text:
    In the Interest of L.H., A Minor.
    No. 2011-CA-00401-COA.
    Court of Appeals of Mississippi.
    May 8, 2012.

      T. Murry Whalen, Ridgeland, attorney for appellants.
    Sherri M. Flowers-Billups, attorney for appellee.
    Before GRIFFIS, P.J., ROBERTS and CARLTON, JJ.
   ROBERTS, J.,

for the Court:

¶1. W.G. and M.G. (the Appellants) claim the Hinds County Youth Court erred when it adjudicated their nine-year-old granddaughter, L.H., to be an abused child in that two of L.H.’s relatives touched her inappropriately while L.H. was visiting the Appellants. According to the Appellants, the youth court did not have jurisdiction to adjudicate L.H. an abused child. The Appellants further argue that the youth court failed to give them adequate notice of the adjudicatory hearing that led to the youth court’s decision. Finally, the Appellants claim there was insufficient evidence to support the youth court’s decision. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. In 2008, L.H.’s mother died in a traffic accident. For approximately five months, the Appellants, L.H.’s maternal grandparents, had temporary custody of L.H. In May 2009, L.H.’s father took custody of her, and the Appellants received visitation. The record indicates that L.H. visited with the Appellants at their home on June 18, 2009. According to the Appellants, from August 2009 to June 2010, L.H. lived with her paternal grandparents in Japan.

¶ 3. The Appellants filed a motion for contempt against L.H.’s father. After hearing the Appellants’ motion for contempt, the Hinds County Chancery Court entered an order on June 28, 2010. The chancellor ordered that L.H.’s father would maintain primary custody of L.H. The chancellor further ordered that the Appellants would be granted visitation with L.H. for one week beginning on June 29, 2010.

¶ 4. On the day that L.H. was to begin her visitation with the Appellants, the Hinds County Department of Human Services (DHS) received a report that two of L.H.’s cousins had touched L.H. inappropriately at the Appellants home on March 13, 2009, and June 13, 2009. We emphasize that the Appellants have never been accused of inappropriately touching L.H.

¶ 5. On July 7, 2010, the Hinds County Youth Court Intake Unit recommended that the Hinds County youth court prosecutor file a petition alleging that L.H. was a sexually abused child. The youth court appointed an attorney guardian ad litem and an investigative guardian ad litem to represent L.H.’s best interests.

¶ 6. The next day, the Mississippi Children’s Advocacy Center (CAC) conducted a forensic interview of L.H. Andreal Harper, a DHS social worker, observed that interview. Subsequently, the youth court issued the first of three shelter orders. The first shelter order placed L.H. in DHS custody. On July 9, 2010, the youth court issued a second shelter order returning L.H. to her father’s custody. Approximately one month later, the youth court issued its third shelter order and placed L.H. in the custody of her paternal grandparents so she could return to school.

¶ 7. During October 2010, the Appellants’ attorney filed an entry of appearance on the Appellants’ behalf. On February 22, 2011, the youth court conducted an adjudicatory hearing on the youth court prosecutor’s petition. That same morning, the Appellants filed a motion to dismiss. Although the Appellants did not attend the adjudicatory hearing, their attorney was present and raised their motion to dismiss. Within their motion, the Appellants argued that the chancery court, not the youth court, had jurisdiction over L.H. Additionally, the Appellants argued that the youth court failed to provide them with proper notice of the adjudicatory hearing. After addressing the Appellants’ motion to dismiss, the youth court judge held that the adjudicatory hearing would proceed.

¶ 8. The prosecutor called one witness— Harper, the DHS social worker who had been assigned to L.H.’s case. After testifying regarding her investigation and the reports she had reviewed to reach her conclusion, Harper recommended that the youth court adjudicate L.H. a sexually abused child. The attorney guardian ad litem also questioned Harper. Additionally, the Appellants’ attorney cross-examined Harper. Ultimately, the youth court found that L.H. qualified as a sexually abused child. The youth court held that L.H.’s father would retain custody of L.H., and a previous no-contact order against L.H.’s cousins was to remain in effect. The Appellants claim this Court should reverse the youth court’s adjudication.

ANALYSIS

I. SUBJECT-MATTER JURISDICTION

¶ 9. The Appellants claim the youth court’s decision should be vacated and “transferred” to the chancery court because the youth court had no jurisdiction over L.H. According to the Appellants, the chancery court had continuing jurisdiction over L.H., by virtue of the custody proceedings involving L.H., under Mississippi Code Annotated section 43 — 21—151(l)(c) (Rev.2004). “Jurisdiction is a question of law.” E.J.M. v. 846 So.2d 289, 292 (¶ 7) (Miss.Ct.App.2003) (citation omitted). “This Court reviews questions of law de novo.” Id. (citations omitted).

¶ 10. Section 43-21-151(l)(c) provides:

The youth court shall have exclusive original jurisdiction in all proceedings concerning a delinquent child, a child in need of supervision, a neglected child, an abused child or a dependent child except ... [w]hen a charge of abuse of a child first arises in the course of a custody-action between the parents of the child already pending in the chancery court and no notice of such abuse was provided prior to such chancery proceedings. ...

A “charge of abuse” did not “first arise” during the course of a pending chancery court custody action between L.H.’s parents because there was not a pending custody action between L.H.’s parents. The youth court did not err by exercising subject-matter jurisdiction over the charge that L.H. had been sexually abused by her cousins while she was visiting the Appellants. We find no merit to this issue.

II. PERSONAL JURISDICTION AND NOTICE

¶ 11. Next, the Appellants claim the youth court failed to give the Appellants notice of the adjudicatory hearing as required by Mississippi Code Annotated section 43-21-501(l)(b) (Rev.2004). They further claim they were entitled to notice because they had custody and care of L.H. under the chancery court’s prior visitation order.

¶ 12. Section 43 — 21—501(l)(b) provides:

When a petition has been filed and the date of hearing has been set by the youth court, the judge or his designee shall order the clerk of the youth court to issue a summons to the following to appear personally at such hearing:
(b) the person or persons who have custody or control of the child....

The Appellants argue that the youth court should have issued a summons ordering them to appear at the adjudicatory hearing because they had “custody or control” of L.H. in that L.H. was visiting with them pursuant to the chancellor’s award of visitation. The Mississippi Legislature has defined “custody” in the context of the underlying circumstances. “ ‘Custody’ means the physical possession of the child by any person.” Miss.Code Ann. § 43-21-105(q) (Rev.2004).

¶ 13. The record is somewhat ambiguous regarding the filing date of the petition to adjudicate L.H. an abused child. That is, the record contains an unsigned petition with a statement indicating that it was “submitted” on July 7, 2010. That petition does not bear a stamp reflecting that it was ever filed. That the July 7, 2010, petition appears in the record might indicate that it was filed, but we cannot determine with certainty that it was filed.

¶ 14. The record also contains an amended petition. It has a file stamp reflecting that it was filed on July 9, 2010. Although the amended petition states that it was submitted by the Hinds County prosecutor, the amended petition does not bear the prosecutor’s signature. Instead, the youth court judge signed the amended petition electronically.

¶ 15. If we construe the record to reflect that the petition was filed on July 7, 2010, then the Appellants would be entitled to notice pursuant to section 43-21-501(l)(b). According to Harper, after DHS received the report that L.H. had been touched inappropriately, Harper twice went to the Appellants’ home to see L.H. Both times, Harper was told that L.H. was not there. Despite her request that the Appellants contact her once L.H. returned to their home, the Appellants did not contact Harper. Harper testified that she “went out there to get” L.H. on July 8, 2010, when the “maternal grandparent told [Harper] that she wanted to speak to the paternal grandmother.” Accordingly, it is reasonable to conclude that the Appellants had physical possession of L.H. on July 7, 2010, in that L.H. was visiting the Appellants at their home. Under that scenario, the Appellants would have had “custody” of L.H. within the strict meaning of section 43 — 21—105(q).

¶ 16. However, if we construe the record to reflect that the petition was filed on July 9, 2010, then the Appellants would not be entitled to section 43 — 21—501(l)(b) notice because the Appellants did not have “physical possession” of L.H. when the amended petition was filed. Pursuant to the July 8, 2010, shelter order, the youth court had placed L.H. in DHS custody on that day. The next day, the youth court issued a second shelter order placing L.H. back in her father’s custody.

¶ 17. For the sake of discussion, Mississippi Code Annotated section 43-21-505 (Rev.2004) governs service of a summons under these circumstances. It provides:

(1) Unless otherwise provided in this chapter, service of summons shall be made personally by delivery of a copy of the summons with a copy of the petition in a sealed envelope attached to the summons. A child may be served in the same manner as an adult.
(5) Unless otherwise provided in this chapter, notice of the time, date, place and purpose of any hearing other than adjudicatory and transfer hearings shall be given to all parties in person in court or by mail, or in any other manner as the youth court may direct.

The record does not indicate that the Appellants received a summons in the manner contemplated by section 43-21-505(1). Nor does the record indicate that the Appellants received a summons that met the requirements of section 43-21-505(5). Even if we assume that the unsigned July 7, 2010, petition was actually filed — causing the Appellants to be entitled to notice because they had physical possession of L.H. at that time — that does not end the analysis under the circumstances of this case.

¶ 18. The Appellants’ attorney appeared at the youth court’s adjudicatory hearing. The Appellants’ attorney had filed an entry of appearance approximately five months before the hearing. “Mississippi does not recognize ‘special appearances’ except where a party appears solely to object to the court’s jurisdiction over her person on grounds that she is not amenable to process.” Isom v. Jernigan, 840 So.2d 104, 107 (¶9) (Miss.2003) (citation omitted). Upon making a general appearance, one waives service of process. Id. (citations omitted). In Isom, a mother had sent her attorney to appear at a contempt hearing initiated by a father. Id. at 105 (¶ 5). During the hearing, the mother’s attorney introduced evidence on the mother’s behalf. Id. at 107 (¶ 9). On appeal, the mother argued that the chancery court erred when it failed to provide her adequate notice of the hearing. Id. at 106 (¶ 8). The supreme court held that because the mother’s attorney had appeared at the hearing and participated in the proceedings by presenting evidence on the mother’s behalf, the mother had “subjected herself to the jurisdiction of the chancery court and waived all objections to improper or insufficient service of process.” Id. at 107 (¶ 9).

¶ 19. In this case as in Isom, the Appellants’ attorney appeared at the adjudicatory hearing. The record indicates that on October 15, 2010, the youth court issued a summons to the Appellants’ attorney commanding her to appear at the February 22, 2011, adjudicatory hearing. During the adjudicatory hearing, the Appellants’ attorney cross-examined Harper regarding Harper’s investigation. The Appellants’ attorney noted discrepancies in the dates of the incidents. The Appellants’ attorney also implied that Harper’s investigation was deficient in that Harper had not examined the Appellants’ home. Additionally, the Appellants’ attorney cross-examined Harper regarding the fact that Harper had not asked the Appellants whether L.H. was receiving medical or mental health treatment. The Appellants’ attorney also asked Harper whether she had examined L.H.’s father’s home.

