author: KING, P. J„

text:
    Billie Salvador BRAZIEL, Appellant, v. Barbara BAILEY and Robert Armstrong, Appellees.
    No. 2001-CP-01359-COA.
    Court of Appeals of Mississippi.
    Jan. 28, 2003.

      Billie Salvador Braziel (pro se), attorney for appellant.
    Office of the Attorney General, by Jane L. Mapp, attorney for appellee.
    Before KING, P.J., BRIDGES AND LEE, JJ.
   KING, P. J„

for the Court.

¶ 1. Billie Salvador Braziel was found guilty in the Circuit Court of Harrison County, Mississippi, First Judicial District of rape and aggravated assault. Braziel was sentenced to ten years on the rape charge and five years on the aggravated assault charge, to be served consecutively in the custody of the Mississippi Department of Corrections. Subsequent to his conviction, Braziel filed suit seeking earned time credit and consideration for parole. That request was denied, and Braziel has appealed that denial.

FACTS

¶ 2. In September 1995, Braziel was indicted for rape, kidnapping, aggravated assault, and armed robbery. The incident occurred on March 20, 1995. On November 2, 1996, Braziel was found guilty of rape and aggravated assault. On December 9, 1996, he was sentenced to ten years on the rape charge and five years on the aggravated assault charge, to be served consecutively in the custody of the Mississippi Department of Corrections.

¶ 3. On February 21, 2001, Braziel filed a petition for a writ of habeas corpus in the Circuit Court of Sunflower County challenging the application of Section 47-7 — 3(l)(b) of Mississippi Code Annotated of 1972, as amended, which addresses the parole of prisoners. This petition named as defendants Mississippi Department of Corrections employees Barbara Bailey and Robert Armstrong. In response to the petition, on March 27, 2001, the trial court entered an order directing the Mississippi Department of Corrections to respond by affidavit explaining why Braziel was not eligible to be considered for parole and why he was not eligible for earned time. The court also directed the defendants to state why Puckett v. Abels, 684 So.2d 671 (Miss.1996), which declared that an inmate’s eligibility for parole could not be altered by statutes enacted after the inmate’s conviction, did not apply to Bra-ziel’s situation. On April 27, 2001, Bailey filed a report with the court along with an affidavit wherein she stated that “on 7-24-1994 Mississippi code [sic] 47-7-3 was changed to reflect that ‘any person who shall have been convicted of a sex crime shall not be released on parole except for a person under the age of 21 who has been convicted under Section 97-3-67 of the Mississippi Code of 1972 Annotated.’ ”

¶ 4. By order dated May 16, 2001, the trial court dismissed Braziel’s habeas corpus petition stating:

Petitioner was arrested on or about March 20, 1995, indicted in September 1995, and convicted and sentenced on or about December 9, 1995 for rape and aggravated assault. On Count I for the crime of Rape Petitioner was sentenced to ten (10) years and on Count III for the crime of Aggravated Assault Petitioner was sentenced to five (5) years.
In July, 1994, Mississippi Code Section 47-7-3 was amended to reflect that “any person who shall have been convicted of a sex crime shall not be released on parole except for a person under the age of 21 who has been convicted under Section 97-3-67 of the Mississippi Code of 1972 Annotated” As such, Petitioner is not eligible to [sic] for earned time credit or parole on Count I; however, Petitioner is eligible for earned time credit and parole on Count III.
In response to this matter, the Mississippi Department of Corrections has recalculated Petitioner’s time sheet to reflect his earned time credit and parole eligibility date on the five (5) year Aggravated Assault charge, after completing the mandatory ten (10) year Rape charge. Therefore, this Court hereby finds that this Petition should be and hereby is DENIED and this cause is DISMISSED as moot. Pursuant to Section 47-5-76 of the Mississippi Code, all court costs are assessed against the Mississippi Department of Corrections.

ISSUE AND ANALYSIS

Should Braziel have been considered for parole or earned time for his rape conviction?

¶ 5. Braziel contends that he should have been considered for parole or earned time for his rape conviction. He maintains that because he was nineteen years old at the time the offense occurred on March 20, 1995, that then existing law permitted such consideration. He further contends that the Department of Corrections improperly applied to his case the law as changed on July 1, 1995, which impermissibly increased his punishment. The question before this Court is whether or not the trial court applied the proper law to the facts of this case, which requires a de novo review. Peterson v. State, 671 So.2d 647, 652 (Miss.1996).

¶ 6. Braziel committed the offense of rape on March 20, 1995. He was sentenced on December 9, 1996. The record reflects that Braziel, who was born February 13, 1976, was nineteen years of age when this offense was committed. Bra-ziel’s parole eligibility was controlled by Miss.Code Ann. Section 47-7-3(l)(b) (Supp.1994) as it existed on March 20, 1995. The relevant portion of that statute provides:

(1) Every prisoner who has been or may hereafter be convicted of any offense against the State of Mississippi, and is confined in the execution of a judgment of such conviction in the Mississippi State Penitentiary for a definite term or terms of one (1) year or over, or for the term of his or her natural life, whose record of conduct shows that such prisoner has observed the rules of the Penitentiary, and who has served not less than one-fourth (1/4) of the total of such term or terms for which such prisoner was sentenced, or, if sentenced to serve a term or terms of thirty (30) years or more, or, if sentenced for the term of the natural life of such prisoner, has served not less than ten (10) years of such life sentence, may be released on parole as hereinafter provided, except that:
(b) Any person who shall have been convicted of a sex crime shall not be released on parole except for a person under the age of nineteen (19) who has been convicted under Section 97-3-67....

Because Braziel was nineteen years of age when this rape was committed, he was clearly ineligible for parole consideration under the above referenced statute.

¶ 7. Braziel has also raised the question of whether he had an entitlement to earned time. That question is addressed by Miss.Code Ann. Section 47-5-139 (Supp.1994) as it existed on the date of the offense which in relevant part provides that “(1) [a]n inmate shall not be eligible for the earned time allowance if: ... (d) [t]he inmate was convicted of a sex crime.... ”

¶ 8. This Court’s review of the relevant statutes that the trial court applied shows that Braziel is not eligible for parole or earned time for his conviction of rape.

¶ 9. THE JUDGMENT OF THE CIRCUIT COURT OF SUNFLOWER COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO SUNFLOWER COUNTY.

MeMILLIN, C.J.; SOUTHWICK, P.J., BRIDGES, THOMAS, LEE, IRVING, MYERS, AND CHANDLER, JJ„ CONCUR. GRIFFIS, J., NOT PARTICIPATING.

