author: McMILLIN, C.J.,

text:
    Randall W. RICE, Appellant, v. BURLINGTON MOTOR CARRIERS, INC. and the Travelers Insurance Company, Appellees.
    No. 2001-WC-01684-COA.
    Court of Appeals of Mississippi.
    March 11, 2003.
    Joe M. Davis, William O. Rutledge, New Albany, attorneys for appellant.
    Franklin Williams, attorney for appellee.
    BEFORE McMILLIN, C.J., THOMAS and CHANDLER, JJ.
   McMILLIN, C.J.,

for the court.

¶ 1. Randall W. Rice filed a petition to controvert with the Mississippi Workers’ Compensation Commission seeking disability benefits after he suffered an injury to his back while in the course of his employment with Burlington Motor Carriers, Inc. (hereafter “Burlington”). The Commission dismissed Rice’s petition for lack of jurisdiction. Rice appealed to the Circuit Court of Pontotoc County and that court affirmed the Commission’s decision. Rice has now appealed the circuit court’s decision to this Court. There is no dispute as to the operative facts of the case. The issue of jurisdiction thus becomes a pure question of law. After a de novo review of the issue of law decided by the Commission, we find no error and, therefore, affirm the dismissal of Rice’s claim for lack of jurisdiction.

¶2. In 1997, Rice was a resident of Pontotoc County when he enrolled in a truck driver training school located in Nashville, Tennessee. During the course of his training, Rice was conditionally offered employment by Burlington; the conditions being that he satisfactorily complete the training regimen in Tennessee and report to Burlington’s facility in Indiana for a physical examination and additional training. After passing the physical exam and completing the supplemental training, Rice was dispatched by Burlington on actual trucking runs under the supervision of a more experienced driver referred to by Rice as his “trainer.” Rice completed the first trip that originated in Indiana, and was dispatched from the same location on a second trip for a delivery in Pennsylvania. It was during this second trip that Rice suffered the back injury that is the subject of this claim. The injury occurred in the State of Pennsylvania. After several days of unsatisfactory recuperation, Rice returned to Mississippi where he underwent extensive medical treatment including back surgery. Rice never returned to his duties with Burlington.

¶ 3. Burlington contested the jurisdiction of the Mississippi Workers’ Compensation Commission to award compensation benefits under the facts of this case, arguing that there was an insufficient nexus between this state and the circumstances of both Rice’s employment and his work-related injury to permit the Commission to determine Rice’s claim. The Commission agreed and dismissed Rice’s petition on that basis without reaching the underlying merits of his claim for benefits.

¶ 4. Because the injury in this case occurred outside the geographical boundaries of this state, the only manner in which Mississippi’s Compensation Commission could obtain jurisdiction of Rice’s claim is found in Section 71-3-109(1) of the Mississippi Code. That section provides, in part, as follows:

If an employee who has been hired or is regularly employed in this state receives personal injury by accident arising out of and in the course of his employment while temporarily employed outside of this state, he or his dependents in case of his death shall be entitled to compensation according to the law of this state.

Miss.Code Ann. § 71-3-109(1) (Rev.2000).

¶5. In the case now before us, it is uncontradicted that Rice was offered employment by Burlington while he was in Tennessee attending a driver’s training course and that he was ultimately hired in the state of Indiana. In fact, as a part of the hiring process, Rice signed an agreement that, if hired, he agreed “to be bound by the Indiana Worker’s Compensation Act for any and all injuries ... which I may claim are related to my employment with Burlington Motor Carriers.” There is no contention that, during the brief course of his employment at Burlington, Rice was “regularly employed” in the state of Mississippi. In fact, there is no evidence that he entered the state while performing his duties during his brief tenure as an employee of Burlington. The only connection between this state and the duties of Rice’s employment consisted of his assertion of two things. First was Rice’s testimony that officials of Burlington had told him that he was to be based in Atlanta once he became a fully qualified driver and would be dispatched out of that location, but that he would be permitted to take his truck home with him to Pontotoc between driving assignments. Secondly, Rice reported that job-related correspondence including salary checks were mailed to his home address in Pontotoc County.

¶ 6. Rice places reliance on the Mississippi Supreme Court’s decision in Burn-ham Van Service, Inc. v. Dependents of Moore in support of his contention that Mississippi’s Compensation Commission may determine his claim for benefits. Burnham Van Service, Inc. v. Dependents of Moore, 250 Miss. 165, 164 So.2d 733 (1964). In that case, the evidence showed that Moore, a resident of Gulfport, operated a truck used in moving furniture that was leased to Robert Bates, a resident of Long Beach engaged in household furniture moving. Burnham, 164 So.2d at 735. Bates was engaged in both local hauling and long-distance hauling. Id. Because Bates was not licensed to operate in interstate commerce, he sub-leased the rig to Burnham Van Lines under a contract executed in Mississippi so that the business could legally pursue long-distance hauling. Id. at 736. Moore was the principal operator of the rig while engaged in interstate transportation and was dispatched on those trips by Burnham with the understanding that he would return after every such trip to his home in Harrison County to await additional assignments. Id. at 739. It was during one such trip that Moore, while in the state of Ohio, was shot and killed under unexplained circumstances. Id. at 737. The case presented two crucial issues; one being whether, under the facts, Moore was an employee of Burnham or of Bates. The other was whether the Mississippi Workers’ Compensation Commission had jurisdiction of a claim by Moore’s heirs for job-related death benefits. The supreme court decided both issues in favor of the claimants. In addressing the issue of Mississippi jurisdiction, the court noted that the contract of lease was executed in Mississippi, that Moore was a resident of Mississippi, and that all parties understood that Gulfport was the base of operations for the truck. Id. at 739.

¶ 7. In the case before us, none of the contractual documents relating to Rice’s employment originated in Mississippi or had any relation to this state. Rice was recruited as a prospective employee while a student in Tennessee and was offered a contract of employment while in the state of Indiana. By his own testimony, it was contemplated that, after his initial on-the-job training under the supervision of an experienced “trainer,” his duties would consist of hauls originating at Burlington’s operation in Atlanta, Georgia. Even accepting as true Rice’s assertion that Burlington was going to permit him to take Ms rig to his home in Pontotoc County between driving assignments, that appears nothing more than a personal accommodation to Rice and is not the equivalent of an agreement that Pontotoc County would serve as the base of operations for Rice’s activities similar to the arrangement between Moore and Burnham in the Bum-ham Van Service case.

¶ 8. This case, in the view of the Court, is more closely akin to the facts in L. & A Const. Co. v. McCharen, in which McCharen, a Mississippi resident, went to Tennessee and was hired to work on a bridge construction project in that state by L. & A. Construction Company, an enterprise that was domiciled in Hattiesburg. L. & A. Const. Co. v. McCharen, 198 So.2d 240, 241 (Miss.1967). Upon a finding that the contract of employment was entered into in Tennessee, that all work under the employment contract was envisioned to be performed in Tennessee, that the injury occurred in Tennessee, and that McCharen performed no duties for his employer in Mississippi, the Commission found that it lacked jurisdiction of McCharen’s claim for compensation benefits, even though both the employer and the employee were domiciled in this state. Id. at 242.

¶ 9. In the case before us, the negotiations ultimately resulting in Rice’s contract of employment with Burlington began in Tennessee and were ultimately completed in Indiana. All work under the contract was performed in Indiana and such other states as Rice and Ms “trainer” entered m the course of completmg their assigned hauling duties, none of which were shown by the evidence to include Mississippi. Rice’s injury occurred while he was performing his employment duties m the state of Pennsylvania. No duties of employment were performed by Rice in Mississippi, nor does it appear from the evidence that there was any likelihood that Mississippi would become the focus of any of Rice’s duties for Burlington. To the contrary, it is uncontradicted that Rice’s contemplated base of operations was to be Atlanta, Georgia, from which he would be dispatched to various delivery points with nothing other than chance determining whether any such destination might, on occasion, be within the borders of this state.

¶ 10. Rice argues that L. & A. Construction no longer serves as authority on the question of jurisdiction because the supreme court, in deciding the issue, relied in part on an early version of the Restatement, Conflict of Laws, which stated that “if neither the harm occurred nor the contract of employment was made in the state” then no recovery was permitted under that state’s compensation law. Rice suggests that the Mississippi Supreme Court has, since its decision in L. & A. Construction, generally abandoned the Restatement (First) in favor of the revised Restatement (Second), which proposes a different test. According to Rice, the supreme court began as early as 1968 to apply the “center of gravity” test described in the Restatement (Second) in determining conflict of law questions in various areas of the law. However, we note that, in deciding the question of jurisdiction in L. & A. Construction, the supreme court engaged in a lengthy analysis of the issue and discussed supporting authority besides the Restatement. We also observe that the supreme court itself has continued to rely on the authority of L. & A. Construction to determine jurisdictional questions in workers’ compensation cases long after publication of the Restatement (Second), Conflict of Laws. See, e.g., White v. Malone Properties, Inc., 494 So.2d 576, 578 (Miss.1986). If some modification in the means of answering jurisdictional questions in workers’ compensation cases involving out-of-state injuries is warranted, such modification will have to be undertaken by the Mississippi Supreme Court and not this Court, which is bound by existing precedent as announced in the L. & A. Construction case and subsequently followed in White. In that light, we cannot discover any error in the reasoning of the Commission that would suggest the necessity of this Court intervening to direct a different outcome.

¶11. THE JUDGMENT OF THE CIRCUIT COURT OF PONTOTOC COUNTY IS AFFIRMED. COSTS OF THE APPEAL ARE ASSESSED TO THE APPELLANT.

KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.


source: Caselaw Access Project

license: Public Domain

text:
    PUBLIC EMPLOYEES’ RETIREMENT SYSTEM, Appellant, v. Dorothy H. COBB, Appellee.
    No. 2001-CC-01883-COA.
    Court of Appeals of Mississippi.
    March 11, 2003.

