author: IRVING, J.,

text:
    Freddie Lee PARKS, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-00882-COA.
    Court of Appeals of Mississippi.
    Sept. 2, 2003.

      Richard Burdine, Columbus, for appellant.
    Office of the Attorney General by: Billy L. Gore, for appellee.
    Before MCMILLIN, C.J., LEE and IRVING, JJ.
   IRVING, J.,

for the court.

¶ 1. Freddie Lee Parks was convicted by an Oktibbeha County jury of possession of more than thirty grams but less than 250 grams of marijuana, and sentenced to three years’ confinement in the custody of the Mississippi Department of Corrections. He appeals, asserting that the circuit court erred (1) in denying his motion for a JNOV or, in the alternative, for a new trial, (2) in disqualifying a juror for cause, and (3) in allowing testimony regarding drug paraphernalia and scales found in his home.

¶ 2. We find no merit in any of these allegations; therefore, we affirm Parks’s conviction and sentence.

FACTS

¶ 3. Parks was arrested during the execution of a search warrant on a mobile home that he shared with his wife, Lily Parks. Only Parks and his wife resided in the mobile home. One agent, Brandon Moore, testified that he served the warrant upon Lily Parks at the front door. Moore first saw Parks when other agents, who entered through the back door, led him into the living room. Moore searched Parks and found 2.7 grams of marijuana in a bag in a pocket of a bathrobe that Parks wore, and $210 in the pocket of a tee-shirt that he wore. The second agent to testify, Treddis Anderson, said he first saw Parks sitting on a bed in the master bedroom. He was at least partially undressed. After searching him for weapons, the agent allowed Parks to put on the bath robe and perhaps a tee-shirt, and led him to the living room. The third agent to testify, Mike Perkins, testified substantially in accord with Anderson. The agents also found scales similar to those used to weigh marijuana and cigarette papers sitting in plain sight on top of a dresser in the bedroom. Additionally, two marijuana cigarettes were found in a pair of men’s overalls in the bedroom. All three agents testified that when asked where the marijuana came from, Parks admitted that he had purchased four ounces of marijuana at 5:00 p.m. on the same evening that the search was conducted. However, Parks did not testify during his trial.

ANALYSIS AND'DISCUSSION OF THE ISSUES

1. Denial of Motion for Directed Verdict and JNOV

¶ 4. Park argues that the trial court erred in not granting him a directed verdict at the close of the evidence, as well as not granting a JNOV following the jury’s verdict. In support of his argument he asserts that, while 171.3 grams of marijuana were seized from the mobile home, only 2.7 grams were found on his person. The rest was found in several bags in the master bedroom. Parks further contends that, because the mobile home was owned solely by his wife, the evidence was insufficient to show that he possessed a sufficient amount of marijuana to be found guilty of the crime for which he was convicted (more than thirty grams but less than 250 grams). Apparently, his theory of the case was that the marijuana belonged solely to his wife.

¶ 5. When reviewing the motion for a directed verdict or JNOV, the reviewing court must consider the evidence in a light most favorable to the State. Gavin v. State, 473 So.2d 952, 956 (Miss.1985). The contentions made by the State should be taken as true. Id. Additionally, the State is entitled to all favorable inferences that can be reasonably taken from the evidence introduced. Id. If the evidence is of a nature that fair-minded reasonable persons could not have found the defendant guilty beyond a reasonable doubt, then this Court must reverse. Id.

¶ 6. Possession of a controlled substance must be knowing and intentional. Keys v. State, 478 So.2d 266, 268 (Miss.1985). Parks’s admission to having purchased four ounces of marijuana is direct evidence, which in itself would support the guilty verdict. Nevertheless, Parks asserts that there was insufficient circumstantial evidence to support a finding of constructive possession. “Where the defendant is not in exclusive possession of the premises where the narcotics are found, other competent evidence must exist connecting him to the narcotics.” Garner v. State, 832 So.2d 624(¶ 4) (Miss.Ct.App.2002) (citing Powell v. State, 355 So.2d 1378, 1379 (Miss.1978)). While, there was no question that Parks resided in the mobile home with his wife, Parks was not in exclusive possession of the premises.

¶ 7. When a defendant is not in exclusive control of the premises, proximity to a controlled substance is “suggestive” of constructive possession. Powell v. State, 355 So.2d 1378, 1379 (Miss.1978). The facts that he was first seen in the bedroom where the marijuana was recovered, and that he had 2.7 grams of it on his person, support a finding of constructive possession. Additionally, two marijuana cigarettes were found in a pair of men’s overalls, and no other male lived in the mobile home. Further, on top of a dresser in the bedroom, the agents found a set of scales similar to those used to weigh marijuana and two boxes of rolling papers. Parks objected to the introduction of the paraphernalia, and the State responded that the evidence was relevant to show dominion and control. The trial court allowed testimony and photographs concerning the paraphernalia. The combination of the money found on his person and his proximity to paraphernalia used to sell marijuana, was suggestive of possession.

¶ 8. There was direct evidence, as well as circumstantial evidence, tending to constructively tie Parks to the marijuana found in the bedroom. This assignment of error is without merit.

2. Disqualification of Juror

¶ 9. Parks complains that the trial court improperly disqualified a juror for cause. However, he failed to include in the record a transcript of the voir dire of the veniremen. Further, it appears from the record that he did not object to the makeup of the jury, for the record contains the following statement by the trial judge following the off-record selection of the jury: “Let the record reflect that both sides are satisfied with jury selection.” Consequently, any merit to this issue was waived by the failure to make a record of the objection to the challenge for cause. The failure to make a record of objections to the make up of the jury waives any issue on appeal. Mosley v. State, 832 So.2d 589(¶ 7) (Miss.Ct.App.2002).

¶ 10. Moreover, assuming the issue was not waived, which we do not, it would be without merit. Parks asserts in his brief that “[jjuror number three stated that the Defendant was the paternal grandfather of her daughter. She further stated she barely knew Parks and that the fact she knew him would not affect her ability to serve on the jury.... The court subsequently disqualified her for cause.” The standard of review of the decision to grant or deny a challenge for cause is abuse of discretion. Sewell v. State, 721 So.2d 129(¶ 29) (Miss.1998). Even assuming this issue is not waived, the decision to excuse a juror whose daughter is the granddaughter of a defendant cannot be an abuse of discretion.

S. Admission of Evidence of Paraphernalia

¶ 11. Parks contends that the trial court erred in overruling his objection to evidence of the paraphernalia. Parks’s objection went only to relevancy. He objected that the paraphernalia was not relevant. The decision of whether evidence is relevant is subject to an abuse of discretion review. Adams v. State, 794 So.2d 1049(¶ 8) (Miss.Ct.App.2001). The fact of Parks’s proximity to the paraphernalia that could be used in the purchase and consumption of marijuana was relevant in showing constructive possession. The trial court did not abuse its discretion. There is no merit to this assignment of error.

¶ 12. THE JUDGMENT OF THE OK-TIBBEHA COUNTY CIRCUIT COURT OF THE CONVICTION OF POSSESSION OF GREATER THAN THIRTY GRAMS BUT LESS THAN 250 GRAMS OF MARIJUANA AND SENTENCE TO SERVE A TERM OF THREE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO APPELLANT.

McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, MYERS, CHANDLER AND GRIFFIS, JJ„ CONCUR.


source: Caselaw Access Project

author: JOHNSTONE, Justice. HOUSTON, Justice

license: Public Domain

text:
    WENGER TREE SERVICE v. ROYAL TRUCK & EQUIPMENT, INC.
    1011373.
    Supreme Court of Alabama.
    Dec. 20, 2002.

      Stuart E. Smith, Huntsville, for appellant.
    Jackson E. Duncan III, Huntsville, for appellee.
   JOHNSTONE, Justice.

Introduction

The only issue presented in this appeal is whether the trial court erred in granting the motion of the defendant Royal Truck & Equipment, Inc., to dismiss the civil action of the plaintiff Wenger Tree Service on the ground of lack of personal jurisdiction over the defendant. We reverse and remand.

State of the case

In the Madison County Circuit Court, Wenger Tree Service, an Alabama sole proprietorship engaged in the business of tree removal, sued the defendant Royal Truck & Equipment, Inc. (“Royal”), a Pennsylvania corporation engaged in the business of acquiring, refurbishing, and selling specialized trucks used by landscapers and arborists. Wenger sought specific performance of Royal’s alleged contractual obligation “to deliver properly endorsed legal title to” a specialized truck bought and received by Wenger from Royal. Wenger also sought judgment for title to the truck pursuant to Rule 70, Ala. R. Civ. P. Wenger complained that, although it had fully performed the conditions of the contract, Royal had failed to deliver title to the truck.

