Rel: May 31, 2024

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

Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 

300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other 

errors, in order that corrections may be made before the opinion is printed in Southern Reporter.

SUPREME COURT OF ALABAMA

OCTOBER TERM, 2023-2024

_________________________

SC-2023-0894

_________________________

Ex parte Steve Marshall, in his official capacity as Attorney 

General of the State of Alabama

PETITION FOR WRIT OF MANDAMUS 

(In re: Megan Carmack and Leigh Gulley Manning, individually 

and on behalf of minor children, Michaelyn Leigh Manning and 

Michael Sanders Manning 

v. 

Regions Bank, in its fiduciary capacity as trustee of the Mabel 

Amos Memorial Fund, et al.) 

(Montgomery Circuit Court: CV-22-900830)
SC-2023-0894, SC-2023-0895

2

_________________________

SC-2023-0895

_________________________

Ex parte Steve Marshall, in his official capacity as Attorney 

General of the State of Alabama

PETITION FOR WRIT OF MANDAMUS

(In re: Tyra Lindsey, a minor, by and through her mother and 

guardian, Denese Rankin; and Steve Marshall, in his official 

capacity as the Attorney General of the State of Alabama 

v. 

Regions Bank, in its fiduciary capacity as trustee of the Mabel 

Amos Memorial Fund, et al.)

(Montgomery Circuit Court: CV-23-900219)

MENDHEIM, Justice.

These consolidated proceedings involve the Mabel Amos Memorial

Fund ("the trust"), which is a charitable trust created by the will of Mabel 

S. Amos ("Amos"). Generally, the trust was created for the purpose of 

providing financial assistance to beneficiaries -- which are chosen at the 

discretion of the board members of the trust through an application 

process -- desiring to obtain higher education. The plaintiffs in the 

underlying actions -- Megan Carmack and Leigh Gulley Manning
SC-2023-0894, SC-2023-0895

3

("Leigh"), individually and on behalf of Carmack's minor children, 

Michaelyn Leigh Manning ("Michaelyn") and Michael Sanders Manning 

("Michael"), and Tyra Lindsey, a minor, by and through her mother and 

guardian, Denese Rankin ("Lindsey") -- have alleged in the Montgomery 

Circuit Court ("the circuit court") that the trustee and board members of 

the trust breached their fiduciary duties in various respects and

commenced the underlying actions in an effort to, among other things,

remove the trustee and the board members, have a new trustee and new 

board members appointed, and restore the allegedly misappropriated 

assets of the trust. The circuit court appointed a special master under 

Rule 53, Ala. R. Civ. P., and Attorney General Steve Marshall

("Marshall"), who was added as a party to the underlying actions, has 

petitioned this Court for a writ of mandamus directing the circuit court 

to vacate its order appointing a special master.

Facts and Procedural History

On February 11, 1993, Amos executed her will. Amos's will devised 

to Union Bank & Trust Company ("Union Bank") her residuary estate for 

the purpose of establishing two separate trusts -- the Amos Family Trust 

and the trust -- and named Union Bank as trustee. The Amos Family 
SC-2023-0894, SC-2023-0895

4

Trust, which is not at issue in these proceedings, consisted of one-third 

of Amos's residuary estate and provided for various family members of 

Amos during their lifetimes. Upon the death of the last surviving

beneficiary of the Amos Family Trust, any remaining assets of the Amos 

Family Trust are to be distributed to the trust.

Amos's will states the following concerning the trust:

"The remaining two-thirds of my residual estate shall be 

administered as follows:

"A. The Trust shall be known as The Mabel Amos 

Memorial Fund.

"B. The net income from the trust fund after payment of 

all costs of administration shall be expended to fund or to 

provide scholarships for deserving young men and women of 

this State, and to assist them in attending any educational 

institution.

"C. The recipients of these payments will be chosen by a 

Board consisting of at least three members. The initial Board 

will be comprised of two individuals selected by the partners 

of the law firm of Albrittons, Givhan, Clifton & Alverson and 

one individual selected by the Trust Committee of Union 

Bank & Trust Company. I have confidence and trust in the 

law firm of Albrittons, Givhan, Clifton & Alverson and Union 

Bank and it is my desire that they continue to be represented 

on this Board as long as it is practical and feasible. In the 

event any Board member dies, resigns, or is unable or refuses 

to act, the surviving Board members shall appoint a new 

Board member in his place. Such new Board member shall in 

all respects have the same authority and responsibility as 

though he had been named as one of the initial Board herein.
SC-2023-0894, SC-2023-0895

5

Should the surviving Board members fail to appoint a new 

member within sixty (60) days after the death, resignation, 

inability or refusal of any member to act, it shall be the duty 

of those surviving members to petition the presiding Judge of 

the Circuit Court of Montgomery, Alabama to make such 

appointment, upon such notice and other conditions as that 

Court may direct, and such appointment shall have the same 

effect as if made by the surviving members.

"D. In making their choice as to persons to be benefited, 

the Board members shall be guided by the following criteria:

"1. The character of the individual.

"2. The intelligence of the individual, which 

shall be above average.

"3. The scholastic record of the individual.

"4. The financial need of the individual.

"E. No part of this Trust Fund shall inure to the benefit 

of any private individual (except for compensation for services 

rendered or expenses incurred in administering the Trust), 

and no part of the direct or indirect activities of this Trust 

shall consist of carrying on propaganda, or otherwise

attempting to influence legislation, or of participating in, or 

intervening in (including the publication or distribution of 

statements) any political campaign on behalf of any candidate 

for public office. Notwithstanding any other provision, this 

Trust shall not conduct any activities not permitted by an 

organization exempt under Section 501(c)(3) of the Internal 

Revenue Code and its Regulations as they now exist or as they 

may be amended, or by any organization contributions to 

which are deductible under Section 170(c)(2) of such Code and 

Regulations as they now exist or as they may be amended.
SC-2023-0894, SC-2023-0895

6

"F. The Trustee at the direction of the Board shall make 

distributions at such time and in such manner as not to 

subject the Trust to tax under Section 4942 of the Code. The 

Trustee shall not engage in any act of self-dealing, as defined 

in Section 4941(d), and shall not make any taxable 

expenditures, as defined in Section 4945(d). The Trustee shall 

not make any investments that jeopardize the charitable 

purpose of the Trust within the meaning of Section 4944 and 

the Regulations thereunder, or retain any excess business 

holdings, within the meaning of Section 4943(c).