      Office of the Attorney General, by Mary Margaret Bowers, attorney for appellant.
    Lance Laroy Stewart, Jackson, attorney for appellee.
    Before McMILLIN, C.J., THOMAS and CHANDLER, JJ.
   McMILLIN, C.J.,

for the court.

¶ 1. The Public Employees’ Retirement System (PERS) appeals the judgment of the Hinds County Circuit Court reversing the order of the Board of Trustees of the Disability Appeals Committee and granting disability benefits to Dorothy Cobb. PERS argues that the circuit court committed reversible error (1) by substituting its own judgment in place of the administrative agency’s, and (2) by determining that Cobb presented substantial evidence of disability. We find these issues so interrelated that, in the final analysis, they present essentially one issue. We agree with the contention of PERS that the decision of the circuit court seems to be based upon nothing more than that court’s own evaluation of the persuasiveness of the evidence indicating Cobb’s claimed disability. We also conclude that there was substantial evidence in the record supporting the conclusion that Cobb was not totally disabled within the meaning of the applicable law. On that basis, we find ourselves compelled to reverse the judgment of the circuit court and reinstate the determination of the Board.

I.

Facts

¶ 2. Cobb was employed with the Mississippi Department of Rehabilitation Services as a counselor assistant until January 1, 1999, when she voluntarily ended her employment. Two months later, she submitted an application for disability retirement benefits.

¶ 3. The PERS Medical Board denied Cobb’s request for disability retirement benefits, stating that there was no objective credible medical evidence to support Cobb’s claim that she was permanently disabled. Cobb filed an appeal of that decision to the Appeals Committee.

¶ 4. Cobb testified before the Committee that over the past twenty years she has become increasingly sensitive to many different odors, including perfumes, cleaning agents, smoke and flowers. According to her testimony, this sensitivity routinely causes bouts of dizziness that have increased in severity since their onset twenty years ago to the point that she is fearful of falling down and injuring herself during the onset of the dizziness.

¶ 5. She conceded that her employer had provided her with a separate and odor-free work area, but said she still had to move about through other areas at her place of employment to properly perform her duties. This resulted in the continuation of her allergic attacks, some so severe that she was forced to leave work and go home to recover. Cobb said that she received two allergy shots a week to abbreviate her symptoms. She admitted that certain prescription drugs helped with her allergies but claimed that the side effects were so severe that they prevented her from performing her duties at work. Cobb provided the testimony of two sisters and a friend and neighbor who claimed to have observed the difficulties experienced by Cobb when exposed to scents that triggered these allergic attacks.

¶ 6. Cobb’s medical records indicate that she suffers from basal ganglia disease and allergic rhinitis. Cobb presented treatment records of Dr. Jinna Shepherd; however, the Committee observed that these records contained only the doctor’s impressions and no diagnosis or opinion regarding the effect of Cobb’s medical problems on her ability to perform the normal duties of her job. Other records from treating physicians recounted the various symptoms complained of by Cobb but made no effort to assess their severity in terms of preventing Cobb from carrying out her work duties. One physician, Dr. Corbett, after reciting the various complaints and symptoms recounted by Cobb, indicated that he doubted Cobb actually had any serious underlying organic disease.

¶7. One brief report submitted by Dr. Frank Howell appears to indicate his view that Cobb was, in fact, disabled but that conclusion is not supported by any specific medical findings or an analysis of the duties routinely performed by Cobb in her work together with an explanation as to how Cobb’s condition prevented her from carrying out those duties. To the contrary, the extent of Dr. Howell’s diagnosis was that Cobb suffered from chronic imbalance caused by basal ganglia disease with a poor prognosis for improvement, but, when the report requires the doctor to assess Cobb’s abilities to drive a car, climb stairs, and walk short distances, he conceded her ability to do so “sometimes” without any further information.

¶ 8. The Committee found that the medical records indicated that medication and therapy could provide the necessary relief for Cobb from her complaints. Upon these findings, the Committee recommended to the Board of Trustees that there was insufficient evidence to support Cobb’s allegation that she was permanently disabled from performing her position as counselor assistant with the Mississippi Department of Rehabilitative Services. The Committee’s report correctly cited the applicable law when it said:

Disability has been defined in the statute [Miss.Code Ann. § 25-11-113 (Rev. 1999) ] as the incapacity to perform the usual duties of employment or the incapacity to perform such lesser duties, if any, as the employer, in its discretion, may assign without material reduction in compensation, or the incapacity to perform the duties of any employment covered by the Public Employees’ Retirement System that is actually offered and is within the same general territorial work area, without material reduction in compensation.

¶ 9. The Board of Trustees agreed with the Committee’s recommendation and affirmed the medical board’s decision to deny Cobb’s request for permanent disability benefits. Cobb responded by appealing to the Hinds County Circuit Court. The circuit court reversed and remanded the judgment, stating that the Board’s findings were not supported by substantial evidence. The court gave substantial emphasis in its analysis to Dr. Howell’s medical evaluation report. Additionally, the court found persuasive on the question of disability the fact that the Social Security Administration had determined Cobb to be disabled under a definition of disability that was more stringent than that established by Section 25-11-113. Relying principally upon these two matters, and upon the court’s unqualified acceptance of Cobb’s testimony regarding the severity of her medical complaints, the circuit court found grounds to reverse the Board’s findings.

¶ 10. In the subsequent appeal of that ruling to this Court, PERS asserts that the circuit court overstepped its authority and simply substituted its own judgment for that of the agency.

II.

Discussion

¶ 11. The circuit court overturned the Board’s determination that Cobb was not eligible for disability retirement, stating:

The overwhelming weight of the evidence clearly shows that Cobb is disabled from performing not only her “usual” duties as Counselor Assistant, but any duties, which is a prerequisite for disability benefits under the PERS.... The fact that Appellant performed her duties as a Counselor Assistant in the past while suffering from her ailment, is not conclusive that she can still function in her normal capacity.

¶ 12. It is in this determination that we find error. Much of the testimony concerning the severity of Cobb’s alleged medical problems and sudden onsets of debilitating bouts of dizziness consisted of Cobb’s own testimony and the lay testimony of friends and family. It is impossible to tie this lay testimony of remarkably severe attacks to any diagnosis or assessment by any of the numerous physicians who have treated Cobb during her prolonged history of allergy problems. The Committee, noting the absence of any medical evidence to support the proposition that Cobb’s medical problems were of sufficient severity to prevent her from carrying out the normal duties of her employment, specifically found Cobb’s unsubstantiated testimony to lack credibility. In administrative matters, the agency, and not the reviewing court, sits as finder of fact. Metal Trims Indus., Inc. v. Stovall, 562 So.2d 1293, 1296 (Miss.1990). That fact-finding duty includes assessing the credibility of witnesses and determining the proper weight to give to a particular witness’s testimony. Walker Mfg. Co. v. Butler, 740 So.2d 315 (¶ 46) (Miss.Ct.App.1998). A reviewing court is obligated to afford such determinations of credibility in the fact-finding process substantial deference when reviewing an administrative determination on appeal and the court exceeds its authority when it proceeds to reevaluate the evidence and makes its own determination of the trustworthiness of some particular testimony. Smith v. Jackson Const. Co., 607 So.2d 1119, 1123-24 (Miss.1992).

¶ 13. There are only limited reasons for which an appellate court may reverse a decision of an administrative agency. If the decision is supported by substantial evidence, appears neither arbitrary or capricious nor beyond the Board’s authority, and is not found to be in violation of a constitutional or statutory right of the affected party, the court’s obligation is to affirm. Pub. Employees’ Ret. Sys. v. Dishmon, 797 So.2d 888(¶ 8) (Miss.2001). There is a rebuttable presumption in favor of the Board’s decision, and it is the obligation of the appellant to convince the court to the contrary. Mississippi State Bd. of Pub. Accountancy Acting as Bd. and Trial Bd. v. Gray, 674 So.2d 1251, 1253 (Miss.1996).

¶ 14. When there is substantial credible evidence to support the Board’s decision, neither the circuit court nor this Court may interfere. Smith, 607 So.2d. at 1124. However, where no evidence supports a decision, this Court will reverse. Id. The Mississippi Supreme Court has said that substantial evidence is “relevant evidence as reasonable minds might accept as adequate to support a conclusion.” Pub. Employees’ Ret. Sys. v. Marquez, 774 So.2d 421 (¶ 13) (Miss.2000) (citations omitted).

¶ 15. Cobb, as the applicant, had the burden of proof to show affirmatively her right to compensation. Thompson v. Wells-Lamont Corp., 362 So.2d 638, 641 (Miss.1978). It was not the obligation of her employing agency to affirmatively prove that she was, in fact, capable of performing her duties. In this situation, the concept of “substantial evidence” supporting an agency decision has the potential to be somewhat confusing since it is, in fact, the absence of credible evidence presented on behalf of the party having the burden of proof on the issue that compels the denial of relief.

¶ 16. The requirement of “substantial evidence” seems satisfied, however, in such instance by an appellate determination that the agency’s conclusion that the claimant’s evidence was so lacking or so unpersuasive that she failed to meet her burden appears a reasoned and unbiased evaluation of the evidence in the record. In that circumstance, in something of a paradox, the lack of evidence at the agency level becomes the substantial evidence on appellate review that suggests the necessity of affirming the agency’s determination. On that basis, we find that the record amply supports the Board’s findings that Cobb failed to meet her burden of showing her eligibility for disability retirement.

¶ 17. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY IS REVERSED AND THE DECISION OF THE BOARD OF TRUSTEES OF THE PUBLIC EMPLOYEES’ RETIREMENT SYSTEM IS REINSTATED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

KING AND SOUTHWICK, P JJ., BRIDGES, THOMAS, LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.


author: SOUTHWICK, P.J.,

text:
    Bennie STROUD, Jr., Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-CP-00820-COA.
    Court of Appeals of Mississippi.
    March 11, 2003.
    Jackson County Circuit Court, Hon. Bill Jones, J.
    Bennie Stroud, Jr. (Pro Se), attorney for appellant.
    Office of the Attorney General by: Deirdre McCrory, attorney for appellee.
    Before SOUTHWICK, P.J., LEE and MYERS, JJ.
   SOUTHWICK, P.J.,

for the court.