Pursuant to Rule 12(b)(2), Ala. R. Civ. P., Royal moved to dismiss Wenger’s action for lack of personal jurisdiction. In support of the motion to dismiss, Royal submitted a brief and three affidavits, one by the president of Royal, Robert Roy; a second by the sales manager of Royal, Steven Haman; and a third by an attorney for Royal, John Roberts. In opposition to the motion to dismiss, Wenger submitted a brief and two affidavits, one by the sole owner of Wenger, Marc Wenger, and a second by a Madison County resident who had communicated with Royal through Email, one Patricia Huber. The respective parties submitted exhibits as well. After a hearing, the trial court granted Royal’s motion to dismiss.

Facts

Wenger’s complaint, which is verified under oath, alleges:

“4. Royal has done business by agent in Madison County, Alabama.
“5. Wenger invokes personal jurisdiction over Royal pursuant to Rule 4.2, Ala. R. Civ. P.
“6. Wenger is engaged as a tree surgeon, and uses heavy trucks and other equipment in the course of its business.
“7. Wenger and Royal were parties to a previous sale transaction whereby Wenger purchased a 1984 International knuckle boom truck from Royal, which was delivered by Royal to Wenger in Madison County.
“8. In November of 2001, the parties negotiated a sale of a 1991 International 4900 truck (VIN 1HTSDZ27N9MH321953) with Wenger trading the 1984 International previously bought from Royal back to Royal as partial consideration for the purchase of the new truck. See attached ‘Sales Invoice.’ (Exhibit A) Wen-ger paid a deposit of $5,000 prior to Royal commencing work to customize the purchase vehicle.
“9. Wenger also paid Royal the additional sum of $14,503.13 to complete the agreed purchase price for the 1991 truck.
“10. Wenger forwarded photographs of the 1984 trade vehicle to depict the condition of the vehicle, which is now 18 years old.
“11. On or about November 14, 2001, Wenger signed both the Sales Invoice and a second, untitled document relating to the trade vehicle. (Exhibit B)
“12. On or about November 24, 2001, Royal delivered the 1991 purchase vehicle to Wenger in Madison County. Wenger tendered the trade vehicle to the firm retained by Royal and signed over title to the trade vehicle in favor of Royal. See ‘Delivery Receipt.” (Exhibit C)
“13. As of November 24, 2001, Wen-ger’s performance was complete.
“14. The delivery service took possession of the trade vehicle and shortly thereafter delivered the trade vehicle to Royal in Coopersburg, Pennsylvania. An authorized representative of Royal, Steve Haman, thereafter signed the Sales Invoice and the untitled document attached as Exhibits A and B on behalf of Royal on December 3, 2001.”

The exhibits establish further facts. Marc Wenger initiated transactions with Royal by telephone, both in 1998 and in 2001, after Wenger noticed an advertisement for specialized trucks for sale by Royal in Tree Care Industry, a national trade magazine distributed to Wenger in Madison County. In the transaction now at issue, Wenger received through the mail a sales invoice showing that, after a $5,000 down payment, Wenger would owe Royal $14,503.13 for the purchase of the 1991 truck. With the invoice, Wenger also received a letter contract stating the terms and conditions of his trade-in of the 1984 truck and his purchase of the 1991 truck. Wenger signed both documents on November 14, 2001. Wenger alleges under oath that he paid the full purchase price.

On November 24, 2001, J.T.G. Trucking, a Pennsylvania shipping company, delivered the refurbished 1991 truck to Wenger in Madison County. The delivery receipt shows “Royal Truck, Rt. 309, Coopers-burg, PA,” as the “shipper” of one “Truck Dumpbox Ser# 1HTSDZ27N9MH321953” and shows “Marc Wenger Tree Service, 105 Carot [sic] Drive, Harvest, AL 35749,” as the consignee. The delivery receipt, which shows the shipment as prepaid, is signed by Marc Wenger. After delivering the 1991 truck to Wenger, J.T.G. Trucking then transported the 1984 trade-in truck back to Royal in Pennsylvania.

The affidavit of Royal President Roy reads:

“1. I am the President and sole owner of Royal Truck & Equipment, Inc., a closely held business corporation organized and existing under the Business Corporation Law of the Commonwealth of Pennsylvania, with a mailing address of 6910 Rt. 309, Coopersburg, Pennsylvania.
“2. The nature of the business of Royal Truck & Equipment, Inc., is the acquisition, refurbishing and conversion of used trucks for special application uses (not serviced by Original Equipment Manufacturers) such as specialized vehicles for landscaping and lawn care, and arborists.
“3. All refurbishing and conversion work is done at our business facility located in Coopersburg, Pennsylvania except for some specialty work, such as painting, which is outsourced to nearby specialty facilities.
“4. The Corporation [Royal] is not registered to do business in the State of Alabama and pays no taxes in the State of Alabama.
“5. To the best of my recollection, the Corporation has not sold any of its products to any other resident of Alabama other than the Plaintiff.
“6. The Corporation has never purchased or sold any trucks or supplies or equipment to or from any state or local government agency in the State of Alabama.
“7. To the best of my knowledge, the Corporation does not purchase any supplies or products directly from Alabama manufacturers and if any product or equipment that we routinely use is manufactured in the State of Alabama I am unaware of it.
“8. The Corporation advertises in some publications in the local market (the Allentown/Bethlehem/Ea-ston standard statistical metropolitan area) and in some regional and national trade publications but has never placed any advertising in the State of Alabama or any publication originating in or (to our knowledge) published in the State of Alabama.
“9. The vast majority of the Corporation’s business is conducted with customers from the tri-state area (Pennsylvania, New Jersey and New York) with substantially fewer customers coming from other states in the northeast region of the United States.
“10. The Corporation does advertise its products in national trade publications and it is my understanding from conversations with the Corporation’s Sales Manager, Mr. Stephen Haman, that an advertisement in a national trade publication is how the Plaintiff first became aware of our products and location in 1998.
“11. The Corporation does not advertise in any newspapers other than those published in the LeHigh Valley in Pennsylvania and the Corporation does not solicit business via telephone calls or any kind of telephone bank nor does the Corporation do direct mail advertising. Accordingly, the Corporation does not and has not solicited business customers in the State of Alabama, directly or indirectly, except as might be incidental to advertisements in nationally circulated trade publications.
“12. It is my recollection that the first and only other time that the Plaintiff had dealings with the Corporation was in 1998 in response to one of our ads in a national trade publication when he contacted Mr. Haman by telephone and, after much discussion/negotiation, ordered from us a specialty truck which we manufactured for him. On that occasion, he arranged for payment for the vehicle in advance and, furthermore, he made his own arrangements with a local independent transport company, J.T.G. Transport (whose name we gave him), to transport the completed vehicle along with another vehicle he purchased from other entity in Connecticut from Pennsylvania to Alabama. That is, he placed a telephone call to our facilities in Coopersburg, Pennsylvania and ordered the specialty truck. The truck was manufactured entirely at our corporate facility in Coopersburg, Pennsylvania. The purchase price was paid in Pennsylvania in full before the vehicle left our premises and was delivered by us to a third party in Pennsylvania with whom the plaintiff had made pick-up and transportation arrangements so as to get the vehicles he purchased from us as well as the other vehi-cíes he purchased from some other entity from Pennsylvania to Alabama.
“13. Having once satisfactorily done business with us several years ago, the Plaintiff again called our offices in November of 2001 to purchase a newer and different specialty truck for his business. The pertinent details of that transaction are outlined in my three page letter to the Plaintiff dated December 3, 2001 and the attachments thereto which are appended to this affidavit at the end hereof.”

The December 3, 2001, letter states that Roy had telephoned Marc Wenger to discuss the condition of the trade-in truck and at that time Wenger had made representations about the truck that were not true. Attached to the letter was a list of repairs and costs that Royal demanded Wenger pay.

The other affidavits submitted by Royal do not contain facts on the issue before us whether Royal had sufficient minimum contacts with Alabama, except that Royal’s attorney for the past decade states in pertinent part in his affidavit: “I have never encountered or heard of any transaction which had any contact (in the legal sense) with the State of Alabama other than the transactions which are the subject of the instant suit in Madison County, Alabama.”

Marc Wenger states in his affidavit:

“1. In 1998, I first learned of Royal Truck and Equipment, Inc., from an advertisement placed in Tree Care Industry magazine, which is delivered to me here in Madison County.
“2. In response to that advertisement, I called Royal and after some negotiations purchased a truck for use in my tree service business which has operated here in Madison County for several years. In the next several years, Royal sent a Christmas card to me and continued to advertise in publications delivered to me.
“3. In later 2001, I again saw a Royal advertisement of a newer and larger truck for sale by Royal in a trade publication delivered to me in Madison County. See Exhibit A hereto.
“A. After several telephone calls from and to Royal, I agreed to trade the first vehicle for the second, and to pay Royal additional money-
“5. I delivered the trade vehicle to a carrier sent by Royal into Madison County, paid the additional money, and signed title to the first truck back to Royal.
“6. I accepted delivery of the newer 1991 vehicle here in Madison County, and Royal delivered temporary tag to me here. See Exhibit B hereto.
“7. Royal has failed to endorse title to the second vehicle to me.
“8. I am unable to obtain the required registration and tag from the State of Alabama without the endorsed title from Royal.
“9. After the contract was consummated here in Madison County and Royal’s delivery truck had returned to Pennsylvania, I received telephone calls from Royal at my home in Madison County complaining about the condition of the trade vehicle.
“10. I know from personal knowledge and Royal publications (including website) that Royal has done business with other residents of Alabama and states located all over the Continental United States. See Exhibit A hereto (testimonial by Colorado resident).”