      . The record reveals that during a Department of Corrections administrative proceeding, Bailey (former Chief Records Officer at the Mississippi Department of Corrections) had previously responded to Braziel’s questions regarding his parole eligibility by stating:
      You have one count of aggravated assault for a term of five years. We gave you 2 and 14 years earned time credit. You have a 10 year sentence for rape. The sentence date for both counts is 12-9-96. Senate Bill 2003 (passed 7-24-94). Change [sic] Section 47-7-3 of the Mississippi Code to relfex [sic] that "any person who shall have been convicted of a sex crime shall not be released on parole except for a prson [sic] under the age of 19 who have [sic] been convicted under Section 97-3-67 Mississippi Code of 1972 Annotated.”

      . In the prior response to Braziel, Bailey listed the age of nineteen and on the court affidavit submitted by her, she listed the age of twenty-one.

      . While the trial court erroneously stated that the sentencing date was December 9, 1995, the record reveals that the sentencing order was executed on December 9, 1996.


source: Caselaw Access Project

author: LEE, J.,

license: Public Domain

text:
    James William BYARS, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-KA-01312-COA.
    Court of Appeals of Mississippi.
    Jan. 28, 2003.

      Lisa D. Collums, Gulfport, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before KING, P.J., LEE, and IRVING, JJ.
   LEE, J.,

for the Court.

PROCEDURAL HISTORY

¶ 1. James William Byars was indicted on three counts of sexual battery and three counts of touching of a child for lustful purposes. He was tried in July 2001 on only one count of sexual battery and two counts of touching of a child for lustful purposes, and a Harrison County Circuit Court jury found him guilty on all three counts. Byars was sentenced to serve twenty years without the possibility of parole for the sexual battery charge, fifteen years on one charge of touching of a child for lustful purposes, and fifteen years on the other charge of touching of a child for lustful purposes. The fifteen year sentences were to run concurrently with one another, but were to run consecutively to the sexual battery sentence, for a total sentence of thirty-five years in the custody of the Mississippi Department of Corrections.

¶ 2. Byars raises various issues with this appeal which can be summarized as the following: (1) the trial court erred in allowing testimony pursuant to the tender years hearsay exception; (2) the trial court erred in allowing testimony from social worker Kari Mallory and from Dr. Math-erne; (3) the trial court erred in allowing Dr. Matherne to testify that the information provided to him was factual; and (4) the evidence was insufficient to support the verdict, and the weight of the evidence did not support the verdict. We review the issues presented and find no merit; thus, we affirm.

FACTS

¶ 3. In August or September 1998, R.R. moved into the Pass Christian apartment of her boyfriend, appellant William Byars. Approximately one month later, R.R.’s four children also moved into the two-bedroom apartment where they remained for approximately two more months. In November 1998, R.R. and her eleven-year-old daughter, A.R., had a fight, and A.R. told her mom she disapproved of her mom’s relationship with Byars. After this incident, R.R. told the children they were moving back to live with their grandmother where they had lived prior to moving to Byars’s apartment. A.R. thereafter complained to her mom that Byars had sexually molested her on three different oeca-sions, then repeated the allegations to her grandmother who notified authorities. Byars denied any of the alleged acts ever took place.

DISCUSSION OF THE ISSUES

I. DID THE TRIAL COURT ERR IN ALLOWING TESTIMONY PURSUANT TO THE TENDER YEARS EXCEPTION?

¶ 4. Byars filed a motion in limine at the start of the trial requesting that the court not permit the social worker nor the officers to testify since their knowledge of the alleged events was hearsay based on what A.R. had told them happened. At the pretrial hearing on the motion, the district attorney explained extensively what would be the substance of the officers’ and the social worker’s testimony. Thereafter, the judge overruled the motion at that time, but added the caveat that upon A.R.’s testimony and the testimony of the officers and social worker, as inconsistencies arose or if sufficient questions of reliability arose Byars could renew his motion, and the testimony would be stricken and excluded.

¶ 5. Once the trial began, A.R. testified, then her mother, then the first officer took the stand. Before the officer was allowed to explain anything in detail, Byars again renewed his motion. At that point and before any “questionable” testimony was elicited from those persons who were the subject of the motion, the judge removed the jury and conducted a hearing. He orally made detailed findings concerning the victim’s age, the approximate date of the assault, observances concerning the circumstances surrounding the assault, plus found the victim to be reliable, although not completely without motive to lie, which the judge noted concerned weight and not admissibility. Byars now claims that the trial court erred in overruling the motion without initially making findings of fact prior to the trial and in waiting until after the witnesses had testified to address questions concerning reliability of the testimony.

¶6. “Under this Court’s standard of review, the admissibility of evidence rests within the trial court’s discretion.” Bairn v. State, 606 So.2d 1076, 1078 (Miss. 1992). More specifically, rule 803(25) of the Mississippi Rules of Evidence applies and states the following:

A statement made by a child of tender years describing any act of sexual contact performed with or on the child by another is admissible in evidence if: (a) the court finds, in a hearing conducted outside the presence of the jury, that the time, content, and circumstances of the statement provide substantial indicia of reliability; and (b) the child either (1) testifies at the proceedings; or (2) is unavailable as a witness: provided, that when the child is unavailable as a witness, such statement may be admitted only if there is corroborative evidence of the act.-

M.R.E. 803(25). Evidence is not admitted and then only afterwards tested for its veracity. Here, rather than have the witnesses offer proffers of what they would testify to before they actually were allowed to take the stand, the judge waited until the questionable witness was on the stand and then conducted the hearing to determine the reliability of such testimony, finding it was reliable. While we find that, pursuant to M.R.E. 803(25)(a) listed above, the judge should have made those findings at the initial pre-trial presentation of this motion which he subsequently made during the trial outside the jury’s presence, we nonetheless find that no error or resulting prejudice has occurred in what may be considered his procedural mishap. In reading the record, we glean that the judge was well-aware that he was to conduct a hearing; he just simply expressed pre-trial that he thought he could reserve further judgment until such time as was necessary, which he found to be at the point Byars raised the motion again. The motion was renewed before any questionable evidence was presented to the jury; consequently, we find the judge’s actions to be harmless error, if error at all.

¶ 7. Byars also claims that A.R.’s statements were inadmissible since the judge expressed his opinion that inconsistencies existed in the testimony and since A.R. had a possible motive to lie. However, reading the remainder of the judge’s findings, we find the judge stated he was aware of his need to comply with M.R.E. 803(25) and to conduct a hearing, and to that end the judge noted the following concerning reliability of AR.’s testimony: A.R. was eleven at the time of the assault and at the time she told Officer Pustay of the events; A.R. told her mother and grandmother of the assault within three or four days of the incidents; and A.R. was able to convey with specificity details of the assaults including where, when, who was present, and descriptive details of the actual acts and her attempts to elude Byars’ advances. Having found no reversible error in the judge’s manner of conducting the hearing, we apply the standard set forth in Rule 803(25) and find no abuse of discretion in his decision to permit A.R.’s testimony.

