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Rel: 07/18/2008

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ALABAMA COURT OF CIVIL APPEALS
SPECIAL TERM, 2008

_________________________ 2070184 _________________________ Ricky Russell Marshall v. Billy Joe Cook and Virginia Cook Appeal from Bibb Circuit Court (CV-06-143) THOMPSON, Presiding Judge. In July 2006, Ricky Russell Marshall ("Marshall") filed a motion in the Bibb County Probate Court ("the probate court") seeking to remove an action pending in that court to the Bibb Circuit Court ("the circuit court"). Although the

2070184 record of the proceedings from the probate court is not before this court, the record on appeal demonstrates that a

conservatorship estate had been created in the probate court for the benefit of Marshall's son, Justin Marshall ("Justin"), who was a minor child at the time the probate action was initiated. Justin's mother, Virginia Cook, and her husband,

Billy Joe Cook, had been appointed co-conservators of that estate, and a guardian ad litem has been appointed for Justin. It appears that Marshall sought in the probate court an accounting of funds the Cooks had disbursed from the

conservatorship estate; Marshall alleged that the Cooks had wasted the assets of Justin's conservatorship estate.

Although the record on appeal demonstrates that Marshall was treated as a party before the probate court, the record does not indicate whether Marshall on asserted of his Justin claims or in a

representative

capacity

behalf

whether

Marshall proceeded in the probate court in his own name. Marshall's motion to have the probate action removed to the circuit court was made in his own name rather than in any representative capacity, and that motion was granted on August

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2070184 21, 2006. It appears that Marshall was treated as a party

asserting claims in his own name before the circuit court. On September 17, 2006, Justin's guardian ad litem moved the circuit court for an order requiring the Cooks to file an accounting for the estate. The circuit court, on September

19, 2006, entered an order granting that motion and ordering the Cooks to file an accounting of the conservatorship funds within 30 days. On October 12, 2006, the Cooks filed an

accounting in the circuit court; that accounting was not detailed and did not balance, and, therefore, Marshall

continued to ask for a more detailed accounting that precisely explained the disbursements from the conservatorship estate. On December 6, 2006, the Cooks and Justin filed in the Bibb Juvenile Court ("the juvenile court") a petition seeking to have Justin declared emancipated. The Cooks filed in the

circuit court a motion seeking to stay the action pending in that court until the juvenile court had ruled on the

emancipation petition. motion for a stay.

The circuit court granted the Cooks'

We note that shortly thereafter United

States Fidelity & Guaranty Company ("USF&G"), the issuer of the surety bond for the Cooks in their capacities as

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2070184 conservators, filed a cross-claim against the Cooks in their action in the circuit court. On April 6, 2007, the juvenile court denied the

emancipation petition. Marshall filed a motion in the circuit court asking the circuit court to schedule a hearing; he submitted a copy of the April 6, 2007, juvenile-court order in support of that motion. It does not appear that the circuit

court took any action on that motion. On October 11, 2007, the Cooks and Justin filed a

petition in the circuit court indicating that Justin had attained the age of majority on October 3, 2007, and asking for a final consent settlement of the conservatorship estate pursuant to

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