¶ 1. Bennie Stroud filed for post-conviction relief following the entry of his guilty plea to charges of aggravated assault, possession of a firearm by a felon and possession of a controlled substance. The Circuit Court of Jackson County denied the petition and Stroud appeals. Finding we lack jurisdiction, we dismiss the appeal.

FACTS

¶2. Bennie Stroud entered a plea of guilty to multiple felony offenses on March 5, 1997. The following day, he filed a pro se motion to withdraw the guilty plea. The motion was heard on April 14, 1997, and denied. At the same proceeding, Stroud was sentenced to fiftéen years imprisonment as an habitual offender on April 14, 1997.

113. Stroud filed his petition for post-conviction relief on October 8, 1997, claiming his guilty plea was involuntary and that counsel had been ineffective. The circuit court denied the petition on October 30, 1997. An appeal was filed with the supreme court on January 20, 1998. Since that time, occasional motions have been submitted, but Stroud’s initial brief was not filed until July 2002.

DISCUSSION

¶ 4. Appeals from both civil and criminal decisions must be filed within thirty days after the date of entry of the judgment or order from which the petition appeals. M.R.A.P. 4(a). Stroud filed his appeal well after this deadline had passed. Under our court rules, pro se parties are held to the same standards of procedure as attorneys. URCCC 8.05(3).

¶ 5. Had Stroud alleged and proved that he failed to receive timely notice of the entry of the order denying his post-conviction relief petition, he could have sought to reopen the time for appeal. M.R.A.P. 4(h). However, Stroud has never made that claim and has never petitioned any court to reopen the time for appeal.

¶ 6. Having failed to follow either route to appeal the denial of his petition, Stroud is time-barred. This Court has no jurisdiction to review his claims and his petition is hereby dismissed.

¶ 7. THE APPEAL OF THE JUDGMENT OF THE JACKSON COUNTY CIRCUIT COURT DENYING POST-CONVICTION RELIEF IS DISMISSED. COSTS OF THIS APPEAL ARE ASSESSED TO JACKSON COUNTY.

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


text:
    Willie BOOKER, Appellant, v. Barbara BAILEY, Lawrence Kelly and Robert Johnson, Appellees.
    No. 2002-CP-00919-COA.
    Court of Appeals of Mississippi.
    March 11, 2003.
    Willie Booker (Pro Se), attorney for appellant.
    Office of the Attorney General by Jane L. Mapp, attorney for appellee.
    Before SOUTHWICK, P.J., LEE and MYERS, JJ.
   SOUTHWICK, P.J.,

for the court.

¶ 1. The Sunflower County Circuit Court dismissed Willie Booker’s post-conviction motion as frivolous. Booker appeals the dismissal, pressing the claim that his life sentence was improperly converted to one without possibility of parole. We affirm.

FACTS

¶ 2. Booker was convicted of murder in Calhoun County and sentenced to life imprisonment on January 24, 1997. In the direct appeal of the conviction, this Court affirmed. Booker v. State, 745 So.2d 850 (Miss.Ct.App.1998). In May 2001, Booker filed a grievance with the Office of Legal Claims at the state prison, claiming his prison classification sheet did not contain a parole or other release date and requested correction of this error.

¶ 3. When the relief sought through the administrative grievance procedure was denied, Booker eventually filed a motion to show cause why his prison classification should not be corrected to reflect that he was sentenced to life imprisonment, not life without possibility of parole.

DISCUSSION

¶4. Booker filed suit against a variety of prison administration officials for correction of his inmate classification. This was the same approach taken by another inmate and which we allowed to proceed in Hill v. State, 838 So.2d 994 (Miss.Ct.App.2002). For the same reasons, we consider Booker’s claims. Booker argues that he was neither indicted nor convicted as an habitual offender and thus is not subject to a mandatary prison term without eligibility for parole. He further asserts that the trial court did not stipulate that his sentence of a life term was without possibility of parole. Failing this, ineligibility for parole should not be implied.

¶ 5. In support of his argument, Booker relies upon two authorities. The first is the federal Sentencing Reform Act. 28 U.S.C. § 991, et seq. This act specifically states its application to the federal criminal justice system. Booker was convicted under the state homicide statute. The provisions of the federal sentencing guidelines do not apply.

¶ 6. The second authority cited by Booker is a recent state judicial precedent which held that imprisonment for life without possibility of parole for the crime of murder was impermissible when such a sentence was not authorized by statute. Stevenson v. State, 674 So.2d 501, 506 (Miss.1996). An illegal sentence would require remedial action by this Court. However, Booker’s sentence was not illegal. A defendant convicted of murder is to be sentenced to life imprisonment. Miss. Code Ann. § 97-3-21 (Rev.2000). This provision must be read in conjunction with others that detail which classes of crimes permit the possibility of parole following conviction. Other than first-time offenders convicted of nonviolent crimes, persons convicted after June 30,1995, are ineligible for parole. Miss.Code Ann. § 47-7-3(l)(g) (Rev.2000). This applies to Booker.

¶ 7. Booker’s additional argument that he was not indicted or convicted as an habitual offender does not warrant reversal. Whether or not he is an habitual offender is of no importance to the validity of this sentence. Habitual offender status is but one route to a prison term without possibility of parole. Another method is to commit certain crimes of violence. Booker did, and he is not eligible for parole. The statute is applicable to him even though the words “without parole” were never spoken at his initial sentencing.

¶ 8. THE JUDGMENT OF THE SUNFLOWER COUNTY CIRCUIT COURT DISMISSING WITH PREJUDICE THE MOTION TO SHOW CAUSE IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO SUNFLOWER COUNTY.

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


author: MOORE, Chief Justice.

text:
    TWIN CITY FIRE INSURANCE COMPANY et al. v. COLONIAL LIFE & ACCIDENT INSURANCE COMPANY et al.
    1001831.
    Supreme Court of Alabama.
    June 21, 2002.
    Micheál S. Jackson of Beers, Anderson, Jackson, Hughes & Patty, P.C., Montgomery, for plaintiffs.
    Steven K. Herndon and Philip S. Gidi-ere, Jr., of Gidiere, Hinton & Herndon, Montgomery, for defendants.,
   MOORE, Chief Justice.

This case stems from a dispute over the manner in which one insurance company represented another insurance company in an underlying action alleging the wrongful termination of an employee. It comes to this Court via two certified questions from the United States District Court for the Middle District of Alabama. Our answer to the first question moots the second question.

I. Factual Background

Twin City Fire Insurance Company (“Twin City”) provided commercial general liability (“CGL”) coverage to Colonial Life & Accident Insurance Company (“Colonial”) from 1994-1996. One of Colonial’s former employees filed a wrongful-termination action in 1996, and, as provided by the policy, Twin City helped defend Colonial in that action under a reservation of rights. Pursuant to the reservation of rights, Twin City filed a declaratory-judgment action in the United States District Court for the Middle District of Alabama, seeking a declaration that it had no duty to continue defending Colonial and no duty to indemnify Colonial in the event that a judgement was entered against it. The wrongful-termination action was settled out of court for $1.3 million; that amount was provided by Colonial and the other insurance companies that had provided Colonial with CGL coverage. Twin City contributed nothing to the settlement.

The settlement rendered the declaratory-judgment action moot, but before that action was dismissed Colonial filed a counterclaim against Twin City alleging fraud, breach of contract, and breach of the insurer’s enhanced duty of good faith under the reservation-of-rights defense. Judge Ira DeMent dismissed the fraud claim but allowed the breach-of-contract and breach-of-duty-of-good-faith claims to go to trial. After hearing the evidence, Judge DeMent entered an order indicating that he would find no breach of contract by Twin City, but that he would find that under Alabama law Twin City had breached its enhanced duty of good faith. However, before entering a final order to this effect, Judge DeMent, pursuant to Rule 18, Ala. R.App. P., certified the following two questions to this Court:

“1) Does breach of the insurer’s enhanced duty of good faith, imposed by L & S Roofing Supply Co. v. St. Paul Fire & Marine Ins. Co., 521 So.2d 1298 (Ala. 1988), sound in contract or tort? If [in] tort, and under the facts of this case, if Alabama choice-of-law rules dictate application of South Carolina law on a claim of breach of insurance policy, would Alabama law apply to a claim of breach of the insurer’s enhanced duty of good faith?” and
“2) Are punitive damages available for breach of the insurer’s enhanced duty of good faith in cases where the insurance policy does not cover the underlying claim, pursuant to which the insurer has provided the reservation-of-rights defense?”

The first question is actually two questions, asking first whether under Alabama law a claim alleging a breach of an insurer’s enhanced duty of good faith is a tort or a contract claim, and second, if it is a tort claim, whether Alabama or South Carolina law applies.

If this Court determines that the insurer’s enhanced duty of good faith sounds in contract, then the parties have stipulated that Alabama law dictates that South Carolina law (the place where the contract providing CGL coverage was executed) controls Colonial’s claim. However, if the Court finds that the claim sounds in tort, then another matter becomes unclear. Whose law applies to the tort claim arising out of the contract claim? That is the thrust of the second half of the first certified question.

The answer to the first certified question affects the type of damages available to Colonial, which is the topic of the second question certified by the district court. Because we determine that the enhanced-duty-of-good-faith claim sounds in contract and not in tort, we need not determine whether Alabama law applies to that claim, nor must we determine what kind of damages can be awarded in such a claim.

