author: CARLTON, J,

text:
    Edward Lamon BLUNT, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-CA-00452-COA.
    Court of Appeals of Mississippi.
    Feb. 22, 2011.

      Julie Ann Epps, Canton, attorney for appellant.
    Office of the Attorney General by Deirdre McCrory, Jackson, attorney for appel-lee.
    Before KING, C.J., ISHEE and CARLTON, JJ.
   CARLTON, J,

for the Court:

¶ 1. On May 6, 1996, a Lowndes County grand jury indicted Edward Lamon Blunt for the murder of Michael Taylor. Following a jury trial in August 1996, a jury convicted Blunt of murder. Blunt received a life sentence in the custody of the Mississippi Department of Corrections (MDOC). This Court affirmed Blunt’s conviction on direct appeal in an unpublished opinion dated June 30, 1998 (96-KA-01095-COA). Blunt v. State, 726 So.2d 596 (Miss.Ct.App. 1998). Attorney Richard Burdine represented Blunt at both his trial and before this Court on appeal. New counsel represented Blunt in his petition for post-conviction relief and in this current appeal.

¶ 2. With new representation, Blunt, in accordance with Mississippi Code Annotated section 99-39-27 (Supp.2010), filed an application on June 26, 2001, with the Mississippi Supreme Court for leave to proceed in the trial court on a motion for post-conviction relief. The supreme court granted Blunt’s motion, and he thereafter filed his motion for post-conviction relief on December 11,2002, alleging that he had received constitutionally ineffective assistance of counsel at his trial and on direct appeal. The circuit court ordered the State to file a response to Blunt’s motion for post-conviction relief. The circuit court held evidentiary hearings on August 18, 2008, and on February 9, 2009, in which Blunt called an expert witness and his trial attorney as witnesses. The State called Dr. Steven Hayne, who had served as the State’s expert witness at the 1996 trial.

¶ 3. The circuit court entered an order denying Blunt’s motion for post-conviction relief on February 27, 2009, and Blunt filed his notice of appeal on March 19, 2009. On appeal, Blunt argues that the circuit court erred in denying his motion for post-conviction relief, as Blunt asserts that he proved that he had received ineffective assistance of counsel at trial.

¶ 4. We find that Blunt received ineffective assistance of counsel at his murder trial, based on trial counsel’s request for an improper self-defense instruction. Therefore, we reverse and remand this case for a new trial. Since we reverse based on plain error created by the defense counsel’s requested self-defense instruction, we do not address the remaining alleged errors.

FACTS

¶ 5. In the early morning hours of January 6, 1996, Blunt sat in his ear outside a radio station in Columbus, Mississippi, waiting for a friend to complete his shift as a deejay. According to Blunt, Taylor, the deceased, approached Blunt’s car and reached in as if to choke Blunt. Taylor apparently suffered from schizophrenia, which, if left untreated, caused Taylor to suffer from delusions and exhibit violent behavior. In fact, earlier in the night, before he encountered Blunt, Taylor had instigated a number of violent confrontations with residents in his neighborhood.

¶ 6. According to witnesses, Taylor approached Blunt claiming that Taylor was God. An altercation ensued during which Blunt admitted to hitting Taylor on the head twice with a tire tool he retrieved from his car. Taylor walked away from the scene of the altercation with Blunt. Taylor’s mother found his body later that day, slumped over the bathtub in the bathroom of his home.

¶ 7. After an investigation, the State charged Blunt with Taylor’s murder. At trial, Dr. Hayne, who had conducted the autopsy of Taylor’s body, testified as an expert for the State that Taylor had died as a result of blunt-force trauma to his head. Dr. Hayne testified that the injuries which caused Taylor’s death were consistent with Taylor being hit with a tire tool.

STANDARD OF REVIEW

¶ 8. “In reviewing a trial court’s decision to deny a motion for post-conviction relief, the standard of review is clear. The trial court’s denial will not be reversed absent a finding that the trial court’s decision was clearly erroneous. However, when reviewing issues of law, this Court’s proper standard of review is de novo.” Heafner v. State, 947 So.2d 354, 356 (¶ 2) (Miss.Ct.App.2007) (internal citations omitted).

DISCUSSION

Ineffective Assistance of Counsel

¶ 9. Blunt argues that he received ineffective assistance of counsel at trial because his trial counsel, Burdine: (1) failed to make an investigation prior to the trial, (2) failed to use readily available exculpatory evidence in his defense, (3) failed to obtain an expert witness to testify as to Taylor’s cause of death, (4) failed to object to the jury instructions and to improper argument by the State which impermissi-bly vouched for the credibility of the State’s witnesses and appealed to the passions and prejudices of the jury, (5) failed to object to the prosecution’s closing argument that the jury’s decision need not be unanimous, and (6) failed to render effective assistance on appeal.

¶ 10. Blunt argues that Burdine failed to object to the jury instructions, and as a result, the instructions given to the jury prevented it from considering Blunt’s defenses of manslaughter and self-defense. Specifically, Blunt alleges that Burdine rendered ineffective assistance of counsel by his (1) failure to distinguish between malice murder and manslaughter, (2) failure to distinguish between depraved-heart murder and manslaughter, (3) failure to instruct the jury that Blunt had no duty to retreat, (4) failure to instruct the jury properly on self-defense, and (5) objecting to the State’s proffered instruction on imperfect self-defense.

¶ 11. In Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court held that: “The benchmark for judging any claim of ineffectiveness [of counsel] must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” See Gilliard v. State, 462 So.2d 710 (Miss.1985) (adopting the Strickland test for reviewing claims of ineffective assistance of counsel). In order to prevail on a claim of ineffective assistance of counsel, Blunt must satisfy a two-pronged analysis and show that: (1) counsel’s performance was deficient, and (2) counsel’s deficiencies deprived him of a fair trial. Nix v. State, 8 So.3d 141, 144 (¶ 12) (Miss.2009) (citing Stringer v. State, 454 So.2d 468, 476 (Miss.1984)). Furthermore, the defendant faces a strong but rebuttable presumption that counsel’s performance falls within the broad spectrum of reasonable professional assistance. Id. at (¶ 13). Additionally, we presume that counsel’s decisions are strategic. Leatherwood v. State, 473 So.2d 964, 969 (Miss.1985) (citing Murray v. Maggio, 736 F.2d 279, 282 (5th Cir.1984)). Accordingly, “judicial scrutiny of counsel’s performance must be highly deferential.... [A] fair assessment of [an] attorneyfs] performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Strickland, 466 U.S. at 669, 104 S.Ct. 2052.

¶ 12. When examining a claim of ineffective assistance of counsel, we conduct a de novo review of the record as a whole to determine whether there is a deficiency in the trial counsel’s performance, and if so, whether the deficiency prejudiced the defendant. See Kambule v. State, 19 So.3d 120,122 (¶ 6) (Miss.Ct.App. 2009). The Mississippi Supreme Court has held that the appellate courts must look at the totality of the circumstances in determining whether trial counsel’s performance was deficient. Parker v. State, 30 So.3d 1222, 1223 (¶ 37) (Miss.2010). The appellant bears the burden of proving that trial counsel’s performance was deficient and prejudicial. Id. Finally, a defendant has no constitutional right to error-less counsel, only competent counsel. Id.

¶ 13. Despite the high burden on Blunt to show that Burdine rendered ineffective assistance, we find that Blunt has demonstrated both a deficiency on Bur-dine’s part and prejudice as a result of the deficiency. Burdine requested only one jury instruction, Instruction D-l, at the close of' Blunt’s trial. The circuit court granted the instruction, which contained in incorrect recitation of the law on self-defense in Mississippi. Instruction D-l reads, in part, as follows:

The [c]ourt instructs the [j]ury that the [defendant, Edward Lamon Blunt is claiming that the killing of Michael Taylor was done in self[-]defense and thus under the law [was] a justifiable homicide. To make a killing justifiable on the grounds of self[-]defense, the danger to the [defendant must not have been created, initiated or caused by him; the danger must be either actual, present, and urgent or the defendant must have reasonable grounds to apprehend a design on the part of the victim to kill, or do some great bodily harm to him, and in addition to this, that there was apparent imminent danger of such design being accomplished. Hence, the mere fear, apprehension or belief, however sincerely entertained by one person that another designs to take his life or to do him some great bodily harm, will not justify the accused taking the life of the deceased. A party may have an apprehension that his life is in danger and believe the grounds of his apprehension just and reasonable, and yet he acts at his peril. He is not the final judge; the [jjury may determine the reasonable ness of the grounds upon which he acted.

(Emphasis added).

¶ 14. The supreme court in Flowers v. State, 473 So.2d 164, 165 (Miss.1985) condemned almost identical language in a jury instruction. Following a lengthy discussion of earlier criticism of similar instructions, the supreme court stated the following:

It appears from our review that criticism by this Court is construed to mean this instruction is approved for continued use. We intend precisely the opposite effect, that its use be discontinued. Presently to remove any such doubt, we now condemn Instruction S-2 and forthrightly hold it constitutes reversible error in this case and will be so considered in future eases.

Id. Relying on Flowers, the supreme court in Johnson v. State, 908 So.2d 758, 764 (¶ 22) (Miss.2005) noted that an instruction like the one Burdine requested in Blunt’s trial “is contradictory and confusing and does not correctly state the applicable law because one acting in self-defense does not act at his own peril.” The Johnson court held that the jury instructions in his case were prejudicial. The Johnson court reversed and remanded the case for a new trial. Id.

¶ 15. The Flowers court unequivocally condemned jury instructions such as the one Burdine offered in 1987. Blunt’s trial took place in 1996, nearly ten years after the supreme court had determined that the use of jury instructions of that type constituted reversible error. Burdine’s request of this instruction certainly satisfies the first prong of the Strickland analysis and shows that Burdine’s performance was deficient.

¶ 16. To satisfy the second prong of the Strickland analysis, Blunt must show that the deficient performance prejudiced the outcome of his trial. We find Blunt has met this burden. Blunt admits that he hit Taylor, but he asserted at trial that he had acted in self-defense. Blunt’s entire theory of defense centered on Taylor being the initial aggressor and Blunt hitting Taylor in self-defense. Bur-dine’s proffered jury instruction misstated the law on self-defense to the jury, and it essentially left Blunt with no instruction on his theory of the defense. Since the instruction constituted an improper statement of law that was not corrected by other instructions, this Court may review the effect of the improper instruction of the jury under the plain-error doctrine. In order to prevail under the plain-error doctrine, an appellant must show that there was an error in the trial court and that the error resulted in a “manifest miscarriage of justice.” Flora v. State, 925 So.2d 797, 811 (¶ 42) (Miss.2006) (quoting Williams v. State, 794 So.2d 181, 187 (¶ 23) (Miss.2001) (overruled on other grounds)). Furthermore, this Court may only apply the plain-error doctrine when the error complained of affects a defendant’s fundamental or substantial rights. Id. (citing Grubb v. State, 584 So.2d 786, 789 (Miss.1991)). Burdine’s proffered jury instruction no doubt prejudiced Blunt, whose due-process rights include the right to a properly instructed jury. See Shaffer v. State, 740 So.2d 273, 282 (¶ 31) (Miss.1998) (holding that the trial court’s failure to instruct the jury properly on the elements of the crime charged implicated Justin Shaffer’s due-process rights); but see Kolberg v. State, 829 So.2d 29, 50-51 (¶40) (Miss.2002) (employing a harmless-error analysis to a challenge to jury instructions).