¶ 8. Byars also points out that the judge stated that portions of A.R.’s testimony had been corroborated by her mother. Byars claims this violated the rule from Eakes v. State, 665 So.2d 852, 856 (Miss.1995), which states, “The reliability of the statement must be judged independently of any corroborating evidence; otherwise, the confrontation clause may be violated.” The supreme court addressed the issue of reliability:

While no mechanical test is available, factors which should be considered in judging reliability are: spontaneity and consistent repetition; mental state of de-clarant; use of terminology unexpected of a child of similar age; and lack of motive to fabricate. This list of factors is not exclusive. When the correct legal standard is employed by the trial court, this Court will reverse a finding of admissibility only when there has been an abuse of discretion.

Id. Byars argues that A.R.’s act of telling her mother what happened was a corroboration; however, we find A.R. was merely repeating the account to her mother, which was permissible. Thus, this point is without merit, as are the other arguments raised with this issue.

II. DID THE TRIAL COURT ERR IN ALLOWING THE TESTIMONIES OF KARI MALLORY AND DR. MATHERNE?

¶ 9. Byars argues the State improperly allowed social worker Kari Mallory to testify as to whether or not AR.’s behavior was consistent with that of a child who had been sexually abused, which he claims is an opinion only an expert can render. Byars claims that Mallory was only a lay witness and her testimony could not be offered to bolster AR.’s testimony, nor to help the jury resolve controverted material facts. See Jackson v. State, 551 So.2d 132, 144 (Miss.1989). The State rebuts that Mallory merely testified as to her observations of the child, that she only asked vague questions of the child to determine if the child needed to be removed from the home, and that she explained the reasons she referred A.R. to psychologist Dr. Matherne. The State adds that Mallory’s explanation of the screening process assisted the trial judge in determining the reliability of A.R.’s testimony. The State cites Eakes where a social worker was permitted to testify and where the court noted with regard to the worker: “Palmer was an educated, experienced social worker and a credible witness whose opinion regarding the children’s truthfulness impressed the court ‘sufficiently to draw the conclusion that the hearsay statements do have sufficient indicia of reliability to be admissible.’ ” Eakes, 665 So.2d at 865.

¶ 10. Byars argues that Mallory was allowed to testify as an expert when in fact she was only a lay witness, plus her testimony was not used to help the jury resolve material facts, but was instead presented to bolster A.R.’s testimony. In our review, we find that Mallory was called merely to explain the process she undertook in evaluating A.R. and in referring her on to Dr. Matherne. Mallory admitted that she was not responsible for conducting a thorough inquisition into the truthfulness or the details of A.R.’s assault, but was merely in place to evaluate the facts and to determine if the situation warranted further review by a psychologist, which she found in this case. There is no merit to this issue.

III. DID THE TRIAL COURT ERR IN ALLOWING DR. MATHERNE TO TESTIFY THAT THE INFORMATION PROVIDED TO HIM WAS FACTUAL?

¶ 11. For the first time on appeal, Byars argues that the trial court erred in allowing Dr. Matherne to testify. We note the procedural bar that results on appeal from failure to contemporaneously object at trial. Christmas v. State, 700 So.2d 262, 271 (Miss.1997). Byars recognizes the bar, but nonetheless argues that plain error requires this Court to review this issue. Byars claims that Dr. Math-erne’s opinion that the information provided to him by A.R. was factual should never have been presented to the jury since it was inadmissible hearsay. Without waiving the procedural bar, we briefly further note that, under M.R.E. 803(4), statements made for the purposes of medical diagnosis or treatment, including emotional health, are exceptions to the hearsay rule. In response to the State’s asking what the purpose of his interview was, Dr. Math-erne stated the following:

Well, the purpose was, I was court-ordered by Judge Ward of the Harrison County Youth Court to interview and evaluate [A.R.] to determine' — to assist in the substantiation of the alleged abuse. There had been an allegation that she had been abused, and the judge requested I see the child, evaluate the child to determine what the child’s diagnosis was, whether she needed counseling and whether there was sufficient basis to substantiate, which was the judge’s responsibility. And so I was appointed, and the child came to me under those circumstances.

¶ 12. Dr. Matherne’s testimony repeated that he sought answers from A.R. in efforts to determine whether she needed further medical treatment, which is permissible under Rule 803(4), as described. There is no plain error here.

IV. WAS THE EVIDENCE SUFFICIENT TO SUPPORT THE VERDICT, AND DID THE WEIGHT AND CREDIBILITY OF THE EVIDENCE SUPPORT THE VERDICT OF GUILT?

a. Sufficiency of evidence

¶ 13. Byars next argues the evidence was insufficient to support the verdict, and we look to our standard of review:

In reviewing a challenge to the sufficiency of the evidence, this Court is obligated to view the evidence in the light most favorable to sustaining the conviction. We are authorized to set aside a jury’s verdict only if we are convinced that, as to one of the essential elements of the crime, the State’s proof was so deficient that a reasonable and fair-minded juror could only find the defendant not guilty.

Bradford v. State, 736 So.2d 464 (¶ 6) (Miss.Ct.App.1999) (citation omitted). Byars argues that the only evidence to support his guilty verdict was that of the victim, and that the other witnesses for the State merely bolstered her testimony. Byars also points out that no physical evidence was presented, nor did he ever admit to these acts.

¶ 14. The State points out that in addition to AR.’s testimony, the other witnesses testified to show that A.R.’s testimony was consistent. We have held that “the unsupported word of the victim of a sex crime is sufficient to support a guilty verdict where that testimony is not discredited or contradicted by other credible evidence, especially if the conduct of the victim is consistent with the conduct of one who has been victimized by a sex crime.” Collier v. State, 711 So.2d 458(¶ 15) (Miss.1998). See also Mabus v. State, 809 So.2d 728(¶ 16) (Miss.Ct.App.2001); Riley v. State, 797 So.2d 285(¶ 10) (Miss.Ct.App.2001). In light of this precedent and considering that A.R.’s testimony was not discredited or contradicted, we find the evidence sufficient to support the verdict.

b. Weight of evidence

¶ 15. Concerning the weight of the evidence, we look to our standard of review:

“In determining whether a jury verdict is against the overwhelming weight of the evidence, this Court must accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in faffing to grant a new trial.” Only in those cases where the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice will this Court disturb it on appeal. As such, if the verdict is against the overwhelming weight of the evidence, then a new trial is proper.