¶ 20. As in Isom, we find that because the Appellants’ attorney appeared at the hearing and participated in the proceedings beyond asserting insufficient notice and service of process, the Appellants subjected themselves to the youth court’s jurisdiction. Furthermore, the Appellants’ attorney executed and filed a general entry of appearance on the Appellants’ behalf approximately five months before the February 2011 adjudicatory hearing. Therefore, we find that the Appellants waived their objection to improper service of process. It follows that we find no merit to this issue.

III. SUFFICIENCY OF EVIDENCE

¶ 21. Finally, the Appellants argue that the youth court’s decision was not supported by sufficient evidence. The Appellants claim that the petition to adjudicate L.H. an abused child alleged several time periods that were not verified. The Appellants further claim that Harper’s investigation was inadequate.

¶ 22. The youth court judge is the trier of fact. In re D.K.L., 652 So.2d 184, 188 (Miss.1995) (citations omitted). This Court’s standard of review of a youth court cases is limited. In re A.J.M., 911 So.2d 576, 579 (1110) (Miss.Ct.App.2005). “If the evidence ... considered is opposed to the finding of the youth court with such force that reasonable men could not have found as the youth court did by a preponderance of the evidence, this Court must reverse.” Id. (citing Collins v. Lowndes County Pub. Welfare Dep’t, 555 So.2d 71, 72 (Miss.1989)). “However, if there is substantial evidence in the record supporting the adjudication of the youth court, evidence of such quality and weight that, even under the ‘beyond a reasonable doubt’ standard, the youth court might reasonably have ruled as it did, we must affirm.” Id. (citing In re M.R.L., 488 So.2d 788, 790-91 (Miss.1986)).

¶ 23. “ ‘Sexual abuse’ means ... the ... molestation ... of children under circumstances which indicate that the child’s health or welfare is harmed or threatened.” Miss.Code Ann. § 43-21-105(n) (Rev.2004). Harper testified regarding her own report, the CAC’s report, and the investigative guardian ad litem’s report. Those reports were admitted into evidence. The investigative guardian ad litem recommended that the youth court find L.H. to be a sexually abused child. The CAC’s report concluded that L.H.’s version of events was credible. Harper observed the CAC’s forensic interview of L.H. According to Harper, L.H. stated during that interview:

[Wjhen she was eight years old, she was at [the Appellants’] home ... [when] her cousin ... came and touched her ‘private’ with his hand. She stated “he reached in my clothes and touched me.” She stated that ... she told her [maternal] grandmother that [her cousin] touched her “private” and her [maternal] grandmother said, “just pretend you don’t feel it.”

During the CAC interview, L.H. also stated that a different cousin had touched her “bottom.” When the attorney guardian ad litem cross-examined Harper, she drew attention to the portion of the CAC interview in which L.H. had stated that her cousin “reached in [L.H.’s] clothes and touched [her].” L.H. claimed she had told him to stop. During cross-examination, the Appellants’ attorney noted that L.H. had reported that one of her cousins had “put something in her bottom that stinged [sic] really bad.” Additionally, the attorney guardian ad litem agreed with the prosecutor’s request that the youth court find L.H. to be a sexually abused child.

¶ 24. Considering the foregoing, we find that there is substantial evidence in the record to support the youth court’s adjudication that, based on a preponderance of the evidence, L.H. qualified as a sexually abused child. Because there is substantial evidence in the record supporting the youth court’s adjudication, we affirm the judgment of the youth court. It follows that we find no merit to this issue.

¶ 25. THE JUDGMENT OF THE HINDS COUNTY YOUTH COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

LEE, C.J., GRIFFIS, P.J., ISHEE, CARLTON, MAXWELL, RUSSELL AND FAIR, JJ„ CONCUR. IRVING, P.J., AND BARNES, J., CONCUR IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.

      . We use initials to protect the identity of the minor child.

      . The Appellants’ motion for contempt is not part of the record.

      . L.H. was seven years old during the first incident and eight years old during the second incident.


source: Caselaw Access Project

author: LEE, C.J.,

license: Public Domain

text:
    Michael MARTIN, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-02082-COA.
    Court of Appeals of Mississippi.
    May 8, 2012.

      Michael T. Rushing, Bentonia, John W. Christopher, attorneys for appellant.
    Office of the Attorney General by John R. Henry Jr., attorney for appellee.
    Before LEE, C.J., ISHEE and FAIR, JJ.
   LEE, C.J.,

for the Court:

PROCEDURAL HISTORY

¶ 1. A jury in the Yazoo County Circuit Court convicted Michael Martin of one count of felony false pretenses. The jury was unable to agree on a verdict on another count. Martin was sentenced to five years, with two years to serve and three years suspended, in the custody of the Mississippi Department of Corrections, followed by three years’ post-release supervision.

¶ 2. Martin filed post-trial motions, which were denied. Martin now appeals, asserting the following issues, which we have rephrased and condensed for clarity: (1) the verdict is against the overwhelming weight of the evidence; (2) the evidence was insufficient to support his conviction; and (3) the trial court erred by denying his motion to quash the indictment.

FACTS

¶ 3. Bernice Moody, her sister, and her brother owned a house at 183 Passons Road in Bentonia, Mississippi. On or about October 26, 2008, the residence sustained water damage when a pipe in the bathroom ruptured. Approximately three-fourths of the house was damaged. The insurance claims adjuster, Steve Griffin, inspected' the house and determined the actual cash value of the loss to be $21,483.32.

¶ 4. Moody entered into an agreement with Martin to make the necessary repairs. After receiving a settlement check, Moody wrote Martin a check for $2,500. The agreement, which was signed by Moody, Martin, and Griffin, stated that Martin would “replace, fix[,] and treat all mold and water damage that will be covered by [Moody’s] insurance.” About the same time, Martin entered into an agreement to rent the house from Moody and her siblings while completing repair’s.

¶ 5. Moody testified Martin represented to her that he was a licensed contractor. Moody and Griffin testified Martin showed them his contractor’s license. The license stated it was issued for Trademark Homes. Shortly after construction began, Moody asked Martin for invoices for the purchase of wood treatment and asbestos testing. Moody was initially suspicious of two of Martin’s invoices for the wood treatment and asked him for more documentation. Martin presented invoices for $274.39 and $96.17 for the wood treatment product and $214 for the asbestos testing. The invoice for the asbestos testing indicated the test was negative for asbestos in the tile. Moody wrote Martin a check for $584.56.

¶ 6. Moody subsequently learned Martin did not have a Mississippi contractor’s license. Moody also learned the document showing no presence of asbestos in the tile was fictitious. After contacting the laboratory that had performed the test, Moody learned the tile contained asbestos. Moody then contacted the Attorney General’s Office and filed a complaint against Martin.

¶ 7. Martin admitted he had fabricated the two invoices for the wood treatment as well as the document purporting to be the asbestos test. Richard McCluskey, Chief Investigator for the Consumer Protection Division of the Attorney General’s Office, investigated Moody’s complaint against Martin. McCluskey discovered Martin never had a contractor’s license. The rightful owner of the license Martin showed Moody and Griffin was Marty Tor-rence. Torrence testified Martin had done subcontract work for him in the past, but he did not give Martin permission to use his contractor’s license. Although Martin testified the wood treatment was used in Moody’s house, McCluskey determined the wood treatment had not been applied in the house.

¶ 8. The two fabricated invoices for the wood treatment listed S.E.C. Building Company, with the address of 1443 Gluck-stadt Road, Madison, Mississippi. Martin testified that his father, William Perry Martin, had obtained the wood treatment for Martin. Martin claimed his father’s business was called S.E.C. Building Company. However, William, who had done business as S.E.C. in the past, admitted the address of his company listed on the invoice was fictitious. William testified he had procured the wood treatment from a man named Spires. Spires allegedly gave William the address, 1443 Gluckstadt Road, to use on the receipt. McCluskey determined this address did not exist. During MeCluskey’s investigation, Martin told McCluskey he had gotten the wood treatment from a friend named Chris Lowery. Lowery was unable to be located.

DISCUSSION

I. OVERWHELMING WEIGHT OF THE EVIDENCE

¶ 9. In his first issue on appeal, Martin contends the jury verdict is against the overwhelming weight of the evidence. “When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush v. State, 895 So.2d 836, 844 (¶ 18) (Miss.2005). Furthermore, it is well-settled law that the jury determines the credibility of the witnesses and resolves conflicts in the evidence. Davis v. State, 866 So.2d 1107, 1112 (¶ 17) (Miss.Ct.App.2003).

¶ 10. Mississippi Code Annotated section 97-19-39(2) (Rev.2006) states the following:

Every person, who with intent to cheat or defraud another, shall designedly, by color of any false token or writing, or by another false pretense, obtain the signature of any person to any written instrument, or obtain from any person any money, personal property, or valuable thing, with a value of Five Hundred Dollars ($500.00) or more, upon conviction thereof shall be guilty of a felony and punished by imprisonment in the State Penitentiary not exceeding ten (10) years, and by a fine not exceeding Ten Thousand Dollars ($10,000.00).

In a false-pretenses case, the State must prove that “the pretenses were false, that the appellant knew them to be false[,] and that the pretenses were the moving cause by which the money was obtained.” Gordon v. State, 458 So.2d 739, 740 (Miss.1984). The State bears the burden of proof to show beyond a reasonable doubt a false representation was made with regard to an existing fact. Allred v. State, 605 So.2d 758, 761 (Miss.1992) (citing Lee v. State, 244 Miss. 813, 818, 146 So.2d 736, 737 (1962)). The property or money obtained under false pretenses is required to be “to the detriment or injury of the person from whom [the defendant] obtains the same.” Id. (quoting Carter v. State, 386 So.2d 1102, 1105 (Miss.1980)).

¶ 11. Examining the evidence in the light most favorable to the verdict, we are unable to find that the verdict is against the overwhelming weight of the evidence to an extent that an unconscionable injustice will occur if we allow it to stand. The jury heard evidence that: Martin falsely represented himself as a licensed contractor; Martin gave Moody three fictitious invoices totaling $584.56; the invoice containing the asbestos test result indicated a negative result, when in fact there was asbestos in the tile; Martin never paid for the initial asbestos report; the wood treatment was not applied to the walls of Moody’s house; and Moody paid $584.56 to Martin.

¶ 12. Although Martin and his father testified the wood treatment was applied, it was within the jury’s province to determine the credibility of the witnesses and resolve conflicts in the evidence. Clearly, the jury resolved any conflicts in favor of the State. This issue is without merit.