¶ 17. Because we find Burdine’s request of Jury Instruction D-l constituted a deficient performance of trial counsel and caused actual prejudice to Blunt, we find that Blunt has met his burden of showing that he received ineffective assistance of counsel at trial. We, therefore, reverse the circuit’s denial of Blunt’s motion for post-conviction relief and remand this case for a new trial consistent with this opinion.

¶ 18. THE JUDGMENT OF THE LOWNDES COUNTY CIRCUIT COURT DENYING THE MOTION FOR POST-CONVICTION RELIEF IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LOWNDES COUNTY.

KING, C.J., LEE, P.J., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS AND MAXWELL, JJ., CONCUR. MYERS, P.J., NOT PARTICIPATING.


source: Caselaw Access Project

author: IRVING, J.,

license: Public Domain

text:
    Paul Terrell WALKER, Jr., Appellant v. STATE of Mississippi, Appellee.
    No. 2009-KA-01139-COA.
    Court of Appeals of Mississippi.
    Feb. 22, 2011.

      Edmund J. Phillips Jr., Newton, attorney for appellant.
    Office of the Attorney General by Laura H. Tedder, attorney for appellee.
    Before LEE, P.J., IRVING and GRIFFIS, JJ.
   IRVING, J.,

for the Court:

¶ 1. On June 10, 2009, Paul Terrell Walker Jr. was convicted of fondling a child for the purpose of gratifying his lust. The Scott County Circuit Court sentenced Walker to ten years in the custody of the Mississippi Department of Corrections. Walker filed a motion for a new trial on June 19, 2009, which the circuit court denied. Feeling aggrieved, Walker appeals and argues that: (1) the jury’s verdict is against the overwhelming weight of evidence, (2) the circuit court erred in refusing to admit the school nurse’s reports, and (3) he received ineffective assistance of counsel.

¶ 2. Finding no reversible error, we affirm.

FACTS

¶ 3. Walker began working as a school-bus driver for the Scott County School District in August 2005. Karen, a twelve-year-old, rode the bus driven by Walker, a thirty-five-year-old. During the spring of 2007, Walker allegedly fondled Karen, touching her breast and vaginal area. Walker allegedly abused Karen during his afternoon bus route. Karen’s street was at the end of Walker’s route, and Karen was the last child Walker dropped off. Walker allegedly fondled Karen at the end of the dead-end street before turning the bus around and dropping off Karen.

¶4. Karen had previously accused her stepfather, Thomas Clark, of sexually abusing her. On April 10, 2007, Karen told her school’s janitor that her stepfather was “trying to mess with her.” The janitor referred Karen to the school nurse, Shirley Watson. Watson interviewed Karen, who alleged that Thomas had squeezed her buttocks and breasts. Watson reported the incident to the Mississippi Department of Human Services (DHS) and Rita Clark, Karen’s mother.

¶ 5. DHS launched an investigation into Karen’s allegations of abuse against Thomas and determined that the allegations were unsubstantiated. Karen admitted in her testimony that she had falsely accused her stepfather of sexual abuse.

¶ 6. During a subsequent meeting with DHS, the Clarks expressed concern regarding Karen’s interaction with Walker. Rita and Thomas had previously dealt with Walker through their business, Quick Star. The Clarks told the social worker that they had received a telephone call from an unknown caller who claimed to have received a call from their home telephone at 1:30 a.m. Rita decided to investigate the matter further by checking her cellular-telephone records. She found a telephone number similar to the number of the man who had called their home, and when she called it, Walker answered. Rita confronted Karen about the calls, and Karen admitted that she had been using the cellular telephone to contact Walker.

¶ 7. The same day, Rita found a handwritten letter in Karen’s pants pocket. Karen claimed that Walker had given her the letter. The letter was neither addressed to Karen nor was it signed by Walker. The Clarks showed the letter to the social worker during the meeting, and she advised them to contact the police.

¶ 8. Karen testified that she began calling Walker during the 2006-2007 school year. She testified that she called Walker every night, that she considered him her boyfriend, and that he had told her that he loved her. Karen testified that Walker began rubbing her outside of her clothes while the bus was stopped at the end of her street. Karen testified that Walker also put his hands under her shirt and inside her underwear. Karen testified that the abuse lasted a minute or two and occurred “a bunch of times.”

¶ 9. Ryan Clark, Karen’s uncle and a high-school student, rode the bus with Karen. Ryan lived next door to Karen, and he and Karen were the last two children dropped off in the afternoon. Ryan testified that he did not ride the bus every afternoon and that on the days that he did not ride the bus, he witnessed Walker hug Karen as she exited the bus near his home. He testified that the hugging occurred a “couple of times a week.” Karen’s grandmother, Leslie Clark, also testified that she witnessed Karen and Walker hug as Karen exited the bus.

¶ 10. Walker testified that the letter found in Karen’s pants pocket was intended for his wife. He testified that he had copied the contents of the letter from a card and placed the letter in a folding file he kept on the bus. Walker testified that he did not give the letter to Karen.

¶ 11. Additional facts, as necessary, will be related during our analysis and discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Weight of the Evidence

¶ 12. Walker argues that the jury’s verdict is against the overwhelming weight of the evidence and that the circuit court erred in denying his motion for a new trial. “The standard of review of a post-trial motion is abuse of discretion.” Withers v. State, 907 So.2d 342, 352 (¶ 31) (Miss.2005) (quoting Flowers v. State, 601 So.2d 828, 833 (Miss.1992)). When reviewing a circuit court’s decision to deny a motion for a new trial, the evidence is considered “in the light most favorable to the verdict.” Williams v. State, 35 So.3d 480, 491 (¶ 41) (Miss.2010) (citing Bush v. State, 895 So.2d 836, 844 (¶18) (Miss.2005)). Therefore, we will only order a new trial where the verdict “is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction unconscionable injustice.” Id. (quoting Bush, 895 So.2d at 844 (¶ 18)).

¶ 13. Walker- argues that Karen’s prior false accusations of sexual abuse against her stepfather cast doubt on her credibility and create a reasonable doubt as to whether Walker committed the crime. Our case law is clear that “the unsupported word of the victim of a sex crime is sufficient to support a guilty verdict where that testimony is not discredited or contradicted by other credible evidence.” Miley v. State, 935 So.2d 998, 1001 (¶ 10) (Miss.2006) (citations omitted). Here, Walker attempts to attack Karen’s credibility by pointing out her prior false accusations of sexual abuse against her stepfather. We do not find that Karen’s testimony was sufficiently discredited to warrant overruling the verdict, especially considering the letter written by Walker which was found in Karen’s pants pocket and the testimonies of Ryan and Leslie who frequently observed Karen and Walker hug as Karen exited the bus. Furthermore, “the jury is the final arbiter of a witness’s credibility.” Duncan v. State, 939 So.2d 772, 783 (¶40) (Miss.2006) (citing Morgan v. State, 681 So.2d 82, 93 (Miss.1996)). The jury was fully capable of taking Karen’s prior false accusation of sexual abuse into account when assessing her credibility. The jury found Karen’s testimony, as well as that of many others, more credible than Walker’s testimony. We find that Walker’s conviction is not contrary to the overwhelming weight of the evidence; therefore, the circuit court did not abuse its discretion in denying his motion for a new trial. This issue lacks merit.

2. Exclusion of School Nurse’s Reports

¶ 14. Walker argues that the circuit court erred in refusing to admit the reports that the school nurse made following her interview with Karen regarding the allegations of abuse against Thomas. The standard of review applied to a trial court’s decision to admit or deny evidence is abuse of discretion. Robinson Prop. Group, L.P. v. Mitchell, 7 So.3d 240, 243 (¶ 9) (Miss.2009). However, we will not reverse a trial court’s decision “unless the error adversely affects a substantial right of a party.” Id. (quoting Whitten v. Cox, 799 So.2d 1, 13 (¶ 27) (Miss.2000)).

¶ 15. Walker argues that the school nurse’s reports should have been admitted under the medical-diagnosis or treatment exception to the hearsay rule. Rule 803(4) of the Mississippi Rules of Evidence provides that the following statements are exempted from the hearsay rale:

Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment, regardless of to whom the statements are made, or when the statements are made, if the court, in its discretion, affirmatively finds that the proffered statements were made under circumstances substantially indicating their trustworthiness. For purposes of this rule, the term “medical” refers to emotional and mental health as well as physical health.

Alternatively, Walker argues that the school nurse’s reports are admissible under Rule 803(6) of the Mississippi Rules of Evidence. Rule 803(6) provides for the admission of records of regularly conducted business activity as follows:

A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions or diagnosis, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness or self-authenticated pursuant to Rule 902(11), unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.

¶ 16. Arguably, either exception is broad enough to encompass the reports compiled by the school nurse following her interview with Karen. However, we do not find that the circuit court abused its discretion in excluding the reports because they related to Karen’s accusations against her stepfather, not Walker. Furthermore, the circuit court’s decision to exclude the reports did not prejudice or adversely affect Walker, especially since the circuit court permitted the school nurse to testify regarding her interview with Karen. This issue is without merit.

3. Ineffective Assistance of Counsel

¶ 17. Finally, Walker argues that his attorney’s failure to request a peremptory instruction constituted ineffective assistance of counsel. To succeed in a challenge to the effectiveness of counsel, Walker must prove that his counsel was deficient and that this deficiency prejudiced him. Doss v. State, 19 So.3d 690, 694-95 (¶ 7) (Miss.2009) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Both prongs must be pleaded with specific detail. Coleman v. State, 749 So.2d 1003, 1012 (¶26) (Miss.1999).

¶ 18. The Mississippi Supreme Court has held that the failure to ask for a peremptory instruction, move for a directed verdict, or make any post-trial motions constitutes ineffective assistance of counsel. Holland v. State, 656 So.2d 1192, 1197-98 (Miss.1995). However, the supreme court later clarified its holding in Holland and noted:

In Holland, this Court was concerned with the fact that trial counsel had completely failed to give the trial court the opportunity to review the sufficiency of the evidence at the end of the trial. Not only did counsel fail to renew his motion for [a] directed verdict at the close of all proof, he did not present the trial court with any post-trial motions.