II. Analysis

L & S Roofing Supply Co. v. St. Paul Fire & Marine Insurance Co., 521 So.2d 1298 (Ala.1988), is the seminal case in this area. That case holds that “when an insurance company undertakes a defense pursuant to a reservation of rights, it does so under an ‘enhanced obligation of good faith’ toward its insured in conducting such a defense.” Aetna Cas. & Sur. Co. v. Mitchell Bros., Inc., 814 So.2d 191, 195 (Ala.2001). L & S Roofing set forth specific criteria for fulfilling the enhanced duty of good faith an insurer owes the insured in such a situation:

“ ‘This enhanced obligation is fulfilled by meeting specific criteria. First, the company must thoroughly investigate the cause of the insured’s accident and the nature and severity of the plaintiffs injuries. Second, it must retain competent defense counsel for the insured. Both retained defense counsel and the insurer must understand that only the insured is the client. Third, the company has the responsibility for fully informing the insured not only of the reservation-of-rights defense itself, but of all developments relevant to his policy coverage and the progress of this lawsuit. Information regarding progress of the lawsuit includes disclosure of all settlement offers made by the company. Finally, an insurance company must refrain from engaging in any action which would demonstrate a greater concern for the insurer’s monetary interest than for the insured’s financial risk.’ ”

521 So.2d at 1303, quoting Tank v. State Farm Fire & Cas. Co., 105 Wash.2d 381, 388, 715 P.2d 1133, 1137 (1986) (emphasis omitted).

The insurer’s enhanced duty of good faith arises in a reservation-of-rights situation because, according to the insurance contract, the insurer has a duty to represent the insured on covered claims. A reservation of rights allows the insurer to challenge its liability on the underlying claim while still fulfilling its duty to represent the insured. Because of the potential conflicts inherent in such an arrangement, the enhanced duty of good faith “put[s] in place a procedure by which the insured can be confident that his interests will not be compromised nor in any way subordinated to those of the insurer as a result of the defense he is required to accept under the contract of insurance.” L & S Roofing, 521 So.2d at 1304. As the Washington Supreme Court explained in Tank v. State Farm Fire & Casualty Co., “ ‘[a] reservation of rights agreement is not a license for an insurer to conduct the defense of an action in a manner other than [the manner in which] it would normally be required to defend. The basic obligations of the insurer to the insured remain in effect.’ ” 105 Wash.2d at 387, 715 P.2d at 1137, quoting Weber v. Biddle, 4 Wash. App. 519, 524, 483 P.2d 155, 159 (1971).

Thus, an insurer’s duty to defend the insured under the enhanced duty of good faith stems from the insurer’s duty of representation in the underlying insurance contract. Since the release of our decision in L & S Roofing, whenever an insurer defends the insured under a reservation of rights, the enhanced duty of good faith is read into that reservation of rights. Hence, the enhanced duty arises under the insurance contract, because no reservation of rights would take place without the underlying duty of the insurer to defend the insured, and that duty is created by that contract. Because the enhanced duty arises from the contract, it follows that claims alleging a breach of the enhanced duty of good faith are contract claims.

The parties to this case have agreed that if our conclusion is that the breach of the enhanced duty of good faith sounds in contract, then South Carolina law applies, because the contract was executed in South Carolina. Thus, for purposes of this case it is not necessary to answer the question concerning the damages available for a breach of the enhanced duty of good faith under Alabama law. Because of our answer to the first question, an answer to the second question is unnecessary; we therefore decline to answer the second question.

QUESTION NO. 1 ANSWERED; QUESTION NO. 2 DECLINED.

HOUSTON, SEE, LYONS, BROWN, JOHNSTONE, HARWOOD, WOODALL, and STUART, JJ., concur.


author: MOORE, Chief Justice. HARWOOD, Justice WOODALL, Justice

text:
    CONSECO FINANCE CORPORATION OF ALABAMA d/b/a Green Tree Financial Corporation v. Nora SLAY.
    1010123.
    Supreme Court of Alabama.
    June 21, 2002.
    John Peter Crook McCall of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for appellant.
    Chad Lee, Roanoke, for appellee.
   MOORE, Chief Justice.

Conseco Finance Corporation of Alabama d/b/a Green Tree Financial Corporation (“Conseco”), appeals from an order denying Conseco’s motion to compel arbitration. We dismiss the appeal because it is not ripe for review.

Conseco filed a complaint on February 11, 2000, against Nora Slay (“Slay”) alleging that it had entered into a contract with Slay for the purchase of a mobile home; that, pursuant to that contract, it had retained a purchase-money security interest in the home; and that under the terms of the contract it was entitled to the recovery of the collateral (i.e., the mobile home) and a money judgment for the outstanding indebtedness on the home. Conseco amended its complaint on October 23, 2000. Slay answered Conseco’s amended complaint on November 20, 2000, and asserted a counterclaim alleging that the signature on the contract purporting to be hers was a forgery.

On April 9, 2001, Conseco filed a motion to compel arbitration of Slay’s counterclaim, pursuant to an arbitration provision contained in the contract. A hearing on the motion was held on August 2, 2001. After arguments, the trial court stated:

“At this time I am going to state that Nora Slay’s allegation that her purported signature on these documents is, in fact, a forgery, and is going to be sufficient to prohibit the matter from proceeding to arbitration, and that she would have the right to a jury trial in this matter.”

The case action summary sheet has a notation for the same day which states, “Motion to Compel Arbitration DENIED.” Thereafter, Conseco filed a motion to alter, amend, or vacate the order denying its motion to compel arbitration, arguing, in part, that the trial court’s order denying arbitration should be amended

“to clarify that arbitration is not being denied at this stage of the proceeding but, rather, that the issue of the validity of Slay’s signature on the arbitration agreement should be determined by trial by jury and thus the validity of the arbitration agreement will be determined by jury trial.”

The trial court denied Conseco’s motion in an order issued September 6, 2001.

On appeal, Conseco concedes that the trial court properly held that the question whether the signature on the contract purporting to be Slay’s was forged was a question for a jury. See Ex parte Meadows, 782 So.2d 277, 280 (Ala.2000) (a party contesting the existence of an agreement to arbitrate cannot be compelled to arbitrate such a threshold claim). Conseco argues that the trial court’s ruling and order “might be construed to deny arbitration completely”; it asks this Court to “direct the lower court to clarify its ruling” to assure Conseco that its motion to compel arbitration was “conditionally” denied pending a resolution by a jury of the validity of the contract containing the arbitration provision.

Unfortunately for Conseco, it has, at this point in the proceedings, requested relief for a harm it has not yet suffered. Rather, Conseco claims that, assuming the jury finds the contract valid, the trial court’s ruling and order could be read one way (i.e., as an absolute denial of arbitration), and that, if it is so read, Conseco would be legally harmed. Such speculative possibilities do not provide us with a “live controversy.” “Matters that may or may not occur in the future do not present an existing controversy .... ” Baldwin County v. Palmtree Penthouses, Ltd., 831 So.2d 603, 605 (Ala.2002). The trial court has not construed its own ruling and order in the way Conseco fears it can be construed; neither has the trial court had the opportunity to apply such a construction because there is no indication that a jury has decided the forgery issue. Should the trial court construe its ruling permitting a trial by a jury “in this matter” to embrace all issues and not merely the authenticity of the signature on the arbitration agreement, Conseco may then appeal on the issue it has argued before this Court.

We conclude, therefore, that the issue raised by Conseco is not ripe for adjudication. Although neither party questioned the ripeness of this matter, we must dismiss this appeal ex mero motu because we lack jurisdiction to hear it. See Baldwin County, 831 So.2d at 605 n. 4 (this Court has a duty to notice a lack of subject-matter jurisdiction); Boone v. Director of Dep’t of Public Safety, 337 So.2d 6, 8 (Ala.Civ.App.1976) (“The dismissal of an action ex mero motu when it shows upon its face that the court is without jurisdiction is always proper.”).

APPEAL DISMISSED.

HOUSTON, SEE, LYONS, BROWN, JOHNSTONE, and STUART, JJ., concur.

HARWOOD, J., concurs in the result.

WOODALL, J., dissents.

HARWOOD, Justice

(concurring in the result).

Conseco reasonably apprehended that the phrasing of the trial judge’s oral statement of his ruling on August 2, 2001, and the phrasing of his entry on the case action summary sheet that same day, in combination with his denial of Conseco’s motion seeking, in part, a clarification of those rulings to reflect that arbitration was not being unconditionally denied at that stage of the proceedings, constituted a full-fledged denial of Conseco’s motion to compel arbitration. That being the situation, Conseco could ill afford to “guess” otherwise and let the time for an appeal of such a denial expire, exposing it to the prospect of losing its only chance to seek appellate review of a denial. The holding of the main opinion, that, in effect, the rulings by the trial court do not represent an unconditional denial of arbitration, with the result that the issue raised by Conseco is not ripe for review, officially allays Conseco’s concerns. I, therefore, concur in the result.

WOODALL, Justice

(dissenting).

The trial court denied Conseco’s motion to compel arbitration. Therefore, instead of dismissing Conseco’s appeal, this Court should address the merits of the arbitration issue.

The trial court has never indicated that it intends to limit a jury trial to the issue whether Slay actually signed the contract for the purchase of the mobile home. After the motion to compel arbitration was argued orally, the trial court stated “that Nora Slay’s allegation that her purported signature on these documents is, in fact, a forgery, and is going to be sufficient to prohibit the matter from proceeding to arbitration, and that she would have the right to a jury trial in this matter.” There is no basis for a conclusion that the trial court equated “matter” with the limited “issue” of the validity of Slay’s purported signature. Indeed, any such notion is belied by the trial court’s written order, which simply denied the motion to compel arbitration.

Conseco was dissatisfied with the denial of its motion and sought to have the trial court amend its order “to clarify that arbitration is not being denied at this stage of the proceeding but, rather, that the issue of the validity of [Slay’s] signature on the arbitration agreement should be determined by trial by jury.” The trial court refused to amend its order denying arbitration, clearly leaving intact its previous absolute denial of the motion to compel arbitration.