II. SUFFICIENCY OF THE EVIDENCE

¶ 13. Martin next contends the trial court should have granted a directed verdict in his favor at the end of the State’s case-in-chief and at the end of the trial. Martin also argues the trial court should have granted his motion for a judgment notwithstanding the verdict (JNOV). As all of these issues address the legal sufficiency of the evidence, we will address them together. Regarding whether the evidence is legally sufficient to support the verdict, we look to our standard of review. “[T]he critical inquiry is whether the evidence shows ‘beyond a reasonable doubt that [the] accused committed the act charged, and that he did so under such circumstances that every element of the offense existed[.]’” Bush, 895 So.2d at 843 (¶ 16) (citation omitted). If, viewing the evidence in the light most favorable to the State, any rational trier of fact could have found, beyond a reasonable doubt, that the essential elements of the crime existed, this Court will affirm the conviction. Id. We reiterate that the jury determines the credibility of witnesses and resolves conflicts in the evidence. Davis, 866 So.2d at 1112 (¶ 17).

¶ 14. From the evidence described in the previous issue, we find a rational jury could have found beyond a reasonable doubt that the essential elements of false pretense existed. This issue is without merit.

III. INDICTMENT

¶ 15. Finally, Martin contends the trial court erred by denying his motion to quash the indictment. Martin argues the State should not have combined the three invoices in order to charge him with a felony. According to Mississippi Code Annotated section 97-19-39(1) (Rev. 2006), false pretenses is a misdemeanor if the amount is under $500. Martin argues at most he should have been charged with three misdemeanors. Martin has cited no authority to support his contention. Martin’s “failure to cite legal authority in support of [his] position invokes [a] procedural bar.” Young v. State, 919 So.2d 1047, 1049 (¶ 5) (Miss.Ct.App.2005).

¶ 16. Regardless of the procedural bar, we find no merit to Martin’s issue. The three fictitious invoices were presented to Moody at the same time in a single transaction. The invoices were treated as one, and Moody made one payment.

¶ 17. THE JUDGMENT OF THE YA-ZOO COUNTY CIRCUIT COURT OF CONVICTION OF FELONY FALSE PRETENSES AND SENTENCE OF FIVE YEARS, WITH TWO YEARS TO SERVE AND THREE YEARS SUSPENDED, FOLLOWED BY THREE YEARS OF POST-RELEASE SUPERVISION, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL, RUSSELL AND FAIR, JJ„ CONCUR.


author: WOODALL, Justice.

text:
    Ex parte Andrew Anthony APICELLA. (In re Andrew Anthony Apicella v. State of Alabama).
    1091436.
    Supreme Court of Alabama.
    May 13, 2011.
    William M. Bowen, Jr., of White Arnold Andrew & Dowd PC, Birmingham, for petitioner.
    Troy King and Luther Strange, attys. gen., and John Neiman, Jr., and Henry M. Johnson, asst. atty. gen., for respondent.

       Retired Associate Justices Alva Hugh Maddox and Champ Lyons, Jr., and Court of Civil Appeals’ Presiding Judge William C. Thompson were appointed on April 19, 2011, to serve as Special Justices in regard to this petition.

       Chief Justice Cobb, Justice Shaw, Justice Main, and Justice Wise were members of the Court of Criminal Appeals when this case or related cases were considered by that court.

   WOODALL, Justice.

Andrew Anthony Apicella petitioned this Court for the writ of certiorari, which we granted for the limited purpose of determining whether the Court of Criminal Appeals’ judgment, insofar as it affirmed the trial court’s decision to strike Apicella’s third amended petition for postconviction relief filed pursuant to Rule 32, Ala. R.Crim. P., conflicts with prior caselaw. We hold that the Court of Criminal Appeals’ decision does conflict with Ex parte Rhone, 900 So.2d 455 (Ala.2004). Therefore, we reverse the Court of Criminal Appeals’ judgment and remand the case to that court for further proceedings consistent with this opinion.

Facts and Procedural History

The Court of Criminal Appeals’ opinion on appeal from the denial of Apicella’s second amended Rule 32 petition, Apicella v. State, 945 So.2d 485 (Ala.Crim.App.2006) (“Apicella III”), includes the following procedural history:

“Apicella was convicted in 1996 of capital murder for his participation in the shooting deaths of Pamela Dodd, Lester Dodd, William Nelson, Sr., James Watkins, and Florence Adell at the Changing Times Lounge. The deaths occurred during one act or pursuant to one scheme or course of conduct. § 13A-5-40(a)(10), Ala.Code 1975. The jury recommended, by a vote of 8^1, that Apicel-la be sentenced to life imprisonment without the possibility of parole. The trial court overrode the jury’s recommendation and sentenced Apicella to death. On direct appeal, this Court affirmed Apicella’s conviction and death sentence. Apicella v. State, 809 So.2d 841 (Ala.Crim.App.2000) [ (‘Apicella I ’) ]. The Alabama Supreme Court affirmed this Court’s decision. Ex parte Apicella, 809 So.2d 865 (Ala.2001) [ ('Ap-icella IP) ].
“On December 20, 2002, Apicella filed a petition for postconviction relief pursuant to Rule 32, Ala. R.Crim. P.... Api-cella filed an amended petition on November 17, 2003....
“Apicella filed a second amended petition on September 3, 2004.... On December 23, 2004, the trial court ... summarily denied Apicella’s second amended petition for postconviction relief....”

945 So.2d at 486-87. Apicella appealed.

The Court of Criminal Appeals in Api-cella III reversed the trial court’s judgment and remanded the case with instructions that the trial court hold an evidentiary hearing on Apicella’s claim that “the trial court failed to conduct an individualized sentencing determination when it overrode the jury’s recommended sentence and instead imposed the death sentence” on the basis, Apieel-la claimed, of the outcome of the trial of Apicella’s codefendant, Stephen Pilley. 945 So.2d at 487. The Court of Criminal Appeals also stated:

“The parties have argued to this Court the issue whether Apicella should be permitted to amend his petition on remand. We believe that the circuit court, rather than this Court, is in a better position to resolve that issue on remand.... [W]e urge that court to carefully consider the principles of Ex parte Rhone, 900 So.2d 455, 458 (Ala.2004), in which the Alabama Supreme Court repeated the oft-stated principle, ‘Thus, it is clear that only grounds such as actual prejudice or undue delay will support a trial court’s refusal to allow, or to consider, an amendment to a Rule 32 petition.’ The Court in Ex parte Rhone also noted that Rule 32.7, Ala. R.Crim. P., provides that leave to amend before the entry of judgment is to be freely granted. Our comments are not to be interpreted to mean that the trial court must grant Apicella leave to amend his petition on remand. We are merely reminding the trial court that its decision on any motion to amend the petition must be governed by the principles stated in Ex parte Rhone.”

Apicella III, 945 So.2d at 491.

In compliance with the Court of Criminal Appeals’ instructions, the trial court scheduled an evidentiary hearing on Api-cella’s claim that he had been denied his right to an individualized sentencing determination. Shortly after the scheduling order was issued, Apicella filed his third amended Rule 32 petition. The State moved the trial court to strike that petition, and the trial court granted the motion, stating, among other things:

“This Court has read and considered the Alabama Supreme Court’s ruling in Ex parte Rhone, 900 So.2d 455 (Ala.2004). This Court entered its order dismissing [Apicella’s] second amended Rule 32 petition on December 23, 2004. That order was appealed and has now been remanded back to this Court for an evidentiary hearing on a narrow issue of whether the trial court improperly considered the co-defendant’s sentence in overriding the jury’s recommendation of life [imprisonment] without parole. After judgment and appeal [Apicella] would have this Court to start this process all over again and to relitigate those issue which have been ... addressed by the appellate courts as well. In this Court’s opinion the facts in this case are distinguishable from the facts in Rhone, supra. The' requested amendment in the instant case is not prior to judgment as is required by ... Rule 32.7(b)[, Ala. R.Crim. P.,] but occurs almost two years after final judgment has been entered by this Court. In Rhone, supra, the amendment was filed sixteen days after the original petition was filed by the petitioner. In addition, this Court finds that to allow this amendment would cause an undue delay, since it would in essence sta[rt] the process all over again.”

On October 10, 2006, the trial court held an evidentiary hearing on Apicella’s claim that the trial court had failed to provide him with an individualized sentencing determination. After the hearing, the trial court held that Apicella’s claim that he had not had an individualized sentencing determination was without merit. The trial court also repeated its refusal to accept Apicella’s third amended petition. Apicel-la again appealed to the Court of Criminal Appeals.

The Court of Criminal Appeals affirmed by unpublished memorandum the trial court’s judgment striking Apicella’s third amended Rule 32 petition. Apicella v. State (No. CR-06-1059, April 23, 2010), 77 So.3d 624 (Ala.Crim.App.2010) (table) (“Apicella IV”). In addressing the trial court’s decision to strike Apicella’s petition, the Court of Criminal Appeals stated:

“[T]he circuit court was urged [in Apicella III ] to consider allowing Apicella to amend his Rule 32 petition on remand. The opinion noted that Ex parte Rhone, 900 So.2d 455 (Ala.2004), provided for the unrestricted acceptance of amendments to Rule 32 petitions except where there had been an undue delay or where actual prejudice would result. However, Rule 32.7(b), Ala. R.Crim. P., allows an amendment if it is filed prior to the circuit court’s judgment. The circuit court’s final judgment denying the petition was entered on December 23, 2004, and an appeal filed. Thus, it does not appear that Rhone had any application. Nevertheless, ... the circuit court was granted discretion regarding the rejection of an amended petition.”

The Court of Criminal Appeals went on to hold that the trial court had not erred in refusing to accept Apicella’s third amended petition:

“Apicella claims that the circuit court abused its discretion when it refused to accept his third amended Rule 32 petition. According to Apicella, the circuit court failed to follow the appellate court’s remand instructions stating that permission to amend be considered in light of Ex parte Rhone [, 900 So.2d 455 (Ala.2004) ]. As explained earlier in this memorandum, Rule 32.7(b), Ala. R.Crim. P., and Ex parte Rhone provide for the unrestricted acceptance of an amendment to a Rule 32 petition if the amendment is filed prior to the circuit court’s judgment, and there has been no undue delay or where no actual prejudice will result. The circuit court’s final order denying relief was issued on December 23, 2004. Therefore, an amendment filed after this date was not authorized by Rule 32.7(b), nor required by Ex parte Rhone. Therefore, the circuit court did not err in refusing to accept a third amended petition.”

(Emphasis original.)

Apicella petitioned this Court for certio-rari review, arguing, among other things, that the trial court’s judgment striking his third amended petition conflicted with Ex parte Rhone and Ex parte Jenkins, 972 So.2d 159 (Ala.2005), and that the Court of Criminal Appeals had compounded the trial court’s error by failing to apply the principles stated in Ex parte Rhone in its x’eview of the trial court’s judgment. We granted certiorari review to address this narrow issue.