"G. In addition to the powers set forth in Article VI 

below, the Trustee shall have the power to amend this Trust 

in any manner required for the sole purpose of insuring that 

distributions to the Trust qualify and continue to qualify for a 

charitable deduction for estate purposes at my death.

"H. In the event it is determined by the Trustee and 

Board that it is no longer economically feasible or advisable to 

continue this Trust, I direct the Trustee to distribute any 

remaining principal and accrued income thereto to such 

charitable organizations as they in their discretion shall 

determine, provided, however, that such organizations shall 

be described in Section 170(c), 2055(a), and 2522(a) of the 

Code."

Amos died in 1999, and her will was admitted to probate in the 

Montgomery Probate Court on May 18, 2000. Carmack and Leigh's third

and final amended complaint stated that the trust "came into existence

in 2002 after [Amos's] estate was probated and the corpus of the trust 

was transferred by the executor of [Amos's] estate to the trustee of the 

charitable trust." Even though Amos's will named Union Bank as the 
SC-2023-0894, SC-2023-0895

7

trustee of the trust, subsequent to Amos's execution of her will, Regions 

Financial Corporation ("Regions Financial") acquired Union Bank. 

Thereafter, Regions Bank (which appears to be a distinct entity from 

Regions Financial) served as the trustee of the trust and administered it 

in conjunction with the trust's board. The parties agree that, at times 

relevant to these proceedings, the following individuals served as board 

members of the trust: Thomas Albritton, Rick Clifton, John Bell, and 

Drew McNees ("the board members"). At the time Marshall filed his 

mandamus petitions, Albritton, Clifton, and McNees served as board 

members; Bell is no longer a board member.

On July 7, 2022, Carmack and Leigh commenced an action in the 

Montgomery Circuit Court asserting numerous causes of action and 

seeking equitable relief, compensatory damages, and punitive damages; 

the circuit court assigned that action case number CV-22-900830. In 

their third amended complaint, Carmack and Leigh named Regions Bank 

and the board members as defendants. Leigh, who is the daughter of 

James Gulley, Amos's nephew, claims to be Amos's "sole surviving heir." 

Carmack is Leigh's daughter, and Michaelyn and Michael are Carmack's 

children and Leigh's grandchildren.
SC-2023-0894, SC-2023-0895

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According to the second amended complaint filed by Carmack and 

Leigh, one of the assets of the trust was a piece of land that Amos had 

owned at the time of her death. At the time of Amos's death, the land 

had gas wells on it that provided some income to the trust. In 2011, 

however, "oil was discovered on the ... property ...." Carmack and Leigh's 

second amended complaint alleged that the land was then leased by the 

trust to Fletcher Petroleum Company, which installed an oil well, named 

"Amos 36-3," on the land. That complaint alleged that Amos 36-3 "has 

produced $70 million to $80 million worth of oil and gas and has the 

potential for another $20 million." The second amended complaint 

further alleged the following:

"(12) The trust did not start off with a substantial 

income because they discovered there was only gas on Amos'

property. However, when oil was discovered on the property 

the income of the trust increased drastically. According to its 

2002 990 requested filings, the earliest IRS filing available for 

the trust, the fund was approximately $500,000, and under 

the law the trustees could only distribute a maximum of 

$19,111. Defendant Regions [Bank] distributed funds for only 

three scholarships that together totaled $8,336. Regions

[Bank] was paid $4,354 for administering the trust.

"(13) By 2010, the total fair market value of all fund 

assets was $519,400 and four scholarships were funded worth 

$16,302. Regions [Bank] was paid approximately $7,000 for 

spending five hours a week on the administration of the fund 

[at] a rate of $28.56 an hour.
SC-2023-0894, SC-2023-0895

9

"(14) By 2011, when oil was discovered on the Amos 

property, the value of the assets of the trust totaled more than 

$4.1 million. Shortly thereafter, the trust became flush with 

millions of dollars of oil money flowing into the trust on a 

regular basis.

"....

"(17) The 2011 990 filing shows Regions [Bank] was the 

most immediate beneficiary of the trust's new wealth. Regions

[Bank] went from being paid $7,426 for five hours of work per 

week the year before, to $92,736 for the same approximate 

five hours of work on behalf of the trust. Based upon the 

numbers provided by Fletcher [Petroleum Company], Regions

[Bank's] per hour rate skyrocketed to $356.68 an hour in 2011 

from only $28.56 an hour in 2010. ..."

The second amended complaint alleged that Albritton's and Bell's 

children received scholarships from the trust while Albritton and Bell

served as board members. That complaint acknowledged that Carmack 

had received $72,000 in scholarships over the course of 11 years, only 

$4,000 of which was for her college education; the remaining $68,000 had 

been used to pay for her elementary, middle, and high-school education. 

That complaint further alleged that "Carmack has in the past been 

denied college money from [the] charitable trust ...."

In their third amended complaint, Carmack and Leigh alleged that 

Regions Bank and the board members had committed "one or more of the 

following acts:"
SC-2023-0894, SC-2023-0895

10

"A. Engaged in acts of self-dealing and personal 

enrichment to the detriment of the trust and its intended 

beneficiaries;

"B. Charged excessive fees to the trust after oil was 

discovered on trust property and the trust became wealthy 

from oil revenue;

"C. Awarded scholarships to students who were not 

financially needy and/or not residents of the State of 

Alabama;

"D. Improperly disbursed funds to foundations and 

other entities that were not the intended beneficiaries of the 

trust;

"E. Allowed third parties, instead of the Board 

established by the settlor, to decide the recipients of 

scholarships;

"F. Failed to keep accurate books and records of the 

trust's disbursements;

"I. [sic] Diverted funds to an investment account that 

should have been awarded as scholarships to young men and 

women of Alabama;

"G. Filed Form 990-PF's with the IRS that contained 

false and incorrect information;

"H. After the trust became wealthy from oil revenue, 

covered up the award of scholarships to individuals who did 

not meet the criteria for a scholarship by refusing to provide 

the names of the scholarship recipients despite the trust's 

long established prior practice of disclosing of names;