Simon v. State, 857 So.2d 668, 690 (¶ 55) (Miss.2003) (emphasis added).

¶ 19. In Simon, trial counsel moved for a directed verdict at the close of the State’s case-in-chief, but he failed to renew his motion for a directed verdict at the close of all proof. Id. at (¶ 54). Trial counsel did file post-trial motions, specifically a motion for a judgment notwithstanding verdict or a new trial, which gave the trial court the opportunity to review the legal sufficiency and weight of the evidence. Id. at (¶ 56). Therefore, the Simon court reasoned that trial counsel’s failure to renew his motion for a directed verdict did not constitute ineffective assistance of counsel. Id.

¶ 20. At the close of the State’s case-in-chief, Walker’s attorney made a motion to dismiss, citing the State’s failure to prove its case. Additionally, Walker’s attorney filed a motion for a new trial. The post-trial motion gave the circuit court the opportunity to review the weight of the evidence; therefore, the attorney’s failure to ask for a peremptory instruction does not constitute ineffective assistance of counsel. Because Walker has failed to prove that his counsel was deficient, he has not satisfied the first prong of Strickland, and his ineffective assistance of counsel claim must fail.

¶ 21. THE JUDGMENT OF THE CIRCUIT COURT OF SCOTT COUNTY OF CONVICTION OF GRATIFICATION OF LUST AND SENTENCE OF TEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ„ CONCUR.

      . To protect the privacy of the minor victim and her family, the names of the victim and her relatives have been changed.

      . Quick Star is a direct-sales business, where owners sell household products and other consumer goods.

      . The contents of the letter are as follows:
      Do you know how important you are to me? I know you probably wonder from time to time what you mean to me.
      So I’d like to share this thought with you, to tell you that you mean the world to me ... [-1
      Do you know how important you are to me?
      Think of something you couldn't live without and multiply it by a hundred. Think of what happiness mean [sic] to you and add it to the feelings you get on the best days you've ever had[.]
      Add up all your best feelings and take away all the rest and what you’re left with is exactly how I feel about you.
      You matter more to me than you can imagine and much more than I'll ever be able to explain.
      Love, S.O.S.


author: LYONS, Justice.

text:
    DGB, LLC, et al. v. Michael HINDS et al.
    1081767.
    Supreme Court of Alabama.
    June 30, 2010.

      Andrew P. Campbell, M. Clayborn Williams, and Thomas 0. Sinclair of Leit-man, Siegal, Payne & Campbell, P.C., Birmingham; and Samuel N. Crosby and George R. Irvine III of Stone, Granade & Crosby, PC, Daphne, for appellants.
    D. Charles Holtz, H. William Wasden, and Edward G. Bowron of Burr & Forman LLP, Mobile, for appellees Decatur, LLC, Michael Hinds, and Eden Jones Hines.
    William H. Philpot, Jr., Mobile, for ap-pellees Gulf Stream Properties, Inc., and Paul Kirkland.
    Robert B. Stewart of Smith, Spires & Peddy, P.C., Birmingham, for appellee Ray Jacobsen.
   LYONS, Justice.

DGB, LLC (“DGB”), David P. Herrick, Bradley P. Katz, and C. Gibson Vance appeal from a judgment of the Baldwin Circuit Court dismissing their claims against multiple defendants. We affirm the trial court’s judgment in part, reverse it in part, and remand the case to the trial court for further proceedings.

Procedural History

Herrick, Katz, and Vance own DGB. DGB is part-owner of a limited liability company known as Bon Harbor, LLC (“Bon Harbor”). On February 5, 2008, DGB, Herrick, Katz, and Vance (collectively “the investors”) sued Michael Hinds; Paul Kirkland; Ray Jacobsen; Decatur, LLC (“Decatur”); Gulf Stream Properties, Inc. (“Gulf Stream”); Fruitticher-Lowery Appraisal Group, Inc. (“Fruitticher”); and Seaside Title Company, LLC (“Seaside”), in the Montgomery Circuit Court. The complaint stated claims of fraudulent misrepresentation, fraudulent suppression, securities fraud, shareholder oppression, breach of fiduciary duty, negligence, and conspiracy against the various named defendants. The complaint alleged misconduct by the defendants related to Bon Harbor’s July 2005 purchase of real property located in Baldwin County.

The investors amended their complaint in May 2008 to add Eden Jones Hinds, Michael Hinds’s wife, as a defendant and to add claims against the Hindses for conversion, unjust enrichment, and fraudulent transfer. In October 2008, the action was transferred to the Baldwin Circuit Court. Gulf Stream and Kirkland subsequently moved to dismiss the claims against them. They argued that that the investors’ claims were barred by the applicable statutes of limitation; that the investors lacked standing; that the investors had failed to state a claim upon which relief could be granted, see Rule 12(b)(6), Ala. R. Civ. P.; and that the investors had failed to plead their fraud claims with particularity as required by Rule 9(b), Ala. R. Civ. P. Decatur and the Hindses filed an identical motion. The investors responded and moved to amend their complaint. On March 3, 2009, except for the fraudulent-transfer claim asserted against the Hindses, the trial court dismissed the investors’ claims against Gulf Stream, Kirkland, Decatur, and the Hinds-es. On the same day, the trial court granted the investors’ motion for leave to amend their complaint.

Jacobsen, Fruitticher, and Seaside then moved to dismiss the investors’ claims against them, asserting the same arguments as the other defendants. The investors responded and filed a second amended complaint, adding a claim for an accounting and dissolution of Bon Harbor. Within a week, the investors filed a third amended complaint, stating the same claims and noting that the new complaint “address[ed] the [trial court’s] concern over the specificity of the [investors’] fraud allegations.” The defendants all renewed their motions to dismiss, stating the same grounds as their previous motions. Ultimately, in a series of orders, the trial court dismissed all but the investors’ fraudulent-transfer claim against the Hindses. On August 24, 2009, on the investors’ motion, the trial court certified its orders of dismissal as final under Rule 54(b), Ala. R. Civ. P. The investors appealed.

Facts as Alleged in the Third Amended Complaint

In their brief on appeal, the investors expressly waive any appeal from the trial court’s dismissal of their claims against Fruitticher and Seaside and from the trial court’s dismissal of their claims alleging conversion and unjust enrichment against the Hindses. The investors’ fraudulent-transfer claim against the Hindses remains pending before the trial court. Accordingly, the only claims before us are the investors’ claim seeking an accounting and dissolution of Bon Harbor and their claims alleging fraudulent misrepresentation, fraudulent suppression, securities fraud, shareholder oppression, breach of fiduciary duty, negligence, and conspiracy against Gulf Stream, Kirkland, Decatur, Michael Hinds (“Hinds”), and Jacobsen. In their third amended complaint the investors allege the following facts relevant to those claims.

Hinds and Kirkland, through other entities, own Decatur and Gulf Stream. In early 2005, Decatur and Gulf Stream formed Bon Harbor to purchase and develop real property in Baldwin County. At about the same time, Hinds and Kirkland asked Herrick, Katz, and Vance to invest in the development. Herrick, Katz, and Vance agreed, and in June 2005, their eom-pany, DGB, purchased a 40% interest in Bon Harbor for $2,000,000. Bon Harbor, therefore, is owned by Decatur, Gulf Stream, and DGB.

Hinds and Kirkland acted as managers of Bon Harbor. The investors allege that they entrusted Hinds and Kirkland “to negotiate and execute land transactions on behalf of Bon Harbor because of their purported expertise and their respective roles as Managing Members having authority to make managerial decisions.” The investors also allege that, as managers and, through Decatur and Gulf Stream, as alleged majority members of Bon Harbor, Hinds and Kirkland owed them “fiduciary obligations to protect the legitimate investment expectations of the [investors] and to disclose material facts surrounding Bon Harbor’s business activities, including facts surrounding the purchase of’ real property by Bon Harbor.

Bon Harbor purchased 14.36 acres of real property in Baldwin County (“the property”) on July 6, 2005 (“the July 2005 transaction”). Hinds and Kirkland represented to the investors that the purchase price for the property was $10,000,000. At Hinds and Kirkland’s request, Fruitticher appraised the property at approximately $14,000,000. Although the investors’ allegations of this fact are unclear, it appears that Seaside acted as closing agent for the transaction. The investors contributed $2,500,000 toward the purchase price; the third amended complaint does not specify whether this contribution was made through DGB or by Herrick, Katz, and Vance directly. The remaining $7,500,000 was financed through a loan from United Bank, which Herrick, Katz, and Vance personally guaranteed. Hinds and Kirkland did not contribute any funds to the July 2005 transaction, and it is unclear whether they guaranteed the loan from United Bank.

Bon Harbor purchased the property from Jacobsen. Unknown to the investors, just days before Bon Harbor purchased the property for $10,000,000, Jacob-sen had purchased the property for $5,000,000. The third amended complaint does not state from whom Jacobsen purchased the property. The investors allege that Hinds and Kirkland, and through them Decatur and Gulf Stream, knew that Jacobsen had purchased the property for one-half what Bon Harbor paid for it but concealed that fact from the investors, “before, during, and after” the July 2005 transaction. The investors allege that the information concealed was “entirely under the control” of Hinds and Kirkland and that the investors “did not have access” to it. The investors also allege that Hinds, Kirkland, Decatur, and Gulf Stream had fiduciary duties to disclose facts material to the July 2005 transaction — including Ja-cobsen’s purchase price — to them but failed to do so.

The investors also allege that before Ja-cobsen purchased the property, he “obtained” funds from Bon Harbor and that Hinds and Kirkland used Bon Harbor assets to obtain options on and to develop their own properties adjacent to the property purchased by Bon Harbor. The investors allege that Hinds and Kirkland concealed all of this information from them.

The investors allege that they “relied on the defendants’ silence by forgoing independent initiatives to obtain the property records for themselves to learn whether their fiduciaries were committing a fraud.” They also allege that they did not have actual knowledge of the concealed facts until 2007 when they were deposed in separate litigation initiated by United Bank related to the transaction (“the United Bank litigation”) and that they could not have had constructive knowledge of the facts concealed until February 6, 2006, when Hinds and Kirkland sent them tax documents related to the July 2005 transaction.

Standard of Review

We review the trial court’s dismissal of the investors’ claims de novo.