In Ex parte Rhone, this Court stated:

“Subsection (b) of [Rule 32.7, Ala. R.Crim. P.,] unambiguously grants discretion to the trial court, providing that ‘[ajmendments to pleadings may he permitted at any stage of the proceedings prior to the entry of judgment.’ (Emphasis added.) Guiding the exercise of that discretion is the mandate of subsection (d) that ‘[ljeave to amend shall be freely granted.’ (Emphasis added.) However, because the trial court has discretion to refuse an amendment to a Rule 32 petition, we must consider the nature of the factors that would provide a proper basis for such a refusal.
“ ‘ “ ‘[Ajmendments should be freely allowed and ... trial judges must be given discretion to allow or refuse amendments.... The trial judge should allow a proposed amendment if it is necessary for a full determination on the merits and if it does not unduly prejudice the opposing party or unduly delay the trial.’ Record Data International, Inc. v. Nichols, 381 So.2d 1, 5 (Ala.1979) (citations omitted). ‘The grant or denial of leave to amend is a matter within the sound discretion of the trial judge.... ’ Walker v. Traughber, 351 So.2d 917 (Ala.Civ. App.1977).”
‘Cochran v. State, 548 So.2d 1062, 1075 (Ala.Crim.App.1989).’
“[Talley v. State,] 802 So.2d [1106,] 1107-08 [ (Ala.Crim.App.2001) ] (emphasis added). The statements in Talley are consistent with this Court’s prior decisions, as well as with Rule 32.7. Thus, it is clear that only grounds such as actual prejudice or undue delay will support a trial court’s refusal to allow, or to consider, an amendment to a Rule 32 petition.”

Ex parte Rhone, 900 So.2d at 457-58.

In Ex parte Jenkins, this Court
“emphasize[dj that the concepts of ‘undue delay’ and ‘undue prejudice’ as discussed in this opinion and in Ex parte Rhone apply to the trial court’s management of its docket and to the petitioner’s attention to his or her case. Those concepts cannot be applied to restrict the petitioner’s right to file an amendment clearly provided for in Rule 32.7 simply because it states a new claim that was not included in the original petition.”

972 So.2d at 164.

In Apicella III, the Court of Criminal Appeals instructed the trial court to address the issue “whether Apicella should be permitted to amend his Rule 32 petition on remand” and to “carefully consider the principles of Ex paite Rhone ” in making that determination. Apicella III, 945 So.2d at 491. As noted previously, the trial court stated in its order striking Api-cella’s third amended petition that it had “read and considered the Alabama Supreme Court’s ruling in Ex parte Rhone ” but found that case to be distinguishable because, it said, it had entered a final judgment before Apicella filed his third amended petition. The Court of Criminal Appeals affirmed the trial court’s judgment on the same basis. We agree with Apicella that the trial and appellate courts erred in distinguishing Ex parte Rhone on that basis. In December 2004, the trial court did enter a judgment summarily dismissing Apicella’s second amended Rule 32 petition. However, in Apicella III, the Court of Criminal Appeals “reversefd] the trial court’s summary dismissal of Apicel-la’s petition ... and ... remandfed] the cause for further proceedings.” 945 So.2d at 491. “Reversal of a judgment and remanding of the cause restores both the State and the defendant to the condition in which they stood before the judgment was pronounced.” Knight v. State, 356 So.2d 765, 767 (Ala.Crim.App.1978). See also City of Hampton v. Iowa Civil Rights Comm’n, 554 N.W.2d 532, 535 (Iowa 1996) (“Unless the remand limits the issues to be considered, the case should be reviewed in its entirety.”).

There is no dispute that before the December 2004 judgment the trial court would have been required to apply the principles stated in Ex parte Rhone in deciding whether to allow another amendment. In reversing the December 2004 judgment, the Court of Criminal Appeals’ decision in Apicella III returned the parties to their prejudgment positions. Therefore, the trial and appellate courts’ attempt to distinguish Ex parte Rhone on the ground that a final judgment had been entered in Apicella’s case is without merit. The Court of Criminal Appeals should have reviewed the trial court’s decision in light of the principles stated in Ex parte Rhone.

The State argues:

“[TJhis Court should defer to the Court of Criminal Appeals’ reasonable interpretation of its first decision in this matter. According to that court, [Apicella III ] had effectively remanded the cause only for a limited evidentiary hearing. It did not undo the trial court’s entire judgment, and it did not open the entire ease to reexamination via an amended petition under Rule 32.7(b) of the Alabama Rules of Criminal Procedure.”

State’s brief, at 18. We disagree.

The Court of Criminal Appeals stated in Apicella IV:

“[Although [Apicella III] clearly set forth the directions on remand regarding the trial court’s need to conduct an individualized sentencing determination, we now question whether that opinion was incorrectly released stating that the judgment of the circuit court was ‘Reversed and Remanded.’ [Apicella III ], 945 So.2d at 492. That judgment signified a final disposition of the appeal [of the December 2004 judgment] in its entirety and does not seem consistent with the directives in the opinion. It appears that the correct judgment line should have stated ‘Remanded with Directions’ to signify that the final disposition of the appeal would occur after the circuit court complied with the directions and returned the case to this Court for completion of the appellate review.”

Although the Court of Criminal Appeals may have doubts about the propriety of its judgment in Apicella III, that judgment was unambiguous, and its effect cannot be ignored. The court clearly “reverse[d] the trial court’s summary dismissal of Apicel-la’s petition for postconviction relief and ... remand[ed] the cause for further proceedings.” 945 So.2d at 491. Thus, when Apicella filed his third amended petition, no final judgment was in effect, and Ex parte Rhone must govern the consideration of that amended petition.

For these reasons, we find that the Court of Criminal Appeals’ decision in Api-cella TV conflicts with Ex parte Rhone. Therefore, we reverse that judgment and remand the case to the Court of Criminal Appeals with instructions for that court to review the trial court’s decision to strike Apicella’s third amended Rule 32 petition in light of the principles set forth in Ex parte Rhone and Ex parte Jenkins.

REVERSED AND REMANDED WITH INSTRUCTIONS.

STUART, BOLIN, and MURDOCK, JJ., and MADDOX, LYONS, and THOMPSON, Special Justices, concur.

COBB, C.J., and PARKER, SHAW, MAIN, and WISE, JJ., recuse themselves.


author: WELCH, Presiding Judge.

text:
    Andrew Anthony APICELLA v. STATE of Alabama.
    CR-06-1059.
    Court of Criminal Appeals of Alabama.
    Dec. 16, 2011.

      William Marion Bowen, Jr., Birmingham, for appellant.
    Troy King, atty. gen., and Henry M. Johnson, asst. atty. gen., for appellee.
   After Remand from the Alabama Supreme Court

WELCH, Presiding Judge.

In Ex parte Apicella, 87 So.3d 1150 (Ala.2011), the Alabama Supreme Court reversed the judgment of this Court insofar as it affirmed the circuit court’s decision to strike Apieella’s third amendment to his Rule 32, Ala. R.Crim. P., petition.

The third amendment was filed after this Court reversed the circuit court’s judgment in Apicella v. State, 945 So.2d 485 (Ala.Crim.App.2006)(“ApiceMa III ”), dismissing Apicella’s second amended petition and remanded the case. The directions on remand included that the circuit court should consider whether there existed actual prejudice to the State or whether there had been undue delay, principles stated in Ex parte Rhone, 900 So.2d 455, 458 (Ala.2004), to justify the circuit court’s refusal to accept a third amended petition should Apicella filed one. In disallowing Apicella’s third amended petition, the circuit court ultimately stated in its final order that it had considered Rhone and had determined:

“Pursuant to the Alabama Court of Criminal Appeals’s remand directive, this Court also must determine whether Apicella should be permitted to further amend his second amended Rule 32 petition. Apicella [III ]. For the following reasons, this Court concludes that Api-cella is not entitled to further amend his second amended Rule 32 petition at this late date.
“As an initial matter, this Court notes that Apicella is now on his third round of attorneys in this Rule 32 proceeding. Apicella was represented by Mr. Bradley Almond from the inception of his Rule 32 proceedings in this Court until just before the oral argument in the Alabama Court Criminal Appeals. At that point, Mr. Almond inexplicably moved to withdraw as his counsel of record, and Mr. William Montross and Ms. Vanessa Buch of the Southern Center for Human Rights in Atlanta, Georgia, moved to be appointed as his new counsel. The Alabama Court of Criminal Appeals granted their motion, and Mr. Montross subsequently argued his case in the Alabama Court of Criminal Appeals. After the Alabama Court of Criminal Appeals issued its ruling remanding his case to this Court, Mr. Montross and Ms. Buch inexplicably moved to withdraw as his counsel of record, and Mr. William M. Bowen, Jr. moved to be appointed as his new counsel. This Court granted Mr. Bowen’s motion to be appointed as Apicella’s latest counsel of record.
“On June 30, 2006, Apicella, through Mr. Bowen, filed his third amended Rule 32 petition in this Court. His third amended Rule 32 petition is 174 pages in length and raises a host of new claims and factual allegations that were not raised in his Rule 32 petition, amended Rule 32 petition, or second amended Rule 32 petition. On July 5, 2006, the State moved this Court to strike Apicel-la’s third amended petition. In that motion, the State argued that Apicella filed his third amended petition in an attempt to obtain a ‘do over’ of his Rule 32 proceedings. The State further argued that this Court should not permit Apicel-la to obtain the proverbial second bite at the apple, and the State urged this Court to strike his third amended petition.
“On July 12, 2006, this Court granted the State’s motion to strike Apieella’s third amended petition and entered an order striking that petition. In that order, this Court stated, in pertinent part, as follows:
“ ‘On June 30, 2006, Petitioner Api-cella filed his third amended Rule 32 petition. The Petitioner raises some of the same issues raised by his previous Attorneys as well as some new grounds that have not been raised in the past. This Court has read and considered the Alabama Supreme Court’s ruling in Ex parte Rhone, 900 So.2d 455 (Ala.2004). This Court entered its order dismissing Petitioner’s second amended Rule 32 petition on December 23, 2004. That order was appealed and has now been remanded back to this Court for an evidentiary hearing on a narrow issue of whether the trial court improperly considered the Codefendant’s sentence in overriding the jury’s recommendation of life without parole. After judgment and appeal Petitioner would have this Court to start this process all over again and to relitigate those issues which have been ... addressed by the trial court but also those issues which were addressed by the appellate courts as well. In this Court’s opinion the facts in this case are distinguishable from the facts in Rhone, supra. The requested amendment in the instant case is not prior to judgment as is required by Ala.R.Crim.P. 32.7(b) but occurs almost two years after final judgment has been entered by this Court. In Rhone, supra, the amendment was filed sixteen days after the original petition was filed by the petitioner. In addition, this Court finds that to allow this amendment would cause an undue delay, since it would in essence start the process all over again. If the Petitioner’s Attorneys change again will they disagree with the verbiage used by the current Attorney and want to amend the petition and offer another round of amendments?
“ ‘Upon review of the State of Alabama’s motion to strike Apicella’s third amended Rule 32 petition, this Court finds that the State’s motion to strike is well-taken and should be granted.
“‘This Court hereby strikes Petitioner Apicella’s third amended Rule 32 petition. Because the entry of judgment occurred on December 23, 2004, when this Court entered its final order summarily dismissing Apicella’s second amended Rule 32 petition, this Court further ORDERS that it will not entertain any amendments to Api-cella’s petition.’
“On July 18, 2006, Apicella moved this Court to reconsider its order striking his third amended petition. This Court denied that motion on July 24, 2006. On October 3, 2006 (just one week before the evidentiary hearing was scheduled to be held in this matter), Apicella again moved this Court to reconsider its order striking his third amended petition. That motion is, hereby, denied.
“Although the decision whether to allow Apicella to further amend his second amended Rule 32 petition is within this Court’s sound discretion, the Alabama Court of Criminal Appeals instructed this Court to consider the Supreme Court of Alabama’s ruling in Ex parte Rhone, 900 So.2d 455 (Ala.2004), in deciding whether to allow Apicella to further amend his petition. Apicella [III, 945 So.2d at 491]. Because Rhone is easily distinguishable from this case, this Court again holds that Apicella is not entitled to amend his petition at this late date.
“In Rhone, 900 So.2d at 456-457, the Supreme Court of Alabama reviewed the Rule 32 circuit court’s denial of Rhone’s Rule 32 petition for post-conviction relief. On July 29, 2002, Rhone filed his Rule 32 petition pro se in the circuit court. Id. at 456. Just sixteen days later, Rhone filed a motion for leave to amend his petition and an amended petition, in which he raised ten new claims. Id. at 456-457. On October 28, 2002, the circuit court entered an order denying his Rule 32 petition, but that order did not address the claims that he raised for the first time in his amended petition. Id. The Supreme Court of Alabama held that the circuit court erred in failing to consider the ten new claims that Rhone raised in his amended Rule 32 petition. Id. at 458-459.
“The court’s ruling in Rhone was based, in large part, on its construction of Rule 32.7(b) of the Alabama Rules of Criminal Procedure. Rhone, 900 So.2d at 457-458. Rule 32.7(b) provides that, '[ajmendments to pleadings may be permitted at any stage of the proceedings prior to the entry of judgment.’ See Ala. R.Crim. P. 32.7(b) (emphasis added). Based on its reading of that rule, the court, in Rhone, concluded that only grounds such as undue delay and actual prejudice will support a circuit court’s refusal to consider a petitioner’s amendment to his petition prior to the entry of judgment. Rhone, 900 So.2d at 458.
“In short, the Supreme Court of Alabama’s ruling in Rhone specifically addresses the limited circumstances under which a circuit court may refuse to consider a Rule 32 petitioner’s amendment to his Rule 32 petition prior to the court’s entry of judgment. Rhone, 900 So.2d at 458. For that reason, Rhone in no way stands for the proposition that a Rule 32 petitioner has the right to amend his Rule 32 petition after the circuit court enters its final order dismissing or denying relief on his petition.
“In Ex parte Woods, [957 So.2d 533 (Ala.2006) ], the Supreme Court of Alabama affirmed and applied its earlier ruling in Rhone. In Woods, the court held that the Rule 32 circuit court erred in striking the petitioner’s second amended Rule 32 petition and remanded his case with instructions to the circuit court to consider his second amended petition. Id. at, [537], Just like Rhone, Woods is easily distinguishable from the instant case.
“On July 26, 2002, Woods filed his Rule 32 petition in the circuit court. Id., at [534]. On September 27, 2002, the State filed its answer to Woods’s petition, and he filed his amended Rule 32 petition on November 16, 2002. Id,. On December 19, 2002, the circuit court held a hearing to ‘narrow the issues’ for the evidentiary hearing. Id. Just one month later, Woods, on January 24, 2003, filed his second amended Rule 32 petition in an attempt to bring the insufficiently pleaded claims in his petition into compliance with the specificity and full factual pleading requirements of Rules 32.3 and 32.6(b) of the Alabama Rules of Criminal Procedure. Id.
“On January 28, 2003, the State moved the circuit court to strike his second amended Rule 32 petition, contending that it would ‘work a tremendous hardship’ on the State to require the State to answer his petition. Id. On January 30, 2003, the court struck Woods’s second amended petition, and the court dismissed his amended Rule 32 petition on July 2, 2003. Id. In the Supreme Court of Alabama, the State conceded that the circuit court erred in striking his second amended petition, and the court agreed. Id., at [537]. Accordingly, the Supreme Court of Alabama remanded Woods’s case to the circuit court with instructions to consider his second amended petition. Id.
“Unlike the petitioner in Rhone, who filed his amended Rule 32 petition just sixteen days after he filed his Rule 32 petition, and the petitioner in Woods, who filed his second amended petition just a few months after he filed his Rule 32 petition, Apicella filed his third amended Rule 32 petition nearly two years after this Court’s entry of judgment. In addition, unlike the courts in Rhone and Woods, this Court permitted Apicella, who was represented by counsel from the inception of his Rule 32 proceedings, to file an amended Rule 32 petition and a second amended Rule 32 petition, and this Court thoroughly addressed the claims in his second amended Rule 32 petition.
“Because he filed his third amended Rule 32 petition nearly two years after the entry of final judgment in this matter, this Court finds that Apicella’s case is easily distinguishable from Rhone and Woods. For that reason, this Court finds that those cases are inapposite and, as such, they do not govern this Court’s determination as to whether Ap-icella should be permitted to further amend his second amended Rule 32 petition at this late date.
“Moreover, the Supreme Court of Alabama has affirmed that a petitioner’s right to amend his Rule 32 petition ‘is limited by the trial court’s discretion to refuse to allow an amendment if the trial court finds that the petitioner has unduly delayed filing the amendment or that an amendment unduly prejudices the State.’ See, e.g., Woods, at [536]; Rhone, 900 So.2d at 459.
“In the instant case, this Court finds that both undue delay and prejudice exist. Again, this Court permitted Apicel-la to file a Rule 32 petition, a first amended Rule 32 petition, and a second amended Rule 32 petition, and this Court thoroughly addressed the claims in his second amended petition. The final judgment was entered in this matter on December 23, 2004, nearly two years ago. If this Court grants Apicella permission to file a third amended petition, this Court would be affording him a second bite at the proverbial apple and allowing him to have a ‘do over’ of his Rule 32 proceedings. Nothing in Rhone or Woods requires or even contemplates such a result.
“For the foregoing reasons, this Court concludes that Apicella is not entitled to file a brand new Rule 32 petition at this late date. Apicella’s third amended petition is, therefore, stricken and will not be considered by this Court.”

(CR-06-1059, C. 18-27).

Apicella appealed the circuit court’s order, and this “court affirmed by unpublished memorandum the [circuit] court’s judgment striking Apicella’s third amended Rule 32 petition. Apicella, v. State (No. CR-06-1059, April 23, 2010), 77 So.3d 624 (Ala.Crim.App.2010) (table) (‘Apicella IV’).” Ex parte Apicella, 87 So.3d at 1152.

The Alabama Supreme Court then granted Apicella’s petition for a writ of certiorari. The Supreme Court found that because the Court of Criminal Appeals had “reversed and remanded” in Apicella III, it had “ ‘restore[d] both the State and the defendant to the condition in which they stood before the judgment was pronounced.’ ” Ex parte Apicella, 87 So.3d at 1154 (quoting Knight v. State, 356 So.2d 765, 767 (Ala.Crim.App.1978)). The Supreme Court stated:

“[The d]ecision in Apicella III returned the parties to their prejudgment positions. Therefore, the trial and appellate courts’ attempt to distinguish Ex parte Rhone on the ground that a final judgment had been entered in Apicella’s case is without merit.”

Ex parte Apicella, 87 So.3d at 1154.

The Supreme Court further stated that “the Court of Criminal Appeals’ decision in Apicella IV conflicts with Ex parte Rhone ” and that “the Court of Criminal Appeals should have reviewed the trial court’s decision in light of the principles stated in Ex parte Rhone.” Ex parte Apicella, 87 So.3d at 1154. Therefore, the Supreme Court reversed this Court’s judgment in Apicella IV insofar as it concerned the third amended petition and remanded the case “to the Court of Criminal Appeals with instructions for that court to review the trial court’s decision to strike Apicel-la’s third amended Rule 32 petition in light of the principles set forth in Ex parte Rhone and Ex parte Jenkins [, 972 So.2d 159 (Ala.2005) ].” Ex parte Apicella, 87 So.3d at 1155. We now consider whether the circuit court correctly refused to accept Apicella’s third amended Rule 32 petition in light of the principles set forth in Ex parte Rhone and Ex parte Jenkins.

Rule 32.7(b), Ala. R.Crim. P., provides that amendments to Rule 32 petitions may be allowed at any time before the trial court enters a judgment. We reiterate that because the judgment line in Apicella III read “reversed and remanded,” the Supreme Court held in Ex parte Apicella, supra, that there was no final judgment in the circuit court at the time the third amended petition was filed. Therefore, contrary to the findings of the circuit court, there was no final judgment to support rejection of the third amendment.

The circuit court had ruled that to allow a third amendment would cause an undue delay in the proceedings because it would in essence start the Rule 32 process over from the beginning. Because the third amendment was filed before a judgment had been entered, the third amendment would not start the process over. As Judge Shaw wrote in Rhone v. State,

“The very structure of Rule 32 itself indicates that the intent of the rule was to encourage petitioners to litigate all of their claims in the first petition filed. The rule requires specificity in pleading, Rule 32.3 and Rule 32.6(b); with respect to summary disposition, it specifically provides, as noted above, that a circuit court ‘may’ grant leave to amend a petition that is not sufficiently specific or fails to state a claim, but it directs that such leave ‘shall be freely granted,’ Rule 32.7(d); it precludes successive petitions, Rule 32.2(b); and, most detrimental to Rhone, it precludes any claim of ineffective assistance of counsel raised in a second or subsequent petition, Rule 32.2(d).”

Rhone v. State, 900 So.2d 443, 454 (Ala. Crim.App.2004) (Shaw, J., concurring in part and dissenting in part). “In filing his amendment, [Apicella] was attempting to comply with Rule 32 — to litigate all of his claims in a single petition.” Id.

The third amendment to the petition was filed on June 30, 2006, the same day new counsel filed his notice of appearance and approximately three months before the Rule 32 hearing.