"I. Other misuses and abuses that may be revealed by 

an examination into the administration of the trust."
SC-2023-0894, SC-2023-0895

11

Based on those allegations, Carmack and Leigh requested the following 

relief:

"7. Plaintiffs request that the court intervene in the 

administration of the trust pursuant to sections of 210, 706, 

and 405 of Alabama's Uniform Trust Code and take the 

following action:

"A. Appoint an independent fiduciary to conduct an 

audit of the books and records of the trust to determine the 

monetary extent to which the trustee[ and the board 

members] have damaged the trust;

"B. Remove the current trustee[ and] the board 

members and replace them with persons and a banking 

institution that will follow the terms of the trust and uphold 

their fiduciary duties, to include the appointment of Leigh 

Gully Manning, the sole surviving heir of Mabel S. Amos;

"C. Order that the trustee[ and the board members] be 

required to repay the trust for the financial loss that they 

have caused the trust;

"D. Order such additional relief as the court determines 

is appropriate, including cost[s] and attorneys' fees."

Although Carmack and Leigh had requested a jury trial in their original 

and previous amended complaints, they did not request a jury trial in 

their third and final amended complaint.

On August 5, 2022, Regions Bank filed a motion to dismiss the 

complaint filed by Carmack and Leigh under Rule 12(b)(1), Ala. R. Civ. 

P., arguing that Carmack and Leigh lacked standing to enforce the terms 
SC-2023-0894, SC-2023-0895

12

of the trust and, thus, that the circuit court did not have subject-matter 

jurisdiction over their action. Alternatively, Regions Bank requested 

that the complaint be dismissed under Rule 12(b)(6), Ala. R. Civ. P., 

arguing that Carmack and Leigh lacked the capacity to bring their action, 

thereby failing to state a claim upon which relief could be granted.

On October 10, 2022, Carmack and Leigh filed their second 

amended complaint and added Marshall as a defendant. On December 

8, 2022, Marshall filed a motion asserting that, pursuant to § 19-3B110(d), Ala. Code 1975, "the Attorney General is the proper partyplaintiff in this action" and requesting the circuit court to enter an order 

"re-aligning [Marshall] as a party plaintiff ...." Marshall argued that, 

because the trust is a charitable trust and "does not name specific 

charitable beneficiaries or otherwise identify or designate any person or 

entity expressly to receive distributions under the terms of the trust," he, 

as the attorney general, "has the rights of a qualified beneficiary of the 

trust pursuant to [§] 19-3B-110[, Ala. Code 1975] ...." Marshall argued 

that all the claims asserted by Carmack and Leigh "arise from, concern, 

and relate to the trust" and that he "is the party in interest who has 

standing to enforce the terms of the trust."
SC-2023-0894, SC-2023-0895

13

On December 27, 2022, Lindsey filed a motion under Rule 24, Ala. 

R. Civ. P., to intervene in case number CV-22-900830. Lindsey's motion 

stated that she sought "to intervene in the pending action on behalf of 

herself and all young men and women of the State of Alabama who are 

permissible distributees of the scholarships that are to be awarded by the 

[trust]." Lindsey alleged that she met "all the necessary requirements" 

to receive a scholarship from the trust and that "[s]he thus has an 

interest in the proper management of the [trust] and the preservation of 

its assets." In addition to her motion to intervene, Lindsey also filed a 

"statement of claim," which stated, in relevant part:

"8. [Lindsey] does not contend that she or any other 

potential beneficiary has a legal right to a scholarship, or that 

her interest in the [trust's] scholarships is greater than any 

other permissible distributee, and she does not seek any 

compensatory damages on her behalf or on behalf of the other 

permissible distributees. [Lindsey's] interest in this matter is 

only to see that the Trust be protected by removal of the 

current Trustee and Board members, and the current Trustee 

be required to reimburse the trust, with interest, for excessive 

trustee fees it has collected from 2002 to the present and the 

current Board members and a former Board member be 

required, jointly and severally, to reimburse, with interest, 

the trust for the improper scholarships to students and 

disbursements to third parties that violated the terms of the 

trust. This equitable relief will enable the [trust] to award 

additional and larger scholarships to penitential [sic]

beneficiaries who qualify under the terms of the [trust], thus 

increasing [Lindsey's] chances of receiving a scholarship. As a 
SC-2023-0894, SC-2023-0895

14

resident of Conecuh County, the county where Mabel Amos 

grew up and where the primary asset of the trust is located, 

[Lindsey] is in a unique position to represent not only her 

interest but that of all young men and women of the State of 

Alabama who are potential beneficiaries.

"9. [Lindsey] accepts that under Alabama law the 

Attorney General is the party who has statutory standing to 

enforce the terms of the charitable trust ... and that [his]

position in this matter is paramount. Nonetheless, [Lindsey]

believes that the voice of an actual member of the beneficiary 

class, speaking on her behalf and on behalf of the entire 

beneficiary class, would also be helpful to the court in properly 

resolving this matter as the potential beneficiaries are the 

parties that will actually benefit for this action.

"10. The standing requirement in this case is met due to 

the A[ttorney] G[eneral]'s presence as a party plaintiff and 

[Lindsey] is not seeking monetary relief on her own behalf, 

only the protection of the Trust for the benefit for the entire 

class."

(Footnote omitted.) After making similar allegations to those made by 

Carmack and Leigh in their complaint, as amended, Lindsey requested 

the following relief:

"36. In order to protect the interest of the beneficiaries 

of the [trust], ... Lindsey requests that the court exercise its 

equitable powers, take jurisdiction over the [trust], order 

pursuant to Ala. R. Civ. P. Rule 19(a) that all necessary 

parties be joined in this action, and that a class be certified 

under Ala. R. Civ. P Rule 23(b)(2) of all potential beneficiaries

of the [trust]. After hearing the facts, the court should enter 

an order finding that the trustee and the past and current 

board members of the [trust] violated the terms of the trust 

and violated their fiduciary duties to the beneficiaries of the 
SC-2023-0894, SC-2023-0895

15

trust by charging excessive fees, by not making proper 

scholarship disbursements, by not informing authorities of 

the mismanagement by the trustee and board, and by 

attempting to hide their wrongdoing. After making these 

findings, the Court should:

"A. Order the removal of Regions Bank as trustee and 

Tom Albritton, Rick Clifton, and Drew McNees as board 

members.

