts and Procedural History

The sisters are the daughters of Clement and Elizabeth Walter. In December 1974, Clement Walter established the “Clement S. Walter Trust” (“the Father Trust”). The original trustees of the Father Trust were Elizabeth Walter and First National Bank of Birmingham. An amendment to the trust changed the corporate trustee to First Alabama Bank, which, through a succession of corporate transactions, is now Regions. Upon Elizabeth Walter’s death, the trust instrument designated that the sisters were to benefit from the Father Trust in equal shares for the duration of their lives and that the sisters were to be cotrustees with Regions of the Father Trust.

In 1982, Elizabeth Walter created three separate irrevocable trusts (“the Mother Trusts”), one to benefit each of the sisters. The Mother Trusts were established to provide income to each of the sisters for her life. Stockham is designated as the sole trustee of the Mother Trusts created for the benefit of Reed and Haynes. Stockham and Regions are designated as cotrustees of the Mother Trust created for the benefit of Stockham.

In 1983, Regions entered into “custody agreements” with regard to the Mother Trusts created for the benefit of Reed and Haynes under which Regions agreed to act as the custodian of the assets of those trusts. In 1994, Regions entered into separate (but identical) “Investment Agency Agreements” with the Mother Trusts created for the benefit of Reed and Haynes. In those agreements, Regions undertook the responsibility to manage the investments for those trusts.

On May 4, 2004, Stockham established a revocable trust (“the Stockham Trust”) under which she is the sole beneficiary for the duration of her life. The trust designated Regions as the sole trustee. On the same date, Haynes established a revocable trust (“the Haynes Trust”) under which she is the sole beneficiary for the duration of her life. The trust designated Regions as the sole trustee.

The sisters allege in the circuit court action that they are “of a mature age” and that they “rely heavily upon the income from these various trusts to support themselves. Accordingly, they desired that the assets in these trusts should be invested in “stable, conservative, low-risk holdings that produced a secure stream of income.” They allege that Regions was aware of and had a duty to follow these instructions.

The sisters allege that Regions actually invested the assets of these trusts in certain funds that were established and operated by companies closely affiliated with Regions, and that those funds “were, in reality, very high risk and lacking in diversification.” According to the sisters, those funds also were “plagued with extremely severe problems” that caused them to be unstable and unsuccessful. The sisters claim that Regions invested in those funds at least in part on the advice of Morgan Asset Management, Inc. (“MAM”), the investment-advisory arm of Regions Financial Corporation, the parent corporation of Regions. The sisters allege that both Regions and MAM knew that the funds were high-risk investments and that they were plagued with problems, yet MAM advised Regions to invest the assets of the various trusts in them, and Regions did so despite knowing the desired goals of the sisters for the trust assets.

According to the sisters, in 2008 several class action lawsuits were filed in Tennessee federal district courts against Regions (and others) as the trustee of certain trusts for alleged violations of securities laws relating to investments made by Regions in the funds described above. In response to the Tennessee class actions, Regions filed in the probate court a “Petition for Instructions and Declaratory Judgment” relating to Alabama trusts for which Regions served as a trustee. Regions requested that the probate court appoint a trustee ad litem to participate in the class-action litigation and to represent the interests of the trust accounts. The probate court granted Regions’s request. Upon receiving notice of the appointment of the trustee ad litem, the sisters (and others) filed motions to intervene in the probate court proceeding to protect their own interests. The probate court denied the motions to intervene, but it allowed beneficiaries of the subject trusts to opt out of representation by the trustee ad litem. The sisters subsequently exercised their right to opt out.

On November 14, 2008, the sisters sent Regions a letter informing it that they were removing Regions as trustee or co-trustee of the Father Trust, the Mother Trust created for the benefit of Stockham, the Stockham Trust, and the Haynes Trust. The letter also stated that the sisters were terminating Regions as custodian and agent of the Mother Trusts created for the benefit of Reed and Haynes. The letter added that the sisters “specifically reserve the rights to pursue any claims against Regions or its affiliates for mismanagement or misappropriation of these trusts or their assets.”

On November 19, 2008, Regions filed a “Petition for Final Settlement” in the probate court (“the final-settlement action”) pursuant to § 19-3B-205, Ala.Code 1975, concerning the trusts for which it served as trustee or eotrustee: the Father Trust, the Mother Trust created for the benefit of Stockham, the Stockham Trust, and the Haynes Trust. The petition sought a final accounting for these trusts for the period for which Regions served as trustee or cotrustee, and it requested that, following the final accounting and any required payments, “the Court will order that Regions Bank be fully relieved and discharged with respect to all its acts and doings as Trustee or Co-Trustee, as the case may be, of any and all of the Trusts.”

On November 20, 2008, the sisters filed the above-referenced action in the circuit court (“the circuit court action”). The sisters’ complaint named as defendants Regions, MAM, and fictitiously named parties and alleged breach of fiduciary duty, negligence, wantonness, breach of contract, fraud, negligent indemnity, violation of the Alabama Securities Act, conspiracy, and aiding and abetting breaches of duty and law. The claims encompassed both the trusts for which Regions served as trustee or cotrustee as well as the two trusts for which it served as agent and custodian, i.e., the Mother Trusts created for the benefit of Reed and Haynes. The gravamen of the complaint is that Regions knowingly invested the assets of the trusts in — and MAM advised Regions to invest the assets trusts in — unstable, high-risk funds affiliated with Regions that were experiencing severe financial problems. The complaint requests damages of at least $400,000 and makes a demand for a jury trial.

On November 24, 2008, Stockham filed in the probate court a motion to dismiss or to transfer to the circuit court the final-settlement action on the ground that the probate court lacked jurisdiction to hear the sisters’ claims against Regions. In its response to the motion to dismiss, Regions argued that, pursuant to § 19-3B-203(b), Ala.Code 1975, the probate court had jurisdiction to hear in the final-settlement action any claims brought by the sisters against Regions alleging maladministration of the assets of the trusts for which it served as trustee or cotrustee, as well any claims against Regions alleging mismanagement of the assets of the trusts for which it served as agent and custodian.