The affidavit of Patricia Huber, another Madison County resident, states:

“On March 1, 2002,1 corresponded via electronic mail with Royal Truck and Equipment in Pennsylvania through Royal’s Internet site ‘royaltruckequipment.com.’ I obtained the web address from a print advertisement placed by Royal in Tree Care Industry Magazine here in Huntsville.
“My text message to Steve Haman, slsmgr@royaltruckequipment.com’ is in the e-mail hard copy attached hereto as Exhibit A. I inquired as to whether Royal has a sales representative for Huntsville, Alabama. Mr. Haman responded to my e-mail that Royal does not have road salespeople in my area, but that he would be ‘more than happy' to send me information about Royal’s products and services.”

Law and Analysis

“In considering a Rule 12(b)(2), Ala. R. Civ. P., motion to dismiss for want of personal jurisdiction, a court must consider as true the allegations of the plaintiffs complaint not controverted by the defendant’s affidavits, Robinson v. Giarmarco & Bill, P.C., 74 F.3d 253 (11th Cir.1996), and Cable/Home Communication Corp. v. Network Productions, Inc., 902 F.2d 829 (11th Cir.1990), and ‘where the plaintiffs complaint and the defendant’s affidavits conflict, the ... court must construe all reasonable inferences in favor of the plaintiff.’ Robinson, 74 F.3d at 255 (quoting Madara v. Hall, 916 F.2d 1510, 1514 (11th Cir.1990)). ‘For purposes of this appeal [on the issue of in personam jurisdiction] the facts as alleged by the ... plaintiff will be considered in a light most favorable to him [or her].’ Duke v. Young, 496 So.2d 37, 38 (Ala.1986).”

Ex parte McInnis, 820 So.2d 795, 798 (Ala.2001). “An appellate court considers de novo a trial court’s judgment on a party’s motion to dismiss for lack of personal jurisdiction.” Elliott v. Van Kleef, 830 So.2d 726, 729 (Ala.2002).

Rule 4.2(a), Ala. R. Civ. P., prescribes the contacts with this State that supply the bases for personal jurisdiction over a nonresident. Rule 4.2(a) provides, in pertinent part:

“(2) Sufficient Contacts. A person has sufficient contacts with the state when that person, acting directly or by agent, is or may be legally responsible as a consequence of that person’s
“(A) transacting any business in this state;
“(B) contracting to supply services or goods in this state;
“(I) otherwise having some minimum contacts with this state and, under the circumstances, it is fair and reasonable to require the person to come to this state to defend an action. The minimum contacts referred to in this subdivision (I) shall be deemed sufficient, notwithstanding a failure to satisfy the requirement of subdivisions (A)-(H) of this subsection (2), so long as the prosecution of the action against a person in this state is not inconsistent with the constitution of this state or the Constitution of the United States.”
“Rule 4.2, Ala. R. Civ. P., extends the personal jurisdiction of Alabama courts to the limit of due process under the federal and state constitutions. Sieber [v. Campbell, 810 So.2d 641 (Ala.2001) ]. See also World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980); Duke [v. Young, 496 So.2d 37 (Ala.1986) ]; Brooks v. Inlow, 453 So.2d 349 (Ala.1984); and Alabama Waterproofing Co. v. Hanby, 431 So.2d 141, 144-146 (Ala.1983). ‘A physical presence in Alabama is not a prerequisite to personal jurisdiction over a nonresident.’ Sieber, 810 So.2d at 644. See also Sudduth [v. Howard], 646 So.2d [664,] 667 [ (Ala.1994) ].
“ ‘ “ ‘What is required is that the out-of-state resident have “some minimum contacts with this state [so that], under the circumstances, it is fair and reasonable to require the person to come to this state to defend an action.” Rule 4.2(a)(2)(I), Ala. R. Civ. P. [ (Emphasis added.) ]
“ ‘ ‘ ‘[D]ue process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend “traditional notions of fair play and substantial justice.” ’ ” ’ McGee v. International Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957), quoting International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945). Alabama’s long-arm statute (Rule 4.2, Ala. R. Civ. P.) has been interpreted by this Court to extend the jurisdiction of Alabama courts to the permissible limits of due process. DeSotacho, Inc. v. Valnit Industries, Inc., 350 So.2d 447 (Ala.1977); Duke v. Young, 496 So.2d 37 (Ala.1986).
“ ‘ “ Alabama’s long-arm procedure for service of process is not limited to “rigid transactional categories” or subject to a mechanical formula. Alabama Waterproofing Co. v. Hanby, 431 So.2d 141 (Ala.1983). Instead, the relevant facts and attendant circumstances must be examined and the relationship among the defendant, the forum, and the litigation analyzed to determine if the defendant has sufficient “minimum contacts” so that “the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” International Shoe Co. v. Washington.’ ” [ (Emphasis added.) ]
“ ‘ “A relevant factor in a due process analysis is whether the defendant should have reasonably anticipated that he would be sued in the forum state. [ (Emphasis added.) ] In Dillon Equities[ v. Palmer & Cay, Inc., 501 So.2d 459, 462 (Ala.1986) ], this Court, quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980), noted:
“ ‘ “ ‘ “The foreseeability that is critical to due process analysis ... is that the defendant’s conduct and connection with the forum state are such that he should reasonably anticipate being haled into court there.” (Citations omitted.) [ (Emphasis added.) ]’ ” ’
“Sudduth, 646 So.2d at 667 (quoting Knowles v. Modglin, 553 So.2d 563, 565-66 (Ala.1989)).”

Ex parte McInnis, 820 So.2d at 802-03.

“Jurisdiction ... may not be avoided merely because the defendant did not physically enter the forum State. Although territorial presence frequently will enhance a potential defendant’s affiliation with a State and reinforce the reasonable foreseeability of suit there, it is an inescapable fact of modem commercial life that a substantial amount of business is transacted solely by mail and wire communications across state lines, thus obviating the need for physical presence within a State in which business is conducted. So long as a commercial actor’s efforts are ‘purposefully directed’ toward residents of another State, we have consistently rejected the notion that an absence of physical contacts can defeat personal jurisdiction there.”

Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476, 105 S.Ct. 2174, 2184, 85 L.Ed.2d 528 (1985) (emphasis on “physically” in original; other emphasis added; citations omitted).

“ ‘Two types of contacts can form a basis for personal jurisdiction: general contacts and specific contacts. General contacts, which give rise to general personal jurisdiction, consist of the defendant’s contacts with the forum state that are unrelated to the cause of action and that are both ‘continuous and systematic.’ Specific contacts, which give rise to specific jurisdiction, consist of the defendant’s contacts with the forum state that are related to the cause of action. Although the related contacts need not be continuous and systematic, they must rise to such a level as to cause the defendant to anticipate being haled into court in the forum state.’ ”

Elliott v. Van Kleef, 830 So.2d at 730 (quoting Ex parte Phase III Constr., Inc., 723 So.2d 1263, 1266 (Ala.1998) (Lyons, J., concurring in the result) (citations omitted)).

In four cases substantially similar to case now before us, Knowles v. Modglin, 553 So.2d 563 (Ala.1989), Ex parte Pope Chevrolet, Inc., 555 So.2d 109 (Ala.1989), Atlanta Auto Auction, Inc. v. G & G Auto Sales, Inc., 512 So.2d 1334 (Ala.1987), and Garrett v. Key Ford, Inc., 403 So.2d 923 (Ala.Civ.App.1981), Alabama appellate courts held that nonresident defendant companies which had sold goods directly to Alabama plaintiffs had sufficient minimum contacts with Alabama to justify personal jurisdiction in our courts. While each of the four differs in some respect from the case before us, the four together bespeak the importance of a direct sale by a nonresident seller to an Alabama plaintiff as a contact by the nonresident with the state of Alabama. These four seem to be all of the Alabama appellate decisions addressing the issue of whether our courts can exercise personal jurisdiction over a nonresident who or which has sold a product directly to an Alabama plaintiff.