"B. Appoint a conservator for the [trust] until such time 

as a new trustee and board members are appointed by the 

court.

"C. Instruct the conservator to conduct a forensic audit 

to determine the exact amount of excessive fees that Regions 

Bank has collected from the trust and to audit the 

disbursements and scholarships that have been awarded to 

students and to third parties to determine if they met the 

criteria required by Mabel Amos' will. It is further requested 

that after reviewing and approving the forensic audit, the 

court:

"(1) Order Regions Bank to repay the trust 

for the excessive fees it has charged the trust, with 

interest.

"(2) Order Tom Albritton, Rick Clifton and 

John Bell, board members during the period from 

2002-2019, to repay, jointly and severally, with 

interest, all scholarships that were awarded 

during this time to students who did not meet the 

trust's criteria for a scholarship, and all 

disbursements made to third parties; and that 

Tom Albritton, Rick Clifton, and Drew McNees 

repay, jointly and severally, with interest, all 

similar scholarships and disbursements made 

during the period from 2020 until the present.
SC-2023-0894, SC-2023-0895

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"D. Order that the defendants pay for the costs of the 

conservator and forensic audit.

"E. Enter such other equitable relief as the court finds 

just and appropriate, including an award of attorney's fees 

and costs to the plaintiffs for bringing this action."

Lindsey did not request a jury trial.

On January 3, 2023, Regions Bank filed a motion in which it, again,

requested that Carmack and Leigh's complaint, as amended, be 

dismissed for a lack of subject-matter jurisdiction, stated that it did not 

oppose Marshall realigning as a plaintiff in the case, and opposed 

Lindsey's motion to intervene on the basis that, Regions Bank argued, 

Lindsey did not have standing to commence an action seeking to enforce 

the terms of the trust.

On February 21, 2023, while her motion to intervene in case 

number CV-22-900830 was still pending, Lindsey commenced a new

action in the circuit court, which was assigned case number CV-23-

900219. Lindsey styled her filing as a "petition to remove trustees of a 

charitable trust and for ancillary relief" and alleged many of the same 

facts that she had alleged in her motion to intervene in case number CV22-900830 concerning Regions Bank's and the board members' alleged 

mismanagement of the assets of the trust and the board members' alleged 
SC-2023-0894, SC-2023-0895

17

self-dealing. Citing § 19-3B-706, Ala. Code 1975, Lindsey argued that 

the circuit court should remove Regions Bank as the trustee of the trust. 

As later amended, Lindsey requested that the circuit court "exercise its 

juridical powers as a court of equity, and the powers given to it by the 

Uniform Trust Code, to intervene in the administration of the [trust]." 

Lindsey further requested the following relief:

"(a) Remove and replace the current trustee[ and board 

members] of the trust;

"(b) Order that a special fiduciary be appointed to 

conduct a forensic audit of the trustee['s and board members']

handling of the affairs of the trust;

"(c) Compel the trustee[ and the board members] to 

make full monetary redress of their fiduciary breaches and 

their failure to comply with the terms of the trust;

"(d) Order that the net income improperly withheld from

disbursements as scholarships be restated on the financial 

records of the trust and treated as net income rather than net 

assets, and these funds be disbursed to scholarship recipients; 

"(d) [sic] Award other relief as the Court deems 

appropriate and just, including attorneys' fees and costs for 

[Lindsey] having initiated this proceeding."

In her amended complaint, Lindsey alleged that the circuit court had

"inherent powers" as a court of equity to intervene in the administration 

of the trust. Lindsey alleged that the circuit court had the power to 
SC-2023-0894, SC-2023-0895

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intervene in the administration of the trust under § 19-3B-201, Ala. Code 

1975, and that she had the right to invoke the circuit court's power as an 

"interested person" under that same code section. Lindsey also asserted 

that the circuit court had the power to intervene in the administration of 

the trust under § 19-3B-706, Ala. Code 1975, and that she had the right 

to invoke the circuit court's jurisdiction as a "beneficiary," as that term is 

defined in § 19-3B-103(3), Ala. Code 1975. Lindsey did not request a jury 

trial.

On March 9, 2023, Marshall filed a motion to intervene in case 

number CV-23-900219. Citing § 19-3B-110, Marshall argued that he, as 

the attorney general, has the rights of a qualified beneficiary of the trust 

and, thus, has standing to enforce the terms of the trust. The circuit 

court granted Marshall's motion to intervene in case number CV-23-

900219.

On April 4, 2023, in case number CV-23-900219, Marshall filed a 

complaint against Regions Bank and the board members. Marshall 

alleged:

"8. Regions [Bank] and the board members, jointly, and 

severally and separately, engaged in acts of self-dealing, or 

breached their fiduciary and other duties to the trust by 

failing to prevent or prohibit self-dealing, or by permitting 
SC-2023-0894, SC-2023-0895

19

and acquiescing in self-dealing, and engaging in other acts 

and omissions in violation of statutory and common law duties 

owed to the trust.

"9. By way of example only, and without limitation, 

Albritton self-deal [sic], personally profited or gained from the 

[trust] in violation of the [trust] terms, the Alabama Uniform 

Trust Code, common law, and relevant Internal Revenue 

Service rules and regulations. [Regions Bank] and the board 

[members], jointly and severally, impermissibly awarded 

scholarships or grants to Albritton's children, and paid or 

caused to be paid scholarships or grant money from the [trust] 

totaling $135,000 for his children to attend college at the 

University of Texas at Austin.

"10. These scholarship or grant awards are 

impermissible actions by the board members and [Regions 

Bank] that violate the terms of the trust, are prohibited selfdealing and private inurements, and breaches of fiduciary 

duties owed by [Regions Bank] and [the] board members ....

"11. Without limitation, [Regions Bank], and board 

members Thomas Albritton, John Bell, Rick Clifton, and or 

Drew McNees, jointly, or separately and severally, breached 

their duties owed to the trust, including fiduciary, [commonlaw] and or statutory duties, to prevent [the] board members 

from engaging in acts of self-dealing and granting themselves 

benefits for personal gain."

Marshall asserted against Regions Bank and the board members claims 

of breach of fiduciary duties, unjust enrichment, negligence, wantonness, 

and violation of Alabama's Uniform Trust Code, § 19-3B-101 et seq., Ala. 