On January 8, 2009, Regions filed an answer in the circuit court to the circuit court action. In that answer, Regions did not plead the affirmative defense of abatement. On February 11, 2009, however, Regions filed an amended answer in which it specifically pleaded the affirmative defense of abatement based on § 6-5-440, Ala.Code 1975. On the same date, Regions filed a motion to dismiss or to stay the circuit court action pursuant to § 6-5-440. In that motion, Regions again noted that it believed the probate court had jurisdiction, pursuant to § 19 — 3B—203(b), Ala.Code 1975, to hear all the claims brought in the circuit court action.

On March 26, 2009, the probate court issued an order denying Stockham’s motion to dismiss or to transfer the final-settlement action. In its order, the probate court concluded that “Regions’ Petition for Final Settlement was properly and timely filed” and that by bringing its action “Regions does not curtail potential claims against it. Rather, [the sisters] may object to the requested relief and assert any claims against Regions relating to the administration of the trusts in this proceeding for adjudication by this Court.” The probate court based its jurisdiction on its interpretation of § 19-3B-203(b), finding that the statute gave the probate court

“concurrent jurisdiction with the circuit court in any proceeding involving a testamentary or inter vivos trust. As a result, this Court ... may hear any matter concerning a trust’s administration, including without limitation an action to ‘determine the liability of a trustee for an action relating to the trust and to compel redress of a breach of trust by any available remedy.’ Ala. Code [1975,] § 19-3B-201(d)(13).”

The probate court went on to state that “[i]t is the Circuit Court action — filed subsequently to this action — that should be dismissed or stayed pursuant to Ala. Code [1975,] § 6-5-440.”

On April 16, 2009, the sisters filed a petition for a writ of mandamus in the circuit court (“the mandamus proceeding”) seeking an order directing the probate court to withdraw its March 26, 2009, order denying Stockham’s motion to dismiss the final-settlement action and to enter an order dismissing the entire final-settlement action. On August 11, 2009, pursuant to Rule 42(a), Ala. R. Civ. P., and with the consent of Regions and the sisters, the mandamus proceeding was transferred to Jefferson Circuit Court Judge Michael Graffeo’s docket and consolidated with the circuit court action, which was already pending before him.

Also on August 11, 2009, the circuit court entered an order granting the sisters’ petition for a writ of mandamus directing the probate court to vacate its order denying Stockham’s motion to dismiss the final-settlement action and to dismiss in its entirety the final-settlement action without prejudice in order to allow Regions to raise any matters it asserted in the probate court as counterclaims in the circuit court action. In its order, the circuit court observed that Article VI, § 142(b), Ala. Const.1901, provides circuit courts with “general jurisdiction in all cases except as may be otherwise provided by law” and provides them with authority “to review decisions of inferior courts.” It noted that § 12-11-30, Ala.Code 1975, empowers circuit courts to “exercise a general superintendence over all ... probate courts.” After establishing its general supervisory authority, the circuit court held that

“the Probate Court has abused its discretion by attempting to assert its authority over matters where it simply lacks jurisdiction. Specifically, the Probate Court attempts to exert jurisdiction over the claims at law for money damages which [the sisters] have asserted in [the circuit court action], asserting that said claims constitute compulsory counterclaims in the purported accounting action filed by Regions Bank in Probate Court.”

The circuit court reasoned that § 12-11-30, Ala. Code 1975,

“clearly states ... that ‘the circuit court shall have exclusive jurisdiction over all civil actions in which the amount in controversy exceeds ten thousand dollars ($10,000).’ Thus, the Alabama Legislature, acting under the authority of Ala. Const., Art. VI, § 142, has clearly mandated that only the Circuit Court shall [have] jurisdiction over civil suits, at law, such as tort claims, for money damages where the amount in controversy exceeds ten thousand dollars ($10,000), which is the case with regard to the claims brought by [the Sisters] in [the circuit court action], sounding in tort, for money damages.... ”

The circuit court went on to find that § 19-3B-203, Ala.Code 1975,

“does not give the Probate Court of Jefferson County jurisdiction to hear actions and claims at law, e.g. tort claims, such as those asserted by [the sisters] in [the circuit court action]. Rather, this Court construes § 19-3B-203 to simply preserve the equity jurisdiction already bestowed upon those Courts mentioned in subsection (b) of said statute by previous legislation, and not to enlarge the jurisdiction of those Probate Courts, such as the Probate Court of Jefferson County, to hear and address ‘at law’ tort claims for money damages such as those asserted by [the sisters] in [the circuit court action]. It naturally follows that, since the Probate Court lacks jurisdiction to hear those claims, they cannot be held to be compulsory counterclaims in the action which Regions has filed in the Probate Court.”

The circuit court further held that allowing the final-settlement action to proceed “would be a waste of judicial resources and contrary to the desirable goal of judicial economy” because, in addition to the damages claims made against Regions in its capacity as trustee or cotrustee of several of the trusts, the sisters brought other claims in' the circuit court action “which could [n]ever be heard in the Probate Court.” Specifically, the circuit court referred to the claims against Regions as an agent and custodian of the Mother Trusts created for the benefit of Reed and Haynes and the claims against MAM in its capacity as a financial advisor to Regions in investing assets of all the trusts. The circuit court stated that these claims were not, and could not be, part of the final-settlement action because they did not involve Regions’ actions as a trustee and that “[j]udieial economy would not be promoted by litigating these claims’ piecemeal separately from [the final settlement action].”

Finally, the circuit court also found that allowing the final-settlement action “to proceed to conclusion on a nonjury basis, while the [sisters] in the [circuit court action] are entitled to adjudicate their claims through a jury trial, creates an unacceptable and unnecessary risk of inconsistent adjudications.”

Also on August 11, 2009, the circuit court entered an order denying Regions’ February 11, 2009, motion to dismiss or to stay the circuit court action. In its order, the circuit court adopted the reasoning set forth in its order granting the sisters’ petition for a writ of mandamus directed to the probate court.