I would affirm the trial court’s order denying arbitration, because Conseco did not carry its initial burden of “proving that the contract evidences a transaction substantially affecting interstate commerce.” American Gen. Fin., Inc. v. Morton, 812 So.2d 282, 284-85 (Ala.2001) (plurality opinion). Conseco attempts to excuse its failure by arguing that “the record on appeal is devoid of any mention by Slay, much less any affirmative pleading, that the arbitration provision at issue did not involve interstate commerce.” Reply Brief of Appellant, at 3. However, that argument ignores the fact that Conseco had the initial burden with regard to the interstate-commerce issue. Also, it ignores Slay’s right to “defend the trial court’s ruling with an argument not raised below, for this Court ‘will affirm the judgment appealed from if supported on any valid legal ground.’ Tucker v. Nichols, 431 So.2d 1263, 1265 (Ala.1983).” Smith v. Equifax Servs., Inc., 537 So.2d 463, 465 (Ala.1988).


author: LYONS, Justice.

text:
    Ex parte Jeffrey Taylor LAGRONE. (In re Jeffrey Taylor Lagrone et al. v. Norco Industries, Inc., et al.).
    1010758.
    Supreme Court of Alabama.
    June 21, 2002.

      David H. Marsh and Michael K. Beard of Marsh, Rickard & Bryan, P.C., Birmingham, for petitioners.
    Bruce F. Rogers and James W. Davis of Bainbridge, Mims, Rogers & Smith, L.L.P., Birmingham, for respondents.
   LYONS, Justice.

Jeffrey Taylor Lagrone filed an action in the Jefferson Circuit Court against Norco Industries, Inc., Alabama Jack Company, Inc., and Fisher Products, Inc., seeking damages under tort claims and breach-of-warranty claims arising from a brain injury he allegedly sustained when he was struck in the head by a jack. Fisher Products filed a motion to dismiss the claims against it, alleging that the trial court did not have personal jurisdiction over it. The trial court granted the motion. Lagrone seeks a writ of mandamus ordering the trial court to vacate its order granting Fisher Products’ motion to dismiss for lack of personal jurisdiction. We grant the petition and issue the writ.

Procedural History

Lagrone allegedly suffered a serious brain injury when he was struck in the head by a pneumatic-lift jack while he was repairing a tractor. In his initial complaint, filed March 29, 2001, Lagrone alleged that the jack was manufactured and distributed by Norco. Subsequently, La-grone learned that although Norco’s logo and name were on the jack, the jack had actually been manufactured by Fisher Products, a Georgia corporation. On May 9, 2001, Lagrone amended his complaint, naming Fisher Products as a defendant.

On July 16, 2001, Fisher Products filed a motion to dismiss for lack of personal jurisdiction pursuant to Rule 12, Ala. R. Civ. P. The trial court scheduled a hearing on the motion to dismiss for August 1, 2001. On July 23, Lagrone filed a notice of deposition pursuant to Rule 30(b)(5) and (6), Ala. R. Civ. P., to depose a representative of Fisher Products on the jurisdictional issue only. On July 24, 2001, Lagrone filed a motion to continue the hearing on Fisher Products’ motion to dismiss and to permit discovery on the jurisdictional issue. Counsel for Fisher Products did not object to the continuance and notified the trial court that counsel agreed that additional discovery was necessary and that the hearing on the motion to dismiss should be continued. Counsel for Fisher Products advised Lagrone’s counsel that the hearing on the motion to dismiss was to be continued. However, on August 1, 2001, the trial court advised Lagrone’s counsel that they had 10 days in which to file an affidavit opposing Fisher Products’ motion to dismiss, after which time the trial court would rule on the motion. On August 3, 2001, counsel for Lagrone propounded interrogatories and requests for production to Fisher Products concerning the jurisdictional issue; on that same day it filed a motion to shorten the time for Fisher Products to respond to the outstanding discovery requests.

On August 18, 2001, the trial court granted Fisher Products’ motion to dismiss for lack of personal jurisdiction. That same afternoon, counsel for Lagrone received a letter from counsel for Fisher Products stating that Fisher Products’ counsel was working on getting responses to Lagrone’s interrogatories and compiling the documents pertaining to Fisher Products’ sales and shipments, including 17 shipments by Fisher Products on behalf of Norco to customers in Alabama. When it issued the August 13 order dismissing Fisher Products for lack of personal jurisdiction, the trial court had not ruled on Lagrone’s motion to continue the August 1 hearing, its motion for relief or for a protective order, or its motion to shorten the time within which discovery must be completed. On August 21, 2001, Lagrone filed a motion to alter, amend, or vacate the judgment of dismissal. On August 29, 2001, the trial court issued an order permitting an additional 30 days from that date for discovery. During this time counsel for Lagrone deposed Wayne Bowers, one of the co.-owners of Fisher Products. On December 18, 2001, the trial court denied Lagrone’s motion to alter, amend, or vacate its order of August 13, 2001. La-grone then petitioned for a writ of mandamus.

Facts

Fisher Products is a Georgia corporation; its principal place of business is located in Hartwell, Georgia, near the South Carolina state line. Fisher Products has four employees, including its two co-owners. The company fabricates industrial equipment upon special orders to meet its customers’ specifications. Since 1982 or 1983 Fisher Products has fabricated jacks for Norco, the distributor of the jacks and a codefendant in this action. Fisher Products fabricates the jacks for Norco pursuant to orders placed by Norco and ships the jacks to the destinations Norco instructs it to ship them to. Occasionally, to save the time that would otherwise be consumed by shipment to Norco’s warehouse, Norco instructs Fisher Products to ship the jacks directly to a third party. According to Bowers, “When I ship it to [Norco’s] customer, Norco sends me the instructions and we bül it as shipped by Norco.” In those instances, Fisher Products sells the jacks “F.O.B.” (“free on board”), which means, according to Bowers, that once the shipment leaves Fisher Products’ shipping dock, the goods belong to Norco. On these occasions when Fisher Products ships a jack directly to a third party in Alabama, Fisher Products’ invoices describe Norco as the entity to which the product is sold and describes an Alabama addressee as the entity to which the product is to be shipped. The invoices issued by Fisher Products do not refer to shipping charges. The shipping documents issued by the carrier describe the Alabama addressee as the “consignee,” the shipper as “Fisher Products-Norco, Hart-well, Georgia,” and describes the freight as “pre-paid” or “third-party freight prepaid” with instructions to bill to Norco at its address in California.

We conclude from the deposition testimony of Bowers and from the exhibits attached to that deposition that Fisher Products sold the products F.O.B., Hart-well, Georgia, and that Fisher Products facilitated shipment to the Alabama addressees by coordinating with the common carrier so that the goods were shipped from Fisher Products’ Hartwell facility to the Alabama addressees, freight prepaid, with instructions to bill Norco in California for the shipping costs. From 1997 to 2000, the only years for which Fisher Products produced records, Fisher Products made 17 shipments of jacks and other products to Alabama addresses at Norco’s instruction. Fisher Products’ revenues from the 17 shipments totaled $15,296.98.

More commonly, Fisher Products ships jacks fabricated for Norco directly to one of Norco’s warehouses, including one located in Atlanta, Georgia; Norco then distributes its products nationally. Norco does not have a warehouse in Alabama. In response to Lagrone’s interrogatories, Norco stated that pursuant to an oral agreement it has with Fisher Products, Norco may sell items manufactured by Fisher Products in any state. In his deposition, Bowers testified that Fisher Products did not restrict Norcó from selling its products in any state. In 2000, Fisher Products fabricated 101 jacks for Norco; it shipped those jacks to various Norco warehouses. In 2000, Fisher Products had revenues of $79,765 from the sale of jacks to Norco. Norco ultimately delivered those jacks to customers in 21 states, including Alabama. The jack that allegedly caused Lagrone’s injury was one of those jacks Fisher Products sold to Norco and shipped to the Norco warehouse in Atlanta, Georgia. Norco sold and shipped the jack to Alabama Jack, which, in turn, sold the jack to Lagrone. Norco stated in its answers to Lagrone’s interrogatories that its only sales in Alabama were to Alabama Jack.

Fisher Products has never advertised in Alabama, has never directly solicited business in Alabama, and no Fisher Products employees have ever traveled to Alabama for business purposes.

Discussion

A writ of mandamus is an extraordinary form of relief available only when 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 United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala.1993). See also Ex parte CUNA Mutual Ins. Soc’y, 822 So.2d 379, 382 (Ala.2001) (quoting Ex parte United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala.1993)). The trial court’s order denying Lagrone’s motion to alter, amend, or vacate its order dismissing Lagrone’s claims against Fisher Products for lack of personal jurisdiction was interlocutory; thus, a writ of mandamus is the appropriate remedy. Ex parte Paul Maclean Land Servs., Inc., 613 So.2d 1284, 1286 (Ala.1993). “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 (Ala.2002). See also Worthy v. Cyberworks Technologies, Inc., 835 So.2d 972 (Ala.2002).

“The Due Process Clause of the Fourteenth Amendment limits the power of a state court to render a valid personal judgment against a nonresident defendant.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980), citing Kulko v. Superior Court, 436 U.S. 84, 91, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978). Rule 4.2, Ala. R. Civ. P., Alabama’s long-arm rule, “extends the personal jurisdiction of Alabama courts to the limits of due process under the federal and state constitutions.” Elliott, 830 So.2d at 729; Sieber v. Campbell, 810 So.2d 641 (Ala.2001); Ex parte Pope Chevrolet, Inc., 555 So.2d 109, 110 (Ala.1989). Rule 4.2(2)(A)-(H) describes examples of the types of contacts with this State that may provide a basis for in personam jurisdiction over a nonresident defendant. Subsection (I) then sets out a “catchall” provision intended to extend Alabama’s in personam jurisdiction to the extent permitted by the Due Process Clause of the United States Constitution, even where subsections (A)-(H) do not apply. Elliott, 830 So.2d at 729. Rule 4.2 states, 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;
“(D) causing tortious injury or damage in this state by an act or omission outside this state if the person regularly does or solicits business, or engages in any other persistent course of conduct or derives substantial revenue from goods used or consumed or services rendered in this state;
“(E) causing injury or damage in this state to any person by breach of warranty expressly or impliedly made in the sale of goods outside this state when the person might reasonably have expected such other person to use, consume, or be affected by the goods in this state, provided that the person also regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered 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.”