Code 1975, as well as a claim seeking an accounting. Marshall requested 

compensatory and punitive damages, an accounting of the assets and 
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investments of the trust, as well as an accounting of the fees paid by the 

trust, and an injunction against Regions Bank

"enjoining [it] from committing further breaches of [the] trust 

(Ala. Code § 19-3B-1001[(b)](2)(1975)); compelling Regions

[Bank] to redress the breaches of trust [pleaded] above by 

paying money to the trust (Ala. Code § 19-3B1001[(b)](3)(1975)); ordering an accounting of the trust (Ala. 

Code § 19-3B-1001[(b)](4)(1975)); appointing a special 

fiduciary to take possession of the trust property and

administer the trust (Ala. Code § 19-3B-1001[(b)](5)(1975)); 

remove [Regions Bank from the position of trustee] for those 

reasons set forth in Ala. Code § 19-3B-706 (1975), including 

the fact that Regions [Bank] has committed or allowed to be 

committed a serious breach of trust; and that Regions [Bank]

has failed persistently to administer the trust (Ala. Code § 19-

3B-1001[(b)](9) (1975))."

Marshall did not request a jury trial.

On April 26, 2023, the circuit court entered an order consolidating 

case numbers CV-22-900830 and CV-23-900219.

On May 26, 2023, Regions Bank, Bell, and McNees filed a motion 

to dismiss Lindsey's action against them. Regions Bank, Bell, and 

McNees argued that Lindsey lacked standing to pursue an action seeking 

to enforce the terms of the trust and failed to "offer any cognizable legal 

theory permitting [her] to pursue her claims in this proceeding" and, 

thus, requested that her action be dismissed under Rule 12(b)(1) and (6), 

Ala. R. Civ. P.
SC-2023-0894, SC-2023-0895

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The circuit court held a hearing on November 2, 2023, but the 

parties have not produced a transcript of that hearing. Following the 

hearing, on November 7, 2023, the circuit court entered an order 

appointing a special master under Rule 53, Ala. R. Civ. P. On November 

14, 2023, Marshall filed a motion to "reconsider or vacate" its order 

appointing a special master. Marshall argued that there was no need for 

the circuit court to have appointed a special master because, he said, 

Regions Bank, Albritton, and Clifton "had settled the claims in the trust 

litigation. The settlement makes the trust whole, addresses 

administrative matters, and does not impose any costs on the [trust]." 

Additionally, Marshall argued that the circuit court's order appointing a 

special master "runs afoul of Rule 53's cautionary language that disfavors 

appointment of masters, and is further infirm for the reasons articulated 

in Ex parte Alabama State Pers[onnel] Board, 54 So. 3d 886 (Ala. 2010), 

and Ex parte Alabama Medicaid Agency, 267 So. 3d 326 (Ala. Civ. App. 

2018)."

On November 20, 2023, the circuit court entered the following 

amended order appointing a special master under Rule 53:

"It has become apparent that the appointment of a 

Special Master is necessary to hear pending motions and 
SC-2023-0894, SC-2023-0895

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other matters and make recommended orders. Pursuant to 

Rule 53, A[la]. R. Civ. P., it is hereby ORDERED that JUDGE 

CHARLES PRICE is appointed Special Master to hear all 

matters in the above-styled case.

"In addition, JAMES C. WHITE, SR., CPA, ... is 

appointed to review all matters associated with accounting, 

computation, examination of books and records relating to the 

trust, as those issues shall be further identified and defined 

by the Special Master upon review of the pleadings and upon 

hearing the parties' dispositive motions, all as provided by the 

law of Alabama governing the administration of trusts.

"The Special Master shall have the rights, powers, and 

duties provided in Rule 53 and may adopt such procedures as 

are not inconsistent with that rule, with the law of Alabama 

governing the administration of trusts and with this or other 

orders of the court.

"The Special Master shall make findings of fact, as 

necessary, and shall recommend conclusions of law with 

respect to matters presented by the parties, including a 

recommended conclusion of law as to which purported 

plaintiffs have standing to bring claims in this matter, and 

[he] shall report such findings of fact and such recommended 

conclusions of law expeditiously to the court.

"Compensation at rates mutually agreeable to the 

Special Master and the parties shall be paid from the ... trust 

to the Special Master and Accountant on a monthly basis, 

together with reimbursement for reasonable expenses 

incurred by the Special Master. If the parties and the Special 

Master or Accountant are unable to agree upon the 

compensation, it shall be fixed by the court. The Special 

Master and Accountant shall, within five (5) days, inform the 

court if he and the parties have agreed upon [his]

compensation.
SC-2023-0894, SC-2023-0895

23

"If practicable, the Special Master shall conduct 

conferences by telephone or video conference."

(Capitalization in original.)

On December 7, 2023, Marshall filed with this Court petitions for a 

writ of mandamus directing the circuit court to vacate its order 

appointing a special master. This Court consolidated the mandamus 

proceedings.

Standard of Review

This Court set forth the following applicable standard of review in 

Ex parte Alabama State Personnel Board, 54 So. 3d 886, 891 (Ala. 2010):

"'"'Mandamus is a drastic and extraordinary 

writ, to be issued only where 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 Novartis Pharm. Corp., 975 So. 2d 297, 299 (Ala. 

2007)(quoting Ex parte Perfection Siding, Inc., 882 So. 2d 307, 

309-10 (Ala. 2003), quoting in turn Ex parte Integon Corp., 

672 So. 2d 497, 499 (Ala. 1995)).

"'"'In cases involving the exercise of discretion by an 

inferior court, [the writ of] mandamus may issue to compel 

the exercise of that discretion. It may not, however, issue to 

control or review the exercise of discretion, except in a case 

[where the trial court has exceeded its discretion].'"' Ex parte 

Monsanto Co., 794 So. 2d 350, 351-52 (Ala. 2001) (quoting Ex 
SC-2023-0894, SC-2023-0895

24

parte Auto-Owners Ins. Co., 548 So. 2d 1029, 1030 (Ala. 1989), 

quoting in turn Ex parte Edgar, 543 So. 2d 682, 685 (Ala. 

1989))."