“In Ex parte Jenkins, [972 So.2d 159 (Ala.2005),] the Supreme Court specifically noted that a circuit court would be well within its discretion to refuse to accept an amendment asserting a new claim if that amendment was filed ‘on the eve of an evidentiary hearing,’ but the Court nevertheless pointed out that the concepts of undue prejudice and undue delay ‘cannot be applied to restrict the petitioner’s right to file an amendment clearly provided for in Rule 32.7 simply because it states a new claim that was not included in the original petition.’ 972 So.2d at 164.”

Broadnax v. State, 987 So.2d 631, 640 (Ala. Crim.App.2007). There was no suggestion in the record that the withdrawal of former counsel was a delay tactic. Therefore, because the State had approximately 90 days to respond to any new claims presented in the amended petition, we see no obvious prejudice to the State.

Nothing in the record suggests that allowing the amendment in this case would have caused actual prejudice or undue delay. We hold that the circuit court erred in denying Apicella’s third amended petition, and we must reverse the circuit court’s judgment on that ground.

Based on the foregoing, the judgment of the circuit court is reversed and this cause remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED.

KELLUM, BURKE, and JOINER, JJ., concur. WINDOM, J., recuses herself.


author: SHAW, Justice. MURDOCK, Justice SHORES, Special Justice

text:
    Ex parte CALLAN ASSOCIATES, INC. (In re Carol M. Perdue, as next friend and legal guardian of Anna K. Perdue, as designated beneficiary of and on behalf of the Prepaid Affordable College Tuition Trust Fund a/k/a The Wallace-Folsom Prepaid College Trust Fund v. Callan Associates, Inc., et al.).
    1081683.
    Supreme Court of Alabama.
    Sept. 9, 2011.
    Rehearing Denied Jan. 20, 2012.

      Matthew H. Lembke and Andrew L. Brasher of Bradley Arant Boult Cummings LLP, Birmingham; and William C. McGowin of Bradley Arant Boult Cummings LLP, Montgomery, for petitioner.
    Richard H. Gill, George W. Walker III, and C. Nelson Gill of Copeland, Franco, Screws & Gill, P.A., Montgomery; and C. Neal Pope of Pope, McGlamry, Kilpatrick, Morrison & Norwood, LLP, Columbus, Georgia, for respondent.

       Retired Associate Justice Champ Lyons, Jr., was appointed on June 17, 2011, to serve as a Special Justice in regard to this petition.

       Note from the reporter of decisions: Rule 16(b), Ala. R.App. P., provides that "when, by reason of disqualification the number of justices competent to sit [in the determination of a case] is reduced, ... the concurrence of a majority of the justices sitting shall suffice; but, in no event, may a cause be determined unless at least four justices sitting shall concur therein.”

       Retired Associate Justice Janie L. Shores was appointed on July 7, 2011, to serve as a Special Justice in regard to this petition.

   SHAW, Justice.

Callan Associates, Inc. (“Callan”), petitions this Court for a writ of mandamus directing the Montgomery Circuit Court to dismiss the underlying action filed by Carol M. Perdue, “as next friend and legal guardian of Anna K. Perdue, as designated beneficiary of and on behalf of the Prepaid Affordable College Tuition Trust Fund a/k/a The Wallace-Folsom Prepaid College Trust Fund.” For the reasons stated below, we grant the petition and issue the writ.

Facts and Procedural History

In 1990, the Alabama Legislature established the Alabama Prepaid Affordable College Tuition (“PACT”) program as part of the Wallace-Folsom College Savings Investment Plan, see §§ 16-33C-1 to -8, Ala. Code 1975. As explained by the Court of Civil Appeals in Johnson v. Taylor, 770 So.2d 1103 (Ala.Civ.App.1999), the purpose of the PACT program is

“to assist payment of college tuition costs by allowing a person to purchase PACT contracts in advance of a child’s attending college. The PACT program obligates the state to pay tuition in accordance with the contract if the minor child attends a state college or university. § 16-33C-1. The purchase price of a PACT contract is determined actuarially. § 16 — 33C—6(f). Payments received become public funds, which the state invests to generate assets to fund the child’s education. § 16-33C-6(d).”

770 So.2d at 1104.

Pursuant to the statutory scheme, the PACT program is overseen by a “PACT board,” which serves as both “[t]he board of directors and trustees of the PACT Trust Fund.” § 16-33C-3(14), Ala.Code 1975. Also pursuant to statute, the members of the PACT board are specifically empowered “[t]o invest as [the board] deems appropriate any funds in the PACT Trust Fund....” § 16-330-5(3), Ala. Code 1975. In fulfilling that responsibility, including decisions relating to “acquiring, investing, reinvesting, exchanging, retaining, selling, and managing property of the PACT Trust Fund,” both “the PACT board and any person or investment manager to whom the PACT board delegates any of its investment authority” is charged with “exercising] the judgment and care under the circumstances then prevailing which persons of prudence, discretion, and intelligence exercise in the management of their own affairs, not in regard to speculation but to permanent disposition of funds, considering the probable income as well as the safety of their capital.” § 16-33C-6(d), Ala.Code 1975.

In 2002, Carol M. Perdue (“Carol”) entered into a PACT contract for the benefit of her daughter, Anna K. Perdue (“Anna”), pursuant to which Carol agreed to make 60 monthly payments of $240 in exchange for benefits consisting of the future payment for Anna of qualified in-state tuition and mandatory fees from the PACT Trust Fund into which all such payments from all purchasers of PACT contracts are pooled and then invested. It is undisputed both that Anna is the “designated beneficiary” of the PACT contract purchased by Carol and that Carol has paid all the amounts due under that contract. See § 16-33C-3(10) (defining “designated beneficiary” as “[t]he person designated at the time the PACT contract is entered into ... as the person who benefits from payments of qualified higher education costs at eligible educational institutions, or that person’s replacement”). It is also undisputed that Anna has not made a demand for tuition benefits under the PACT contract of which she is the designated beneficiary.

In 2003, the PACT board entered into an “Investment Consultant Agreement” with Callan, pursuant to which Callan was to provide “professional investment consulting services to ... the PACT Board.” See § 16-33C-5(7), Ala.Code 1975 (expressly granting the PACT board the authority “[t]o contract for necessary goods and services, to employ necessary personnel, and to engage the services of qualified persons and entities for administrative and technical assistance in carrying out the responsibilities of the plan”). That contract was renewed in 2006.

On February 27, 2009, Kay Ivey, then state treasurer and, by virtue of that office, chairman of the PACT board, issued a letter to the purchasers (holders) of PACT contracts informing them that a downturn in the stock market had negatively impacted the assets of the PACT Trust Fund but indicating that the PACT board remained committed to honoring the PACT contracts and that the PACT board was investigating options and exploring opportunities that would “allow PACT benefits to be consistently paid.” Subsequently, on May 7, 2009, Carol filed the underlying litigation on behalf of Anna, as a designated beneficiary of the PACT Trust Fund, alleging “that the Trust has lost millions of dollars as a result of Callan’s and the Trustees’ mismanagement.” Specifically, Carol’s complaint named as defendants both Callan and the members of the PACT board (solely in their official capacities) and alleged that the defendants “failed to meet [the applicable] standard of care by investing 70% or more of the Trust assets in equities ... and by projecting and seeking unrealistic rates of return which necessarily required speculative and risky investments, and which resulted in greater risk to the portfolio and the ultimate significant loss of capital.”

Callan moved to dismiss Carol’s claims, arguing, among other things, that a purported beneficiary of a trust could not maintain an action against a third party on behalf of the trust without first demanding that the trustee act or show a sufficient reason for the failure to make such a demand. The PACT board also filed a motion to dismiss, asserting defenses unique to the PACT board, including immunity, but also adopting Callan’s argument related to Carol’s purported inability to pursue the asserted claims on behalf of the PACT Trust Fund. On August 19, 2009, following a hearing, the Montgomery Circuit Court issued an order denying Callan’s and the PACT board’s motions to dismiss, which included, in pertinent part, the following:

“Defendants’ first argument is that Plaintiff lacks standing to bring these claims. The Court finds this argument to be without merit. Defendants also contend that Plaintiffs claims are not ripe because to date all beneficiaries have had their tuition paid. Perhaps anticipating such an obstacle, Plaintiff notes that she sues not for any unpaid tuition but on behalf of the PACT trust to collect the money lost as a result of alleged mismanagement. In that posture, the Court finds Plaintiffs claim to be ripe.”

Callan subsequently filed the present petition seeking a writ of mandamus directing the trial court to dismiss Carol’s action against it, and this Court ordered answers and briefs.

Standard of Review
‘ “The writ of mandamus is a drastic and extraordinary writ, to be ‘issued only when there is: 1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court.’ Ex parte United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala.1993); see also Ex parte Ziglar, 669 So.2d 133, 134 (Ala.1995).” Ex parte Carter, [807 So.2d 534,] 536 [(Ala.2001) ].’
“Ex parte McWilliams, 812 So.2d 318, 321 (Ala.2001).”

Ex parte Carson, 945 So.2d 448, 449 (Ala.2006).

Discussion

In its petition, Callan contends, among other things, that it is entitled to a writ of mandamus because, it says, the trial court erred in concluding that Carol has “standing” to pursue her stated claims on behalf of the PACT Trust Fund. More specifically, Callan maintains that Carol lacks “standing” to sue because she failed, before filing the underlying complaint, to first demand that the PACT board sue Callan. Because we agree with Callan that Carol’s failure to first demand that the PACT board file an action deprived her of the ability to initiate the underlying action, we issue the writ on that ground and pretermit discussion of Callan’s remaining claims.

Callan cites authority indicating, which authority Carol does not dispute, that any cause of action initiated on behalf of a trust for conduct damaging the assets of the trust belongs to the trustee of that trust and that before a beneficiary may proceed with filing a derivative claim on behalf of the trust, the beneficiary “must first move the trustee to act, or show some sufficient reason for the failure to do so.” Blackburn v. Fitzgerald, 130 Ala. 584, 588, 30 So. 568, 568 (1901) (citing Bailey v. Selden, 112 Ala. 593, 605, 20 So. 854, 857 (1896) (“[C]omplainants had no right to institute proceedings in equity to enforce their equitable rights ... without first having moved the trustee to act, resulting in failure to procure action by her.”); and Arnett v. Bailey, 60 Ala. 435, 438 (1877) (“Neither can the bill be maintained to recover possession of the lands, without averment, not found in this record, that Word, who holds the legal title in trust, refuses to bring an action for its recovery.”)). Cf. James v. James, 768 So.2d 356, 360 (Ala.2000) (“Before a shareholder can be awarded damages on a derivative claim, the shareholder must make a pre-suit demand on the board of directors of the corporation to correct the wrongs alleged .... ” (citations omitted)), and Tillery v. Tillery, 155 Ala. 495, 498, 46 So. 582, 582-83 (1908) (“The administrator having the legal title to the personal assets of the estate, holding them in trust for purposes of administration, ... the heir could not institute any proceeding for the enforcement of any claim which the estate held against others ... without showing either that the administrator refused to do so, or was in collusion with such [others], or occupied a position antagonistic to his duties as administrator.”).