On August 18, 2009, Regions filed a “Motion to Certify for Interlocutory Appeal the Circuit Court’s denial of Regions’ Motion to Dismiss or Stay,” and Regions sought a stay of all proceedings in the circuit court pending the interlocutory appeal. On August 24, 2009, the circuit court denied Regions’ motion.

Regions appealed the circuit court’s writ of mandamus directing the probate court to dismiss the final-settlement action. Regions filed a petition for a writ of mandamus with this Court seeking an order directing the circuit court to vacate its August 11, 2009, order denying Regions’ motion to dismiss the circuit court action. On November 2, 2009, this Court entered an order issuing a stay of all proceedings in the circuit court pending this Court’s resolution of Regions’ appeal and its petition for a writ of mandamus.

II. Standard of Review

As mentioned above, the circuit court adopted the reasoning from its order issuing a writ of mandamus to the probate court in its order denying Regions’ motion to dismiss or to stay the circuit court action. The circuit court’s order issuing a writ of mandamus involves only questions of law. Therefore, the same standard of review applies to both the appeal and the petition: a de novo standard. See, e.g., George v. Sims, 888 So.2d 1224, 1226 (Ala.2004) (observing in a case in which the plaintiff sought a petition for mandamus that “[bjecause the facts are undisputed and we are presented with pure questions of law, our standard of review is de novo.”).

III. Analysis

As a preliminary matter, the sisters have filed a motion to dismiss Regions’ appeal of the circuit court’s ruling on the sisters’ petition for a writ of mandamus directed to the probate court (case no. 1081619). They contend that the circuit court’s consolidation of that mandamus proceeding with the circuit court action caused the two actions to become one case. The sisters argue that the circuit court’s ruling on the mandamus proceeding was not a final judgment because, they say, the claims in the original circuit court action remain to be adjudicated, and Regions did not obtain a certification under Rule 54(b), Ala. R. Civ. P., that the circuit court’s ruling on the mandamus proceeding was final and appealable. Therefore, the sisters reason, it is incumbent upon this Court to dismiss as from a nonfinal judgment Regions’ appeal of the circuit court’s ruling on the sisters’ petition for a writ of mandamus directed to the probate court, leaving before us only the mandamus petition filed by Regions in this Court.

The sisters’ argument misapprehends the nature of a mandamus proceeding. A writ of mandamus is a remedy sought for correcting a particular ruling by a lower court. It is not an appeal of a party’s claim that transfers jurisdiction of any portion of a case to the court in which the petition for the writ of mandamus is filed. As this Court explained in State v. Webber, 892 So.2d 869 (Ala.2004):

“The filing of a petition for a writ of mandamus against a trial judge does not divest the trial court of jurisdiction, stay the case, or toll the running of any period for obeying an order or perfecting a filing in the case. The petition for a writ of mandamus, if meritorious, merely prompts the appellate court to exercise its supervisory power to tell the trial judge, as an official, as distinguished from the trial court itself, to do his or her duty when that duty is so clear that there are no two ways about it. Further, a petition for a writ of mandamus is not a substitute for an appeal.”

892 So.2d at 871 (citations omitted).

Thus, the sisters’ petition for a writ of mandamus in the circuit court did not transfer jurisdiction of the final-settlement action — or any particular claim involved in that action — to the circuit court. Rule 54(b), Ala. R. Civ. P., permits a trial court to “direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.” (Emphasis added.) Rule 54(b) provides a mechanism for appealing a judgment on fewer than all the claims that are before a trial court. The circuit court’s issuance of a writ of mandamus to the probate court did not constitute a judgment on any claims brought by the parties. Regions appealed the issuance of the writ, not the disposition of one or more claims. Thus, the mechanism provided by Rule 54(b), Ala. R. Civ. P., for certification has no application here because there is no claim or party over which entry of a judgment was made by the circuit court in the mandamus proceeding.

Section 12-22-6, Ala.Code 1975, explicitly authorizes the appeal of a circuit court’s issuance of a writ of mandamus. Section 12-22-6, provides, in pertinent part:

“Appeals may be taken to the appro- ■ priate appellate court from the judgment of the circuit court on application for writs of certiorari, supersedeas, quo warranto, mandamus, prohibition, injunction and other remedial writs as provided by the Alabama Rules of Appellate Procedure.... But this section shall not be construed as to prevent the presentation of an issue upon appeal taken after a final determination of the case.”

See also Ex parte A.S., 3 So.3d 842, 845 (Ala.2008) (citing § 12-22-6 for the proposition that “an appeal, not a petition for the writ of mandamus, is the proper avenue for challenging a circuit court’s disposition of a petition for the writ of mandamus”). It follows from these authorities that the appeal of the circuit court’s issuance of the writ of mandamus in this case is permitted. Accordingly, we deny the sisters’ motion to dismiss Regions’ appeal of the circuit court’s ruling on the sisters’ petition for a writ of mandamus.

The threshold question before us in both Regions’ appeal and its petition for a writ of mandamus is whether § 19-3B-203(b), Ala.Code 1975, grants the probate court jurisdiction to hear the claims brought by the sisters in the circuit court action. Section 19-3B-208 provides:

“(a) Except as provided in subsection (b), the circuit court has exclusive jurisdiction of proceedings in this state brought by a trustee or beneficiary concerning the administration of a trust.
“(b) A probate court granted statutory equitable jurisdiction has concurrent jurisdiction with the circuit court in any ■ proceeding involving a testamentary or inter vivos trust.”

The Alabama Comment to § 19-3B-203 states, in part:

“Subsection (b) recognizes that by local acts, the probate courts of Jefferson and Mobile Counties have been granted equity jurisdiction. See Jett v. Carter, 758 So.2d 526 (Ala.1999), discussing Act No. 1144, Ala. Acts 1971 (Reg.Session) (Jefferson), and Act No. 91-131, Ala. Acts 1991 (amending Act No. 974, § 5, Ala. Acts 1961 (Reg.Session)) (Mobile).”