Discussion

Initially, we note that the parties have raised the issue of standing

before the circuit court and before this Court. This Court has stated that 

"[t]he question of standing implicates the subject-matter jurisdiction of 

the court. Ex parte Howell Eng'g & Surveying, Inc., 981 So. 2d 413, 419 

(Ala. 2006)." Bernals, Inc. v. Kessler-Greystone, LLC, 70 So. 3d 315, 319 

(Ala. 2011). Accordingly, we will begin our analysis by first determining 

whether the circuit court obtained subject-matter jurisdiction over the 

consolidated cases below.

The trust is a charitable trust created for the public purpose of 

providing financial assistance to undefined beneficiaries. There is no 

question that the circuit court has jurisdiction to enforce the terms of the 

trust. In State ex rel. Carmichael v. Bibb, 234 Ala. 46, 51, 173 So. 74, 78 

(1937), this Court stated the following concerning a circuit court's

jurisdiction over charitable trusts:

"It is not to be doubted ... that while courts of equity 

have original and inherent jurisdiction, independent of the 

statute of Forty-Third Elizabeth and of the prerogative power 

to sustain and enforce charitable trusts, this power and 
SC-2023-0894, SC-2023-0895

25

jurisdiction must in the nature of things lie dormant until its 

interposition is properly and timely invoked. State ex rel. 

Heddens v. Rusk, 236 Mo. 201, 139 S.W. 199 [(1911)]. When 

so quickened into action, the court, in the plentitude of its 

jurisdiction, will assume control of the trust, and administer 

it in accordance with its terms."

The question, then, becomes who may properly invoke the jurisdiction of 

the circuit court to administer the trust according to its terms when, as 

in the present case, the trust does not have a defined beneficiary.

Section 19-3B-110 provides the answer in these cases. Section 19-

3B-110 states, in pertinent part, as follows:

"(b) A charitable organization expressly designated to 

receive distributions under the terms of a charitable trust has 

the rights of a qualified beneficiary under this chapter [i.e., 

the Alabama Uniform Trust Code] if the charitable 

organization, on the date of the charitable organization's 

qualification is being determined:

"(1) is a distributee or a permissible 

distributee of trust income or principal;

"(2) would be a distributee or permissible 

distributee of trust income or principal upon the 

termination of the interests of other distributees 

or permissible distributees then receiving or 

eligible to receive distributions; or

"(3) would be a distributee or permissible 

distributee of trust income or principal if the trust 

terminated on that date.

"....
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26

"(d) The Attorney General of this state has the rights of 

a qualified beneficiary when the charitable interest to be 

represented would qualify under subsection (b) but no 

charitable organization has been expressly designated to 

receive distribution under the terms of a charitable trust."

The "Uniform Comment" to § 19-3B-110 provides the following 

explanation of the text of § 19-3B-110: "Charitable trusts do not have 

beneficiaries in the usual sense. However, certain persons, while not 

technically beneficiaries, do have an interest in seeing that the trust is 

enforced. In the case of a charitable trust, this includes the state's 

attorney general ...." (Emphasis added.)

Under § 19-3B-110(d), Marshall, as the Attorney General of 

Alabama, has the rights of a qualified beneficiary of the trust because "no 

charitable organization has been expressly designated to receive 

distribution under the terms of the charitable trust." As a qualified 

beneficiary, Marshall has standing to invoke the jurisdiction of the circuit 

court to assume control of the trust and to administer it in accordance 

with its terms. Marshall properly invoked the jurisdiction of the circuit 

court by filing a complaint in the consolidated cases below, and the circuit 

court has properly assumed control of the trust.
SC-2023-0894, SC-2023-0895

27

Having determined that the circuit court's jurisdiction was properly 

invoked by Marshall, we can proceed to consider the merits of Marshall's 

arguments pertaining to the circuit court's referral of the case to a special 

master.1 In his mandamus petitions before this Court, Marshall argues 

that the circuit court exceeded its discretion in issuing its November 20, 

2023, amended order referring all matters in these cases to a special 

1We acknowledge that the parties have also raised arguments as to 

the "standing" of Carmack, Leigh, and Lindsey to assert their claims

against Regions Bank and the board members. We need not address that 

question, however, because we have already determined that the circuit 

court has jurisdiction over the cases below based on Marshall's pleadings,

and, thus, we are certain that we have jurisdiction to consider Marshall's 

mandamus petitions pertaining to the circuit court's order appointing a 

special master. In other words, because the circuit court had subjectmatter jurisdiction over the cases at the time that it entered its 

November 20, 2023, amended order appointing a special master, that 

order was not void and, thus, is capable of supporting Marshall's 

mandamus petitions. Cf. Brooks v. Carter, [Ms. CL-2022-1178, Sept. 1, 

2023] ___ So. 3d ___, ___ (Ala. Civ. App. 2023)("[W]hen a circuit court 

without subject-matter jurisdiction purports to enter any judgment other 

than one dismissing the action for lack of jurisdiction, that judgment is 

void and will not support an appeal. See Singleton v. Graham, 716 So. 2d 

224, 226 (Ala. Civ. App. 1998). Instead, that judgment must be vacated 

or set aside and the appeal must be dismissed. Singleton, supra; Bernals[, 

Inc. v. Kessler-Greystone, LLC, 70 So. 3d 315, 319 (Ala. 2011)]."). The 

circuit court may still consider the arguments raised by the parties 

related to whether Carmack, Leigh, and Lindsey have "standing" or if 

they have failed to state a claim. See Ex parte BAC Home Loans 

Servicing, LP, 159 So. 3d 31 (Ala. 2013)(discussing the difference between 

standing and whether a party has failed to properly state a cause of 

action).
SC-2023-0894, SC-2023-0895

28

master under Rule 53. Marshall argues that the circuit court did not 

make the findings necessary to appoint a special master under Rule 53.

In Ex parte Alabama State Personnel Board, 54 So. 3d at 892-93, 

this Court set forth the following relevant law concerning Rule 53:

"Rule 53, Ala. R. Civ. P., provides that a court may 

appoint a special master. Rule 53(b), Ala. R. Civ. P., sets out 

the occasions upon which the appointment of a special master 

is appropriate and provides as follows:

"'(b) Reference. A reference to a master shall 

be the exception and not the rule. In actions to be 

tried by a jury, a reference shall be made only 

when the issues are complicated; in actions to be 

tried without a jury, save in matters of account 

and of difficult computation of damages, a 

reference shall be made only upon a showing that 

some exceptional condition requires it.'