“On appeal, a dismissal is not entitled to a presumption of correctness. Jones v. Lee County Commission, 394 So.2d 928, 930 (Ala.1981); Allen v. Johnny Baker Hauling, Inc., 545 So.2d 771, 772 (Ala.Civ.App.1989). The appropriate standard of review under Rule 12(b)(6)[, Ala. R. Civ. P.,] is whether, when the allegations of the complaint are viewed most strongly in the pleader’s favor, it appears that the pleader could prove any set of circumstances that would entitle her to relief. Raley v. Citibanc of Alabama/Andalusia, 474 So.2d 640, 641 (Ala.1985); Hill v. Falletta, 589 So.2d 746 (Ala.Civ.App.1991). In making this determination, this Court does not consider whether the plaintiff will ultimately prevail, but only whether she may possibly prevail. Fontenot v. Bramlett, 470 So.2d 669, 671 (Ala.1985); Rice v. United Ins. Co. of America, 465 So.2d 1100, 1101 (Ala.1984). We note that a Rule 12(b)(6) dismissal is proper only when it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief. Garrett v. Hadden, 495 So.2d 616, 617 (Ala.1986); Hill v. Kraft, Inc., 496 So.2d 768, 769 (Ala.1986).”

Nance v. Matthews, 622 So.2d 297, 299 (Ala.1993).

Analysis

The trial court did not specify the grounds for its dismissal of the investors’ claims. Accordingly, in their brief on appeal, the investors argue that the trial court erred in dismissing their claims as to each of the grounds asserted by Hinds, Decatur, Kirkland, Gulf Stream, and Ja-cobsen (hereinafter referred to collectively as “the defendants”) in their motions to dismiss.

1. Statutes of Limitation

The events giving rise to the investors’ claims occurred in July 2005. The investors filed their initial complaint in February 2008, more than two and a half years later. Regarding the investors’ claim for an accounting and dissolution of Bon Harbor, § 10-12-38, Ala.Code 1975, provides:

“On application by or for a member, the circuit court for the county in which the articles of organization are filed may decree dissolution of a limited liability company whenever it is not reasonably practicable to carry on the business in conformity with the articles of organization or operating agreement.”

(Emphasis added.) Accordingly, DGB, as a member of Bon Harbor, could have sought a judicial dissolution of Bon Harbor “whenever” DGB could show that it was “not reasonably practicable to carry on the business in conformity with” Bon Harbor’s articles of organization. § 10-12-38. As a result, there is no basis for concluding that this claim is time-barred by a statute of limitations.

A two-year statutory limitations period applies to each of the investors’ remaining claims. See, e.g., §§ 6 — 2—38(Z), and 8-6-19(f), Ala.Code 1975. The defendants, therefore, argue that these claims are untimely and are barred by the applicable statutes of limitation. The investors argue that all of their remaining claims fall within the savings clause of § 6-2-3, Ala.Code 1975, which states:

“In actions seeking relief on the ground of fraud where the statute has created a bar, the claim must not be considered as having accrued until the discovery by the aggrieved party of the fact constituting the fraud, after which he must have two years within which to prosecute his action.”

The investors argue that § 6-2-3 applies not only to their fraud-based claims — fraudulent misrepresentation, fraudulent suppression, and securities fraud — but also to their remaining claims of shareholder oppression, breach of fiduciary duty, civil conspiracy, and negligence. We agree. This Court has stated: “We have recognized that § 6-2-3 may be ‘applied to other torts not arising in fraud in appropriate cases, and applies to a fraudulent concealment of the existence of a cause of action.’ ” Holdbrooks v. Central Bank of Alabama, N.A., 435 So.2d 1250, 1251 (Ala.1983) (quoting Tonsmeire v. Tonsmeire, 285 Ala. 454, 457, 233 So.2d 465, 467 (Ala.1970)). More specifically, this Court has explained, regarding a predecessor of § 6-2-3:

“While this statute is usually applicable to cases wherein fraud is the basis of the cause of action, it is the settled construction that its purpose is to make available at law the rule theretofore prevailing in equity; and applies to a fraudulent concealment of the existence of a cause of action from the party in whose favor the cause of action exists. A party cannot profit by his own wrong in concealing a cause of action against himself until barred by limitation. The statute of limitations cannot be converted into an instrument of fraud.”

Hudson v. Moore, 239 Ala. 130, 133, 194 So. 147, 149 (1940) overruled on other grounds by Ex parte Sonnier, 707 So.2d 635 (Ala.1997)(emphasis added).

In B & B Properties v. Dryvit Systems, Inc., 708 So.2d 189 (Ala.Civ.App.1997), the Court of Civil Appeals found a plaintiffs assertion of tolling based on fraudulent concealment “without merit,” stating: “There is no ‘discovery rule’ that tolls the running of the limitations period with respect to negligence or wantonness actions. The ‘discovery rule’ is applicable only to fraud actions.” 708 So.2d at 192 (citing Henson v. Celtic Life Ins. Co., 621 So.2d 1268, 1274 (Ala.1993)). The Court of Civil Appeals’ conclusion is inconsistent with the settled principle, cited above, that § 6-2-3 “applies to a fraudulent concealment of the existence of a cause of action from the party in whose favor the cause of action exists.” Hudson, 239 Ala. at 133, 194 So. at 149. Furthermore, the Court of Civil Appeals’ reliance on Henson, 621 So.2d at 1274, is misplaced because that decision did not involve any allegation that the defendant fraudulently concealed the existence of the cause of action. See footnote 4, supra. We therefore overrule B & B Properties v. Dryvit Systems, Inc., to the extent that it conflicts with our decisions recognizing the application of § 6-2-3 to the fraudulent concealment of a cause of action.

Because § 6-2-3 “applies to the fraudulent concealment of the existence of a cause of action,” Hudson, supra, if the investors have sufficiently alleged the fraudulent concealment of their claims, § 6-2-3 may apply even to their non-fraud claims. This Court has stated: “When, as in this case, the plaintiffs complaint on its face is barred by the statute of limitations, the complaint must also show that he or she falls within the savings clause of § 6-2-3.” Miller v. Mobile County Bd. of Health, 409 So.2d 420, 422 (Ala.1981). “[T]he burden is upon he who claims the benefit of § 6-2-3 to show that he comes within it.” Amason v. First State Bank of Lineville, 369 So.2d 547, 551 (Ala.1979). However, a “dismissal based on the statute of limitations is proper only if, from the face of the complaint, it is apparent that the tolling provisions do not apply.” Travis v. Ziter, 681 So.2d 1348, 1351 (Ala.1996).

This Court has held that to show that a plaintiffs claims fall within the savings clause of § 6-2-3 a complaint must allege the time and circumstances of the discovery of the cause of action. See, e.g., Angell v. Shannon, 455 So.2d 823, 823-24 (Ala.1984); Papastefan v. B & L Constr. Co., 356 So.2d 158, 160 (Ala.1978). The complaint must also allege the facts or circumstances by which the defendants concealed the cause of action or injury and what prevented the plaintiff from discovering the facts surrounding the injury. See, e.g., Smith v. National Sec. Ins. Co., 860 So.2d 343, 345, 347 (Ala.2003); Lowe v. East End Mem’l Hosp. & Health Ctrs., 477 So.2d 339, 341-42 (Ala.1985); Miller, 409 So.2d at 422. See also Amason, 369 So.2d at 550.

In Miller, the plaintiffs, husband and wife, sued a medical clinic and the manufacturer of a contraceptive device that they alleged had injured the wife some years before. Regarding concealment, the plaintiffs alleged only that the clinic and the manufacturer had “ ‘fraudulently concealed] the defective and unreasonably dangerous condition of [the] product from the Plaintiff after they knew said product was defective and dangerous.’ ” 409 So.2d at 422. This Court stated:

“The complaint fails to allege any of the facts or circumstances by which the ap-pellees concealed the cause of action or injury. The complaint also fails to allege what prevented Mrs. Miller from discovering facts sumunding the injury. See Amason v. First State Bank of Lineville, 369 So.2d 547 (Ala.1979); Garrett v. Raytheon Co., 368 So.2d 516 (Ala.1979). The plaintiffs make only generalized allegations to support their claim for fraudulent concealment. Although under modern rules of civil practice the pleadings only need to put the defending party on notice of the claims against him, Rule 9(b)[, Ala. R. Civ. P.,] qualifies the generalized pleadings permitted by Rule 8(a), [Ala. R. Civ. P.]. ‘The pleading must show time, place and the contents or substance of the false representations, the facts misrepresented, and an identification of what has been obtained.’ Rule 9(b), ... Committee Comments. The allegations contained in count 6 fail to meet the requirements of Rule 9. Thus, the trial court did not err in granting the motion to dismiss in favor of [the defendant].”

409 So.2d at 422 (emphasis added).

In Lowe, the administrator of a decedent’s estate sued a hospital in 1983 seeking recovery for the decedent’s alleged wrongful death in 1980. The plaintiff alleged simply that the hospital had fraudulently concealed its conduct from the plaintiff and had denied causing the decedent’s death. The plaintiff further alleged that he “ ‘discovered in July of 1983 representations of [the hospital] were false and that [the hospital] had fraudulently concealed facts giving rise to the cause of action.’ ” 477 So.2d at 340. Based on Miller, this Court determined that the allegations of the complaint did not state facts sufficient to show that the statutory limitations period had been tolled. 477 So.2d at 342.

In Smith, the plaintiff alleged multiple tort claims against an insurance company and alleged that she had discovered her claims within two years of filing her complaint when she “ ‘heard in her community that there may be something wrong with her insurance policy.’ ” 860 So.2d at 345-46. Relying on Miller and Lowe, this Court concluded that Smith’s complaint “ ‘fail[ed] to allege any of the facts or circumstances by which the appellees concealed the cause of action or injury,’ and ‘fail[ed] to allege what prevented [Smith] from discovering facts surrounding the [fraud].’ ” 860 So.2d at 347 (quoting Miller, 409 So.2d at 422).

Based on Miller, Lowe, and Smith, the defendants argue that the investors have not alleged facts or circumstances by which the defendants concealed a cause of action nor have they alleged what prevented the investors from discovering the facts the investors allege were concealed. Therefore, the defendants argue, the trial court properly dismissed the investors’ claims. We disagree. Although the third amended complaint is not likely to be considered for inclusion in a form book as a model complaint, unlike the generalized allegations at issue in Miller, Loive, and Smith, the investors have alleged more than just the circumstances of their discovery of their claims and that the defendants concealed them. Viewed in the light most favorable to the investors, see Nance, 622 So.2d at 299, the third amended complaint alleges 1) the time and circumstances of the investors’ discovery of their causes of action, 2) the facts of circumstances by which the defendants concealed the investors’ causes of action or injury, and 3) what prevented the investors from discovering the facts surrounding their injury.