As this Court has recognized, Act No. 1144, Ala. Acts 1971,

“grants to the Jefferson Probate Court ‘general jurisdiction concurrent with that of the Circuit Courts of this State, in equity, in the administration of the estates- of deceased persons, minors and insane or non compos mentis persons, including testamentary trust estates.’ (§ 1.) Thus, Act No. 1144 grants the Jefferson Probate Court broader jurisdiction than is otherwise granted to the probate courts of this state.”

Jett v. Carter, 758 So.2d 526, 529 (Ala.1999).

The parties’ divergent interpretations of § 19-3B-203(b) track the different interpretations offered by the probate court and the circuit court. Regions argues, as the probate court held, that § 19-3B-203(b) grants the probate court concurrent jurisdiction with the circuit court in proceedings involving testamentary or inter vivos trusts. Under this interpretation, the probate court has jurisdiction to hear any claim involving the subject trusts, including claims for money damages that concern “the liability of a trustee for an action relating to the trust” and to “compel redress of a breach of trust by any available remedy.” § 19-3B-201(d)(18), Ala. Code 1975. Regions insists that this interpretation comports with the requirement in § 12-13-l(a), Ala.Code 1975, that probate courts “shall have original and general jurisdiction as to all matters mentioned in this section and shall have original and general jurisdiction as to all other matters which may be conferred upon them by statute, unless the statute so conferring jurisdiction expressly makes the jurisdiction special or limited.” In short, Regions contends that § 19-3B-203(b) expands, rather than limits, the probate court’s jurisdiction as it pertains to inter vivos trusts.

The sisters argue, as the circuit court held, that Alabama law provides that “[t]he circuit court shall have exclusive original jurisdiction of all civil actions in which the matter in controversy exceeds ten thousand dollars ($10,000),” § 12 — 11— 30, Ala.Code 1975, and that § 19-3B-203(b) does not alter the circuit court’s exclusive jurisdiction or enlarge the probate court’s jurisdiction such that the probate court is permitted to hear claims for such money damages. Instead, according to the sisters, § 19-3B-203(b) limits the jurisdiction of the Jefferson Probate Court — and the probate courts of Mobile and Shelby Counties — to matters of equity in relation to trusts. According to the sisters, the majority of their claims against Regions are claims at law, not claims in equity, and thus § 19-3B-203(b) does not grant the probate court jurisdiction over those claims. The sisters contend that their interpretation of § 19-3B-203(b) is bolstered by the Alabama Comment to subsection (b), which mentions the “equity jurisdiction” of the Jefferson Probate Court and reiterates that the Jefferson Probate Court has been “granted equity powers.”

“ ‘ “Words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says. If the language of the statute is unambiguous, then there is no room for judicial construction and the clearly expressed intent of the Legislature must be given effect.” ’
“Blue Cross & Blue Shield v. Nielsen, 714 So.2d 293, 296 (Ala.l998)(quoting IMED Corp. v. Systems Eng’g Assocs. Corp., 602 So.2d 344, 346 (Ala.1992)).
“ ‘Of course, the rule is well recognized that in the construction of a statute, the legislative intent is to be determined from a consideration of the whole act with reference to the subject matter to which it applies and the particular topic under which the language in question is found. The intent so deduced from the whole will prevail over that of a particular part considered separately.’
“Blair v. Greene, 246 Ala. 28, 30, 18 So.2d 688, 689 (1944).
“ ‘It is well settled that when it is interpreting a statute this Court seeks to give effect to the intent of the Legislature, as determined primarily from the language of the statute itself. Beavers v. County of Walker, 645 So.2d 1365, 1376 (Ala.1994) (citing Ex parte McCall, 596 So.2d 2 (Ala.Civ.App.199[1])); Volkswagen of America, Inc. v. Dillard, 579 So.2d 1301 (Ala.1991). Also, our rules of statutory construction direct us to look at the statute as a whole to determine the meaning of certain language that is, when viewed in isolation, susceptible to multiple reasonable interpretations. McRae v. Security Pac. Hous. Servs., Inc., 628 So.2d 429 (Ala.1993).’
“Ex parte Alfa Fin. Corp., 762 So.2d 850, 853 (Ala.1999).
“ ‘ “When interpreting a statute, [a court] must read the statute as a whole because statutory language depends on context; [a court] will presume that the Legislature knew the meaning of words it used when it enacted the statute.” ’
“Ex parte USX Corp., 881 So.2d 437, 442 (Ala.2003) (quoting Bean Dredging, L.L.C. v. Alabama Dep’t of Revenue, 855 So.2d 513, 517 (Ala.2003)).'”

State Farm Mut. Auto. Ins. Co. v. Motley, 909 So.2d 806, 813-14 (Ala.2005).

Subsection (a) of § 19-3B-203 provides the general rule: “[T]he circuit court has exclusive jurisdiction of proceedings in this state brought by a trustee or beneficiary concerning the administration of a trust.” Subsection (a) begins, however, by noting that subsection (b) provides an exception to this general rule. A plain reading of § 19-3B-203 indicates that subsection (b) acknowledges that certain probate courts have been granted broader powers and that the exception referenced in subsection (a) is that those courts that have been granted those broader powers have the same jurisdiction to hear actions brought by trustees or beneficiaries concerning the administration of trusts as do the circuit courts of this State.

We acknowledge that § 12-11-30 provides for the circuit court to have exclusive original jurisdiction of civil actions in which the matter at controversy exceeds $10,000. We note, however, that this statute operates to distinguish between the jurisdiction of circuit courts and district courts as to civil actions generally. Section 19-3B-203, Ala.Code 1975, specifically addresses actions concerning the administration of trusts. “[A] specific statute relating to a specific subject is regardéd as an exception to, and will prevail over, a general statute relating to a broad subject.” Ex parte Jones Mfg. Co., 589 So.2d 208, 211 (Ala.1991). Moreover, § 12-11-30 was last amended in 1996, whereas § 19-3B-203 was enacted in 2006. With respect to jurisdiction of actions concerning the administration of trusts, therefore, § 19-3B-203 is controlling.