"The appointment of a special master lies within the 

sound discretion of the trial court, and its decision to appoint 

a special master should not be reversed unless the trial court 

clearly exceeds that discretion. Hall v. Mazzone, 540 So. 2d 

1353 (Ala. 1988). In a jury trial, a case should be referred to a 

special master only if the issues are 'complicated'; those 

matters to be tried without a jury are to be referred to a 

special master only upon finding of 'some exceptional 

condition' requiring such referral, unless a claim requires an 

accounting or a difficult computation of damages. We 

emphasize the sentence in Rule 53(b) that precedes the 

applicable standard (jury or nonjury) that tells us that the 

reference to a special master is the exception not the rule. 

'Because of the increased costs, likelihood of delay, and 

possible lack of confidence in the outcome, the power to order 

a reference is to be sparingly exercised. See Adventures in 
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29

Good Eating, Inc. v. Best Places to Eat, Inc., 131 F.2d 809, 815 

(7th Cir.1942).' Committee Comments on 1973 Adoption of 

Rule 53."

As is clear from the above-quoted legal principles, different 

standards apply in determining the appropriateness of referring to a 

special master actions to be tried with a jury, actions to be tried without 

a jury, and actions seeking an accounting. Accordingly, to properly 

determine if the circuit court's referral of all the matters in these cases

to a special master was appropriate, we must first determine whether the

cases were to be tried by a jury or not, and we must also determine 

whether an accounting has been requested. We can then analyze the 

circuit court's referral under the applicable standards.

Marshall, in his petitions, alleges that Carmack and Leigh 

requested their the action be tried by a jury. In so asserting, Marshall 

directs this Court's attention to Carmack and Leigh's second amended 

complaint, which did, in fact, request a jury trial. Marshall, however,

ignores the fact that Carmack and Leigh filed a third, and final, amended 

complaint that did not request a jury trial. Carmack and Leigh and 

Lindsey, in their respective answers filed with this Court, expressly state 

that neither Marshall's, nor "Lindsey's, nor Carmack's [and Leigh's] 
SC-2023-0894, SC-2023-0895

30

pleadings now requests a jury trial. All factual issues are to be tried nonjury." Carmack and Leigh's answer, at 14; Lindsey's answer, at 13. 

Marshall does not make any mention in his reply brief before this Court 

of whether the actions below are to be tried with or without a jury. Based 

on our review of the pleadings and the parties' assertions before this 

Court, it appears that the actions below are to be tried without a jury. 

The claims asserted by Marshall against Regions Bank and the board 

members in his complaint alleged breach of fiduciary duties, unjust 

enrichment, negligence, wantonness, and violation Alabama's Uniform 

Trust Code. Therefore, insofar as the circuit court referred to the special 

master those matters to be tried without a jury, "those matters ... are to 

be referred to a special master only upon finding of 'some exceptional 

condition' requiring such referral ...." Ex parte Alabama State Pers. Bd., 

54 So. 3d at 892-93.

In the present cases, the circuit court did not indicate that "some 

exceptional condition" required the referral of the entire cases to a special 

master. In fact, the circuit court's order makes no mention of the 

necessity of such a finding to justify the referral of the entire cases to a 

special master. The allegations in Marshall's complaint are straight
SC-2023-0894, SC-2023-0895

31

forward and easily understandable. Our review of the materials 

submitted by the parties do not indicate that any such "exceptional 

condition" exists in these cases to support the circuit court's referral of 

the entire cases to a special master. There appears to be no basis to

support the circuit court's referral of the cases, including, among other 

things, motions to dismiss and determinations of liability, to a special 

master. Accordingly, we conclude that the circuit court exceeded its 

authority in referring the entire cases to a special master.

We note that Marshall also requested an accounting below. In his 

complaint, Marshall stated:

"Due to [Regions Bank's alleged] wrongful conduct ..., 

including both errors and omissions on the part of Regions

[Bank], without limitation [Marshall] prays for an accounting 

of all fees charged by Regions [Bank], all income, return on 

princip[al], assets owned by the trust, expenses paid during 

the relevant period, scholarship and or grant awards to 

individuals and institutions, and such other information the 

court determines relevant to the enforcement of the trust."

The circuit court is not required to demonstrate the existence of an 

"exceptional condition" to refer "matters of account and of difficult 

computation of damages." Hall v. Mazzone, 540 So. 2d 1353, 1355-56

(Ala. 1988). However, "[t]he fact that an accounting may be required does 

not in itself offer a basis for reference to a special master. Hanover Ins. 
SC-2023-0894, SC-2023-0895

32

Co. v. Emmaus Mun. Auth., 38 F.R.D. 470 (E.D. Pa. 1965)." Ex parte 

Alabama State Pers. Bd., 54 So. 3d at 896.2 Wright and Miller in their

treatise on federal procedure state that "matters of account are not to be 

sent routinely to a master and a reference should be refused by the trial 

judge if the accounting is not complicated." 9C Charles Alan Wright & 

Arthur R. Miller, Federal Practice and Procedure § 2605 (3d ed. 

2008)(citing Helfer v. Corona Prods., Inc., 127 F.2d 612, 614 (8th Cir. 

1942), which states that "'[a] reference to a master shall be the exception 

and not the rule,' and [that] where, as in this case, nothing more was 

involved in the suit than to ascertain and adjudicate how much, if 

anything, this small defendant company owed its sales agent in respect 

to the contract it had with him, and where all the testimony was taken 

2This Court explained its reliance upon federal precedent in 

interpreting Rule 53 as follows:

"Because the Alabama Rules of Civil Procedure are 

patterned after the Federal Rules of Civil Procedure, federal 

cases construing the Federal Rules of Civil Procedure are 

persuasive authority in construing the Alabama Rules of Civil 

Procedure. Borders v. City of Huntsville, 875 So. 2d 1168, 

1176 n.2 (Ala. 2003). Rule 53, Ala. R. Civ. P., is substantially 

similar to Rule 53, Fed. R. Civ. P."