In the first case, Knowles, supra, the Alabama resident plaintiffs husband died in California. Through an Alabama funeral home, the plaintiff contracted with the defendant California domiciliary funeral home for it to prepare the husband’s body for burial, to supply a casket, and to ship the body in the casket to Alabama. After the defendant did so, the plaintiff, on contract and tort theories, filed suit in Alabama against the defendant for failing to prepare the body properly. Knowles does not suggest that the Alabama funeral home was the agent of the California defendant. The only contacts of the California defendant with Alabama were the onetime preparation of the body, sale of the casket, and shipment of body and casket, and the communications and billings entailed by this one contract. Yet this Court held that Alabama could exercise personal jurisdiction over the California defendant:

“[The defendant] ha[s] established significant contacts with this state by agreeing to prepare and to ship Mr. Knowles’s body to the family here. We note that this preparation included the embalming of the body. In addition, [the defendant] sold Mrs. Knowles a casket, in which the body was shipped and later solicited payment by mail in Alabama. Although the record does not show that [the defendant] had ever done business with anyone else in this state, it is apparent that [the defendant] purposefully availed itself of the privilege of conducting business in Alabama in this instance. In doing so, [the defendant] should have reasonably anticipated being summoned to an Alabama court to answer any charges of misconduct in connection with the handling and shipment of Mr. Knowles’s body. This is especially true given the sensitive nature of the mortuary business. Furthermore, given the progress in communications and transportation that has been made in recent years in this country, we cannot say that it would be unduly burdensome for [the defendant] to defend against the present suit in an Alabama court. [The defendant], by its contacts with Alabama, not only invoked the protections and benefits of Alabama’s laws, which it could have taken advantage of had it found it necessary to enforce its right to payment for services rendered and goods sold, but it also subjected itself to the jurisdiction of an Alabama court to resolve the conflicts that arose out of its business dealings with the plaintiffs.
“Considering the nature of [the defendant’s] activity, the resultant foreseeability of its being required to defend an action in Alabama, the obvious interest of the plaintiffs in obtaining convenient and effective relief, and the relative lack of inconvenience that would be incurred by [the defendant] in appearing and defending against the action in an Alabama court, World-Wide Volkswagen Corp., [444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980) ]; Dillon Equities [v. Palmer & Cay, Inc., 501 So.2d 459 (Ala.1986) ], we are convinced that it is ‘fair and reasonable’ to require it to defend against this action in Alabama.”

Knowles, 553 So.2d at 567 (emphasis added).

In the second case, Pope Chevrolet, supra, the Alabama resident plaintiff sued the defendant Georgia automobile dealer in Alabama for fraud and breach of contract in selling a truck to the plaintiff in Georgia. The defendant knew the plaintiff was an Alabama resident who would use the truck in Alabama. The defendant had advertised vehicles for sale through television advertisements and newspaper advertisements respectively broadcast by an Atlanta television station, which the plaintiff received, and printed in a regional newspaper, the Atlanta Constitution, which the plaintiff received. According to the defendant, its advertisements were directed to the Atlanta market and only one-tenth of one percent of its sales were made to Alabama residents. According to the plaintiff, the defendant’s sales figures showed that the defendant sold eight or nine vehicles per year to Alabama residents, and those sales produced income in excess of $100,000 to the defendant. This Court found that this case presented these questions:

“Can an automobile dealer be said to have purposefully availed itself of the benefits and protections of the laws of another state simply by selling a vehicle to one whom the dealer knows to be a resident of another state? Is the fact that defendant’s advertising reached the plaintiff significant, even if the defendant did not aim its advertising at Alabama residents?”

Pope Chevrolet, 555 So.2d at 113. Analyzing both the stream of commerce test and the minimum contacts test, this Court held:

“[W]e conclude that [the plaintiff] has shown that [the defendant] has established at least the minimum contacts with Alabama necessary to subject it to jurisdiction of the courts of this State. [The defendant] is a large-volume dealership that does some of its business with residents of neighboring states, including Alabama. It advertises in a regional newspaper, the Atlanta Constitution, and with Atlanta television station WTBS, whose programming is broadcast in other states. Thus, [the defendant] can reasonably be said to be soliciting sales from beyond the borders of Georgia.”

Pope Chevrolet, 555 So.2d at 114.

In the third case, Atlanta Auto Auction, supra, the plaintiff Alabama automobile seller, on theories of fraud and negligence, sued the defendant Georgia automobile auction company for selling him a car with mechanical problems. The plaintiff had purchased numerous automobiles from the defendant before the plaintiffs purchase of the bad car. The defendant knew that the plaintiff was an Alabama resident automobile seller. Over the years, the plaintiff had received through the mail brochures from the defendant offering special sales and announcing auctions to be held by the defendant in Georgia. The plaintiff also had received “other solicitations to buy and sell automobiles, through Atlanta Auction.” 512 So.2d at 1335. As grounds for the defendant’s motion to dismiss the plaintiffs action for lack of personal jurisdiction, the defendant asserted that “it is not qualified to do business in Alabama, that it does not have a personal representative in Alabama, and that it has never sent a representative to Alabama for any purpose.” 512 So.2d at 1335. Applying the minimum contacts test, this Court held:

“It is uncontested that [the defendant] actively solicited [the plaintiffs] business and through the mail services advertised its sales to be held in Georgia. It is also uncontested that [the plaintiff] had purchased numerous automobiles from [the defendant] and transported them to Alabama to ultimately sell to his customers. Furthermore, at all such times, [the defendant] knew that both [the plaintiff] and the company he worked for had their principal places of business in Scottsboro, Alabama. Based on the foregoing facts, we find that [the defendant] engaged in a ‘continuous and systematic’ course of conduct in Alabama, albeit through mail services, that will support a reasonable exercise of jurisdiction by the courts of Alabama.
“[The defendant] ‘purposefully directed’ its merchandising efforts toward the residents and businesses of another state. By so doing, [the defendant] ‘purposefully availed’ itself of the privilege of making sales to, and profits from, Alabama residents through a continuous and systematic course of merchandising. For the privilege of conducting such activities, [the defendant] must bear the burden commensurate with the benefits received from its sales in Alabama.”

Atlanta Auto Auction, 512 So.2d at 1335-36 (citations omitted).

In the fourth case, Garrett, supra, the Alabama resident plaintiff sued the defendant Florida automobile company in Alabama for fraud in misrepresenting the mileage on a truck the plaintiff had bought from the defendant in Florida. The plaintiff had bought three other vehicles from the defendant in the four years preceding the subject sale. The defendant knew the plaintiff was an Alabama resident who would use the truck in Alabama. The defendant had placed television advertisements inviting Alabamians to come to Florida and to buy and to sell with the defendant. The plaintiff had seen these advertisements. The plaintiff also had received from the defendant “numerous cards and letters directed both to his address and only to Box Holder to bring his cars to [the defendant] for service or soliciting the purchase of vehicles from [the defendant].” 403 So.2d at 933-34. The defendant collected Alabama sales tax on the vehicles purchased by the plaintiff and forwarded the necessary papers to Alabama for the plaintiff to obtain title on his vehicles. Moving to dismiss the plaintiffs suit for lack of personal jurisdiction, the defendant asserted that it had sold the vehicle to the plaintiff in Florida, that no part of the transaction occurred in Alabama, and that the defendant did not do business in Alabama. Applying the minimum contacts test to hold that the defendant had sufficient minimum contacts with Alabama to justify personal jurisdiction in the Alabama courts, the Court of Civil Appeals said:

“It is perfectly legitimate, as well as being consistent with good business practice, for a local or regional seller of goods in its television advertisements to pointedly seek customers from a named city or locality in an adjoining state. When a seller so specifically advertises, when they also solicit purchasers of their product by especially addressed mail as well as that directed to box holders, when they sell a product to a nonresident neighbor with knowledge that it will be utilized in that person’s state of residence, and when, as here, the product happens to be a motor vehicle upon which they prepare and obtain the proper title instruments from the purchaser’s home state, the minimum contact requirements have been met. Under these circumstances, Key Ford could have reasonably anticipated being sued in Alabama for the alleged fraud or misrepresentation. The courts of either Florida or Alabama could conveniently, expeditiously and efficiently dispose of the controversy. It does not appear that any appreciable inconvenience would be suffered by either party by a trial of this case in either state. Neither forum is distant as to either party. Had the defendant been sued in Florida, that state’s courts would have had jurisdiction, but the two states have concurrent jurisdiction, for it is not unreasonable to authorize the disposition of the case through Alabama’s courts. It is no longer true that the issue is sometimes determined by whether the defendant is ‘doing business’ in Alabama or whether his action 'accrued’ here. Now, the focus is not on the defendant’s presence in Alabama, but upon whether, under these facts, it had such contact with Alabama as to make it reasonable to require [the defendant] to defend this civil action in Alabama. International Shoe Co. v. State of Washington, supra.

Garrett, 403 So.2d at 925 (emphasis added; citations omitted).