Thus, the probate courts of Jefferson, Mobile, and Shelby Counties have concurrent jurisdiction with the circuit courts of those counties to hear any proceeding brought by a trustee or beneficiary concerning the administration of a trust. In other words, the reference in subsection (b) of § 19-3B-203 to probate courts that have been granted “statutory equitable jurisdiction” is an identifying reference, not a limitation on the jurisdiction of the courts so identified. It is those probate courts to which subsection (b) grants “concurrent jurisdiction” with the circuit courts to hear actions concerning the administration of a trust brought by a trustee or beneficiary.

The sisters insist that even if the probate court has been granted jurisdiction under § 19-3B-203(b), Ala.Code 1975, to hear any proceeding involving an inter vivos trust brought by a trustee or beneficiary, allowing the probate court to hear the claims they brought in the circuit court action would deprive them of their right to a trial by jury, which is protected by Art. I, § 11, Ala. Const.1901. The sisters argue that some of the claims in their complaint — such as the negligence, wantonness, fraud, negligent indemnity, and conspiracy claims — are tort claims seeking money damages that carry with them a right to trial by jury. They observe that, in contrast,

“ ‘[tjhere is no common law right to a trial by jury in the probate court....’ Ex parte Floyd, 250 Ala. 154, 157, 33 So.2d 340, 342 (1947); Hanks v. Hanks, 281 Ala. 92, 199 So.2d 169 (1967). The right to a jury trial in probate court depends upon a statutory grant of that right.”

Kemp v. Kroutter, 531 So.2d 854, 855 (Ala.1988).

The problem with the sisters’ argument is that the clear gravamen of their complaint in the circuit court action with regard to their claims against Regions as trustee or cotrustee involves “essentially the administration of a trust, when a trial by jury is not allowed. See Ex parte Floyd, [250 Ala. 154, 33 So.2d 340 (1947)].” Hanks v. Hanks, 281 Ala. 92, 98, 199 So.2d 169, 174 (1967). Their claims of negligence, wantonness, fraud, and the like are derivatives of their claim of the breach of fiduciary duty. For example, in their negligence claim, the sisters allege that Regions “acted negligently” by “failing] to manage the assets held in trust for [the sisters] in the manner that a reasonably prudent investment manager would have managed said funds under the same or similar circumstances.” In their fraud claim, the sisters allege that Regions “represented to [the sisters] that the investments in The Funds were solid, safe, low-risk investments that would safely provide a secure income stream [to the sisters]” when, in fact, this representation was false. In short, all the claims against Regions as trustee involve the maladministration of the assets of the various trusts.

“It has long been the law in Alabama that where a trustee does not perform his duty to protect the trust, the beneficiaries may sue in equity to protect their rights. Supervising the administration of trusts is a well-recognized ground of equity, and the regulation and enforcement of trusts is one of the original and inherent powers of the equity court.”

First Alabama Bank of Montgomery, N. A. v. Martin, 425 So.2d 415, 423 (Ala.1982). In First Alabama Bank of Huntsville, N.A. v. Spragins, 475 So.2d 512 (Ala.1985), this Court provided a thorough explanation as to why even claims for money damages alleging the breach of a trust do not carry a right to trial by jury:

“This case involves two separate appeals: the first appeal is from a judgment in a suit by beneficiaries of a trust against First Alabama Bank of Huntsville, N.A., acting as trustee under a written trust agreement, claiming mismanagement of the trust fund and breach of a fiduciary duty, and requesting removal of the trustee and an accounting of the subject trust....
“The Bank strenuously insists that the Plaintiffs’ claim for money damages, grounded on the allegation that the Bank, as a professional trustee, breached its fiduciary duty in its management of the trust estate, is not such a claim for money damages, cognizable at common law, as to entitle the Plaintiffs to a jury trial. We agree. While, generally speaking, a trust, created by written instrument, partakes of many of the same legal incidents as other written agreements, historically, remedies to enforce rights arising under a trust have been relegated to the exclusive jurisdiction of equity.
“Both [2] Scott [on Trusts § 16⅛ (3d ed.1967) ] and the Restatement (Second) of Trusts (1959) recognize exclusive equitable jurisdiction over remedies for a beneficiary against a trustee, with two exceptions: ‘(1) If the trustee is under a duty to pay money immediately and unconditionally to the beneficiary, the beneficiary can maintain an action at law against the trustee to enforce payment.® If the trustee of a chattel is under a duty to transfer it immediately and unconditionally to the beneficiary and in breach of trust fails to transfer it, the beneficiary can maintain an action at law against him.’ Restatement (Second) of Trusts, § 198 (1959). The courts of Alabama have consistently recognized and applied this common law development. Ex parte Gamer, 280 Ala. 111, 190 So.2d 544 (1966). For a ease applying the ‘at law1 exception, see Ex parte Davis, 465 So.2d 392 (Ala.1985).
“Applying this rule to the Plaintiffs’ complaint, the trial court held that the Plaintiffs were not entitled to a jury trial with respect to their demands to remove the Bank as trustee and to require an accounting of the Bank. As to the remaining request for money damages, however, the trial court held that this did create a legal issue that entitled Plaintiffs to a trial by jury.
“While the rule, as here applied, is generally correct, it is not correct with respect to trusts. As seen by the historical background, the court of equity embraced the full jurisdiction of trusts, save for the two exceptions referred to above, neither of which is applicable here.
“We recognize that the application of pure logic presents a persuasive argument for including a third exception: a claim for money damages only, based on an alleged breach of fiduciary duty. We are persuaded, however, to adhere to precedent and leave all matters pertaining to trusts, other than the two recognized exceptions, within equity’s exclusive jurisdiction.
“Because remedies of money damages based on a claim for breach of trust were not cognizable at law, we are constrained to reverse the judgment from which the first appeal is taken and to remand this cause for further consideration by the trial court.”