First, the investors allege that they discovered their causes of action when they were deposed in 2007 in the United Bank litigation. The investors, therefore, allege the time and circumstances of their discovery of their causes of action. See Angell, 455 So.2d at 823-24; Papastefan, 356 So.2d at 160.

Second, the investors allege that Jacob-sen had obtained funds from Bon Harbor before he purchased the property; that Hinds and Kirkland used Bon Harbor funds for their own purposes, and that the defendants knew and concealed these facts from the investors. The investors also allege that the defendants knew that Ja-cobsen had purchased the property for $5,000,000 just days before the July 2005 transaction; that this information was entirely under the control of the defendants; and that the defendants concealed “and otherwise prevented” the investors from discovering the information before, during, and after the July 2005 transaction. The investors, therefore, allege the facts or circumstances by which the defendants concealed the investors’ causes of action or injury. See Miller, 409 So.2d at 422; Lowe, 477 So.2d at 342; and Smith, 860 So.2d at 347.

Regarding this point, the investors also allege that Hinds, Decatur, Kirkland, and Gulf Stream had fiduciary obligations to disclose to them information concerning the July 2005 transaction but failed to do so. Specifically, the investors allege that Hinds and Kirkland were acting as managers of Bon Harbor and that the investors entrusted the negotiation and consummation of the July 2005 transaction to Hinds and Kirkland because of their superior knowledge and experience. The investors also allege that Decatur and Gulf Stream were majority members of Bon Harbor and owed fiduciary duties to DGB as an alleged minority member.

In their briefs on appeal, the parties argue extensively regarding the merits of the questions whether Hinds, Decatur, Kirkland, and Gulf Stream owed the investors any duty to disclose information and whether fiduciary relationships existed among them. However, whatever may later be determined in the trial court proceedings, this appeal comes to us from the trial court’s dismissal of the investors’ claims and “this Court does not consider whether the [investors] will ultimately prevail, but only whether [they] may possibly prevail.” Nance, 622 So.2d at 299. When the allegations of the third amended complaint are viewed most strongly in the investors’ favor, see Nance, supra, the investors allege 1) that fiduciary and other relationships existed between them and Hinds, Decatur, Kirkland, and Gulf Stream that obligated those defendants to disclose information to the investors and 2) that those defendants failed to do so. Based on these allegations, we cannot say that investors cannot possibly prevail on this point. The investors, therefore, have sufficiently alleged that the defendants owed them duties to disclose information and that they breached those duties as an additional fact or circumstance by which Hinds, Decatur, Kirkland, and Gulf Stream concealed the investors’ causes of action or injury. See Miller, Lowe, and Smith, supra.

Finally, the third amended complaint alleges that the investors had no actual knowledge of the fact that Jacobsen had obtained Bon Harbor funds before he purchased the property, of Hinds and Kirkland’s personal use of Bon Harbor funds, or of the fact that Jacobsen paid $5,000,000 for the property; that the investors did not have access to that information because it was entirely under the control of the defendants; that the investors entrusted the negotiation and execution of the purchase to Hinds and Kirkland; and that the investors did not obtain the property records underlying the transaction because they relied on the defendants’ silence and representations regarding the purchase price. Accordingly, the investors have alleged the circumstances that prevented their discovery of the facts surrounding their injury. See Miller, Lowe, and Smith, supra. Any question regarding the reasonableness of the investors’ actions or inactions is not yet before us. See Nance, supra. Whatever may be shown at any subsequent trial proceedings, the investors have alleged sufficient facts showing that their claims fall within the savings clause of § 6-2-3. Accordingly, the dismissal of the investors’ claims on the ground of the statute of limitations at this stage of the proceedings was error.

II. Standing

The parties next dispute whether the investors have standing to maintain their claims against the defendants. The defendants argue that any injury resulting from their actions is an injury to Bon Harbor, not to the investors. The defendants argue that the investors’ claims are therefore derivative in nature and that, as a result, 1) Herrick, Katz, and Vance have no standing to seek relief individually, and 2) DGB was required to first demand that Bon Harbor sue the defendants and, if that demand was unsuccessful, to then pursue a derivative claim under § 10-12-25, Ala. Code 1975. The investors contend that they have alleged injury to themselves individually, not just injury to Bon Harbor. Accordingly, the investors argue, they have standing to maintain individual claims against the defendants.

The defendants cite this Court’s decision in Carey v. Howard, 950 So.2d 1131 (Ala.2006). Carey involved property held by a family-owned limited liability company (“the LLC”). Certain members of the LLC (“the petitioners”) sought a judgment declaring that another member’s option to purchase an interest in the LLC’s property for a price allegedly below market value was unenforceable. On appeal, this Court considered whether the petitioners had standing to maintain their claim for declaratory relief. Based on the language of the Declaratory Judgment Act, § 6-6-223, Ala.Code.1975, this Court stated that the petitioners had “standing to seek declaratory relief relating to the option agreement only if they [were] ‘interested under’ or if their ‘rights, status, or other legal relations [were] affected by’ the option agreement.” 950 So.2d at 1135. This Court determined that, because the challenged option related only to an interest in property held by the LLC, the only injury alleged by the petitioners was an injury to the LLC. As a result, this Court determined that “any right to bring a declaratory-judgment action with respect to that injury restfed] with the LLC” and could be pursued only by the LLC itself or by the plaintiffs derivatively under § 10-12-25. 950 So.2d at 1136. This Court further concluded that the petitioners had not alleged any injury to their separate individual interests in the property held by the LLC and therefore that they “lacked standing to seek declaratory relief in their individual capacities.” 950 So.2d at 1137.

In this case, the investors have not attempted to state any derivative claim on behalf of Bon Harbor; instead they assert claims only on their own behalf. They allege that the defendants made representations directly to and concealed information directly from them regarding the circumstances surrounding the July 2005 transaction. They allege that they relied on the defendants’ representations and concealments and that, as a result, Herrick, Katz, and Vance personally guaranteed the $7,500,000 loan from United Bank and, therefore, were personally interested in the July 2005 transaction. The investors also allege that neither Hinds nor Kirkland contributed any funds to the July 2005 transaction and that the investors were required to pay the remaining $2,500,000 of the purchase price. Based on these allegations, the investors argue that they suffered individual injury as a result of the defendants’ actions.

To the extent that the third amended complaint states injury to Bon Harbor as a result of the defendants’ conduct, the investors have no standing to recover on Bon Harbor’s behalf. However, based on the allegations described above, unlike the circumstances presented in Carey, we conclude that the investors have alleged injury to themselves individually; that their claims are not derivative in nature; and, therefore, that they had standing to maintain their claims against the defendants.

III. Sufficiency of Pleading

Finally, the investors argue on appeal that the trial court erred in dismissing their claims because, they argue, their claims of fraudulent misrepresentation, fraudulent suppression, and securities fraud are stated with particularity as required by Rule 9(b), Ala. R. Civ. P., and because the remaining counts of their third amended complaint state claims upon which relief can be granted and are therefore not subject to dismissal under Rule 12(b)(6), Ala. R. Civ. P. The defendants argue that none of the claims alleged against them are sufficiently pleaded.

A. Fraudulent Misrepresentation

The investors asserted their claim of fraudulent misrepresentation against Hinds, Decatur, Kirkland, Gulf Stream, and Jacobsen. Rule 9(b), Ala. R. Civ. P., provides: “In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally.” The Committee Comments on 1973 Adoption of Rule 9 explain:

“[T]his special requirement [in Rule 9(b) ] as to fraud and mistake does not require every element in such actions to be stated with particularity. It simply commands the pleader to use more than generalized or conclusory statements to set out the fraud complained of. The pleading must show time, place and the contents or substance of the false representations, the fact misrepresented, and an identification of what has been obtained. ... But knowledge by the defendant of the falsity of the representation and reliance on the representation by the plaintiff can still be generally alleged. ... [I]t should be expected that the courts will strive to find the details necessary for the sufficiency of such a complaint if the pleading gives fair notice to the opposing party....”

See also Bethel v. Thorn, 757 So.2d 1154, 1158 (Ala.1999). “The purpose of this rule is to give fair notice to the opposing party.” Winn-Dixie Montgomery, Inc. v. Henderson, 371 So.2d 899, 901 (Ala.1979); see also Kabel v. Brady, 519 So.2d 912, 916 (Ala.1987).

In their third amended complaint, the investors allege the following facts regarding Hinds, Decatur, Kirkland, and Gulf Stream: 1) that Jacobsen purchased the property for $5,000,000 just days before the July 2005 transaction; 2) that Hinds, Decatur, Kirkland, and Gulf Stream knew and concealed this information from the investors; 3) that this information was entirely under the control of those defendants; 4) that they concealed from “and otherwise prevented” the investors from discovering the information before, during, and after the purchase of the property; 5) that Hinds and Kirkland obtained an appraisal of the property for $14,000,000 with knowledge that Jacobsen had purchased the property for $5,000,000 only days before; 6) that Hinds and Kirkland reported that the purchase price of the property was $10,000,000; 7) that Bon Harbor purchased the property for $10,000,000 and that Herrick, Katz, and Vance personally guaranteed the $7,500,000 loan from United Bank, and the investors were required to contribute the remaining $2,500,000 toward the transaction; and 8) that the investors did not obtain the property records underlying the July 2005 transaction because they relied on Hinds’s and Kirkland’s silence and representations regarding the transaction.

Based on the foregoing, it is apparent that the investors allege the time of the misrepresentations made by Hinds, Decatur, Kirkland, and Gulf Stream (July 2005), the content of the misrepresentations (that the purchase price of the property was $10,000,000 and the appraised value of the property was $14,000,000), the facts misrepresented (that the value of the property was $5,000,000), the defendant’s knowledge of the falsity of the representations (Hinds, Decatur, Kirkland, and Gulf Stream’s knowledge that Jacobsen had purchased the property for $5,000,000 only days before the July 2005 transaction), and the result of the misrepresentations (Bon Harbor purchased the property for twice its value; Herrick, Katz, and Vance personally guaranteed a $7,500,000 loan; and the investors contributed $2,500,000 toward the transaction).

The investors did not allege the place where the misrepresentations occurred. However, their third amended complaint included sufficient allegations to place the defendants on notice of the acts complained of; the investors, therefore, satisfied the requirements of Rule 9(b). See VanLoock v. Curran, 489 So.2d 525, 534 (Ala.1986) (“While the pleading is perhaps not a model of clarity and specificity, it sufficiently comports with the purpose of Rule 9(b) in that it gives the defendants fair notice of the acts complained of.”) The trial court, therefore, erred in dismissing the investors’ fraudulent-misrepresentation claim as to Hinds, Decatur, Kirkland, and Gulf Stream.