This principle is explored more fully in the following decision of the North Carolina Court of Appeals:

“This Court has recognized that when an individual grantor places his property in an active trust, the grantor’s legal title to that property passes to the trustee.... The common law rule provides that any injury to the property placed in a trust may only be redressed by the trustee. That rule is summarized as follows:
‘“The trustee has a title (generally legal title) to the trust property, usually has its possession and a right to continue in possession, and almost always has all the powers of management and control which are necessary to make the trust property productive and safe. Any wrongful interference with these interests of the normal trustee is therefore a wrong to the trustee and gives him a cause of action for redress or to prevent a continuance of the improper conduct. Although the beneficiary is adversely affected by such acts of a third person, no cause of action inures to him on that account. The right to sue in the ordinary case vests in the trustee as a representative.
“ ‘In the absence of special circumstances, the beneficiary is not eligible to bring or enforce these causes of action which run to his trustee. Thus in the usual case he cannot sue a third person to recover possession of the trust property for himself or the trustee, or for damages for conversion of or injury to the trust property, or for recovery of its income or to compel an agent of the trustee to account, or to enjoin a threatened injury to trust property by a third person.’

“George G. Bogert & George T. Bogert, The Law of Trusts and Trustees § 869 at 112-13, 115-17 (rev.2d ed.1995).

“Several exceptions to the common law rule barring individual lawsuits by beneficiaries have been recognized. When the beneficiary is in actual physical possession of trust property, he can sue for injury to the possession or to enjoin a disturbance of possession of the property. See Bogert, § 869 at 117; Restatement (Second) of Trusts § 281. If a conflict of interest arises between the trustee and a beneficiary, or between two beneficiaries, a beneficiary has standing to sue individually.... [1]f the trustee refuses or fails to initiate a meritorious lawsuit against a third party, the beneficiary may file a cause of action to protect his own interests. See Bogert, § 869 at 118-21. This exception to the common law rule is outlined in the Restatement (Second) of Trusts, § 282:

“ ‘(1) Where the trustee could maintain an action at law or suit in equity or other proceeding against a third person if the trustee held the property free of trust, the beneficiary cannot maintain a suit in equity against the third person, except as stated in Subsections (2) and (3).
“ ‘(2) If the trustee improperly refuses or neglects to bring an action against the third person, the beneficiary can maintain a suit in equity against the trustee and the third person.
“ ‘(3) If the trustee cannot be subjected to the jurisdiction of the court or if there is no trustee, the beneficiary can maintain a suit in equity against the third person, if such suit is necessary to protect the interest of the beneficiary.’ ”

Slaughter v. Swicegood, 162 N.C.App. 457, 464-65, 591 S.E.2d 577, 582-83 (2004) (emphasis added). See also International Ass’n of Fire Fighters, Local 2665 v. City of Clayton, 320 F.3d 849, 851 (8th Cir.2003) (“ ‘As a general rale, a beneficiary may not bring an action at law on behalf of a trust against a third party.... The right to bring such an action belongs to the trustee.”).

In her response in opposition to Callan’s motion to dismiss, and again in her response to Callan’s petition in this Court, Carol argues that, despite “the law in Alabama ... that a lawsuit against a third party on behalf of a trust is ordinarily properly brought by the trustee, and not the beneficiary,” she has demonstrated cir-curastances that place her action within an exception to that well settled principle. In support of her position, Carol first cites this Court’s decision in First Alabama Bank of Montgomery, N.A. v. Martin, 425 So.2d 415 (Ala.1982), in which we observed that “[i]t has long been the law in Alabama that where a trustee does not perform his duty to protect the trust, the beneficiaries may sue in equity to protect their rights.” 425 So.2d at 423 (emphasis added). Carol correctly notes that Tillery, supra, stands for the proposition that a beneficiary may initiate a derivative action on behalf of the trust if “the beneficiary shows the trustee failed to bring suit, the trustee colluded with the third party, or the trustee occupied an antagonistic position to the beneficiary,” Carol’s answer at 12-13, and relies on § 282 of Restatement (Second) of Trusts, as set out in Slaughter, supra.

In James, supra, this Court concluded that “if the demand on the [trustees] would be futile, then the demand requirement is excused.” 768 So.2d at 360. James established the test for demonstrating the futility of the requisite initial demand as follows: “ ‘[T]he shareholder ... must demonstrate such a degree of antagonism between the directors and the corporate interest that the directors would be incapable of performing their duty.’ ” Id. (quoting Elgin v. Alfa Corp., 598 So.2d 807, 815 (Ala.1992)).

None of the foregoing exceptions discussed in Slaughter, Tillery, or James appear to apply to excuse a presuit demand in the present case. Although it appears to defy logic to require that Carol should have first demanded that the PACT board sue itself for alleged mismanagement of the funds in the trust, see Elgin, 598 So.2d at 814 (noting that “this Court [has] held that if the directors themselves are the alleged wrongdoers, then director demand may be futile”), it has not been demonstrated that a demand on the PACT board that it pursue claims against Callan would have been so futile as to bring this case within that exception. Certainly, Carol’s unsupported assertion that a conflict of interest exists, without more, fails to demonstrate that a demand would be futile as to the claims against Callan, a third party with whom, from all appearances, the PACT board has nothing but an arm’s length contractual relationship. C.f. Lewis v. Graves, 701 F.2d 245, 248 (2d Cir.1983) (pointing to the “more than ample authority from other circuits” indicating that “mere approval [of] or acquiescence [to]” the transactions complained of is insufficient to establish futility of demand (citing Grossman v. Johnson, 674 F.2d 115, 124 (1st Cir.1982); Lewis v. Curtis, 671 F.2d 779, 785 (3d Cir.1982); Greenspun v. Del E. Webb Corp., 634 F.2d 1204, 1210 (9th Cir.1980); and In re Kauffman Mut. Fund Actions, 479 F.2d 257, 265 (1st Cir.1973))). Indeed, Carol’s assertion of conflict is further undermined by her own acknowledgment that there is no evidence demonstrating collusion between the PACT board and Callan and by the fact that § 16-33C-4.1 specifies that at least one member of the PACT board is required to be a PACT contract holder. See supra note 1.

There is nothing in the materials before us indicating, and Carol does not allege, that she requested that the PACT board sue Callan or even that she ever approached or notified the PACT board regarding her intentions before filing her complaint, despite indications of this Court’s willingness to view any such efforts with leniency. Compare James, 768 So.2d at 360 (finding that letters from minority shareholder and his attorney, even if not sufficient to constitute demands for suit, supported the conclusion “that any further demand would be futile”). Further, the materials before us reflect that Carol’s complaint was filed only a little over two months after the issuance of the letter placing PACT contract holders on notice of the diminished assets of the Trust Fund and indicating that the PACT board was both “working hard and considering options to maintain the viability of [the] PACT” program and “meeting with the distinguished leaders of [Alabama’s public universities and colleges] to form a partnership to allow PACT benefits to be consistently paid.” We thus hold that there was no demonstration of either an improper refusal by the PACT board to pursue Callan in an effort to protect the trust assets or that sufficient time lapsed for Carol to have concluded that the PACT board had neglected to do so. Cf. Stallworth v. AmSouth Bank of Alabama, 709 So.2d 458, 464, 465 n. 2 (Ala.1997) (concluding both that, despite the plaintiffs claim “that a majority of the board had committed wrongs against the corporation,” the plaintiff “failed to demonstrate that a demand upon the directors would have been futile” and that, even assuming the plaintiff made the required demand, “premature filing of a complaint or claim after a demand has been made is equivalent to a failure to make a demand, and that premature filing warrants dismissal”). Therefore, even assuming, as Carol argues, that Anna is a beneficiary of the PACT Trust Fund, Carol has demonstrated no circumstance excusing her from the demand requirement, and, in the absence of such a demand or a demonstration of the futility thereof, Carol’s derivative suit was premature. See Riley v. Bradley, 252 Ala. 282, 288, 41 So.2d 641, 645 (1948) (“[I]n case a trustee refuses to perform his duty to protect the trust, the beneficiaries may sue in equity to protect their rights, in the right of the trustee, but only when that may be necessary to protect their interests.”). In consideration of the foregoing, Callan’s motion to dismiss in the trial court was well founded; therefore, we grant Callan’s petition and issue the requested writ directing the trial court to dismiss Carol’s claims against Callan.

PETITION GRANTED; WRIT ISSUED.

MALONE, C.J., and WOODALL, J., and LYONS, Special Justice, concur.

PARKER and MURDOCK, JJ„ and SHORES, Special Justice, dissent.

STUART, BOLIN, MAIN, and WISE, JJ., recuse themselves.

MURDOCK, Justice

(dissenting).

As a preliminary matter, I wish to note that the issue of “standing” referenced in the main opinion is an issue that goes to the cognizability under Alabama law of a claim when a trust beneficiary has not first made the requisite demand upon the trustee to pursue a claim against a third party based on actions allegedly detrimental to the trust and to the beneficiary, not whether the beneficiary has experienced an actual, concrete injury of the nature intended when courts speak of “standing” in the sense of what is necessary for a constitutionally sufficient “case or controversy” and, in turn, subject-matter jurisdiction. See generally Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).

That said, I turn now to the merits of the issue whether the claims against Cal-Ian Associates, Inc., in this case should have been dismissed because of the failure of the plaintiff to have made a presuit demand upon the PACT board (sometimes referred to herein as “the board”) to file an action against Callan.

The fundamental premise upon which the complaint in the present case is based is that the investments made by the board were not prudent investments. By statute, the responsibility for investing the trust fund falls with the PACT board, the trustees of the fund. It is the board that is empowered by law to invest the money as it deems appropriate and to retain such consultants and administrative assistance to assist in this endeavor as it deems appropriate.

The board entered into a contractual relationship with Callan pursuant to which Callan was to advise it and to help administer the trust fund. Even in the context of this contractual relationship, of course, ultimate responsibility remained with the board.

In Blackburn v. Fitzgerald, 130 Ala. 584, 588, 30 So. 568, 568 (1901), this Court stated that before beneficiaries of a trust “can proceed by [a] bill in equity for the enforcement of equitable rights” on behalf of the trust, they “must first move the trustee to act or show some sufficient reason ” why this should not be required (emphasis added). The complaint here alleges concerted action between the trustees and Callan; indeed, the trustees and Callan are named as codefendants. The complaint alleges that the trustees hired Cal-lan in the first place, worked in concert with Callan, and had the ultimate responsibility to assess and act upon Callan’s recommendations as the board deemed prudent.