475 So.2d at 513-14. See also Ex parte Holt, 599 So.2d 12, 14-15 (Ala.1992) (noting that “ ‘ “[t]he basically equitable nature of an action ... for an accounting is not changed by the inclusion of a claim for damages. Such a claim only restates the basic equitable action, and in no way creates a right to trial by jury. Indeed it would make no sense that the claim for damages could change an equitable action into one at law. Damages can only be determined after an accounting of whether or not money is owed to or from [the defendant] _”’” (quoting Sanders v. Kirkland & Co., 510 So.2d 138, 141 (Ala.1987), quoting in turn Bonnell v. Commonwealth Realty Trust, 363 F.Supp. 1392, 1393 (E.D.Pa.1973)) (emphasis omitted)).

The two exceptions to the general rule discussed in Spragins — a duty of an immediate and unconditional money payment by the trustee to the beneficiary or a duty of an immediate and unconditional transfer of chattel by the trustee to the beneficiary— are not applicable here. Moreover, the fact that the sisters have couched some of their claims in terms of torts such as negligence makes no difference.

“We believe Alabama law to be clear: that the plaintiffs claims here are exclusively within the realm of equity jurisdiction. This conclusion is especially compelling in this case, in which the beneficiary of the trust, until her death, was also a co-trustee. We have diligently searched for cases that would make an exception in a case where, as in this case, the beneficiary, to whom payments were to be made, was also a co-trustee, but we have found none.
“We realize, of course, that Land’s complaint is based upon SouthTrust’s alleged negligence in failing to exercise supervision and control over Payne or to employ measures sufficient to detect embezzlement of the royalties. However, we find no significant difference between the facts alleged in this case and those alleged in Spragins, ...”

Ex parte SouthTrust Bank of Alabama, N.A., 679 So.2d 645, 649 (Ala.1996).

Thus, the sisters’ claims for money damages do not entitle them to a trial by jury. The claims brought by the sisters in this case concern alleged breaches by the trustee of its fiduciary duties in relation to the trust, claims that sound in equity. As a result, the probate court retains jurisdiction over the sisters’ claims against Regions as trustee or cotrustee.

It follows from the fact that § 19-3B-203(b) grants the probate court jurisdiction over the sisters’ claims against Regions concerning the trusts as to which Regions served as trustee or cotrustee that the circuit court erred in granting the sisters’ petition for a writ of mandamus to the probate court. There remains, however, the matter of Regions’ petition to this Court for a writ of mandamus concerning the circuit court’s denial of Regions’ motion to dismiss or stay the circuit court action (case no. 1081712).

Regions contends that, because the probate court has jurisdiction to hear the sisters’ claims against Regions, as a trustee or cotrustee, concerning the trusts involved in the final-settlement action, the circuit court action is due to be dismissed under § 6-5-440, Ala.Code 1975. As a preliminary matter, we note that Regions’ motion to dismiss based on abatement depends in part upon the assumption that the claims brought by the sisters in the circuit court are in the nature of compulsory counterclaims to the final-settlement action; thus, the sisters would have to bring them in the final-settlement action or they would be waived. This assumption is, of course, correct with regard to the claims brought by the sisters in the circuit court action that pertain to the trusts for which Regions served as trustee or cotrustee, because those claims “arise[] out of the transaction or occurrence that is the subject matter of the opposing party’s claim.” Rule 13(a), Ala. R. Civ. P.

This assumption is not correct, however, with regard to the sisters’ claims concerning the Mother Trusts created for the benefit of Reed and Haynes. Regions is not a trustee or cotrustee of those trusts; therefore, those claims are not involved in the final-settlement action filed in the probate court by Regions. The claims brought by the sisters concerning the Mother Trusts created for the benefit of Reed and Haynes are not compulsory counterclaims in the final-settlement action in the probate court.

As for Regions’ contention that the sisters’ claims in circuit court against Regions involving the trusts at issue in the final-settlement action should be abated, the sisters first argue that Regions waived this defense in the circuit court because it did not plead abatement in its original answer to the sisters’ complaint.

“Although Ala. Code 1975, § 6-5-440, prohibits simultaneous actions for the same cause against the same parties, the statute constitutes an affirmative defense, and if that defense is not raised by the defendant in a motion to dismiss, Benson v. City of Scottsboro, 286 Ala. 315, 817, 239 So.2d 747, 748-49 (1970) (stating that the defense must be raised by a ‘plea in abatement,’ the procedural predecessor of the motion to dismiss), it is waived. Chappell v. Boykin, 41 Ala.App. 137, 141, 127 So.2d 636, 639 (1960).”

Veteto v. Yocum, 793 So.2d 814, 815 n. 1 (Ala.Civ.App.2001).

“ ‘Typically, if a party fails to plead an affirmative defense, that defense is deemed to have been waived. Robinson v. Morse, 352 So.2d 1355, 1356 (Ala.1977) (citing 5 Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1278, pp. 339-52); see also Rule 8(c), Ala. R. Civ. P. However, there are exceptions to this rule, one of which is that an affirmative defense can be revived if a party is allowed to amend his pleading to add the defense. Piersol v. ITT Phillips Drill Div., Inc., 445 So.2d 559, 561 (Ala.1984) (stating that “where no actual prejudice to the opposing party is shown, and no undue delay is demonstrated, a court may permit the amendment of the answer to include a defense of the running of the period of the statute of limitations, though Rule 8(c) of the Alabama Rules of Civil Procedure requires such a defense to be pleaded as an affirmative defense”).’ ”

Ziade v. Koch, 952 So.2d 1072, 1075 (Ala.2006) (quoting Ex parte Liberty Nat’l Life Ins. Co., 858 So.2d 950, 953 (Ala.2003)).

As we noted in the rendition of the facts, Regions filed an answer to the sisters’ complaint on January 8, 2009. The first answer did not contain a plea of abatement. Regions filed an amended answer on February 9, 2009, however, in which it asserted abatement as a defense to the action. On the same date, Regions filed its motion to dismiss or to stay the circuit court action based on § 6-5-440. The sisters filed a motion on March 4, 2009, to strike the amended complaint, arguing that Regions had waived the defense of abatement. The circuit court did not rule on the sisters’ motion to strike Regions’ amended answer, and in its order denying Regions’ motion to dismiss the circuit court action, the circuit court did not list waiver of the abatement defense as a reason for denying the motion. Thus, under the authority of Ex parte Liberty National Life Insurance Co., Regions revived the affirmative defense of abatement through the amendment of its complaint.