Wenger argues initially that its action is quasi in rem and thus that “this Court need not find general in personam jurisdiction over a nonresident in order to grant [it] relief.” However, even if the action be quasi in rem, in Shaffer v. Heitner, 433 U.S. 186, 207, 97 S.Ct. 2569, 2581, 53 L.Ed.2d 683 (1977), the United States Supreme Court held that the minimum contacts test of International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), applies to in rem and quasi in rem actions. See Bearden v. Byerly, 494 So.2d 59 (Ala.1986). Wenger argues further that Royal has sufficient contacts with the State of Alabama to require Royal to come to Alabama and to defend against Wenger’s action.

In the case before us, and in the words of Rule 4.2(a)(2), Royal “has sufficient contacts with the state [of Alabama] ... [because Royal] is or may be legally responsible as a consequence of [Royal’s] [emphasis added]

“(A) transacting any business in this state;
“(B) contracting to supply services or goods in this state.... ”

These contacts are grounds for the exercise of specific personal jurisdiction. See Van Kleef, supra. Moreover, the particular circumstances of Royal’s transaction fulfill the requirement of Rule 4.2(a)(2)(I) that “it is fair and reasonable to require [Royal] to come to this state to defend [Wenger’s] action” and our case-law requirement that Royal “should reasonably anticipate being haled into court [in Alabama],” McInnis, 820 So.2d at 803, and Van Kleef, 830 So.2d at 726. While the case before us may lack the intensity or focus of the solicitations, and the volume of the sales, present in Pope Chevrolet, Atlanta Auto Auction, and Garrett, supra, and may lack the “sensitive nature of the mortuary business” — the “nature of [the California defendant’s] activity,” present in Knowles, 553 So.2d at 567, the case before us has its own set of special circumstances which justify the exercise of personal jurisdiction by our courts:

1. Royal, on two separate occasions, sold trucks directly to Wenger;
2. Royal customized the trucks to meet Wenger’s particular specifications;
3. Royal negotiated the details of the customization directly with Wenger;
4. Royal negotiated the price and terms of the sale directly with Wen-ger;
5. Royal negotiated the terms of Wen-ger’s trade-in directly with Wenger; and
6. Royal shipped the trucks directly to Wenger.

Royal cannot be surprised at being “haled into court” in Alabama; “it is fair and reasonable to require [Royal] to come to this state to defend,” Rule 4.2(a)(2)(I).

Conclusion

The contacts by Royal with the state of Alabama were sufficient to subject Royal to specific personal jurisdiction in the courts of Alabama. Accordingly, the judgment of the trial court dismissing Wen-ger’s complaint for want of personal jurisdiction over Royal is due to be reversed and this cause remanded.

REVERSED AND REMANDED.

MOORE, C.J., and LYONS and WOODALL, JJ., concur.

HOUSTON, J., concurs specially.

HOUSTON, Justice

(concurring specially).

Considered in the light most favorable to Wenger Tree Service, see Ex parte McInnis, 820 So.2d 795 (Ala.2001), Wenger’s verified complaint and affidavits substantiate that Royal Truck & Equipment, Inc., engaged in actions purposefully directed toward Alabama, the forum state, so as to indicate an intent or purpose to serve a market in Alabama. Asahi Metal Indus. Co. v. Superior Court of California, Solano County, 480 U.S. 102, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987); Sudduth v. Howard, 646 So.2d 664 (Ala.1994); Ex parte McInnis, supra. Jurisdiction of Royal under the long-arm statute comports with due process under the federal and state constitutions. U.S. Const., Amend. XIV; Art, I, § 6, Ala. Const.1901.


author:
STUART, Justice.
     LYONS, Justice,

text:
    Ex parte Jerry Dwight STEWART. (In re Jerry Dwight Stewart v. State of Alabama).
    1011381.
    Supreme Court of Alabama.
    Dec. 20, 2002.

      Allen W. May, Jr., Tuscaloosa, for petitioner.
    William H. Pryor, Jr., atty. gen., and Andy S. Poole, asst. atty. gen., for respondent.
   STUART, Justice.

Jerry Dwight Stewart was convicted of first-degree robbery, see § 13A-8-41, Ala. Code 1975, and was sentenced, pursuant to the Habitual Felony Offender Act, § 13A-5-9, Ala.Code 1975, to 20 years and 1 day in prison. The Court of Criminal Appeals affirmed his conviction and sentence in an unpublished memorandum. See Stewart v. State, (No. CR-00-2136, Feb. 22, 2002) 854 So.2d 1217 (Ala.Crim.App.2002)(table). We affirm.

In April 1999, four men robbed Harry Sansom and James Hartley at gunpoint. Stewart was identified as a suspect in the robbery. An arrest warrant, in which an appearance bond in the amount of $25,000 was set, was issued for Stewart. Stewart was arrested in Portland, Oregon.

On July 30, 1999, after Stewart was extradited to Alabama, the Tuscaloosa District Court conducted Stewart’s initial appearance pursuant to Rule 4.4, Ala. R.Crim.P. At the initial appearance, the court informed Stewart of the charges against him, of his right to representation by counsel, of his right to remain silent, and of his right to a preliminary hearing. During the initial appearance, Stewart completed an affidavit of substantial hardship. On the form, however, Stewart did not indicate that he was “financially unable to hire an attorney” and did not “request that the Court appoint one for [him].” The district court entered an order appointing an attorney from the public defender’s office to represent Stewart. The district court also determined that the amount of Stewart’s appearance bond— $25,000 — was proper. Stewart, however, was unable to post bail, and he remained incarcerated in the Tuscaloosa County jail.

Before Stewart’s preliminary hearing, two officers interviewed Stewart at the jail. The officers, unaware that counsel had been appointed for Stewart on the day of the initial appearance, informed Stewart of his Miranda rights. Stewart did not request an attorney; he signed a waiver of his rights and talked with the officers. Stewart did not invoke his right to counsel at any time during the interview. Stewart provided the officers with a written confession.

Stewart was indicted and was charged with first-degree robbery. Before his trial, Stewart filed a motion to suppress his confession because, he said, his Sixth Amendment right to counsel was violated when the officers interviewed him without his counsel being present. Stewart argues that his initial appearance initiated adversarial proceedings against him and, consequently, he argues, his Sixth Amendment right to counsel attached at that time. The trial court denied Stewart’s motion to suppress and admitted his written confession into evidence. The Court of Criminal Appeals affirmed the judgment of the trial court, holding that Stewart’s Sixth Amendment right to counsel had not attached before his interview with the officers because adversarial proceedings had not begun. We agree.

In Kirby v. Illinois, 406 U.S. 682, 689, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), the United States Supreme Court held that the right to counsel does not attach before the “initiation of adversary judicial criminal proceedings — whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.” The Court explained why the Sixth Amendment right to counsel did not attach until the initiation of adversarial proceedings, stating:

“The initiation of judicial criminal proceedings is far from a mere formalism. It is the starting point of our whole system of adversary criminal justice. For it is only then that the government has committed itself to prosecute, and only then that the adverse positions of government and defendant have solidified. It is then that a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law. It is this point, therefore, that marks the commencement of the ‘criminal prosecutions’ to which alone the explicit guarantees of the Sixth Amendment are applicable.”

Kirby, 406 U.S. at 689-90, 92 S.Ct. 1877 (footnote omitted). The right to counsel attaches after adversarial proceedings are initiated because the ‘“core purpose’ of the counsel guarantee is to assure and aid at trial, ‘when the accused [is] confronted with both the intricacies of the law and the advocacy of the public prosecutor.’ ” United States v. Gouveia, 467 U.S. 180, 188-89, 104 S.Ct. 2292, 81 L.Ed.2d 146 (1984)(quoting United States v. Ash, 413 U.S. 300, 309, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973)). The Court has further held that even when the Sixth Amendment right to counsel may have attached, it does not exist to protect the defendant at all post-attachment proceedings, unless the proceeding is considered a “critical stage.” In United States v. Wade, 388 U.S. 218, 224, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), the Court described a critical stage as a “pretrial proceeding[ ] where the results might well settle the accused’s fate and reduce the trial to a mere formality.” For example, the interrogation of a defendant, occurring after the attachment of the right to counsel, is a critical stage of the proceedings and the defendant is entitled to the assistance of counsel during the interrogation. Michigan v. Jackson, 475 U.S. 625, 629-30, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986) (“The arraignment [under Michigan law] signals ‘the initiation of adversary judicial proceedings’ and thus the attachment of the Sixth Amendment ...; thereafter, government efforts to elicit information from the accused, including interrogation, represent ‘critical stages’ at which the Sixth Amendment applies.”).

Thus, the Sixth Amendment right to counsel is at issue only where adversary judicial criminal proceedings have been initiated against the defendant and where the defendant lacks assistance of counsel at a critical stage in the proceedings.