In addition to the foregoing, before this action was filed, the trustees already had been sued in one or more other actions in which, according to the complaint, they had been accused of “negligence, breach of contract and other misfeasance in connection with the administration, delegation and performance of their duties in connection with the trust.” According to the complaint, the fact that the trustees already faced liability based on such allegations created a “conflict of interest” insofar as expecting them to file an action against Callan alleging that the investments they made based upon Callan’s advice had been imprudent.

In Tillery v. Tillery, 155 Ala. 495, 498, 46 So. 582, 582 (1908), the Court noted the general rule of trust and estate law that the right and obligation to pursue a legal claim on behalf of an estate (whether a trust estate or a decedent’s estate) belongs to the person who holds legal title to the estate and who has the legal obligation to preserve and administer the estate, i.e., the trustee of a trust or the personal representative of a decedent’s estate. The Tille'ry Court then spoke of three exceptions to the general rule that a beneficiary cannot “institute any proceeding for the enforcement of any claim which [a trust] held against others”: the beneficiary can show (1) that the trustee has refused to institute a proceeding for enforcement of the claim, (2) that the trustee is “in collusion” with the person against whom the claim would be asserted, or (3) that the trustee “occupied a position [such that asserting the claim would be] antagonistic to his duties as [trustee],” i.e., the trustee has a conflict of interest. 155 Ala. at 498, 46 So. at 582-83. As the main opinion notes by relying on the extended quotation from Slaughter v. Swicegood, 162 N.C.App. 457, 464-65, 591 S.E.2d 577, 582-83 (2004) (emphasis added), which in turn quotes George G. Bogert & George T. Bogert, The Law of Trusts and Tnstees § 869 at 112-13, 115-17 (rev.2d ed.1995), a well respected treatise on trust law, “ ‘ “[i]n the absence of special circumstances, the beneficiary is not eligible to bring or enforce ... causes of action which run to his trustee.” ’ ” 87 So.3d at 1166. But “ ‘[iff a conflict of interest arises between the trustee and a beneficiary, or between two beneficiaries,’” “‘the beneficiary may file a cause of action to protect his own interests. See Bogert, § 869 at 118-21.’” 87 So.3d at 1166 (quoting Slaughter, 162 N.C.App. at 465, 591 S.E.2d at 583 (emphasis added)).

The main opinion states that it “appears to defy logic” to think that the PACT board should be asked to sue itself. 87 So.3d at 1167. It would seem that asking the board to sue Callan would be the next closest thing. It would amount to asking the trustees to sue the administrative entity they chose to hire and with whom they have acted in concert. Moreover, the central premise of such a suit, and thus a judicial admission that would have been necessary on the part of the board in order to file such a suit, would have been that the investments made by the board were not prudent. The notion that these investments made by the board were not prudent is exactly the cause for which the board itself faced criticism and potential and actual legal claims. Given the joint efforts of the trustees and Callan in managing the trust fund, with the trustees having final decision-making authority, and given the threatened and pending claims against the trustees, I must conclude that exceptions of the nature contemplated in the above-cited authorities are applicable in this case.

Respectfully, therefore, I must dissent.

PARKER, J., and SHORES, Special Justice, concur.

SHORES, Special Justice

(dissenting).

I join Justice Murdock’s dissent. I also point out that the petition for the writ of mandamus should be denied for the following additional reason. The plaintiff is suing on behalf of the PACT Trust. Although she does not allege that she made a formal demand on the trustees to bring the action against Callan Associates, Inc., the trustees are parties to the lawsuit. If the facts as developed through discovery or otherwise indicate that the trustees’ interests are aligned with those of the plaintiff, the trial court can realign the parties to reflect that. It seems to me a great waste of time and money to order the trial court to dismiss this action and to require the exact same parties to start over with the only added allegation being that the plaintiff has first made a formal demand upon the trustees to bring the action. It is clear from the record of the hearing on the motion to dismiss that the trial court has a complete understanding of the claims presented, the position of the parties, and the applicable law. I would let the court proceed to adjudicate those claims.

      . As set out in § 16-33C-4.1, Ala.Code 1975, the PACT board is a 15-member board consisting of the following: the director of finance; the state treasurer; two persons appointed by the governor; two persons appointed by the speaker of the • House of Representatives (one of whom is required to be a PACT contract holder); one person appointed by the lieutenant governor; one person appointed by the senate president pro tempore; the president of the Council of College and University Presidents (or his or her designee); the chancellor of the Postsecondary Education Department (or his or her designee); the executive director of the Alabama Commission on Higher Education; one member of the House of Representatives appointed by the speaker of the House of Representatives; one member of the Senate appointed by the lieutenant governor; the chief executive officer of the Retirement Systems of Alabama (or his or her designee); and the president of the Alabama Association of Independent Colleges and Universities (or his or her designee).

      . Carol emphasizes here, as she did in the trial court, both that the present claims are derivative claims being pursued on behalf of the PACT Trust Fund and that the underlying action is "not a claim for breach of [her] individual PACT contract” but is, instead, "a claim brought on behalf of the PACT Trust, for losses incurred by the Trust, as a result of the mismanagement of trust assets by the [PACT] Board and Callan.”

      . Callan raised several other arguments attacking Carol’s ability to maintain this action, including the claim that Anna was not actually a beneficiary of the PACT Trust Fund. Given our holding below, we pretermit discussion of that issue.

      .The PACT board and Callan filed separate petitions for writs of mandamus to this Court from the denial of their respective motions to dismiss Carol’s complaint. In its petition (case no. 1081769), the PACT board sought mandamus relief based on state-agent immunity and sovereign immunity and on the ground that Carol’s claims were not ripe for adjudication. However, the PACT board subsequently moved to dismiss its petition, and we granted the motion by order entered on December 14, 2010.

      . Although James is a derivative-shareholder action and not an action by the beneficiary of a trust, the parties do not dispute that the principles regarding a presuit demand in both such actions are analogous. See Riley v. Bradley, 252 Ala. 282, 288, 41 So.2d 641, 645 (1948) ("[T]he beneficiary [of a trust] is the equitable owner of trust property. On the same principle, the property of a corporation is treated in equity as owned by the stockholders." (citations omitted)).

      . In his dissent, Justice Murdock apparently presumes that, because Callan and the PACT board had been involved in a contractual relationship, because Carol had previously sued the PACT board and Callan jointly, and because there were purportedly other suits filed against the PACT board, there was a “ ‘conflict of interest' insofar as expecting [the PACT board] to file an action against Callan alleging that the investments [it] made based upon Callan’s advice had been imprudent.” 87 So.3d at 1170. However, there is nothing before this Court indicating that the PACT board has aligned itself with Callan in any way or otherwise proving Carol’s claims regarding the futility of a presuit demand or a conflict of interest. In the absence of actual evidence demonstrating a conflict or the futility of a demand, we are unwilling to presume at this time that the PACT board is disinclined to pursue an action against Callan.

      ."[0]ur courts too often have fallen into the trap of treating as an issue of ‘standing’ [and therefore as an issue of subject-matter jurisdiction] that which is merely a failure to state a cognizable cause of action or legal theory, or a failure to satisfy the injury element of a cause of action.” Wyeth, Inc. v. Blue Cross & Blue Shield of Alabama, 42 So.3d 1216, 1219 (Ala.2010). Cf. 13A Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice & Procedure, Jurisdiction § 3531 (3d ed.2008) ("The question whether the law recognizes the cause of action stated by a plaintiff is frequently transformed into inappropriate standing terms."). See also Altrust Fin. Servs., Inc. v. Adams, 76 So.3d 228, 247 (Ala.2011) (Murdock, J„ concurring in the result).

      . The PACT board members specifically are empowered "to invest as they deem appropriate any funds in the PACT Trust Fund....” § 16 — 33C—5(3), Ala.Code 1975. In fulfilling this responsibility, the PACT board is to make decisions as to "acquiring, investing, reinvesting, exchanging, retaining, selling, and managing property of the PACT Trust Fund” and, in so doing, is charged with "exercising the judgment and care under the circumstances then prevailing which a person of prudence, discretion, and intelligence exercises in the management of their own affairs, not in regard to speculation but to permanent disposition of funds, considering the probable income as well as the safety of their capital.” § 16-33C-6(d), Ala.Code 1975.

      . Although the trustees may have enlisted Cal-lan’s help in administering the trust fund, their duties as trustees obviously were not delegable.

      . Ultimately, the main opinion places great reliance upon the fact that this is not a case in which it has been shown that a demand upon the trustees would have been "futile.” It borrows this futility standard from James v. James, 768 So.2d 356, 360 (Ala.2000), a case involving the prerequisites for filing shareholder-derivative actions on behalf of corporations. Although the main opinion bases its reliance upon James on the ground that a shareholder-derivative action is "analogous” to a suit by a trust beneficiary, 87 So.3d at 1167 n. 5, the fact that the two are analogous does not make them the same. I believe the exceptions articulated as to trust and estate cases, as cited, particularly the "conflict of interest” standard, are more appropriate for such cases than a "futility” standard.
      Even accepting for the sake of argument the applicability of the so-called "futility” standard developed for shareholder-derivative actions, however, I note that this standard is deemed satisfied when the shareholder demonstrates sufficient " 'antagonism between the directors and the corporate interest! ] that the directors would be incapable of performing their duty.’ " James, 768 So.2d at 360 (quoting Elgin v. Alfa Corp., 598 So.2d 807, 815 (Ala.1992)). Even more specifically in this regard, we have recognized that, "if the directors themselves are the alleged wrongdoers, the demand may be futile.” Elgin, 598 So.2d at 814.

      . By the time the plaintiff filed the present action, it was known, of course, that the investments at issue had not “work[ed] out” as planned. That this fact was known at that time, i.e., in hindsight, did not and does not answer the question whether these investments were imprudent when the investments were made, i.e., when viewed from the vantage point of the information known and the circumstances existing at the time the investments were made, including information specific to the particular investments, the history of the economy and relevant markets, and the nature of the other investments maintained at the time by the PACT board. To have required the board to bring an action against Callan before any determination of liability on the board's part, therefore, would have been to require the board to make an allegation, and a judicial concession, that the investments the board itself had made were imprudent investments at the time the board made them, a proposition that had not (and has not) been established but that would be central to any potential liability on the part of the board. (Contrary to the suggestion in note 6 of the main opinion, 87 So.3d at 1167, it was this presuit juxtaposition of the parties, not some evidence of what the board’s actual postsuit position turned out to be, that makes for the requisite "conflict of interest” — -i.e., a conflict between the interests of the trustees and the interests of the plaintiff — that in turn made a presuit demand on the board unnecessary.)