Opinion

Perdue ex rel. Perdue v. Callan Associates, Inc.

  • 87 So. 3d 1161
  • 2011 Ala. LEXIS 139
  • 2011 WL 3963007
Court
Supreme Court of Alabama
Filed
Sep 9, 2011
Status
Published
Author
Shores
On the bench
Bolin, Lyons, Main, Malone, Murdock, Parker, Shaw, Shores, Stuart, Themselves, Wise, Woodall
Cited by
5 cases

explaining that demand is excused where it would be futile

How later courts described this case

  • explaining that demand is excused where it would be futile

Written by the judges who cited it.

The opinion

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 *1172 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.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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