Brady v. State, 722 So.2d 151 (¶ 19) (Miss.Ct.App.1998) (citations omitted). In this opinion, we have reviewed in detail the evidence in this case. In reviewing this evidence in a light favorable to the verdict, we find no abuse of discretion and find that no unconscionable injustice will result in allowing the verdict to stand. Accordingly, we find no merit to this issue.

¶ 16. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT OF CONVICTION ON COUNT I, SEXUAL BATTERY AND SENTENCE OF TWENTY YEARS WITHOUT PAROLE; COUNT II, TOUCHING OF A CHILD FOR LUSTFUL PURPOSES AND SENTENCE OF FIFTEEN YEARS AND COUNT III, TOUCHING OF A CHILD FOR LUSTFUL PURPOSES AND SENTENCE OF FIFTEEN YEARS, TO RUN CONCURRENTLY TO THE SENTENCE IN COUNT II AND TO RUN CONSECUTIVELY TO THE SENTENCE IN COUNT I, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. COSTS OF THIS APPEAL ARE TAXED TO HARRISON COUNTY.

McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, IRVING, MYERS AND CHANDLER, JJ„ CONCUR. GRIFFIS, J., NOT PARTICIPATING.

      . We use an alias for the child to protect her identity.


author: HARWOOD, Justice.

text:
    Gerald WORTHY and Merion Worthy v. CYBERWORKS TECHNOLOGIES, INC.
    1001636.
    Supreme Court of Alabama.
    March 29, 2002.
    Rehearing Denied May 17, 2002.
    L. Daniel Mims, Mobile, for appellants.
    Submitted on appellants’ brief only.
   HARWOOD, Justice.

Gerald Worthy and Merion Worthy appeal from the trial court’s order granting a motion to dismiss filed by Cyberworks Technologies, Inc. (hereinafter referred to as “Cyberworks”), on the basis that the trial court lacked personal jurisdiction over Cyberworks. We affirm.

On October 4, 1999, the Worthys sued Soho Technologies, Inc. (“Soho”), Cyber-works, Cornerstone International (“Cornerstone”), and Nathaniel R. Kinsella, vice president of operations for Cornerstone, alleging fraud, violation of the “Alabama Telemarketing Act,” § 8-19A-1 et seq., Ala.Code 1975, and violation of Alabama’s “Deceptive Trade Practices Act,” § 8-19-1 et seq., Ala.Code 1975. On October 22, 1999, Cyberworks filed a motion to dismiss, arguing that the trial court lacked jurisdiction over it and that service of process on it had been insufficient. The motion further stated (1) that Cyberworks was incorporated in Utah, with its principal place of business in Salt Lake City, Utah; (2) that Cyberworks had had no contacts with the State of Alabama; and (3) that Cyberworks did not transact business in the State of Alabama and had made no contacts with the Worthys. On November 12, 1999, the affidavit of Scott Alexander, the president of Cyberworks, was submitted in support of the motion to dismiss.

On January 26, 2000, the Worthys filed a response to Cyberworks’ motion to dismiss; they argued that Cyberworks had sufficient contacts with the State of Alabama for the trial court to exercise jurisdiction over it as a nonresident defendant by operation of Rule 4.2, Ala. R. Civ. P., and applicable caselaw. They also specifically alleged, as they had in their complaint, that Kinsella was an officer, employee, or agent of Cyberworks. Their response stated, in pertinent part, the following underlying facts to their action:

“The [Worthys] responded to an advertisement in the Mobile Press Register for a seminar put on by Soho Technologies after which time they were contacted via telephone by Nathan Kinsella. Kinsella informed the [Worthys] that in order to be successful at the marketing scheme which he was promoting, they needed to become proficient in the internet and further convinced the [Worthys] that certain mentoring sessions would be provided to allow them to obtain quick wealth if they agreed to charge large amounts to various credit cards. Kinsella also advised the [Worthys] that he could get them a web page prepared and designed for the various business interests that the [Worthys] had been introduced to at a [s]eminar apparently conducted by Soho.... Kinsella and other representatives of Cornerstone ... had several telephone conversations with the [Worthys] in Alabama and represented to them that he would make all of the arrangements to have a web page designed for them by a company that they worked with or were involved with. Kinsella never directly mentioned Cyberworks to the [Worthys]. The [Worthys] gave Kin-sella several credit card numbers so that they could pay for the web page and other alleged services to be performed .... When the [Worthys] received their bill they noticed a charge from Cyberworks.”

The Worthys also attached to their response a letter, dated March 30, 1999, from Cyberworks’ employee Shawn Crum-ley to the Worthys’ attorney and a copy of a check written on a Cyberworks’ account to Cornerstone in the amount of $24,684.68, with a commission sheet showing most of the amount of the check represented a commission from a purchase made by the Worthys. On October 2, 2000, the Worthys filed a supplemental response to Cyberworks’ motion to dismiss, attaching as exhibits a copy of a long-distance telephone bill of Cyberworks that showed that it had made two calls to the Worthys, the transcribed deposition of Alexander, and several copies of completed “Scholarship Guarantee and Agreement” forms as evidence that Cyberworks had conducted Internet marketing workshops in several states, although Alabama was not one of those states.

On January 25, 2001, Cyberworks fled a brief in reply to the Worthys’ response. Cyberworks attached as exhibits the affidavit of Alexander, portions of Alexander’s transcribed deposition testimony, and a copy of a purchase contract the Worthys entered into with Soho. On February 18, 2001, the trial court granted Cyberworks’ motion to dismiss by noting the following on the face of the motion to dismiss:

“1. Motion to dismiss filed by Cyber-works Institute is granted.
“2. The fact that Cornerstone did business with Cyberworks is not sufficient reason for the Plaintiff to sue in Ala[bama] [Cyberworks].”

On March 19, 2001, the Worthys filed a motion to alter, amend,' or vacate the order of dismissal. On March 26, 2001, Cyber-works filed a response to the Worthys’ postjudgment motion. On May 3, 2001, the trial court denied the Worthys’ post-judgment motion and certified its order of dismissal as final pursuant to Rule 54(b), Ala. R. Civ. P. On June 8, 2001, the Worthys filed a notice of appeal to this Court.

On appeal, the Worthys argue that the trial court erred in granting Cyber-works’ motion to dismiss because, they say, Cyberworks had sufficient contacts with Alabama for the trial court to exercise jurisdiction over it as a nonresident defendant. They also assert that the standard of review applicable to a summary judgment applies in this case. We infer from their brief that they assert that the summary-judgment standard is the appropriate standard because the trial court considered matters outside the pleadings in granting the motion to dismiss. See Rule 12(c), Ala. R. Civ. P. However, the Committee Comments on 1973 Adoption of Rule 12 state, in pertinent part:

“Affidavits, depositions, answers to interrogatories and similar evidentiary matter may be presented on a motion under Rule 12. Such matter is freely considered on a motion attacking jurisdiction.”