We noted in note 4 supra that § 6-5-440, Ala.Code 1975, provides that

“[n]o plaintiff is entitled to prosecute two actions in the courts of this state at the same time for the same cause and against the same party. In such a case, the defendant may require the plaintiff to elect which he will prosecute, if commenced simultaneously, and the pen-dency of the former is a good defense to the latter if commenced at different times.”

This statutory directive means that “where two or more courts have concurrent jurisdiction, the one which first takes cognizance of a cause has the exclusive right to entertain and exercise such jurisdiction, to the final determination of the action and the enforcement of its judgments or decrees.” Ex parte Burch, 236 Ala. 662, 665, 184 So. 694, 697 (1938); see also Ex parte McMichael, 62 So.3d 465 (Ala.2010). A compulsory counterclaim is an “action” for purposes of § 6-5-440. See, e.g., Ex parte J.C. Duke & Assocs., 4 So.3d 1092 (Ala.2008); Penick v. Cado Sys. of Cent. Alabama, Inc., 628 So.2d 598, 599 (Ala.1993). Moreover, it does not matter that one court is a probate court and the other is a circuit court. See, e.g., Martin v. Clark, 554 So.2d 1030, 1032 (Ala.1989) (observing that “[o]nce Mr. Clark invoked the jurisdiction of the probate court in Shelby County, he could not simultaneously bring an action involving the same subject matter in another court, even one having concurrent jurisdiction”). Accordingly, abatement is applicable in the context of these actions.

The final-settlement action was the first filed action. Consequently, the claims against Regions filed by the sisters in the circuit court action concerning the trusts at issue in the final-settlement action are due to be dismissed pursuant to § 6-5-440, Ala.Code 1975. The sisters’ claims concerning the Mother Trusts established for the benefit of Reed and Haynes, for which Regions served as custodian of the assets of the trusts and the agent of trustee Stockham, are not compulsory counterclaims; therefore, the circuit court properly denied Regions’ motion to dismiss as to those claims.

Finally, there remains the matter of the sisters’ claims against MAM as the investment advisor to Regions in managing the assets of all the trusts at issue. In the last count of their complaint, the sisters charge MAM with “aiding and abetting” Regions “in carrying out each of the breaches of duty, including breach of fiduciary duty, and including each of the violations of law and obligation, committed by Regions” listed in the previous counts of the complaint. Thus, the sisters’ claims against MAM are derivative of the sisters’ claims against Regions. Accordingly, the claims against MAM that involve the trusts that are the subject of the final-settlement action concern the administration of those trusts; therefore, those claims should be brought in the probate court. The claims against MAM that involve the Mother Trusts established for the benefit of Reed and Haynes must remain in the circuit court, where the sisters’ claims against Regions concerning those trusts originated.

IV. Conclusion

The sisters’ motion to dismiss Regions’ appeal of the circuit court’s writ of mandamus directed to the probate court is due to be denied. Section 19-3B-203, Ala.Code 1975, gives the probate court jurisdiction to hear Regions’ action for final settlement of the trusts for which it served as trustee or cotrustee, as well as the counterclaims by the sisters against Regions concerning those trusts. Accordingly, the circuit court erred in granting the sisters’ petition for a writ of mandamus and ordering the probate court to dismiss the final-settlement action for lack of jurisdiction. We reverse the judgment of the circuit court and direct it to vacate its writ of mandamus directed to the probate court.

We grant Regions’ petition for a writ of mandamus with respect to the circuit court’s denial of its motion to dismiss the circuit court action as to the sisters’ claims against Regions and MAM that involve the trusts at issue in the final-settlement action because the abatement rule requires the dismissal of those claims. We deny the petition, however, with respect to the circuit court’s denial of Regions’ motion to dismiss the circuit court action as to the sisters’ claims against Regions and MAM that involve the trusts for which Regions served only as custodian and agent because those claims are not part of the final-settlement action.

1081619 — MOTION TO DISMISS DENIED; REVERSED AND REMANDED WITH INSTRUCTIONS.

1081712 — PETITION GRANTED IN PART AND DENIED IN PART; WRIT ISSUED.

COBB, C.J., and WOODALL, STUART, PARKER, and SHAW, JJ., concur.

LYONS and BOLIN, JJ., concur specially.

LYONS, Justice

(concurring specially).

I concur fully in the main opinion. I write specially concerning the construction of § 19-3B-203, Ala.Code 1975, which provides:

“(a) Except as provided in subsection (b), the circuit court has exclusive jurisdiction of proceedings in this state brought by a trustee or beneficiary concerning the administration of a trust.
“(b) A probate court granted statutory equitable jurisdiction has concurrent jurisdiction with the circuit court in any proceeding involving a testamentary or inter vivos trust.”

Subsection (a) refers to the exclusive jurisdiction of the circuit courts over proceedings “brought by a trustee or beneficiary concerning the administration of a trust,” subject to an exception found in subsection (b). Subsection (b) defines the scope of the exception for “[a] probate court granted statutory equitable jurisdiction” and then permits the exercise of jurisdiction by such probate courts, concurrent with the circuit court, “in any proceeding involving a testamentary or inter vivos trust.” (Emphasis added.) Obviously, the scope of the exclusive jurisdiction of the circuit court provided for in subsection (a) is narrower than the grant of concurrent jurisdiction in subsection (b) for probate courts granted statutory equitable jurisdiction.

Prior to enactment of § 19-3B-203(a), a circuit court, as a court of general jurisdiction, had jurisdiction in any proceeding involving a testamentary or inter vivos trust. Subsection (a) makes no change in such jurisdiction other than to make it exclusive in proceedings brought by a trustee or beneficiary concerning the administration of a trust.