Regarding Jacobsen, the investors have alleged only that he sold the property to Bon Harbor for more than he paid for it. It does not appear from the allegations of the third amended complaint that Jacobsen had any direct dealings with the investors or that he misrepresented any material facts to them. Accordingly, the investors have not pleaded their claim of fraudulent misrepresentation against Ja-cobsen with particularity as required by Rule 9(b). The trial court, therefore, correctly dismissed this claim as to Jacobsen.

B. Fraudulent Suppression

The investors asserted their claim of fraudulent suppression against Gulf Stream, Kirkland, Decatur, Hinds, and Ja-cobsen. The elements of a claim of fraudulent suppression are: “ ‘(1) a duty on the part of the defendant to disclose facts; (2) concealment or nondisclosure of material facts by the defendant; (3) inducement of the plaintiff to act; (4) action by the plaintiff to his or her injury.’ ” Freightliner, L.L.C. v. Whatley Contract Carriers, L.L.C., 932 So.2d 883, 891 (Ala.2005) (quoting Lambert v. Mail Handlers Benefit Plan, 682 So.2d 61, 63 (Ala.1996)). This claim must be pleaded with particularity under Rule 9(b).

Regarding a duty to disclose, the investors allege 1) that Hinds and Kirkland, as managers of Bon Harbor, had a duty to disclose material facts regarding the July 2005 transaction to the investors; 2) that Decatur and Gulf Stream, as members of Bon Harbor, had a duty to disclose material facts regarding the July 2005 transaction to the investors; 3) that Hinds, Decatur, Kirkland, and Gulf Stream had fiduciary relationships with the investors under which they had a duty to disclose material facts regarding the July 2005 transaction to the investors; and 4) that the investors entrusted Hinds and Kirkland with the negotiation of the July 2005 transaction based on their superior experience and knowledge.

As to Jacobsen, the investors have not alleged that he had any duty to disclose information to them. Therefore, the investors have not sufficiently pleaded their claim of fraudulent suppression against Jacobsen. As to Hinds, Decatur, Kirkland, and Gulf Stream, as discussed above, the parties argue extensively regarding the merits of the question whether these defendants owed a duty to disclose to the investors or had any fiduciary relationship with them. As stated above, at this stage of the litigation we must consider only whether the investors have stated any set of facts upon which they may possibly prevail. See Nance, supra. Considering the allegations listed above, the investors have sufficiently alleged that these defendants had duties — arising from their status as managers, members, and fiduciaries — to disclose information to DGB, as a member of Bon Harbor, and to Herrick, Katz, and Vance, as guarantors of the United Bank loan.

Regarding the concealment or nondisclosure of material facts by Hinds, Decatur, Kirkland, and Gulf Stream, the investors allege 1) that Jacobsen had obtained funds from Bon Harbor before he purchased the property; 2) that Hinds and Kirkland used Bon Harbor funds for their own purposes; 3) that Jacobsen purchased the property for $5,000,000 just days before Bon Harbor purchased it from him for $10,000,000; 4) that the defendants knew of these facts and that the information was entirely in the control of the defendants; and 5) that the defendants concealed from “and otherwise prevented” the investors from discovering the information before, during, and after the transaction. The investors have therefore alleged that Hinds, Decatur, Kirkland, and Gulf Stream concealed material facts regarding the July 2005 transaction from them.

Regarding whether these defendants induced the investors to act, the investors allege that they participated in the July 2005 transaction and that they did not obtain the property records underlying the transaction because they relied on the actions, silence, and representations of Hinds, Decatur, Kirkland, and Gulf Stream. Finally, regarding whether the investors acted to their injury, they allege that Bon Harbor purchased the property for twice its value, that Herrick, Katz, and Vance personally guaranteed the $7,500,000 Union Bank loan, and that the investors contributed $2,500,000 to the transaction. The investors, therefore, have alleged each element of their fraudulent-suppression claim against Hinds, Decatur, Kirkland, and Gulf Stream with particularity as required by Rule 9(b). Therefore, the trial court correctly dismissed the fraudulent-suppression claim as to Jacobsen but erred in dismissing that claim as to Hinds, Decatur, Kirkland, and Gulf Stream.

C. Securities Fraud

Section 8 — 6—19(a)(2), Ala.Code 1975, grants the buyer of a security a right of action against a seller who sold the security “by means of any untrue statement of a material fact or any omission to state a material fact.” This Court has stated: “[A] claim of a violation of § 8-6-19(a)(2), Ala.Code 1975, requires (1) a sale or an offer to sell a security (2) by means of a false statement or omission (3) of material fact and (4) the ignorance of the buyer as to the untruth or omission.” Blackmon v. Nexity Fin. Corp., 953 So.2d 1180, 1191 (Ala.2006). This claim must be pleaded with particularity under Rule (b).

The investors asserted their claim of securities fraud against Hinds, Decatur, Kirkland, and Gulf Stream. In their briefs on appeal, the investors maintain that this claim relates to DGB’s purchase of a 40% interest in Bon Harbor in June 2005. It is unclear whether a claim under § 8-6-19(a)(2) may arise from the sale of an interest in an LLC. Moreover, the investors have not alleged any false statement or omission of material fact by Hinds, Decatur, Kirkland, or Gulf Stream relating to DGB’s purchase of an interest in Bon Harbor. The investors, therefore, have not stated a claim of securities fraud upon which relief can be granted, and the trial court did not err in dismissing the claim.

D. Shareholder Oppression

The investors asserted a claim of shareholder oppression against Hinds, Decatur, Kirkland, and Gulf Stream. In their brief on appeal, the investors cite only § 10-12-21(h), Ala.Code 1975, and a legal treatise to support their contention that the trial court erred in dismissing that claim. Section 10-12-21(h) states only that “[a] member shall discharge the duties to a member-managed company and its other members under this chapter or under the operating agreement and exercise any rights consistently with the obligation of good faith and fair dealing.” The investors have not cited any Alabama authority showing that § 10-12-21(h) applies to Hinds, Decatur, Kirkland, or Gulf Stream, or that § 10-12-21(h) supports a claim of “shareholder oppression.” Nor have the investors cited any authority showing that the allegations of their third amended complaint adequately state such a claim.

This Court has stated:

“Rule 28(a)(10), Ala. R.App. P., requires that arguments in an appellant’s brief contain ‘citations to the cases, statutes, other authorities, and parts of the record relied on.’ Further, ‘it is well settled that a failure to comply with the requirements of Rule 28(a)(10) requiring citation of authority in support of the arguments presented provides this Court with a basis for disregarding those arguments.’ State Farm Mut. Auto. Ins. Co. v. Motley, 909 So.2d 806, 822 (Ala.2005) (citing Ex parte Showers, 812 So.2d 277, 281 (Ala.2001)). This is so, because ‘ “it is not the function of this Court to do a party’s legal research or to make and address legal arguments for a party based on undelineated general propositions not supported by stijfi-cient authority or argument.” Butler v. Town of Argo, 871 So.2d 1, 20 (Ala.2003) (quoting Dykes v. Lane Trucking, Inc., 652 So.2d 248, 251 (Ala.1994)).”

Jimmy Day Plumbing & Heating, Inc. v. Smith, 964 So.2d 1, 9 (Ala.2007) (emphasis added). Because the .investors have not complied with the requirements of Rule 28(a)(10), Ala. R. Civ. P., we will not consider their arguments as to this claim, and we affirm the trial court’s dismissal of this claim.

E. Breach of Fiduciary Duty

The investors allege a claim of breach of fiduciary duty against Hinds, Decatur, Kirkland, and Gulf Stream. In Bank of Red Bay v. King, 482 So.2d 274 (Ala.1985), a fiduciary or confidential relationship was defined:

“ ‘ “A confidential relationship is one in which one person occupies toward another such a position of adviser or counselor as reasonably to inspire confidence that he will act in good faith for the other’s interests, or when one person has gained the confidence of another and purports to act or advise with the other’s interest in mind; where trust and confidence are reposed by one person in another who, as a result, gains an influence or superiority over the other; and it appears when the circumstances make it certain the parties do not deal on equal terms, but, on the one side, there is an overmastering influence, or, on the other, weakness, dependence, or trust, justifiably reposed; in both an unfair advantage is possible. It arises in cases in which confidence is reposed and accepted, or influence acquired, and in all the variety of relations in which dominion may be exercised by one person over another.”
“ 15A C.J.S. Confidential (1967).’ ”

482 So.2d at 284. See also K & C Dev. Corp. v. AmSouth Bank, N.A., 597 So.2d 671, 675 (Ala.1992). As discussed above, the investors have sufficiently alleged the existence of fiduciary relationships with these defendants. The investors further allege that these defendants breached their fiduciary duties by misrepresenting information to and concealing information from the investors, by using Bon Harbor funds for their own purposes, and by proceeding with the July 2005 transaction despite knowledge of the actual value of the property. Finally, the investors allege that they were injured as a result of these defendants’ actions because Bon Harbor purchased the property for twice its value, Herrick, Katz, and Vance guaranteed the $7,500,000 United Bank loan, and the investors contributed $2,500,000 toward the July 2005 transaction. Based on the foregoing, the investors have stated a claim of breach of fiduciary duty upon which relief may be granted, and the trial court erred in dismissing the claim.

F. Civil Conspiracy

The investors state a claim of civil conspiracy against Hinds, Decatur, Kirkland, Gulf Stream, and Jacobsen based on an alleged conspiracy among them to “commit the ... intentional torts” alleged in their third amended complaint. This Court has stated:

“ ‘Alabama recognizes [civil conspiracy] as a substantive tort.’ Purcell Co. v. Spriggs Enters., Inc., 431 So.2d 515, 522 (Ala.1983). ‘In essence, civil conspiracy is a combination of two or more persons to do: (a) something that is unlawful; [or] (b) something that is lawful by unlawful means.’ Id. See also Eidson v. Olin Corp., 527 So.2d 1283, 1285 (Ala.1988). ‘In a conspiracy, the acts of co-conspirators are attributable to each other.’ Williams v. Aetna Fin. Co., 83 Ohio St.3d 464, 476, 700 N.E.2d 859, 868 (1998).”

Ex parte Reindel, 963 So.2d 614, 621 n. 11 (Ala.2007). “A civil conspiracy claim operates to extend, beyond the active wrongdoer, liability in tort to actors who have merely assisted, encouraged, or planned the wrongdoer’s acts.” 16 Am.Jur.2d Conspiracy § 57 (2009). “A plaintiff alleging a conspiracy must have a valid underlying cause of action. [Drill Parts & Serv. Co. v. Joy Mfg. Co., 619 So.2d 1280 (Ala.1993).] ‘[A] conspiracy claim must fail if the underlying act itself would not support an action.’ Triple J Cattle, Inc. v. Chambers, 621 So.2d 1221, 1225 (Ala.1993).” Callens v. Jefferson County Nursing Home, 769 So.2d 273, 280 (Ala.2000). Based on these principles, the defendants argue that, because the investors’ underlying claims were dismissed, the trial court also correctly dismissed their claim of civil conspiracy.