(Citing Williams v. Minnesota Mining & Mfg. Co., 14 F.R.D. 1 (S.D.Cal.1953).) See also Williams v. Skysite Communications Corp., 781 So.2d 241 (Ala.Civ.App.2000). Thus, the appropriate standard of review applicable to this case is de novo: “An appellate court considers de novo a trial court’s judgment on a party’s motion to dismiss for lack of personal jurisdiction.” Elliott v. Van Kleef, 830 So.2d 726, 729 (Ala.2002) (citing Greene v. Connelly, 628 So.2d 346 (Ala.1993); Skysite Communications, supra).

The Worthys argue that Rule 4.2, Ala. R. Civ. P., is sufficiently broad to subject Cyberworks to jurisdiction in an Alabama court. The portions of Rule 4.2, Alabama’s long-arm rule governing out-of-state service, relied upon by the Worthys, state:

“(a) Basis for Out-of-State Service.
“(2) Sufficient Contacts. A person has sufficient contacts with the state when that person, acting directly or by agent, is or may be legally responsible as a consequence of that person’s
“(A) transacting any business in this state;
“(B) contracting to supply services or goods in this state;
“(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.”

With regard to the application of Rule 4.2, this Court has stated:

“Rule 4.2, Ala. R. Civ. P., extends the personal jurisdiction of Alabama courts to the limits of due process under the federal and state constitutions. Sieber v. Campbell, 810 So.2d 641 (Ala.2001). Rule 4.2(a)(2), Ala. R. Civ. P., Alabama’s long-arm rule, sets out situations in which a nonresident defendant’s contacts with this State are considered sufficient to subject the nonresident defendant to personal jurisdiction in an Alabama court. Subsection (I) of Rule 4.2(a)(2) contains a ‘catch-all’ provision, which permits jurisdiction over a nonresident defendant whose contacts with this State do not fall into one of the situations listed in Rule 4.2(a)(2)(A)-(H). ...
“This Court has interpreted the due process guaranteed under the Alabama Constitution to be coextensive with the due process guaranteed under the United States Constitution. See Alabama Waterproofing Co. v. Hanby, 431 So.2d 141, 145 (Ala.1983), and DeSotacho, Inc. v. Valnit Indus., Inc., 350 So.2d 447, 449 (Ala.1977). See also Rule 4.2, Ala. R. Civ. P., Committee Comments on 1977 Complete Revision following Rule 4.4, under the heading ‘ARCP 4.2.’ (‘Subparagraph (I) was included by the Committee to insure that a basis of jurisdiction was included in Alabama procedure that was coextensive with the scope of the federal due process clause....’).
“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 WorldWide 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).
“In the case of either general in per-sonam jurisdiction or specific in person-am jurisdiction, ‘[t]he “substantial connection” between the defendant and the forum state necessary for a finding of minimum contacts must come about by an action of the defendant purposefully directed toward the forum State.’ Asahi Metal Indus. Co. v. Superior Court of California, 480 U.S. 102, 112, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987). This purposeful-availment requirement assures that a defendant will not be haled into a jurisdiction as a result of ‘ “the unilateral activity of another person or a third person.” ’ Burger King, 471 U.S. at 475, 105 S.Ct. 2174, quoting Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 417, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984).
“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 v. Van Kleef, 830 So.2d at 729-31.

The Worthys contend that Cyber-works had the requisite minimum contacts with Alabama through Kinsella and Cornerstone, which, they say, were agents of Cyberworks. The record contains the following evidence and submissions regarding contacts with Alabama by Cyberworks and its alleged agents:

1. An affidavit of Alexander, president of Cyberworks, that states, in pertinent part:

“2. Cyberworks ... is a Utah corporation with its only place of business in Salt Lake City, Utah. It has never transacted any business in the State of Alabama nor has it entered the State of Alabama in any attempt to transact business. The company develops and maintains Internet web pages. The company was contacted by someone from Cornerstone ..., which is believed to be a telemarketing company, and was requested to submit a bid to Cornerstone for a portion of the work contracted between Cornerstone and Soho ... with Mr. [and] Mrs. Worthy. There was never any contact between Defendant Cyberworks ... and the Worthys.”

2. A letter dated March 30, 1999, to the Worthys’ attorney from Shawn Crumley, whose signature appears on the letter on behalf of Cyberworks, that, in pertinent part, states:

“This is concerning the letter sent to ... Cyberworks ... dated March 16th, 1999. After research into the [sale] made by Cornerstone ... to Gerald G. and Merion Leslie Worthy, we have found that the total [sale] amounted to $42,016.00. Cornerstone ... made this [sale] representing some of Cyber-worksf] ... products.
“Cyberworks ... received $11,064.54 from this [sale]. Cornerstone ... received $30,954 for the purchase. I have included the check paid to Cornerstone ... and commission sheet for this transaction. Cyberworks ... no longer has a relationship with Cornerstone.... ”

3. A copy of the check and the commission sheet showing that Cyberworks received $42,015 from the Worthys and that Cornerstone’s commission on the sale was $30,954.46.

4. A copy of a long-distance telephone bill showing that Cyberworks made two telephone calls to the Worthys’ residence, both on June 15,1998.

5. The transcribed deposition testimony of Alexander, in which he discussed the relationship that existed between Cyber-works and Cornerstone, and Cyberworks’ contacts with Alabama, as follows:

“Q. [the Worthys’ attorney] ... All right. Let’s talk about the transaction that brings us to where we are today. First of all, let’s go back and ask this question. Tell me when you first heard of anybody connected with Cornerstone ... or when you first began to have any kind of dealings with Cornerstone ... or any of its agents or representatives?
“A. To the best of memory, that was probably sometime in March of ‘98.
“Q. How did you come in contact with the folks at Cornerstone ... ?
“A. I believe it was probably from a phone call.
“Q. From them or from you?
“A. From them. They contacted us.
“Q. Did they speak to you or did they speak to somebody else in your company?
“A. They spoke to me — well, they possibly could have spoken to someone else before, but I’m not aware of any contact prior to when I spoke to them.
“Q. And who was it at Cornerstone that first made contact with you in March of ‘98?
“A. I believe it was Shad Glover and John Lowry.
“Q. All right. And tell me what the substance of that conversation was, as you recall?
“A. They basically related that they were a marketing company, they did telesales, and that they could — they were going to make sales and they were wondering if we would actually do the— build the Web sites that they would sell.
“Q. Did they tell you what they were marketing?
“A. Well, yeah, that they would be marketing Web sites, but that they couldn’t provide that fulfillment and they were wondering if we would build the Web sites that they sold.
“Q. What else? Did they tell you they were marketing any other products aside from Web sites?
“A. Some support that goes along with Web sites, a coaching program, banners and impressions. Basically just support for the Web site.
“Q. And this was just a telephone call initially, and did it follow with a personal interview with these folks?
“A. Yeah, they came up to the office and we sat down and talked a bit.
“Q. Tell me what the outcome of those conversations were? In other words, what — I assume that led [to] you all doing some sort of business with Cornerstone?
“A. It just led to basically that they were going to begin to sell. And when they made a sale, [then] we would fulfill the Web site for that sale.
“Q. [Did you] provide them with some sort of a price list or some means by which they could determine the value of your services?
“A. We didn’t provide anything in writing. It was basically, as I mentioned earlier, just kind of a handshake agreement.
“Q. What did you tell them in terms of how much Cyberworks would charge for services?
“A. I don’t have any recollection of that.
“Q. What were they supposed to do after you had this conversation with them and had the handshake? What vas the subject of the agreement?
“A. I don’t really know what they were supposed to do. Basically, just contact us if they made a sale.
“Q.... Okay. Did you discuss with them the parameters of their responsibility under the agreement? That is, what type of services they could sell, where they could make the sales, [where] they could solicit?
“A. No, basically the only things we discussed in that meeting were what we could provide. They actually — they—we didn’t discuss how they would solicit or how they would market or where or any of that. They really — in fact, I didn’t even know what to expect at that point.
“Q. Did you have any further discussions with them after that additional meeting?
“A. Yeah, most definitely when they would make a sale, they would contact us.
“Q. [Did] you know the methods they were going to utilize in order to solicit or market Cyberworks[’] parts or services?
“A. I do not know.
“Q. You all did not discuss that?
“A. I recall them saying they would use telesale, telemarketing, using the telephone to contact people, but other than that, any specifics weren’t discussed.
“Q. Did they indicate to you what areas or states or geographic regions they would target?
“A. No, they did not.
“Q. Did you give them any direction or instructions as to what areas or geographic regions or states they should target?
“A. No, we did not.
“Q. Did it matter to you?
“A. I didn’t believe so, no.
“Q. Did you expect that they would target the entire country or certain portions of the country?
“A. I don’t really believe I even ever thought of that or considered that.
“Q. Do you know if there were any other sales in the State of Alabama other than the Worthy sale?
“A. To my knowledge, no.
“Q. Do you know whether there were any other solicitations in the State of Alabama, other than the Worthy sale?
“A. I don’t know that.
“Q. All right. When you agreed to allow Cornerstone to solicit your product and services — or to market your product and services, did you provide them with credit-card information so they could charge [a] customer’s credit cards directly to [Cyberworks]?
“A. No.
“Q. Okay. How did that work? How was it they were able to charge this to the person’s credit card and have payment go directly to Cyberworks?
“A. They had to contact us with each individual transaction.
“Q. Was there a person in your office they would have contacted about that?
“A. Me, that would have been me.
“Q. Okay. So they didn’t have control over any of your credit-card machines or any of that information?
“A. No, they contacted me at every transaction.
“Q. All right. Now, in this case, the entire $42,015 was charged and payable to Cyberworks; correct?
“A. Correct.
“Q. Then Cyberworks turned around and cut a check back to Cornerstone for commission; is that correct?
“A. Correct.
“Q. Okay. Were there ever any sales or proposed sales in any state that were rejected by you or anyone at Cornerstone — I’m sorry, Cyberworks?
“A. Not that I am aware of, no.
“Q. When they solicited someone, there was nobody that you recall rejecting, based on the residence of that person?
“A. Not that I can recall.
“Q.... Prior to June of ‘98 and during June of ‘98, did you ever — or your company ever do any advertising in the State of Aabama?
“A. No.
“Q. Had you ever done any business in the State of Aabama?
“A. No.
“Q. Did you then or do you now own any property in the state?
“A. No.
“Q.... Scott, on these Web sites, that you were designing, that were contracted to you by Cornerstone, did they control how you were doing — how you were constructing these Web sites?
“A. No.
“Q. Were they, meaning Cornerstone, supervising Cyberworks as to the construction of the Web site?
“A. No.
“Q. Were they involved in any steps of Web-site development?
“A. No, they were not.
“Q. Did they provide any of the computer equipment or work space for you to design on those Web sites?
“A. No, they did not.
“Q. All right. Now, when they made a sale and your company was to design a Web site, how did your company determine what was to be placed on or how that Web site was to be constructed?
“A. The business owner would send us information.
“Q. Under this agreement, how was the business owner to know that Cyber-works existed?
“A. I don’t know how they were to know that. I am sure that they told them where to send their information to have their Web site built.
“Q. Did your company, to your knowledge, ever have any direct contact with the Worthys?
“A. No, we did not.
“Q. Do you all keep records of telephone calls to customers?
“A. Well, no, I take that back. I do believe — I’m not certain, but I think we made contact with the Worthys at one point to find out if they were going to be sending their information for their Web site. I’m not certain about that, but I have a slight recollection that we did call them at some point after the sale to find out if they were going to be sending their information to us.”

Based on the information contained in the record, we initially conclude that Cy-berworks’ contacts with Alabama do not support an exercise of general jurisdiction by an Alabama court because its contacts were not “ ‘continuous and systematic.’ ” Elliott v. Van Kleef, 830 So.2d at 730 (quoting Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 n. 9, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984)). Furthermore, Cyberworks’ two telephone calls to the Worthys, standing alone, are not contacts sufficient to invoke specific in personam jurisdiction because they do not provide “ ‘a clear, firm nexus between the acts of the defendant and the consequences complained of.’ ” Elliott v. Van Kleef, 830 So.2d at 731 (quoting Duke v. Young, 496 So.2d 37, 39 (Ala.1986), and citing Ex parte Kamilewicz, 700 So.2d 340, 345 n. 2 (Ala.1997)).

Therefore, we must consider whether Cornerstone and Kinsella were agents of Cyberworks, as the Worthys argue, to determine whether their contacts with the Worthys will support an exercise of specific in personam jurisdiction over Cyberworks. In regard to our consideration of whether an agency relationship exists, this Court has stated:

“ ‘ “The test for agency is whether the alleged principal has retained a right of control over the actions of the alleged agent.”’ Ex parte Wild Wild West Social Club, Inc., 806 So.2d 1235, 1241 (Ala.2001) (quoting Gist v. Vulcan Oil Co., 640 So.2d 940, 942 (Ala.1994)).... The party asserting the existence of an agency relationship has the burden of presenting sufficient evidence to prove the existence of that relationship. See Ex parte Wild Wild West Social Club, 806 So.2d at 1242 (citing Mardis v. Ford Motor Credit Co., 642 So.2d 701, 704 (Ala.1994)). Agency may not be presumed. Ex parte Wild Wild West Social Club, 806 So.2d at 1242 (citing Carlton v. Alabama Dairy Queen, Inc,, 529 So.2d 921 (Ala.1988)). The plaintiff must present substantial evidence of an agency relationship. Id.”