Thus, because Rule 4.2 extends Alabama’s in personam jurisdiction to the outer limits of due process, the dispositive issue in this ease is whether the extension of Alabama’s in personam jurisdiction over Fisher Products is consistent with due process.

We have recently set out the analysis to be used in determining whether the exercise of Alabama’s in personam jurisdiction over the defendant satisfies the requirements of due process.

“The Due Process Clause of the Fourteenth Amendment permits a forum state to subject a nonresident defendant to its courts only when that defendant has sufficient ‘minimum contacts’ with the forum state. International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945). The critical question with regard to the nonresident defendant’s contacts is whether the contacts are such that the nonresident defendant ‘ “should reasonably anticipate being haled into court” ’ in the forum state. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 473, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985), quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 295, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980). The sufficiency of a party’s contacts are assessed as follows:
“ ‘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.” Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 n. 9, 415, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984); [citations omitted]. 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. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472-75, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). 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. Id.’
“Ex parte Phase III Constr., Inc., 723 So.2d 1263, 1266 (Ala.1998) (Lyons, J., concurring in the result). Furthermore, this Court has held that, for specific in personam jurisdiction, there must exist ‘a clear, firm nexus between the acts of the defendant and the consequences complained of.’ Duke v. Young, 496 So.2d 37, 39 (Ala.1986). See also Ex parte Kamilewicz, 700 So.2d 340, 345 n. 2 (Ala.1997).
“Only after such minimum contacts have been established does a court then consider those contacts in the light of other factors — such as the burden on the defendant of litigating in the forum state and the forum state’s interest in adjudicating the dispute, Burger King, 471 U.S. at 476-77, 105 S.Ct. 2174 — to determine whether the exercise of personal jurisdiction over the nonresident defendant comports with ‘ “traditional notions of fair play and substantial justice.” ’ Brooks v. Inlow, 453 So.2d 349, 351 (Ala.1984), quoting International Shoe, 326 U.S. at 316, 66 S.Ct. 154. See also Burger King, 471 U.S. at 476-77, 105 S.Ct. 2174.”

Elliott, 830 So.2d at 730-31; see also Worthy, 835 So.2d 972.

Thus, the first step in our analysis is to determine whether Fisher Products has the requisite “minimum contacts” with this State to support the exercise of in person-am jurisdiction. In World-Wide Volkswagen, the United States Supreme Court held that an automobile distributor and a retailer, both incorporated in New York and whose principal places of businesses were in New York, were not subject to Oklahoma’s in personam jurisdiction. In that case, a New York resident purchased a car from the retailer in New York, began driving the car to Arizona, and was injured in an accident in Oklahoma. There was no evidence indicating that either the distributor or the retailer shipped products into Oklahoma. Moreover, there was no evidence indicating that any vehicle sold by the distributor or the retailer — other than the one that caused the injury — had ever entered Oklahoma. The Court stated:

“[I]f the sale of a product of a manufacturer or distributor ... is not simply an isolated occurrence, but arises from the efforts of the manufacturer or distributor to serve, directly or indirectly, the market for its product in other States, it is not unreasonable to subject it to suit in one of those States if its allegedly defective merchandise has there been the source of injury to its owner or to others. The forum State does not exceed its powers under the Due Process Clause if it asserts personal jurisdiction over a corporation that delivers its product into the stream of commerce with the expectation that they will be purchased by consumers in the forum State.”

444 U.S. at 297-98, 100 S.Ct. 559 (emphasis added). Applying this test, the United States Supreme Court then stated:

“It is foreseeable that the purchasers of automobiles sold by [the distributor and retailer] may take them to Oklahoma. But the mere ‘unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum State.’ Hanson v. Denckla, [357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958)].”

444 U.S. at 298. See also Ex parte Pope Chevrolet, Inc., 555 So.2d 109, 111 (Ala.1989).

In Asahi Metal Industry, Inc. v. Superior Court of California, 480 U.S. 102, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987), the United States Supreme Court was deeply divided as to what satisfies the World-Wide Volkswagen test of an “expectation that [the defendant’s products] will be purchased by consumers in the forum state.” In Asahi, a Japanese producer of tire valves sold its valves to a tire-tube manufacturer in Taiwan who later sold the tubes, equipped with Asahi’s valves, in California. Asahi was aware that the Taiwanese manufacturer sold the tubes throughout the world, including the United States. Affidavits indicated that Asahi knew its products would end up in California but that it did not contemplate that its sales to the Taiwanese manufacturer would subject it to lawsuits in California. Asahi, 480 U.S. at 107, 107 S.Ct. 1026. Justice O’Connor (joined by Chief Justice Rehnquist and Justices Powell and Scalia) favored a narrower interpretation of the “stream-of-commeree” doctrine. Justice O’Connor wrote: “[A] defendant’s awareness that the stream of commerce may or will sweep the product into the forum State does not convert the mere act of placing the product into the stream into an act purposefully directed toward the forum State.” Id. 480 U.S. at 112, 107 S.Ct. 1026.

Those four Justices, had they formed a majority, would have required that “additional conduct” indicating the defendant’s intent or purpose to serve the market before the defendant could be subjected to in personam jurisdiction in the forum State. Id. The four Justices concluded that Asahi did not have the requisite contacts to support in personam jurisdiction in California because there was no evidence of “an act of the defendant purposefully directed toward the forum State.” Asahi, 480 U.S. at 112, 107 S.Ct. 1026.

Justice Brennan (joined by Justices White, Marshall, and Blackmun) disagreed with this portion of the opinion. Justice Brennan wrote:

“The stream of commerce refers not to unpredictable currents or eddies, but to the regular and anticipated flow of products from manufacture to distribution to retail sale. As long as a participant in this process is aware that the final product is being marketed in the forum State, the possibility of a lawsuit there cannot come as a surprise.”

Asah% 480 U.S. at 117, 107 S.Ct. 1026. (Brennan, J., concurring in part and concurring in the judgment)(emphasis added). Those four Justices would have concluded that “Asahi’s regular and extensive sales of component parts to a manufacturer it knew was making regular sales of the final product in California” was sufficient to establish Asahi’s “minimum contacts” with California. Id. at 121, 107 S.Ct. 1026.

Justice Stevens (joined by Justices White and Blackmun) also wrote separately. Justice Stevens wrote:

“Whether or not [Asahi’s] conduct rises to the level of purposeful availment requires a constitutional determination that is affected by the volume, the value, and the hazardous character of the components. In most circumstances I would be inclined to conclude that a regular course of dealing that results in deliveries of over 100,000 units annually over a period of several years would constitute ‘purposeful availment’ even though the item delivered to the forum State was a standard product marketed throughout the world.”

Asahi, 480 U.S. at 122, 107 S.Ct. 1026 (Stevens, J., concurring in part and concurring in the judgment). From these opinions it appears that a majority of the Supreme Court would have concluded that Asahi did have the requisite contacts to support the assertion of California’s in personam jurisdiction. However, none of these views were endorsed by a majority of the Court, and the Court ultimately held that to allow California to exert in person-am jurisdiction over Asahi would be unreasonable, even if Asahi had had the requisite contacts with the state. Asahi, 480 U.S. at 116, 107 S.Ct. 1026. Thus, we follow the example of numerous federal and state courts and view Asahi’s treatment of the stream-of-commerce doctrine as instructive, but not binding, precedent. Ex parte Pope Chevrolet, Inc., 655 So.2d at 112; Vermeulen v. Renault, U.S.A., Inc., 985 F.2d 1534, 1548 (11th Cir.1993); Ruston Gas Turbines, Inc. v. Donaldson Co., 9 F.3d 415, 420 (5th Cir.1993); Andersen v. Sportmarb, Inc., 57 F.Supp.2d 651, 658-59 (N.D.Ind.1999).

A nonresident defendant may be subjected to Alabama’s general in person-am jurisdiction if its contacts with this State, although unrelated to the cause of action, are “continuous and systematic.” Helicopteros Nacionales de Colombia, S.A v. Hall, 466 U.S. 408, 414 n. 9, 415, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984); Worthy, 835 So.2d 972; Elliott, 830 So.2d 732-33. Between 1997 and 2000, the only years for which Fisher Products has produced records, Fisher Products made 17 shipments of its products, totaling $15,296.98, to Alabama customers at Norco’s instruction. Fisher Products sold the products F.O.B., Hartwell, Georgia, and facilitated shipment to the Alabama addressees by coordinating with the common carrier so that the goods were shipped from Fisher Products’ Hart-well facility to the Alabama addressees, freight prepaid, with instructions to bill Norco in California for the shipping costs.

The mere fact that Fisher Products delivered its products “F.O.B. Hartwell, Georgia,” is not dispositive. The United States Court of Appeals for the Eleventh Circuit stated in Vermeulen v. Renault, U.S.A., Inc., 985 F.2d at 1548:

“[W]e note that the fact that title to the Renault vehicles passed to AMSC in France rather than in the United States in no way determines the degree of contacts between the United States and RNUR. ‘ “If International Shoe stands for anything ..., it is that a truly interstate ... business may not shield itself from suit by a careful but formalistic structuring of its business decisions.” ’ ”

See also Renner v. Lanard Toys Ltd., 33 F.3d 277, 282 (3d Cir.1994), and Starbrite Distrib., Inc. v. Excelda Mfg. Co., 454 Mich. 302, 307, 562 N.W.2d 640, 642 (1997).