We have previously concluded that the trial court erred in dismissing the investors’ claims of fraudulent misrepresentation and fraudulent suppression as they relate to Hinds, Decatur, Kirkland, and Gulf Stream. The investors allege that those defendants agreed and worked together, with Jacobsen, to knowingly misrepresent information to and conceal material facts from the investors. The investors, therefore, have alleged that this combination of persons and entities — Hinds, Decatur, Kirkland, Gulf Stream, and Jacob-sen — agreed and acted together to engage in unlawful conduct that injured the investors. Because the investors have alleged valid underlying causes of action and because acts of coconspirators are attributable to each other, see Reindel, supra, the investors have stated a claim of civil conspiracy upon which relief may be granted against each of these defendants. Accordingly, the trial court erred in dismissing this claim.

G. Negligence

The investors state a negligence claim against Hinds and Kirkland. “In any negligence case, the plaintiff bears the burden of proving the existence of a duty owed by the defendant, a breach of that duty, causation, and damage.” Glass v. Birmingham Southern R.R., 905 So.2d 789, 794 (Ala.2004). The investors allege that Hinds and Kirkland, as managers of Bon Harbor and individuals to whom the investors had entrusted the negotiations culminating in the July 2005 transaction, owed a duty of care with respect to that transaction; that Hinds and Kirkland breached that duty of care by going forward with the July 2005 transaction with knowledge that the value of the property was less than the investors were required to pay; and that the investors were injured by Hinds and Kirkland’s conduct in that they contributed $2,500,000 toward the July 2005 transaction and Herrick, Katz, and Vance personally guaranteed the $7,500,000 United Bank loan. Accordingly, the investors have stated a claim of negligence upon which relief may be granted, and the trial court erred in dismissing this claim.

H. Accounting and Dissolution

In their brief on appeal, the investors do not cite any authority to support their argument that the trial court erred in dismissing their claim for an accounting and dissolution of Bon Harbor. As noted above, Rule 28(a)(10), Ala. R. Civ. P., requires that appellants support their arguments with citations to authority. “1 “[I]t is not the function of this Court to do a party’s legal research or to make and address legal arguments for a party based on undelineated general propositions not supported by sufficient authority or argument.” ’ ” Jimmy Day Plumbing, 964 So.2d at 9 (quoting Butler v. Town of Argo, 871 So.2d 1, 20 (Ala.2003), quoting in turn Dykes v. Lane Trucking Inc., 652 So.2d 248, 251 (Ala.1994)). Because the investors have failed to comply with the requirements of Rule 28(a)(10) as to this claim, we will not consider their arguments and we affirm the trial court’s dismissal of this claim. We note, however, that the resolution of the remaining claims in this proceeding on remand may give rise to new facts and circumstances that are compatible with a renewal of the matters made the basis of this claim.

Conclusion

Accordingly, we affirm the trial court’s dismissal of the investors’ claim for an accounting and dissolution of Bon Harbor, of their fraudulent-misrepresentation and fraudulent-suppression claims against Ja-cobsen, and of them claims of securities fraud and shareholder oppression. We reverse the trial court’s dismissal of the investors’ claims of breach of fiduciary duty, civil conspiracy, negligence and, as they relate to Hinds, Decatur, Kirkland, and Gulf Stream, their claims of fraudulent misrepresentation and fraudulent suppression. We remand the cause to the trial court for further proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

      . Although the complaint alleges that this occurred on July 6, 2005, other documents in the record indicate that the date on which the purchase occurred was July 8, 2005.

      . Although the defendants argued before the trial court that the savings clause applied only to fraud-based claims, they do not reassert that argument on appeal.

      . See also Payton v. Monsanto Co., 801 So.2d 829, 834 (Ala.2001) (stating regarding complaint alleging negligence, wantonness, breach of a duty to warn, fraud, misrepresentation and deceit, private and public nuisance, trespass, battery, assault, negligent and intentional infliction of emotional distress, strict liability, and breach of riparian rights that "the plaintiff can overcome a defense of limitations by averment and proof of circumstances permitting tolling of the running of the limitations period, such as fraud on the part of the defendant in concealing the wrongdoing....”); Angell v. Shannon, 455 So.2d 823, 823-24 (Ala.1984) (applying § 6-2-3 and Rule 9(b), Ala. R. Civ. P., to a breach-of-contract claim); Miller v. Mobile County Bd. of Health, 409 So.2d, 420 (Ala.1981) (applying § 6-2-3 and Rule 9(b) to a breach-of-contract claim) Amason v. First State Bank of Lineville, 369 So.2d 547, 550 (Ala.1979) ("[Section 6-2-3] would in effect stay the running of the general statute of limitations for torts (one year) until such time as Amason discovered or ought to have discovered, the fraud,”); Van Antwerp v. Van Antwerp, 242 Ala. 92, 100, 5 So.2d 73, 80 (1941) (stating regarding a predecessor of § 6-2-3 that "this statute makes provision for a limitation of one year from the date of ... discovery, provided its discovery was concealed by some activity of defendant, amounting to a fraud. And in this connection it is not limited to actions based on fraud.”); Rutledge v. Freeman, 914 So.2d 364, 369 (Ala.Civ.App.2004) ("Although the wording of § 6-2-3 indicates that it applies only to fraud actions, that section and its predecessor have long been held to apply to any cause of action that has been fraudulently concealed from a plaintiff.” (citations omitted)); Crowe v. City of Athens, 733 So.2d 447, 453 (Ala.Civ.App.1999) (applying pleading requirements of Rule 9(b) to conversion action); City of Gadsden v. Harbin, 398 So.2d 707, 709 (Ala.Civ.App.1981) ("It is well settled that a fraudulent concealment of a tort or injury by the defendant will toll the running of the statute of limitations until the tort or injury is discovered or could have been discovered by due diligence.”).

      . This Court has stated that § 6-2-3 does not provide a "discovery rule” for non-fraud claims. See, e.g., Boyce v. Cassese, 941 So.2d 932, 946 n. 2 (Ala.2006); Sanders v. Peoples Bank & Trust Co., 817 So.2d 683, 686 (Ala.2001); Travis v. Ziter, 681 So.2d 1348, 1355 (Ala.1996); Henson v. Celtic Life Ins. Co., 621 So.2d 1268, 1274 (Ala.1993); Trust Co. Bank v. State, 420 So.2d 10, 13 (Ala.1982); Singer Asset Fin. Co. v. Connecticut Gen. Life Ins. Co., 975 So.2d 375, 382 (Ala.Civ.App.2007); and Williams v. Norwest Fin. Alabama, Inc., 723 So.2d 97, 104 (Ala.Civ.App.1998). These cases, however, only disavow a general "discovery rule” for non-fraud claims; they do not speak to the fraudulent concealment of a cause of action.

      . Section 10-12-25(a) states: "A member may bring an action in the right of a limited liability company to recover a judgment in its favor if the members or managers with authority to do so have refused to bring the action or if an effort to cause those members or managers to bring the action is not likely to succeed.” See also Rule 23.1, Ala. R. Civ. P.


author: THOMPSON, Judge. MURDOCK, Judge,

text:
    Demarius Hughes AMAN v. Michael J. GILLEY and Susan Helms Gilley.
    2031166.
    Court of Civil Appeals of Alabama.
    Sept. 2, 2005.

      Robert H. Brogden, Ozark, for appellant.
    Steven K. Brackin of Lewis, Brackin, Flowers & Johnson, Dothan, for appellees.
   0?i Application for Rehearing

THOMPSON, Judge.

The opinion of June 24, 2005, is withdrawn, and the following is substituted therefor:

Demarius Hughes Aman appeals the judgment of the trial court finding that Michael J. Gilley and Susan Helms Gilley own an easement across a portion of Aman’s real property. We reverse and remand.

Aman sued the Gilleys, who are coterminous landowners on the southern boundary of Aman’s real property, to quiet title to a 120-acre parcel of real property and to enjoin them from interfering with a fence erected by Aman and her husband. The Gilleys answered, claiming to have paid taxes on a strip of land 20 feet wide and 975 feet long purportedly located within the 120-acre parcel. The Gilleys counterclaimed for a determination of the boundary line between their property and Aman’s property, and they claimed ownership of the strip of land by adverse possession for a period of 10 years. The case was tried before a judge without a jury.

During the trial, the parties stipulated that the 20 foot by 975 foot strip of land was a public dirt road. At trial, however, the parties disputed the ownership of an additional strip of land (hereinafter “the disputed property”) approximately 20 feet wide and approximately 200 feet long located at the end of the dirt road; the Gilleys use the disputed property as a driveway. At trial, the Gilleys claimed to own the disputed property through adverse possession.

In their posttrial brief, for the first time, the Gilleys claimed to own an easement by prescription over the disputed property. In her posttrial brief, Aman argued to the trial court that the Gilleys had not claimed an easement by prescription before or at trial and that, therefore, they were not entitled to an easement by prescription. Aman specifically directed the court’s attention to Michael Gilley’s trial testimony that the Gilleys were claiming ownership of the disputed property by adverse possession. Aman also argued that the Gil-leys had failed to prove that their possession of the disputed property was exclusive and hostile. The trial court entered a judgment finding that “the Gilley[s] have acquired an easement or right of way down the roadway including the driveway in question and that the Gilley[s] shall be entitled to use the road and driveway free of any interference from [Aman] or [Aman’s] agents or employees.”

When evidence is presented ore tenus and the trial court “ ‘resolves conflicting questions of fact in favor of one of the parties, its findings will not be disturbed on appeal unless they were clearly erroneous or manifestly unjust.’ ” Lilly v. Palmer, 495 So.2d 522, 525 (Ala.1986) (quoting Scarbrough v. Smith, 445 So.2d 553, 555 (Ala.1984)). “The presumption of correctness is particularly strong in adverse possession cases, because it is difficult for an appellate court to review the evidence in such cases.” Rice v. McGinnis, 653 So.2d 950, 950 (Ala.1995). However, when the question presented on appeal is one of law, the ore tenus rule has no application. Ex parte Perkins, 646 So.2d 46, 47 (Ala.1994).

Aman contends on appeal that the trial court erred in granting the Gilleys a prescriptive easement because the Gil-leys did not allege that they had acquired an easement by prescription in their counterclaim and because Michael Gilley specifically testified at trial that the Gilleys were claiming ownership of the disputed property by adverse possession.