Dickinson v. City of Huntsville, 822 So.2d 411, 416 (Ala.2001). “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.’ ” Id. (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)). Our review of the record shows that the Worthys failed to produce substantial evidence that Cyberworks had a right of control over Cornerstone or Kinsella. Thus, they have failed to meet their burden of proving that an agency relationship existed between Cyberworks and Cornerstone or between Cyberworks and Kinsella. We therefore conclude that the trial court did not err in granting Cyberworks’ motion to dismiss because Cyberworks’ actions cannot be said to have been “purposefully directed” toward Alabama; Cyberworks should not be haled into an Alabama court based upon “ ‘ “the unilateral activity of another person or a third person.” ’ ” See Elliott v. Van Kleef 830 So.2d at 731 (quoting Asahi Metal Indus., Co. v. Superior Court of California, 480 U.S. 102, 112, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987), and Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985), in turn quoting Helicopteros Nacionales, 466 U.S. at 417, 104 S.Ct. 1868). The judgment of the trial court is due to be affirmed.

AFFIRMED.

MOORE, C.J., and SEE, BROWN, and STUART, JJ., concur.

       Note from the reporter of decisions: The Alabama Supreme Court issued its original opinion in Elliott v. Van Kleef on January 11, 2002. On April 12, 2002, the Alabama Supreme Court withdrew its January 11, 2002, opinion and substituted another opinion.


author: SEE, Justice. WOODALL, Justice

text:
    Ex parte Richard D. ARTHUR and Leila Ashley Arthur. (In re Richard D. Arthur and Leila Ashley Arthur v. Bernice Hart Stringer).
    1001789.
    Supreme Court of Alabama.
    April 19, 2002.

      Arthur R. Medley, Dothan, for petitioners.
    Harry P. Hall II of Lewis, Brackin, Flowers & Hall, Dothan, for respondent.
   SEE, Justice.

Bernice Hart Stringer was driving in the far right lane on a four-lane road in Houston County on September 19, 1992. She attempted to make a left turn from that far right lane, and in doing so crossed the lane of traffic that was traveling in the same direction as she was. A van being driven by Richard D. Arthur was in that lane, and Stringer’s vehicle turned into Arthur’s vehicle. The resulting collision caused injuries to Richard Arthur, the driver, and to his daughter, Ashley Arthur, who was riding in the backseat. Stringer admitted that her negligence caused the accident, and the jury was so instructed.

Richard’s only injuries were bruises, which healed completely in the weeks following the accident. Ashley, however, testified at trial that when she saw that the van in which she was a passenger was going to be hit by Stringer’s car, she threw out her right arm to shield another passenger. Ashley complains of continuing pain and a lack of the range of motion in her right arm and shoulder, of pain in her neck, and of severe migraine headaches that she says impair her vision and confine her to bed.

Four days after the accident, Ashley visited Dr. J. Paul Maddox in Dothan, complaining of severe pain in her right shoulder and arm and in her neck. Dr. Maddox prescribed physical therapy, including heat packs, ultrasound and electrical muscle stimulation, exercises, and anti-inflammatory medication. Several months later, Ashley returned to Dr. Maddox with similar complaints, and also complaining that her migraine headaches were becoming more frequent. Dr. Maddox suggested additional exercise for her shoulder and arm and sent Ashley back to physical therapy.

Ashley currently lives in Tuscaloosa, where she attends the University of Alabama. Dr. Wayne Rhodes, a chiropractor who has been licensed for over 13 years, treats Ashley there. He testified at trial that he had reviewed Ashley’s MRIs, Dr. Maddox’s notes, the physical therapist’s notes, and his own treatment of Ashley, and that he had concluded that Ashley suffers from degenerative arthritis from a disc injury. He also testified that there is nothing in Ashley’s medical history or records, other than the 1992 automobile accident, that would have caused her condition.

Trial testimony indicated that Richard had medical expenses of $500, and that as of the trial in 2000 Ashley’s medical expenses were $6,916.75. After jury deliberations, the jury awarded Richard $500 and awarded Ashley $1,800. The Arthurs sought a new trial, arguing that the jury was improperly influenced by extraneous information one of the jurors had brought into its deliberations.

At the hearing on the motion for a new trial, Ashley and Richard submitted an affidavit of Collen Boyette, one of the jurors. The affidavit stated that “one of the jurors brought in outside medical research that he had done overnight concerning the injuries and possible causes for those injuries from which the girl, Ashley Arthur, had been suffering.” Boyette also stated that the juror who had conducted the research “was agreeable to paying all the medical bills” before he did the research, but that afterward, “he agreed with the position that the medical bills should not be paid.” At the hearing, Boy-ette affirmed the statements she had made in her affidavit.

The jury foreperson testified at the hearing that one of the jurors, “to [his] recollection, said that he had gone back ... and looked at some medical journals that he had, ‘cause he worked in a doctor’s office, or something like that, and had confirmed that migraine headaches were not just caused by accident impacts.” After the hearing, the trial court denied the motion for a new trial.

The Court of Civil Appeals affirmed the trial court’s judgment, without an opinion. (No. 2991062, June 22, 2001) 837 So.2d 332 (Ala.Civ.App.2001) (table). This Court granted certiorari review to address the issue whether the alleged introduction to, and consideration by, the jury of extraneous facts by a member of the jury during jury deliberations was prejudicial and requires a new trial, and also to consider whether a verdict less than the amount of the claimed expenses should be overturned as inadequate. The Arthurs do not contest the jury’s verdict for Richard Arthur or the award of damages for his injuries. We therefore affirm the judgment based on the jury verdict in favor of Richard Arthur in the amount of $500, and we consider the Arthurs’ arguments on appeal only as they apply to the jury’s consideration of Ashley Arthur’s claims.

Ashley and Richard argue that the jurors improperly considered extraneous facts. Extraneous facts introduced in jury deliberations can result in actual prejudice or in prejudice as a matter of law, also called presumed prejudice. See Pear son v. Fomby, 688 So.2d 239 (Aa.1997). In Ex parte Apicella, 809 So.2d. 865, 870-72 (Ala.2001), this Court reviewed the development of Alabama’s presumed-prejudice law.