The net effect of the unambiguous language of § 19-3B-203 is to confine proceedings brought by a trustee or beneficiary concerning the administration of a trust to the circuit court except as to those probate courts exercising statutory equitable jurisdiction and, as to such courts, they now enjoy concurrent jurisdiction with .a circuit court over, not only proceedings brought by a trustee or beneficiary concerning the administration of a trust, but also any other proceeding involving a testamentary or inter vivos trust.

BOLIN, J., concurs.

      . Section 19-3B-205 provides, in pertinent part:
      "(a) A trustee may file an accounting of the trustee’s administration of a trust in court at any time and seek a partial or final settlement-thereof or, upon petition of an interested party, a court may order a trustee to render an accounting of the trustee’s administration of a trust and require a partial or final settlement thereof. Notice of such judicial proceeding shall be provided to the trustee and each beneficiary, or representative thereof pursuant to Article 3, as provided by the applicable rules of civil procedure.

      "(c) Any order or judgment of the court on such accounting and partial or final settlement shall be final and conclusive as to all matters occurring during the accounting period, and appeals therefrom shall and must be taken in the manner provided for from any other final judgment of the court.”

      . The petition also requested final settlement with regard to the "Susan Stockham Irrevocable Trust.” It appears that this trust was another inter vivos trust created for the benefit of Stockham for which Regions served as the sole trustee. The November 14, 2008, letter the sisters sent to Regions lists this trust as one in which Regions was being removed as trustee. The Susan Stockham Irrevocable Trust is not listed in the complaint filed by the sisters against Regions, however, and it is not otherwise mentioned in the record below or discussed by the parties in their briefs.

      . Section 19-3B-203(b), Ala.Code 1975, provides: "A probate court granted statutory equitable jurisdiction has concurrent jurisdiction with the circuit court in any proceeding involving a testamentary or inter vivos trust.”

      . Section 6-5-440, Ala.Code 1975, provides:
      “No plaintiff is entitled to prosecute two actions in the courts of this state at the same time for the same cause and against the same party. In such a case, the defendant may require the plaintiff to elect which he will prosecute, if commenced simultaneously, and the pendency of the former is a good defense to the latter if commenced at different times.”

      .Also on March 26, 2009, the probate court issued an "Order and Memorandum Opinion Granting Emergency Petition for Instructions and Declaratory Relief," in response to a petition filed by Regions. The order stated that the assets of the subject trusts must remain within the jurisdiction and control of the probate court during the pendency of the final-settlement action and that it would be proper for Regions to retain said assets until such time as Compass Bank — the sisters’ designated successor trustee — voluntarily submitted to the jurisdiction of the probate court.

      . Rule 42(a), Ala. R. Civ. P., provides:
      "When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.”

      . In its mandamus petition, Regions alternatively seeks an order directing the circuit court to vacate its August 24, 2009, order denying Regions' motion to certify for interlocutory appeal the issue whether § 19-3B-203(b), Ala.Code 1975, provides the probate court with concurrent jurisdiction to entertain the claims raised by the sisters against Regions relating to the administration of the trusts involved in these actions. We find it unnecessary to reach this request. On October 14, 2009, this Court ordered the sisters and Judge Graffeo to provide briefs in answer to Regions' mandamus petition in this Court, specifically stating that said briefs "shall address the issues of interpreting Ala.Code 1975, § 19-3B-203, and applying that statute to this case.” Therefore, the issue of the meaning of § 19-3B-203 as it pertains to the matters in the petition is squarely before us.

      . Subsection (b) now also applies in Shelby County pursuant to Act No. 2003-123, Ala. Acts 2003, ratified November 29, 2004.

      . Although the statutory grant of authority in § 19-3B-203(b) would appear to be sufficient in and of itself to imbue the probate courts of Jefferson, Mobile, and Shelby Counties with the jurisdiction at issue, we also note that the statutory grant made by that statute serves to fulfill the provision of Ala.Code 1975, § 12-13-1 (a), that the probate court "shall have original and general jurisdiction as to dll other matters which may be confetred upon them by statute." (Emphasis added.)

      . The Alabama Comment to § 19-3B-203 is consistent with this understanding of the language in § 19-3B-203(b) referencing probate courts that have been granted statutory equitable jurisdiction as an identifying reference and not a limitation on jurisdiction. The Alabama Comment to subsection (b) notes that "[s]ubsection (b) recognizes that by local acts, the probate courts of Jefferson and Mobile Counties have been granted equity jurisdiction” and that "[t]he effect of subsection (b) is to give original jurisdiction over both testamentary and inter vivos trusts to those probate courts granted equity powers.”

      . "A violation by a trustee of a duty the trustee owes to a beneficiary is a breach of trust.” § 19-3B-1001(a), Ala.Code 1975.

      . Both the sisters in their briefs and Judge Graffeo in his response to Regions’ petition for a writ of mandamus suggest that there were procedural defects in Regions’ petition for final settlement that caused it not to be the first action filed — namely, that Regions did not file accounting documents with its petition and that it did not attached any summonses to the complaint before it served the complaint upon the sisters. Judge Graffeo did not list these alleged defects as a reason for granting the sisters’ petition for a writ of mandamus even though the sisters raised them in their petition, nor did he list them as a reason for denying Regions’ motion to dismiss the circuit court action even though the sisters raised them in their response to Regions’ motion to dismiss. Moreover, the probate court expressly concluded that "Regions’ Petition for Final Settlement was properly and timely filed.” The probate court’s order concerning the sisters’ motion to dismiss thoroughly addressed these procedural issues and we see no reason to revisit them.

      . We recognize there may be duplication of litigation efforts as between the proceedings that will be tried in the probate court and those that will be tried in the circuit court. We are dealing here with matters of jurisdiction, however. The remedy for the jurisdiction-driven result in this or any similar case must lie with the legislature, not this Court. Compare, e.g., Ala.Code 1975, § 12-11-41 (providing for the removal of the administration of an estate from the probate court to the circuit court); Ala.Code 1975, § 26-2-2 (providing for the removal of the administration of a guardianship or a conservatorship from the probate court to the circuit court).