“At the outset, we note that Rule 54(c) of the Alabama Rules of Civil Procedure gives the trial court the discretion to award any relief a party is entitled to, even if the party has not specifically requested such relief. The rule provides, in pertinent part:
“ ‘Except as to a party against whom a judgment is entered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings.’
“The same principle is enunciated by Rule 15(b), [Ala. R. Civ. P.,] where it is stated:
“ ‘When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.’
“We find that these provisions make clear the fact that the trial court is empowered with the discretion to award relief to a party, even when such relief is not specifically requested in the complaint. See Awad v. Awad, 54 Ala.App. 154, 306 So.2d 21 (Ala.Civ.App.1975).”

Beason v. Beason, 571 So.2d 1155, 1156 (Ala.Civ.App.1990). Thus, it was within the trial court’s discretion, if it determined that the issue had been tried by the implied consent of the parties, to award the Gilleys relief not requested in their counterclaim, i.e., an easement by prescription. However, a trial court can grant relief not specifically requested in a complaint or counterclaim only when the party seeking such relief has met its burden of proving the elements of that claim.

Therefore, we address Aman’s claim that the Gilleys failed to meet their burden of proof to establish their claim of an easement by prescription. The Alabama Supreme Court has identified the elements necessary to establish an easement by prescription as follows:

[T]he claimant must use the premises over which the easement is claimed for a period of twenty years or more, adversely to the owner of the premises, under claim of right, exclusive, continuous, and uninterrupted, with actual or presumptive knowledge of the owner. The presumption is that the use is permissive, and the claimant has the burden of proving that the use is adverse to the owner.”
“Apley v. Tagert, 584 So.2d 816, 818 (Ala.1991) (citation omitted) (emphasis added).”

Hollis v. Tomlinson, 585 So.2d 862, 863 (Ala.1991). A permissive use of lands does not ripen into an adverse use until there has been a repudiation of the permissive use so as to afford the owner notice of an adverse claim. Cotton v. May, 293 Ala. 212, 301 So.2d 168 (1974); Gonzalez v. Naman, 678 So.2d 1152 (Ala.Civ.App.1996). Furthermore, an easement by prescription “ ‘is not established merely by the use of the lands of another for a period of twenty years or more.’” Cotton v. May, 293 Ala. at 214-15, 301 So.2d at 170 (quoting West v. West, 252 Ala. 296, 297-98, 40 So.2d 873, 874 (1949)). Accord Carr v. Turner, 575 So.2d 1066, 1067-68 (Ala.1991); Fisher v. Higginbotham, 406 So.2d 888, 889 (Ala.1981); Ford v. Alabama By Products Corp., 392 So.2d 217, 219 (Ala.1980); Belcher v. Belcher, 284 Ala. 254, 256, 224 So.2d 613, 614 (1969); Loveman v. Lay, 271 Ala. 385, 392, 124 So.2d 93, 98 (1960); Roberts v. Monroe, 261 Ala. 569, 577, 75 So.2d 492, 499 (1954); and West v. West, 252 Ala. 296, 297-98, 40 So.2d 873, 874 (1949).

In 1975, Leonard Helms conveyed to the Gilleys approximately an acre and a half of property in the midst of property he owned; Helms is Susan Gilley’s father and Michael Gilley’s father-in-law. At trial, the parties stipulated that a dirt road branching off County Road 68 and ending at the northeast corner of the Gilleys’ real property is a public road and is maintained by Geneva County. The public dirt road forms the southern boundary of Aman’s property until the road terminates at the northeastern corner of the Gilleys’ property; the northern boundary of the Gilleys’ property then marks the southern boundary of Aman’s property. Helms retained property to the west of the Gilleys’ property on the southern boundary of Aman’s property. Aman’s father is her predecessor-in-title to her property.

The property in dispute is approximately 20 feet wide and approximately 200 feet long; it commences at the end of the dirt road in the northeast corner of the Gilleys’ property on the southern boundary of Aman’s property and “curves out” into Aman’s property. The Gilleys use the disputed property as a driveway. The only issue before the trial court was whether the Gilleys’ use of the disputed property was adverse to Aman. See Hollis v. Tomlinson, 585 So.2d at 863.

Helms testified that during the time he owned the property now owned by the Gilleys, he used the disputed property. Helms has continued to use the disputed property to access the portion of his property that lies to the west of -the Gilleys’ property. Helms testified that Aman’s father, who owned Aman’s property until approximately 2000, did not mind his using the disputed property to access his property. Helms testified that he did not do anything antagonistic to the interest of Aman’s father when he used the disputed property.

Michael Gilley testified that he had used the disputed property as a driveway during the entire time the Gilleys have owned their property. Michael Gilley admitted that Helms, Aman’s father, and Aman’s husband had also used the disputed property during the 26 years that the Gilleys had lived on their property. He admitted that he had never maintained the disputed property, but he claimed that Geneva County had graded the public dirt road and the disputed property at least once a month.

Larry Everett, a County Commissioner for Geneva County, testified that the county had graded the public road. In response to a question whether the county had graded the disputed property in this action, Everett testified that, to his knowledge, it had not, and that the person employed by the county to conduct the grading was only authorized to grade to the end of the public road. Mark Carroll, the person who performed the grading for the county, testified that he had graded the public road and the disputed property.

The Gilleys’ use of the disputed property was presumed to be permissive. Hollis v. Tomlinson, supra. The Gilleys did not present any evidence to rebut the presumption that their use of the disputed property was permissive. The Gilleys presented only evidence that they had used the disputed property for 26 years as a driveway. However, as stated earlier, the mere use of the disputed property for 20 years or more does not establish an easement by prescription. Cotton v. May, supra; Carr v. Turner, supra; Fisher v. Higginbotham, supra; and Ford v. Alabama By Products Corp., supra. Therefore, the Gilleys failed to prove adverse use of the disputed property, which is an essential element to establish their entitlement to an easement by prescription. Accordingly, we must conclude that the trial court erred in awarding an easement by prescription. The judgment of the trial court is reversed, and this cause is remanded for the entry of a judgment consistent with this opinion.

OPINION OF JUNE 24, 2005, WITHDRAWN; OPINION SUBSTITUTED; APPLICATION FOR REHEARING OVERRULED; REVERSED AND REMANDED WITH INSTRUCTIONS.

PITTMAN and BRYAN, JJ., concur.

MURDOCK, J., concurs in the result, with writing, which CRAWLEY, P.J., joins.

MURDOCK, Judge,

concurring in the result.

Based on my review of the record, I conclude that a claim FOR an easement by prescription — as opposed to a claim FOR adverse possession — was not tried by the implied consent of the parties. Accordingly, I do not find the holding from Beason v. Beason, 571 So.2d 1155 (Ala.Civ.App.1990), quoted in the main opinion, nor Rule 15(b) or Rule 54(c), Ala. R. Civ. P., to be applicable.

While it is true that Rule 54(c) does provide that “every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled,” the purpose of this rule is to confirm that a failure to ask for particular relief in one’s pleadings does not sene to bar that relief from being granted, provided that a claim that would support that relief has been tried by the implied consent of the parties. The rule itself implies this purpose in stating that every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled “even if the party has not demanded such relief in the party’s pleadings.” Moreover, the official Committee Comments on 1973 Adoption of the rule verify that

“[t]he second sentence of subdivision (c) implements the general principle of Rule 15(b), that in a contested case the judgment is to be based on what has been proved rather than what has been pleaded_But this rule is only applicable where the proof supports the relief finally given, and where, therefore, pursuant to Rule 15(b), the pleadings could be deemed to be amended to conform to the evidence.”

The “general principle of Rule 15(b)” that Rule 54(c) “implements” is exactly as indicated by this comment; Rule 15(b), itself, states: “When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.”

A cause of action for an easement by prescription was not tried by the implied consent of the parties in this case. Aman was not put on notice before or during trial that a cause of action for an easement by prescription was being litigated. The Gil-leys included no mention of a claim for an easement by prescription in any pleading. At trial, Mr. Gilley specifically testified that he claimed title to the subject property by “adverse possession.” As Aman defended against the elements of a cause of action for adverse possession, there was nothing to indicate to her that she ought also to be putting on evidence or making legal arguments in opposition to the somewhat different elements of a cause of action for an easement by prescription. The evidence introduced by the Gilleys that could be viewed as consistent with the assertion of a claim for an easement by prescription was in fact properly admitted as supportive of the Gilleys’ adverse-possession theory.

Not unlike the present case, in McCollum, v. Reeves, 521 So.2d 13 (Ala.1987), the plaintiffs contended that they should have been granted relief by the trial court in the form of an easement based on the fact that they had introduced evidence establishing their use of a strip of property located along or near the boundary of their land and the land of the defendants. As the Supreme Court explained, however,

“the testimony concerning the plaintiffs’ use of the [disputed property] was also relevant to the issue of the proper location of the boundary line. When a party contends that an issue was tried by express or implied consent and the evidence on that issue is also relevant to the issue expressly litigated, there is nothing to indicate that a new issue was raised at trial, and the pleadings are not deemed amended under Rule 15(b). Wright & Miller, Federal Practice & Procedure, Civil, § 1493 (1971).”

McCollum v. Reeves, 521 So.2d at 17. See also, e.g., Metropolitan Life Ins. Co. v. Sullen, 413 So.2d 1106 (Ala.1982).

In Foy v. Foy, 447 So.2d 158, 162 (Ala.1984), “[t]he parties came into court to determine whether an executory option contract [was] enforceable and valid. The trial court, on its own motion, voided that contract and ... deeds which transferred ... land on the basis of the contract.” As the Supreme Court held, however, there was

“no legal authority for the trial court’s action. While Rules 15(b) and 54(c), [Ala. R. Civ. P.], eliminate the necessity of strict pleading of issues tried with the implied consent of the parties, they do not provide a trial court with the authority to foist on the parties relief completely different from that contemplated by the parties, based on issues not raised by either party.”

Foy, 447 So.2d at 163. Similarly, in the present case, while the Gilleys did raise the issue of an easement by prescription in their postjudgment brief, that was not an issue raised by either party before or during the trial of this case.

Accordingly, I disagree with the suggestion in the main opinion that the trial court could have entered a judgment in favor of the Gilleys based upon a cause of action for an easement by prescription if only the evidence at trial had been sufficient to establish each of the elements of such a cause of action. I therefore must concur only in the result reached by the main opinion; the issues presented in this appeal do not include the issue upon which the main opinion primarily focuses, i.e., whether the evidence introduced at trial was sufficient to prove each of the elements of an easement by prescription.

CRAWLEY, P.J., concurs.