Ex parte Alabama State Pers. Bd., 54 So. 3d at 893.
SC-2023-0894, SC-2023-0895

33

in less than four days of hearings, the duty of trying and deciding the 

case and of filing the findings of fact and conclusions of law supporting 

the decree was upon the court").

In the present cases, the circuit court offered no explanation as to 

why it believed that a referral of the accounting of the trust was required 

or what about conducting such an accounting would be complicated. The 

circuit court did not specify the parameters of the referred accounting. 

Based on the parties' allegations, it appears that the accounting would 

consist of determining the assets of the trust and its expenditures, 

including scholarships awarded and administrative fees paid. There is 

nothing before us indicating that the circuit court would not be able to 

ascertain the assets and expenditures of the trust through the typical 

discovery process, which, of course, the circuit court is perfectly capable 

of overseeing.

Regardless, even if the circuit court did not exceed its discretion by 

referring the accounting of the trust, Wright and Miller's treatise notes

that "[t]he fact that a [special] master's assistance with an accounting 

may be necessary does not justify reference of all the other issues in the 

case." 9C Wright & Miller, Federal Practice and Procedure § 2605. In 
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34

other words, even if a circuit court properly refers an accounting to a 

special master, that does not mean that every other matter in the case

unrelated to the accounting may also be referred to a special master 

without consideration of the requirements set forth in Rule 53. Each 

matter referred to a special master must satisfy the applicable standard. 

In this case, as discussed above, the circuit court's referral of the matters 

to be tried without a jury do not meet the applicable standard because 

there is nothing indicating that those matters involve an "exceptional 

condition." Therefore, even if the circuit court's referral of the accounting 

in these cases was appropriate and within its discretion, such a referral 

does not justify the referral of the other matters to be tried without a 

jury.

In Ex parte Alabama State Personnel Board, this Court, relying 

upon La Buy v. Howes Leather Co., 352 U.S. 249 (1957), as an analogous 

case, described a broad and unsubstantiated referral to a special master

similar to the one in these cases, as follows:

"In La Buy v. Howes Leather Co., 352 U.S. [249,] 256 

[(1957)], the Supreme Court affirmed the appellate court's 

issuance of a writ of mandamus compelling the district court 

to vacate its order of reference of two complex antitrust cases 

to a special master for trial. The Court stated:
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35

"'[The trial judge] referred both suits to a master 

on the general issue. Furthermore, neither the 

existence of the alleged conspiracy nor the 

question of liability vel non had been determined 

in either case. These issues, as well as the 

damages, if any, and the question concerning the 

issuance of an injunction, were likewise included 

in the references. Under all of the circumstances, 

we believe the Court of Appeals was justified in 

finding the orders of reference were an abuse of the 

petitioner's power under Rule 53(b)[, Fed. R. Civ.

P.]. They amounted to little less than an 

abdication of the judicial function depriving the 

parties of a trial before the court on the basic 

issues involved in the litigation.'"

54 So. 3d at 896-97 (emphasis added). In the present cases, by referring 

to the special master all matters without satisfying the applicable 

standards for doing so, the circuit court abdicated its judicial function

and, thus, exceeded its discretion.

In their respective answers filed with this Court, Carmack and

Leigh and Lindsey argue that, even if it exceeded its discretion by 

referring all the matters in these cases to a special master under Rule 53, 

the circuit court had the authority to appoint a special master under § 

19-3B-201, § 19-3B-706, and § 19-3B-1001, Ala. Code 1975. The text of 

those statutes does not mention a special master, but those statutes do

give the circuit court authority to oversee the administration of a trust, 
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36

which, presumably, includes the appointment of a special master. But 

there is nothing in those statutes indicating that the appointment of a 

special master may be done independent of Rule 53. Those statutes 

generally empower a circuit court to oversee the administration of a trust, 

which would include appointing a special master in appropriate cases, 

but Carmack, Leigh, and Lindsey have not cited any authority indicating 

that such an appointment need not comply with Rule 53. Their argument 

is not persuasive.

Carmack, Leigh, and Lindsey also argue that Marshall is estopped 

from arguing that the circuit court exceeded its discretion in appointing 

a special master under Rule 53 because Marshall, in his complaint, 

requested that the circuit court appoint a special fiduciary to take 

possession of the trust property and administer the trust and conduct an 

accounting of the trust. Carmack, Leigh, and Lindsey generally allege 

that Marshall "is playing games with the [circuit] court" by challenging 

the circuit court's appointment of a special master even though he 

requested the appointment of a special fiduciary to protect the assets of 

the trust pending resolution of the underlying litigation. Carmack and 

Leigh's answer, at 25; Lindsey's answer, at 24. Carmack, Leigh, and 
SC-2023-0894, SC-2023-0895

37

Lindsey's argument is not persuasive. They have not offered any 

explanation as to how Marshall's request for the appointment of a special 

fiduciary to protect the assets of the trust pending resolution of the 

underlying litigation is inconsistent with Marshall's objection to the 

referral of the entire cases to a special master. Nor have Carmack, Leigh, 

and Lindsey provided any explanation as to why Marshall should be 

estopped from objecting to the referral to a special master of the 

accounting of the trust simply because Marshall requested an 

accounting. As discussed above, a circuit court is perfectly capable of 

conducting an accounting without appointing a special master, and

Marshall's request for an accounting is not inconsistent with his objection 

to the referral of the entire cases to a special master.

Conclusion

In summary, the circuit court's order referring all matters in these

cases to a special master exceeded its discretion. As to the referral of the 

matters to be tried without a jury, the circuit court did not indicate that 

an "exceptional condition" necessitated the referral. See Rule 53(b). As 

to the referral of the accounting, the circuit court did not indicate that 

the accounting would prove complicated in some way, and, even if the 
SC-2023-0894, SC-2023-0895

38

accounting was properly referred to a special master, the referral of an 

accounting does not justify the referral of all the other matters in the 

cases. Accordingly, we grant Marshall's petitions and order the circuit 

court to vacate its November 20, 2023, amended order referring the cases

to a special master.

SC-2023-0894 -- PETITION GRANTED; WRIT ISSUED.

SC-2023-0895 -- PETITION GRANTED; WRIT ISSUED.

Parker, C.J., and Shaw, Wise, Bryan, Sellers, Stewart, and 

Mitchell, JJ., concur.

Cook, J., recuses himself.