Fisher Products conceded that it knew that the products included in the 17 transactions were being shipped to customers in Alabama. Fisher Products placed its products into the stream of commerce, with not only the “expectation,” but with the actual knowledge that the products would be purchased by consumers in this State. See World-Wide Volkswagen, 444 U.S. at 297-98, 100 S.Ct. 559. Thus, even assuming that Fisher Products was unaware that the other products it sold to Norco and shipped to Norco’s warehouses were to be marketed by Norco in Alabama, Fisher Products knew that those 17 shipments were being sold to Alabama customers. Thus, in light of those shipments, Fisher Products “ ‘should reasonably [have] anticipate^] being haled into court [in Alabama].’ ” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985), quoting World-Wide Volkswagen Corp., 444 U.S. at 295, 100 S.Ct. 559. The acts of Fisher Products are sufficiently “continuous and systematic” to establish Alabama’s general in personam jurisdiction. Helicopteros Nacionales de Colombia, S.A., 466 U.S. at 414 n. 9, 104 S.Ct. 1868; Elliott, 830 So.2d at 730. Where general in personam jurisdiction exists, the absence of “a clear, firm nexus between the acts of the defendant and the consequences complained of,” Duke v. Young, 496 So.2d 37, 39 (Ala.1986), so as to support specific in personam jurisdiction is immaterial. See Helicopteros, 466 U.S. at 416, 104 S.Ct. 1868 (finding that the claims did not “arise out of’ the contacts with the forum state, but continuing to consider whether the contacts nevertheless supported general jurisdiction). Because we hold that an Alabama court can, consistent with due process, assert general in personam jurisdiction over Fisher Products, it is inconsequential that the jack made the basis of this action was not included in the 17 shipments made by Fisher Products directly to Alabama over a period of three years.

Our analysis does not end with the determination that Fisher Products has the requisite “minimum contacts” with this State to permit Alabama courts to subject it to in personam jurisdiction. We must also consider whether such jurisdiction is consistent with “traditional notions of fair play and substantial justice.” Ex parte United Bhd. of Carpenters & Joiners of America, AFL-CIO, 688 So.2d 246, 252 (Ala.1997); Burger King, 471 U.S. at 476-77, 105 S.Ct. 2174; Brooks v. Inlow, 453 So.2d 349, 351 (Ala.1984); International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945). For a nonresident defendant who has purposefully directed his activities at Alabama residents to defeat personal jurisdiction, “he must present a compelling case that the existence of some other considerations would render jurisdiction unreasonable.” Burger King, 471 U.S. at 477, 105 S.Ct. 2174. Fisher Products contends that it would be unduly burdensome to require it to come from Georgia to Birmingham to defend an action because it has only four employees and its principal office is located near the South Carolina border. Fisher’s location at Hartwell, Georgia, makes attending a trial in many counties in the southernmost portion of its home state of Georgia significantly more burdensome than attending a trial in Birmingham, Alabama. Mileage between geographic points is “capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Rule 201(b)(2), Ala. R. Evid. After weighing the burden on Fisher Products of defending this action in Alabama against Lagrone’s interest in obtaining convenient and effective relief and the judicial system’s interest in the efficient resolution of controversies, we conclude that the exercise of in person-am jurisdiction in this case is reasonable. Thus, because it would not offend due process, Fisher Products may be subjected to Alabama’s in personam jurisdiction under Rule 4.2, Ala. R. Civ. P.

Because Fisher Products is subject to Alabama’s in personam jurisdiction, La-grone has a “clear legal right” to have the trial court vacate its order of August 13, 2001, dismissing the action against Fisher Products for lack of personal jurisdiction, and we direct the trial court to do so. We grant the petition and issue the writ.

PETITION GRANTED; WRIT ISSUED.

HOUSTON, SEE, BROWN, JOHNSTONE, HARWOOD, WOODALL, and STUART, JJ., concur.

MOORE, C.J., dissents.

      . Fisher Products has also shipped items to Norco warehouses in California, Indiana, and Texas.

      . The available records show that Fisher Products sent four shipments to Alabama in 1997 totaling $5,094.50, seven shipments in 1998 totaling $4,890.48, four shipments in 1999 totaling $3,536, and two shipments in 2000 totaling $1,776.


author: BROWN, Justice.

text:
    THOMPSON PROPERTIES et al. v. BIRMINGHAM HIDE & TALLOW COMPANY, INC.
    1000215.
    Supreme Court of Alabama.
    June 21, 2002.

      N. Christian Glenos of Walston, Wells, Anderson & Baines, L.L.P., Birmingham, for appellants.
    Richard E. Smith, Deborah Alley Smith, and Eric J. Breithaupt of Christian & Small, L.L.P., Birmingham, for appellee.
   On Application for Rehearing

BROWN, Justice.

The opinion of November 2, 2001, is withdrawn and the following is substituted therefor.

In July 1997, Thompson Properties, 119 AA 370, Ltd., and Thompson Properties, 123 AA 370, Ltd. (hereinafter referred to collectively as “the Partnerships”), filed an action against Eastern Valley Trading Company, Inc. (“Eastern Valley”), and Birmingham Hide & Tallow Company, Inc. (“Birmingham Hide”), pursuant to the Alabama Uniform Fraudulent Transfer Act (“AUFTA”), §§ 8-9A-1 through -12, Ala. Code 1975, seeking to set aside as fraudulent certain transfers of real property. The complaint alleged that Ron Roekhill, who was Eastern Valley’s president and its sole shareholder at the time, had transferred to Birmingham Hide property held in the name of Eastern Valley, with the intent to frustrate the claims of Rockhill’s creditors, including the Partnerships. The complaint further alleged that when the property was transferred from Eastern Valley to Birmingham Hide, Eastern Valley was the “alter ego and [a] mere instrumentality” of Roekhill. In addition, the complaint alleged that Eastern Valley and Birmingham Hide conspired to defraud Rockhill’s creditors.

Birmingham Hide denied the material allegations of the complaint and asserted, as an affirmative defense, that it was a bona fide purchaser for value of the real property in question. Eastern Valley, a named codefendant in the complaint, failed to answer. The Partnerships moved for a default judgment as to Eastern Valley, asking the trial court to declare that, at the time the property was transferred, Eastern Valley was the alter ego of Rock-hill and that Eastern Valley was liable for judgments totaling over $400,000 that had been entered in favor of the Partnerships and against Roekhill in an action initiated in 1990.

The trial court entered the default judgment against Eastern Valley. The trial court then certified the default judgment as final under Rule 54(b), Ala. R. Civ. P. No party appealed the default judgment.

The case proceeded with respect to the Partnerships’ remaining claims. The Partnerships moved for a summary judgment against Birmingham Hide, arguing that there were no genuine issues of material fact as to their allegations of fraudulent transfer and conspiracy to defraud and that the Partnerships were entitled to a judgment as a matter of law. Birmingham Hide subsequently moved for a summary judgment.

On October 17, 2000, the trial court entered a summary judgment against the Partnerships and in favor of Birmingham Hide and denied the Partnerships’ motion for a summary judgment. The Partnerships appeal, contending that the trial court erred in granting Birmingham Hide’s motion for a summary judgment. We reverse and remand.

At all times material to this action, Roekhill was the president and the sole shareholder of Eastern Valley. In 1988, Rockhill acquired the following properties in the name of Eastern Valley: (1) a house in the Quail Run subdivision of Shelby County; (2) a beachfront condominium in Panama City, Florida; and (8) a vacant lot in a subdivision of Vestavia Hills in Jefferson County. The total purchase price of these properties (hereinafter referred to collectively as “the Eastern Valley Properties”) was $316,000. At the time the properties were purchased, most of RockhilFs assets were held in the name of Eastern Valley. Following the purchase, Rockhill resided in the home in the Quail Run subdivision and used the Panama City condominium.

In 1990, the Partnerships sued Rockhill in the Jefferson Circuit Court, alleging fraud and breach of fiduciary duty. The Partnerships contended that Rockhill, who had formerly been a general partner in the Partnerships, had misappropriated the Partnerships’ funds. In November 1990, the trial court entered judgments totaling over $400,000 in favor of the Partnerships and against Rockhill on the Partnerships’ claims of fraud and breach of fiduciary duty.

Following the entry of those judgments, Rockhill filed a petition in bankruptcy in the United States Bankruptcy Court for the Northern District of Alabama. Because title to the Eastern Valley Properties was held in the name of Eastern Valley, those Properties were not identified as assets in Rockhill’s bankruptcy-petition schedule. Nor were the Properties disclosed to the bankruptcy court or to the Partnerships. In May 1993, the bankruptcy court entered a judgment declaring $113,760.51 of the November 1990 judgments against Rockhill to be exempt from discharge as to the Partnerships.

Forty-two days after the bankruptcy court entered the judgments declaring a portion of the prior judgments against him to be exempt from discharge, Rockhill, acting through Eastern Valley, sold the Eastern Valley Properties to Birmingham Hide, for $194,000. The deeds evidencing the conveyance of the Eastern Valley Properties to Birmingham Hide were signed by Rockhill as the president of Eastern Valley. Evidence indicated that Rockhill used the $194,000 to settle litigation in a separate, unrelated lawsuit brought against Rockhill and Eastern Valley based on other allegedly improper business dealings by Rockhill.

The Partnerships presented evidence indicating that after the sale of the Eastern Valley Properties to Birmingham Hide, Rockhill continued to reside in the house in the Quail Run subdivision without paying rent to Birmingham Hide. In addition, Rockhill continued to use the Panama City condominium, rent-free. The evidence also showed that in July 1995, after Birmingham Hide sold two of the Eastern Valley Properties (the house in the Quail Run subdivision and the vacant lot in Ves-tavia Hills) to bona fide purchasers, Birmingham Hide paid Roekhill $39,650 from the sale proceeds. Birmingham Hide made the $39,650 check payable to Rock-hill, rather than to Eastern Valley. Owen Vickers, president of Birmingham Hide, testified by deposition that the payment was for Rockhill’s “undocumented interest” in the Eastern Valley Properties. Evidence was presented indicating that Roekhill and Birmingham Hide had agreed at the time the Eastern Valley Properties were conveyed to Birmingham Hide that Roekhill would share in any net gains that might be realized when Birmingham Hide later resold the properties.