As previously noted, the initiation of formal proceedings may occur at the preliminary hearing, upon the filing of the indictment or information, or at arraignment. Kirby, 406 U.S. at 689, 92 S.Ct. 1877. In Alabama, the initiation of adversary judicial proceedings for a felony prosecution begins with the issuance of an indictment. Ala. Const.1901, Art. I, § 8. However, because the sole purpose of a preliminary hearing is to determine whether there is sufficient evidence against the accused to present the case to the grand jury, the United States Supreme Court has held that a preliminary hearing constitutes a “critical stage” in the State’s criminal process and that an accused has the right to counsel at that proceeding. Coleman v. Alabama, 399 U.S. 1, 8-10, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970).

This Court, however, has not addressed whether an initial appearance conducted pursuant to Rule 4.4, Ala.R.Crim. P., constitutes a “critical” stage that might “settle the accused’s fate and reduce the trial to a mere formality.” Wade, 388 U.S. at 224, 87 S.Ct. 1926. An initial appearance occurs only if the accused is not released from custody; it must be conducted within 72 hours after an arrest pursuant to a warrant. At the initial appearance, the court provides a defendant with information. The Committee Comments to Rule 4.4, Ala.R.Crim.P., state:

“The purpose of Rule 4.4(a) is to insert the judicial process between the police and the defendant at the earliest practicable time in order to minimize the effects of carelessness, abuse of power, or unavoidable error in the police function. These rules dispense with the formality where the defendant has already been released. If he has not been released, however, Rule 4.4(a) insures procedural compliance with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), as well as provides for the prompt determination of the conditions for release.”

Thus, at the initial appearance, the court informs the defendant of the charges against him, of his right to representation by counsel, of his right to remain silent, and of his right to a preliminary hearing. No determination of fact with regard to the alleged offense or the defendant’s fate is made at this stage. The defendant is merely informed of his constitutional rights. Although a defendant may complete an affidavit of substantial hardship seeking the appointment of counsel and counsel may be appointed, this fact alone does not elevate an initial appearance to a critical stage or trigger the Sixth Amendment right to counsel. Moran v. Burbine, 475 U.S. 412, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986). See also the Committee Comments to Rule 4.4 (“It is neither intended nor expected that a determination of the defendant’s right to appointed counsel would be made or counsel appointed at the initial appearance.”).

Moreover, the fact that the court may determine or evaluate the conditions for release does not create an adversarial proceeding or a “critical stage.” As the United States Supreme Court has stated, attachment of the Sixth Amendment right to counsel “becomes applicable only when the government’s role shifts from investigation to accusation.” Moran, 475 U.S. at 430, 106 S.Ct. 1135. The court’s determination of the conditions of release at an initial appearance is not accusatory or adversarial; it is a shield by the judicial branch to ensure that a defendant’s rights are being protected. Stewart relies heavily on the United States Supreme Court’s holding in McNeil v. Wisconsin, 501 U.S. 171, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991), to support his contention that an initial appearance constitutes an adversarial proceeding. In McNeil, the defendant was arrested in Nebraska pursuant to a Wisconsin arrest warrant. Upon the defendant’s return to Wisconsin, an initial appearance was conducted at which the defendant’s bail was set and a preliminary examination was scheduled. The defendant was represented by counsel at the initial appearance. At a later time, the defendant made inculpatory statements regarding other crimes without his counsel being present. The Court concluded that the defendant’s Sixth Amendment right to counsel was offense-specific and, consequently, that his constitutional rights were not violated when he made the statements. Justice Scalia, in dictum, observed: “It is undisputed, and we accept for purposes of the present ease, that at the time petitioner provided the incriminating statements at issue, his Sixth Amendment right had attached and had been invoked with respect to the [Wisconsin] armed robbery, for which he had been formally charged.” 501 U.S. at 175, 111 S.Ct. 2204 (emphasis added). Scalia’s observation appears to suggest that the Court’s holding establishes that a defendant’s right to counsel attaches at an initial appearance. However, Wisconsin state law establishes that the right to counsel attaches when the State files a criminal complaint or issues a warrant. Jones v. State, 63 Wis.2d 97, 216 N.W.2d 224 (1974). Therefore, in McNeil the defendant’s right to counsel attached at the issuance of the warrant in accordance with Wisconsin law — not because the United States Supreme Court concluded that the right to counsel attached at the initial appearance.

The Sixth Amendment right to counsel attaches only after the commencement of adverse judicial criminal proceedings against the defendant. Because an initial appearance is an informational proceeding designed to protect the rights of the accused and does not constitute a “critical” pretrial proceeding, the right to counsel does not attach at that time. Here, Stewart’s right to counsel did not attach at the initial appearance; therefore, the trial court did not err in denying Stewart’s motion to suppress his confession on this ground.

The judgment of the Court of Criminal Appeals is affirmed.

AFFIRMED.

MOORE, C.J., and BROWN, HARWOOD, and WOODALL, JJ„ concur.

HOUSTON, LYONS, and JOHNSTONE, JJ., dissent.

LYONS, Justice,

dissenting.

I respectfully dissent from the holding of the main opinion that Stewart’s Sixth Amendment right to counsel did not attach at his initial appearance held pursuant to Rule 4.4, Ala. R.Crim. P. The main opinion discusses the purposes of an initial appearance, stating that at that appearance the accused is merely informed of his constitutional rights. If Stewart’s initial appearance had gone no further, I would agree with the main opinion that an attorney would be unnecessary to protect Stewart at his initial appearance where it does not appear that the prosecutor was present. However, in this case something more than advice as to constitutional rights transpired at the appearance. Stewart’s initial appearance before the district court was the first proceeding in which Stewart could challenge the amount of bail set in his case. The State, in its brief, failed to accord any significance to this fact, and the main opinion dismisses this fact in one paragraph.

The recommended range for bail for a defendant accused of a Class A felony is between $3,000 and $30,000. Rule 7.2, Ala. R.Crim. P. According to Rule 7.2, a court can exercise its discretion in setting bail above or below this recommended range. A court bases its decision on several factors, including the defendant’s background, reputation, prior criminal record, and employment status, and the nature of the charged offense. Id. In fact, the “advice of rights” form Stewart signed at the initial appearance stated:

“In addition, the purpose of this hearing is to determine whether bail should be set in your case, or, if it has already been set, if it should remain the same, be raised, be lowered, or whether you should be released upon your personal recognizance, that is your promise to appear for future court proceedings, or released in the custody of some responsible person. In order to make this determination, it will be necessary for the judge or magistrate to ask you some questions concerning your ties with the community.”

(Emphasis added.) The factors considered by the district court in continuing the $25,000 bail amount as set by the arrest warrant are unclear from the record. Stewart, apparently unable to post bond, returned to the Tuscaloosa County jail. Based upon Stewart’s subsequent motion to reduce his bond to $5,000, I must conclude that Stewart could have posted a $5,000 bond.

The validity of the district court’s exercise of discretion in maintaining the bond at $25,000 is not before us. However, I cannot simply assume that counsel would not have been beneficial to Stewart at the initial appearance, in light of the court’s discretion in setting bail according to the recommended range and the court’s exercise of that discretion by setting bail near the maximum amount permissible. The main opinion rejects the view that a determination of bail at the initial appearance is a critical stage requiring the presence of counsel under the Sixth Amendment. The main opinion maintains that “[n]o determination of fact with regard to the alleged offense or the defendant’s fate is made” at the initial appearance. That there is an advantage to a defendant in being out of jail and therefore more readily accessible to counsel in preparing a defense requires no elaboration. The process of setting bail is not a mechanical process; it involves the exercise of discretion, which greatly affects the “defendant’s fate” in his ability to defend the charges against him.

The main opinion minimizes the applicability of Justice Scalia’s dictum in McNeil v. Wisconsin, 501 U.S. 171, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991), by referring to Wisconsin state law. In McNeil, Justice Scalia observed that it was undisputed that McNeil’s Sixth Amendment right to counsel had attached and was invoked at his initial appearance for the offense at issue. 501 U.S. at 175, 111 S.Ct. 2204. The main opinion concludes that Justice Scalia’s observation was dependent upon the fact that Wisconsin state law afforded a defendant a right to counsel upon the issuance of an arrest warrant or the filing of a complaint, and the issuance of the arrest warrant in McNeil took place before McNeil’s initial appearance.

