Ex parte Steve Marshall, etc., [Ms. SC-2024-0546, Jan. 10, 2025] __ So. 3d __ (Ala. 2025). In a per curiam opinion, the Court (Parker, C.J., and Shaw, Wise, Bryan, Mendheim, Stewart, and Mitchell, JJ., concur; Sellers, J., concurs in part and dissents in part; Cook, J., recuses) grants in part Attorney General Steve Marshall’s mandamus petition challenging the Montgomery Circuit Court’s appointment of a special fiduciary in the underlying actions involving alleged mismanagement of the Mabel Amos Memorial Fund, a charitable trust whose board members exercise discretion in awarding financial assistance to applicants desiring to pursue higher education.
The Court first rejects Marshall’s argument that the circuit court lacked jurisdiction to appoint a special fiduciary because at the time the order was entered a mandamus petition was pending before the Supreme Court challenging the appointment of a special master and explains: “the filing of a petition for the writ of mandamus, unlike the filing of a notice of appeal, does not remove jurisdiction over the underlying action from the trial court. State v. Webber, 892 So. 2d 869, 871 (Ala. 2004) (‘The filing of a petition for a writ of mandamus against a trial judge does not divest the trial court of jurisdiction, stay the case, or toll the running of any period for obeying an order or perfecting a filing in the case.’).” Ms. *22, quoting Ex parte Marshall County Department of Human Resources, 252 So. 3d 1105, 1107 n.2 (Ala. Civ. App. 2017).
On the merits, the Court observes “from the plain language of § 19-3B-1001 [Ala. Code 1975], a circuit court has the authority, when a breach of trust has occurred or may occur, to ‘order a trustee to account’ and to ‘appoint a special fiduciary to take possession of the trust property and administer the trust, among other things.” Ms. *31. And concludes “it is apparent that an appointment of a special master under Rule 53 [Ala. R. Civ. P.] is distinct from the appointment of a special fiduciary under § 19-3B-1001. A special master serves as an aid to the circuit court to obtain facts necessary for the circuit court to reach a correct result in complex litigation before it. A special fiduciary, on the other hand, serves to protect the assets of a trust from mismanagement and waste by the trustee pending litigation concerning the trust, among other things. Rule 53 and § 19-3B-1001 provide a circuit court with distinct tools that may be utilized under different circumstances.” Ms. **35-36.
The court notes that Marshall previously requested that the trial court appoint a special fiduciary, and holds he “cannot now, after requesting that the circuit court appoint a special fiduciary, plausibly argue that the circuit court erred in doing that very thing. See Mobile Infirmary Med. Ctr. v. Hodgen, 884 So. 2d 801, 808 (Ala. 2003) (‘The law is well settled that a party may not induce an error by the trial court and then attempt to win a reversal based on that error.’ A party may not predicate an argument for reversal on ‘invited error,’ that is, ‘error into which he has led or lulled the trial court.’ Atkins v. Lee, 603 So. 2d 937, 945 (Ala. 1992)(quoting Dixie Highway Express, Inc. v. Southern Ry., 286 Ala. 646, 651, 244 So. 2d 591, 595 (1971)).” Ms. *40. Accordingly, “the circuit court’s order appointing White as a special fiduciary to take possession of and administer the trust … must stand.” Ms. *41.
Finally, the Court holds “Marshall has, however, demonstrated that the circuit court exceeded its discretion by abdicating its judicial function by ordering White to make all the factual findings and dispositive legal determinations in these cases; it appears that that aspect of the circuit court’s order was an attempt to, once again, appoint a special master under Rule 53 and refer to him the dispositive legal issues of these cases. Therefore, we order the circuit court to vacate that aspect of its order.” Ms. *45.