When the Partnerships learned about the circumstances surrounding the transfer of the Eastern Valley Properties, they filed this action pursuant to the AUFTA, alleging that Roekhill had transferred, or caused to be transferred, to Birmingham Hide the property with the intent to place those assets beyond the reach of the Partnerships, which held judgments against Roekhill, a portion of which the bankruptcy court had declared nondischargeable. The Partnerships alleged that Eastern Valley, which held title to the Eastern Valley Properties, was the alter ego of Roekhill when the property was transferred to Birmingham Hide and that Eastern Valley and Birmingham Hide had conspired to defraud the Partnerships. The Partnerships sought a judgment setting aside the transfer of the Panama City condominium — the only Eastern Valley Property still held by Birmingham Hide at the time — and awarding such other relief as might be appropriate.

The AUFTA, §§ 8-9A-1 through -12, Ala.Code 1975, provides that certain transfers “made by a debtor” may be found void or voidable as to creditors. The purpose of the AUFTA is to prevent fraudulent transfers of property by a debt- or who intends to defraud creditors by placing assets beyond their reach. Under § 8-9A-^4(a), Ala.Code 1975, “[a] transfer made by a debtor is fraudulent as to a creditor ... if the debtor made the transfer with actual intent to hinder, delay, or defraud any creditor of the debtor.” “Transfer” is defined at § 8-9A-l(13), Ala. Code 1975, as “[ejvery mode, direct or indirect, absolute or conditional, voluntary or involuntary, of disposing of or parting with an asset or an interest in an asset, and includes payments of money, release, lease, and creation of a lien or other encumbrance.” “Debtor” is defined at § 8-9A-1(6) as “[a] person who is liable on a claim.” “Creditor” is defined at § 8-9A-1(4) as “[a] person who has a claim.” “Claim” is defined at § 8-9A-l(3) as “[a] right to payment, whether or not the right is reduced to judgment, liquidated, unliqui-dated, fixed, contingent, matured, unma-tured, disputed, undisputed, legal, equitable, secured, or unsecured, and specifically shall include the nonpayment of child support pursuant to a court order.”

In entering the summary judgment in favor of Birmingham Hide, the trial court stated that it was relying on Folmar & Associates LLP v. Holbevg, 776 So.2d 112 (Ala.2000), in which this Court held that the AUFTA applies only to transfers “by a debtor.” The trial court concluded that the transfer of property to Birmingham Hide was not a transfer “by a debtor” within the language of the AUFTA because, at the time of the transfer, the property was held in the name of Eastern Valley rather than in the name of Rockhill, the Partnerships’ judgment debtor.

The Partnerships argue that when the property was transferred from Eastern Valley to Birmingham Hide, Eastern Valley was the “alter ego and [a] mere instrumentality” of Rockhill and that consequently, for purposes of the AUFTA, Eastern Valley was Rockhill and was, therefore, a “debtor.”

The standard by which this Court will review a motion for summary judgment is well established:

“The principles of law applicable to a motion for summary judgment are well settled. To grant such a motion, the trial court must determine that the evidence does not create a genuine issue of material fact and that the movant is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. When the movant makes a prima facie showing that those two conditions are satisfied, the burden shifts to the nonmovant to present ‘substantial evidence’ creating a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989); § 12-21-12(d)[,] Ala.Code 1975. Evidence is ‘substantial’ if it is of ‘such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ West v. Founders Life Assur. Co. of Florida, 547 So.2d 870, 871 (Ala.1989).
“In our review of a summary judgment, we apply the same standard as the trial court. Ex parte Lumpkin, 702 So.2d 462, 465 (Ala.1997). Our review is subject to the caveat that we must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Planners v. Balfour Guthrie, Inc., 564 So.2d 412, 413 (Ala.1990).”

Ex parte Alfa Mut. Gen. Ins. Co., 742 So.2d 182, 184 (Ala.1999).

It is undisputed that at the time the Eastern Valley Properties were transferred to Birmingham Hide, Rockhill was a debtor of the Partnerships, by virtue of the prior judgments in the Partnerships’ favor against Rockhill that the bankruptcy court had declared nondischargeable. Moreover, notwithstanding the trial court’s ruling — which formed the basis of its summary judgment in favor of Birmingham Hide — that Eastern Valley was not, for purposes of the AUFTA, a debtor of the Partnerships when the transfer occurred, we conclude that Eastern Valley was, for purposes of the AUFTA, a “debtor” at the time of the transfer, by virtue of the default judgment entered against Eastern Valley, in which the trial court declared that, at the time of the transfer, Eastern Valley was the alter ego and a mere instrumentality of Rockhill and that Eastern Valley was hable to the Partnerships for the judgments the bankruptcy court determined to be nondischargeable. The trial court certified the default judgment as final, and no party appealed the default judgment. Because of the trial court’s declaration that Eastern Valley was the alter ego and a mere instrumentality of Rockhill, it did not recognize Eastern Valley as an entity separate and apart from Rockhill. See Southern Sash Sales & Supply Co. v. Wiley, 631 So.2d 968, 970 (Ala.1994); Forest Hill Corp. v. Latter & Blum, Inc., 249 Ala. 23, 28, 29 So.2d 298, 302 (1947). For purposes of the AUFTA, then, Eastern Valley and Rockhill could be considered “one and the same” at the time of the transfer. Thus, the transfer of the Eastern Valley Properties to Birmingham Hide was a transfer “made by a debtor” under the language of the AUFTA.

Birmingham Hide argues that it is not bound by the trial court’s judgment declaring that Eastern Valley was the alter ego and a mere instrumentality of Rockhill at the time of the transfer. Consequently, Birmingham Hide says, Eastern Valley is not a “debtor” for purposes of the Partnerships’ claims under the AUFTA. However, even absent the trial court’s declaration that Eastern Valley was the alter ego and a mere instrumentality of Rockhill, the Partnerships presented sufficient evidence to establish a genuine issue of material fact as to whether the transfer of the Eastern Valley Properties to Birmingham Hide was a transfer made by a debtor. For instance, the Partnerships presented evidence indicating that when the property was transferred to Birmingham Hide, Rockhill retained an “undocumented interest” in the property, for which, pursuant to an agreement made at the time the property was conveyed to Birmingham Hide, Rockhill was paid by Birmingham Hide after the property was resold to bona fide purchasers. The deeds evidencing the conveyance to Birmingham Hide of the Eastern Valley Properties — in which Rockhill retained the “undocumented interest” — were signed by Rockhill. If, as the evidence indicated, the transfer included Rockhill’s undocumented interest, the transfer was one “made by a debtor.”

The trial court incorrectly relied on Folmar & Associates LLP v. Holberg, 776 So.2d 112 (Ala.2000), in entering the summary judgment for Birmingham Hide. As we have noted above, because the trial court determined that Eastern Valley was the alter ego and a mere instrumentality of Rockhill when the Eastern Valley Properties were transferred to Birmingham Hide, the transfer was, for purposes of the AUF-TA, “made by a debtor.” Therefore, the holding in Folmar does not control this case. Moreover, the transfers in Folmar involved loans to a debtor by a third party, not, as in the present case, a transfer of property by an entity that was the debtor’s alter ego and was therefore legally the debtor. Thus, we hold that the trial court erred in granting Birmingham Hide’s summary-judgment motion.

The Partnerships have also argued that the trial court erred in denying their motion for a summary judgment as to their allegations of fraudulent transfer and conspiracy to defraud. The denial of a motion for summary judgment is not an appealable order, except by permission obtained pursuant to Rule 6, Ala. R.App. P. See Nationwide Prop. & Cas. Ins. Co. v. DPF Architects, P.C., 792 So.2d 369, 372 (Ala.2000); Superskate, Inc. v. Nolen, 641 So.2d 231, 233 (Ala.1994). The Partnerships neither sought nor obtained permission to appeal under Rule 5 with respect to the denial of that summary-judgment motion. Therefore, we do not address the merits of the Partnerships’ claim that the trial court erred in denying their motion for a summary judgment.

For the reasons stated above, the trial court erred in granting Birmingham Hide’s motion for a summary judgment. Therefore, the summary judgment in favor of Birmingham Hide and against the Partnerships is reversed, and the cause is remanded to the trial court for further proceedings consistent with this opinion.

APPLICATION OVERRULED; OPINION OF NOVEMBER 2, 2001, WITHDRAWN; OPINION SUBSTITUTED; REVERSED AND REMANDED.

MOORE, C.J., and HOUSTON,

LYONS, JOHNSTONE, HARWOOD, WOODALL, and STUART, JJ., concur.

SEE, J., recuses himself.

      . The lawsuit was unrelated to Rockhill's purchase of the Eastern Valley Properties.

      . Although Rockhill and Birmingham Hide executed a written lease, pursuant to which Rockhill purportedly leased the residence from Birmingham Hide, it was undisputed that Rockhill defaulted on his rental payments and that he continued to reside in the house for 21 months without paying rent.

      .As the Partnerships note in their brief to this Court, those sales occurred after Rock-hill's personal bankruptcy had concluded. The evidence indicates that the purchase price Eastern Valley/Rockhill had paid for the house in the Quail Run subdivision in 1988 was $120,931.50; that Birmingham Hide paid Eastern Valley/Rockhill $78,000 for that house in 1993; and that the price Birmingham Hide received in 1994 upon resale of the house to a bona fide purchaser was $139,-9000. The evidence also indicates that Eastern Valley/Rockhill paid $69,628 for the vacant lot in Vestavia Hills in 1988; that the price Birmingham Hide paid Eastern Valley/Rockhill for that lot in 1993 was $56,727.27; and that the price Birmingham Hide received upon resale of the lot to a bona fide purchaser in 1995 was $71,900.

      . There was conflicting testimony regarding the purpose of the $39,650 payment to Rock-hill. Harry Vickers, who, with Owen Vickers, co-owned Birmingham Hide, testified that the payment was a "gift" to Roekhill. Mike Glenn, Birmingham Hide's chief financial officer and vice president, testified that he treated the payment as a "real estate commission” to Roekhill — even though Roekhill was not a licensed real estate agent and had never sold any property for Birmingham Hide. Roekhill testified that the payment was made to his wife for landscaping services his wife and son had allegedly performed for Birmingham Hide.