The main opinion cites Jones v. State, 63 Wis.2d 97, 216 N.W.2d 224 (1974), as the sole basis for the recognition by the United States Supreme Court of McNeil’s right to counsel at the time of his initial appearance. Not only is Jones not cited in McNeil v. Wisconsin, Jones purports to state a rule drawn not from Wisconsin law but from the teachings of Kirby v. Illinois, 406 U.S. 682, 689, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972) (the Sixth Amendment right to counsel does not attach before the “initiation of adversary judicial criminal proceedings — whether by way of formal charge, preliminary hearing, indictment, information, or arraignment”). Finally, if, as the main opinion suggests, I have read more into Justice Scalia’s statement than was intended, I am in respectable company. In Owen v. State, 596 So.2d 985, 988-89 (Fla.1992), the Florida Supreme Court reached a similar conclusion with respect to Justice Scalia’s dictum and observed that commentators were in accord and supported that conclusion. In footnote 6, the Florida Supreme Court stated:

“See 2 Wayne R. LaFave & Jerold H. Israel, Criminal Procedure § 11.2, at 8 (Supp.1991) (‘[T]he initiation of adversary judicial proceedings ordinarily requires a formal commitment of the government to prosecute, as evidenced by the filing of charges. This can occur prior to the issuance of an indictment or information, as where the defendant is brought before the magistrate for an “arraignment” or “first appearance” on charges filed in the form of a complaint.’); 1 Wayne R. LaFave & Jerold H. Israel, Criminal Procedure § 6.4, at 468 (1984) (‘[A]t least from the time defendant is brought into court and arraigned on the warrant (at which point it or the complaint underlying it becomes a tentative charging document) the Sixth Amendment right to counsel applies.’); Joseph D. Grano, Kirby, Biggers, and Ash: Do Any Constitutional Safeguards Remain Against the Danger of Convicting the Innocent?, 72 Mich. L.Rev. 717, 788-79 (1973) (‘[A] convincing argument can be made that a criminal prosecution commences at least with the preliminary arraignment when a formal complaint is filed in court against the accused.... Professor Miller, supporting his exhaustive analysis of the charging function with extensive field study data, has called the decision to file a complaint “the heart of the charging process.” ... It would defy common sense to say that a criminal prosecution has not commenced against a defendant who, perhaps incarcerated and unable to afford judicially imposed bail, awaits preliminary examination on the authority of a charging document filed by the prosecutor, less typically by the police, and approved by a court of law.’); Jerold H.2 Israel, Criminal Procedure, the Burger Court, and the Legacy of the Warren Court, 75 Mich. L.Rev. 1320, 1368-69 n. 226 (1977) (‘Even though a complaint has been filed in the process of obtaining a warrant, adversary judicial criminal proceedings may be viewed as being initiated only after the accused is brought before a magistrate on that complaint. ... This starting point would make sense from an administrative standpoint because counsel for the indigent defendant ordinarily would not be appointed until the defendant has appeared before the magistrate.’ (citations omitted [in Owen])).”

596 So.2d at 988-89 n. 6 (emphasis added). The Court also cited commentary suggesting that the use of the word “arraignment” in United States Supreme Court precedent actually referred to what most states, including Alabama, designate as an “initial appearance.” In footnote 7, the Florida Supreme Court stated:

“The term ‘arraign’ simply means to be called before a court officer and charged with a crime. The term commonly has two uses. First, it is used in the general sense to refer to the proceeding where an accused (who is now formally a defendant) is first taken to court and presented before a committing magistrate. The magistrate will confirm that the defendant is the person named in the formal complaint and will read aloud the charges contained in it. The magistrate will generally warn the defendant that he has the right to remain silent, that anything he says will be used against him, and that he has a right to a lawyer’s help, either retained or appointed. No responsive pleading is made. The magistrate will then set bail. This proceeding is commonly called a ‘first appearance,’ ‘initial presentment,’ or ‘arraignment on the warrant.’ 1 Wayne R. LaFave & Jerome H. Israel, supra n. 6, § 1.4, at 21. Second, the term ‘arraignment’ refers to the step in the prosecution where the defendant is brought before the trial court — not the committing magistrate — informed of the charges against him, and required to enter a plea. This proceeding is commonly called an ‘arraignment on the information or indictment.’ Id. at 26. As noted above, when the Court in Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), and [Michigan v.] Jackson [, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986) ] said that the Sixth Amendment right to counsel attaches at ‘arraignment,’ it apparently was using the term in the first sense.”

596 So.2d at 989 n. 7.

The bail determination at Stewart’s initial appearance makes his Sixth Amendment right to counsel analogous to the right to counsel treated as undisputed in McNeil. Both defendants were brought before a court for an initial appearance at which bail was set or maintained, and a preliminary hearing was scheduled. McNeil, 501 U.S. at 173, 111 S.Ct. 2204. Because I cannot dismiss Justice Scalia’s observation in McNeil as to the accused’s right to counsel at the initial appearance as merely a peculiarity of Wisconsin law, I see no basis to ignore Justice Scalia’s observation, albeit in dictum, when considering Stewart’s constitutional rights under virtually identical circumstances.

I find additional supporting authority from the United States Court of Appeals for the Eleventh Circuit to be persuasive. See Stokes v. Singletary, 952 F.2d 1567 (11th Cir.1992). Like Stewart, Stokes confessed in a police-initiated interrogation after his first appearance in which counsel was appointed. Id. at 1569. The first-appearance proceeding in Stokes was equivalent to Stewart’s initial appearance in this State. Although the officers informed Stokes of his Miranda rights, the officers did not inform Stokes’s counsel that they were questioning Stokes. Id. Stokes was later formally indicted of the charges against him. Id. The court in Stokes characterized the first appearance as a “critical stage of the prosecution” in which Stokes’s Sixth Amendment right to counsel attached. Id. at 1579, 1580-81. Although it is unknown whether bail was set during Stokes’s initial appearance, the Eleventh Circuit stated that the Sixth Amendment right attaches at the first formal proceeding.

Previous Alabama cases have declined to recognize a Sixth Amendment right so as to bar statements made before a defendant is indicted. See Callahan v. State, 557 So.2d 1292, 1303 (Ala.Crim.App.1989) (holding that no basis for a Sixth Amendment challenge existed when the statements were made before the defendant was indicted); see also Waldrop v. State, 523 So.2d 475, 478 (Ala.Crim.App.1987) (holding that the Sixth Amendment right to counsel was not violated when the petitioner confessed and was subsequently indicted). However, the defendants in those cases did not make an appearance at a judicial proceeding before the statements were made. See Callahan v. State (the defendant was arrested and the statements were then given); Waldrop v. State (the defendant did not receive a post-arrest hearing before giving the statement).

The United States Supreme Court recognizes that adversarial proceedings begin when the “accused [is] confronted, just as at trial, by the procedural system, or by his expert adversary, or by both.” United States v. Ash, 413 U.S. 300, 810, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973). Although it is unclear from the record whether the prosecution was present at Stewart’s initial appearance, he was confronted by the “procedural system.” In the trial court’s discretion, bail remained at $25,000, and Stewart, unable to make bail, returned to jail. The initial appearance constituted more than a mere opportunity for Stewart to be informed of his constitutional rights; it instead was a critical stage of the proceedings. Because I conclude that Stewart’s Sixth Amendment right to counsel attached at his initial appearance, I would reach the merits of Stewart’s claims that he invoked his right to counsel at his initial appearance and that his right to counsel could not be waived at his subsequent police-initiated interview. Therefore, I dissent.

HOUSTON and JOHNSTONE, JJ„ concur.

      . This case was originally assigned to another Justice on this Court; it was reassigned to Justice Stuart on September 25, 2002.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . The Wisconsin rule of criminal procedure relating to an accused’s initial appearance is similar to the rule in Alabama. In Wisconsin, the judge must inform the defendant of the charges against him, of his right to counsel, and of his right to a preliminary hearing. Bail may be set at the initial appearance. Wis. R.Crim. P. 970.02 (2003).

      . The "first appearance” in Florida requires the judge to inform the defendant of the charges against him, of his right to remain silent, and of his right to counsel. The judge may also determine the conditions of release. Fla. R.Crim. P. 3.130 (2002).

      .The case was remanded to determine whether Stokes had waived his Sixth Amendment right before the subsequent questioning. However, if Stokes was convicted after Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986), was decided, then his waiver would have been ineffective to waive his Sixth Amendment right to counsel.


author: HOUSTON, Justice.

text:
    Claude WOOD et al. v. James Wendall WADE et al.
    1011473.
    Supreme Court of Alabama.
    Dec. 20, 2002.

      Donald H. Brockway, Jr., Birmingham, for appellants.
    Neal D. Moore III of Porterfield, Harper & Mills, P.A., Birmingham, for appel-lees.
   HOUSTON, Justice.

This is an appeal from a denial of the plaintiffs’ Rule 60(b)(6), Ala. R. Civ. P., motion. We affirm.

I. Facts and Procedural History

On March 30, 1997, Claude Wood and Camille Witt were the victims of an attack that occurred at a Taco Mac Restaurant in Birmingham. As a result of the attack, Wood and Witt, through their attorneys David Cromwell Johnson and J. Flint Lid-don, sued C.F.J.J. Restaurant II, L.L.C., d/b/a Taco Mac Restaurant (“Taco Mac”), and two bartenders, James Wade and Douglas McGary. Taco Mac filed an answer through its attorneys, Larry W. Harper and Neal D. Moore III; Wade answered pro se.

On May 19, 1999, Harper and Moore became the attorneys of record for Wade, and in September 2000, they withdrew as attorneys for Taco Mac. Moore remained as attorney for Wade. However, after September 2000, the Jefferson Circuit clerk’s office erroneously listed Wade as a pro se defendant; as a result, Moore received no further correspondence from the court regarding the case.

Trial was set for February 12, 2001, but neither Wade nor Taco Mac appeared for trial. Default judgments were entered against both of them. After a hearing, the trial court on March 20, 2001, entered a judgment against Wade and Taco Mac and damages of approximately $600,000 were awarded against them jointly and severally.

On September 26, 2001, Moore (Wade’s attorney) and Liddon (Wood and Witt’s attorney) jointly filed a Rule 60(b), Ala. R. Civ. P., postjudgment motion to set aside the default judgment against Wade. On that same day, the trial court granted the motion and dismissed Wade from the action with prejudice. Thus, after September 2001, the only judgment debtor was Taco Mac.

On December 21, 2001, D. Benjamin Traylor became Wood and Witt’s attorney of record. On December 28, 2001, Traylor filed a “Verified Motion For Relief Under Rule 60(b)” to have the September 26, 2001, order on the joint Rule 60(b) motion set aside, in effect seeking to have Wade reinstated as a defendant and the default judgment against him reentered. The court denied this second Rule 60(b) motion on March 4, 2002. In denying the motion, the court stated:

“The Court notes that confusion existed in this case due to the withdrawal of an attorney for the Defendants [Harper and Moore’s withdrawing as Taco Mac’s attorneys] and a change of attorneys representing the Plaintiffs [Traylor’s replacing Liddon and Johnson]. In its order of March 20, 2001, a Default Judgment was entered against [Wade]. On September 26, 2001, on motion of [Moore], Wade’s attorney and [Liddon], the original attorney for the Plaintiffs, requested the Court to set aside its Judgment against Wade. Pursuant to such motion the Court entered an order on September 26, 2001, setting aside the Judgment against [Wade] and dismissing claims against him with prejudice. On January 30, 2002, the Court heard arguments on the Plaintiffs 60(b) motion and the Court determined that Attorneys Moore and Liddon had previously agreed as a trial tactic to use Mr. Wade as a witness and to dismiss claims against him.”

Wood and Witt appeal from the denial of their second Rule 60(b)(6) motion.

II. Issues on Appeal

Wood and Witt raise two issues on appeal: (1) whether the trial court’s September 26, 2001, order setting aside the default judgment against Wade and dismissing him from the case with prejudice was erroneous, and (2) whether the trial court abused its discretion in entering its March 4, 2002, order denying Wood and Witt’s Rule 60(b) motion. However, the only issue properly before this Court is the correctness of the March 4, 2002, order.

A. The September 26, 2001, Order

On September 26, 2001, the attorneys for Wade and for Wood and Witt filed a joint Rule 60(b), Ala. R. Civ. P., motion to set aside the default judgment against Wade and to have Wade dismissed from the action with prejudice. That same day, pursuant to the motion, Wade’s name was removed as a judgment debtor and he was dismissed as a defendant with prejudice. Rule 60(b)(6) “allow[s] courts to vacate judgments when that is necessary to accomplish justice.” Blackwell v. Adams, 467 So.2d 680, 683 (Ala.1985).

The proper means of contesting a denial of a Rule 60(b) motion is by direct appeal. See Ex parte Vaughan, 539 So.2d 1060, 1061 (Ala.1989). However, the September 26, 2001, motion was not denied; it was granted.

The September 26, 2001, motion to set aside the default judgment against Wade and to dismiss him from the action was a joint motion (i.e., filed by both parties) that was ruled on in favor of both parties — the defendant and the plaintiffs. It is well established that only adverse rulings by the trial court are appealable. Nash v. Cosby, 574 So.2d 700, 701 (Ala.1990); Holloway v. Robertson, 500 So.2d 1056, 1059 (Ala.1986); McCulloch v. Roberts, 290 Ala. 303, 276 So.2d 425, 430 (Ala.1973). Wood and Witt may not appeal from a ruling on a motion that was in their favor.

Therefore, the issue of the correctness of the September 26, 2001, order is not properly before this Court.

B. The March I, 2002, Order

The decision to grant or deny a Rule 60(b)(6) motion is within the discretion of the trial judge. Ex parte Wal-Mart Stores, Inc., 725 So.2d 279, 283 (Ala.1998). The only issue we consider on an appeal from the denial of a Rule 60(b) motion is whether, by denying the motion, the trial court abused its discretion. Id. Therefore, an appeal from the denial of a Rule 60(b)(6) motion “does not present for review the correctness of the judgment that the movant seeks to set aside, but presents for review only the correctness of the order from which the appeal is taken.” Satterfield v. Winston Indus., Inc., 553 So.2d 61, 63 (Ala.1989).

Rule 60(b)(6) is an extreme remedy and relief under Rule 60(b)(6) will be granted only “in unique situations where a party can show exceptional circumstances sufficient to entitle him to relief.” Nowlin v. Druid City Hosp. Bd., 475 So.2d 469, 471 (Ala.1985). The purpose of Rule 60(b)(6) is not to relieve a party from a free and deliberate choice the party has previously made. City of Daphne v. Caffey, 410 So.2d 8, 10 (Ala.1982).

Wood and Witt argue that the trial court erred in denying their Rule 60(b)(6) motion, which sought the vacatur of the court’s September 26, 2001, order. Wood and Witt contend that the court erred in setting aside the default judgment against Wade in its September 26, 2001, order. However, this Court will look only to the correctness of the March 4, 2002, order denying Wood and Witt’s Rule 60(b)(6) motion. We believe the denial of that motion was not an abuse of discretion. Wood and Witt have shown no “exceptional circumstances” which entitle them to relief under Rule 60(b)(6). Nowlin, 475 So.2d at 471.

Moreover, this Court cannot say that the trial court abused its discretion in denying Wood and Witt relief from the September 26, 2001, order, which was procured through a motion Wood and Witt themselves freely and deliberately sought.

Therefore, we affirm the trial court’s March 4, 2002, order denying Wood and Witt’s Rule 60(b) motion.

AFFIRMED.

MOORE, C.J., and LYONS, JOHNSTONE, and WOODALL, JJ., concur.

      . McGaiy was never served with a copy of the complaint; he was eventually dismissed from the suit.

      . Harper and Moore were originally retained to represent Taco Mac pursuant to an insurance policy issued by First Financial Insurance Company. First Financial withdrew its insurance coverage after the United States District Court for the Northern District of Alabama held in July 2000 that the insurance policy did not cover Taco Mac for any of the counts asserted in the action filed by Wood and Witt. Additionally, Taco Mac had no cash assets and had no intention to defend against the action. Therefore, Harper and Moore withdrew as attorneys for Taco Mac, and Taco Mac had no objection to their withdrawal.

      . Before February 12, 2001, the attorneys for both sides had agreed that a judgment would not be taken against Wade. Wood and Witt contend that they never gave Liddon the authority to file the joint motion releasing Wade from the action. However, during oral arguments on a second Rule 60(b) motion on January 30, 2002, Liddon informed the trial court that he had consulted with Wood and Witt and that they had given him permission to set aside the judgment against Wade. The trial court concluded that Wood and Witt had agreed to dismiss the claims against Wade.

      .On February 26, 2002, while the December 28, 2001, Rule 60(b) motion was pending, Wood and Witt filed an amended complaint naming six new defendants. These new defendants were shareholders in Taco Mac at the time of the assault. After the assault, Taco Mac filed a petition in bankruptcy; the amended complaint is an attempt to pierce the corporate veil.
      As a result of the addition of those new defendants, the clerk of the Supreme Court of Alabama issued an order on July 19, 2002, instructing the trial court, among other things, to make the March 20, 2001, default judgment and the September 26, 2001, order granting the Rule 60(b) motion final pursuant to Rule 54(b), Ala. R. Civ. P. The trial court complied with this order on July 29, 2002. However, both orders were already final judgments because, at the time they were entered, Wade and Taco Mac were the only defendants.

      . In considering a Rule 60(b) motion, the court " 'attempts] to balance the desire to remedy injustice against the need for finality of judgments,’ ” and it is within the trial judge’s discretion to grant or deny relief under Rule 60(b)(6). Ex parte Wal-Mart Stores, Inc., 725 So.2d 279, 283 (Ala.1998) (quoting Raine v. First Western Bank, 362 So.2d 846, 848 (Ala.1978)). In this case, Liddon and Moore agreed months before any default judgment was entered against any defendant that, as a matter of trial strategy and as a means of better allocating damages, a judgment would not be taken against Wade. Collection efforts would be made instead against Taco Mac. For these reasons, the trial court granted the joint Rule 60(b) motion.

      . The one exception to this rule is that a party who prevails on his or her claims may appeal as to the issue of the adequacy of damages. See Ex parte Vincent, 770 So.2d 92 (Ala.1999).