“Apicella ... argues that we should hold the extraneous material introduced through S.B.’s conversation with T.R. to be prejudicial as a matter of law. Apicella supports this argument with the following language from Knight [v. State], 710 So.2d [511,] 517 [ (Ala.Crim.App.1997) ]:
“ ‘ “Juror misconduct will justify a new trial ... when from the extraneous facts prejudice may be presumed as a matter of law.” Whitten v. Allstate Ins. Co., 447 So.2d 655, 658 (Ala.1984).... [I]n some cases, “the character and nature of the extraneous material [constitute] prejudice as a matter of law and no showing that the jury was in fact influenced thereby in arriving at their verdict is necessary.” Id. (prejudice presumed as a matter of law from jury’s consulting encyclopedia and dictionary definitions ...).’
“(Quoting Minshew v. State, 594 So.2d 703, 716 (Ala.Crim.App.1991)).
“On the other hand, we have also held that ‘mere exposure to [a] definition does not require a new trial as a matter of law.’ Pearson v. Fomby, 688 So.2d 239, 245 (Ala.1997). Our holding in Pearson serves to emphasize the limitations of the doctrine of ‘prejudice as a matter of law.’
“Generally, a presumption of prejudice applies only in a case in which the jury’s consideration of the extraneous material was ‘ “crucial in resolving a key material issue in the case.” ’ Dawson v. State, 710 So.2d 472, 475 (Ala.1997) (citing Hallmark v. Allison, 451 So.2d 270, 271 (Ala.1984), and Ex parte Thomas, 666 So.2d 855 (Ala.1995)).
“... This case is distinguishable from cases such as Nichols v. Seaboard Coastline Railway, 341 So.2d 671 (Ala.1976) (prejudice found as a matter of law where juror brought definitions into the jury room during deliberations and copied them onto a chalkboard).”

Ex parte Apicella, 809 So.2d. 865, 871-72 (Ala.2001).

To establish their claim of presumed prejudice, the Arthurs must prove that, as a matter of law, “consideration of the extraneous facts was crucial in resolving a key material issue in the case,” such that it should be presumed to have prejudiced the jury. Hallmark v. Allison, 451 So.2d 270, 271 (Ala.1984). The extraneous information in this case goes to the cause of Ashley Arthur’s migraine headaches, and the answer to that question may have determined the measure of damages for which Bernice Stringer was hable to Ashley.

The juror who performed the research was a nurse-practitioner student at the time of this trial. He went home after jury deliberations ended for the day and looked in medical textbooks for the possible causes of migraine headaches, so that he could compare this information with the evidence presented at trial. He returned to jury deliberations the next day and told the other jurors that his medical research had revealed that migraine headaches are caused not only by accident impacts, but also by other means and through other causes. The jurors then discussed some of the other causes of migraine headaches.

The Wisconsin Supreme Court addressed a similar situation in Castaneda v. Pederson, 185 Wis.2d 199, 212-17, 518 N.W.2d 246, 251-53 (1994). In Castaneda, a medical-malpractice case, when the jury was dismissed from deliberations for the evening, one of the jurors went to the library and researched the question of damages for medical malpractice. She returned to the jury the next day and informed the other jurors that she had found a statistic that the average medical-malpractice-damages award in Wisconsin was $1.5 million. The state Supreme Court reversed the judgment based on the jury’s verdict and remanded the case for a new trial, stating:

“Whether extraneous information is so prejudicial as to require reversal of the verdict is a question of law and the circuit court’s determination is not accorded deferential review. We will reverse the verdict in a civil case on grounds of prejudice if there is a reasonable probability that the error would have a prejudicial effect upon a hypothetical average jury.
“In determining the probable effect on an average jury we consider factors such as the nature of the extraneous information, the circumstances under which it was brought to the jury’s attention, the nature of the plaintiffs case and the defense, and the connection between the extraneous information and a material issue in the case....
“The extent of damages was a material issue in Castaneda’s case.... [Testimony regarding the nature and extent of Castaneda’s injuries was presented at least in part to assist the jury in determining damages for pain, suffering and disability.
“In summary, our conclusion, that there is a reasonable probability the statistic [the juror] shared would have a prejudicial effect on an average jury, is based on the totality of the factors discussed. The statistic was irrelevant to establishing damages, a material issue in the case. Nonetheless, the statistic pertained to average medical malpractice awards and the jury might have used it as a bench mark. The statistic is not the type of common knowledge we expect jurors to bring to deliberations. Further, the jury learned of the statistic at the point that it was setting damages in a category not easily quantifiable— pain, suffering and disability. Neither the parties nor the court had an opportunity to challenge the statistic or state that it should be ignored.”

185 Wis.2d at 212-16, 518 N.W.2d at 251-53 (citations omitted).

The extraneous information about possible causes of migraine headaches found in a medical textbook is “not the type of common knowledge we expect jurors to bring to deliberations,” 185 Wis.2d at 215-216, 518 N.W.2d at 253, and it “was crucial in resolving a key material issue in the case,” Hallmark, 451 So.2d at 271, namely, the damages to which Ashley was entitled. “Further, the jury learned of the [information] at the point that it was setting damages ..... Neither the parties nor the court had an opportunity to challenge the [information] or state that it should be ignored.” 185 Wis.2d at 216, 518 N.W.2d at 253. The medical information is the same type of authoritative information as is a dictionary definition of a legal term that is central to the case, or a specific statistic about average medical-malpractice damages in a medical-malpractice case, and it has a high probability of influencing jurors’ beliefs on scientific issues. We, therefore, hold that under the facts of this case, the extraneous information brought in by the juror and pertaining to what may well have been the principal issue in the case' — -whether the car accident caused Ashley’s migraine headaches — was prejudicial as a matter of law. See Apicella, supra, and Castaneda, supra.

Because we hold that the decision of Stringer’s liability as to Ashley Arthur was presumed prejudiced by the extraneous information offered during deliberations by one of the jurors, we pretermit discussion of the adequacy of the damages award for Ashley. Because the introduction of extraneous information in the jury deliberations was prejudicial as a matter of law, the trial court erred in failing to grant a new trial on Ashley Arthur’s claims. Accordingly, we reverse the judgment for Ashley Arthur and remand this case for a new trial as to Ashley Arthur’s claims. The judgment for Richard Arthur is affirmed.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

MOORE, C.J., and HOUSTON, LYONS, BROWN, JOHNSTONE, HARWOOD, and STUART, JJ., concur.

WOODALL, J., dissents.

WOODALL, Justice

(dissenting).

I would quash the writ as improvidently granted. Therefore, I dissent.

      . "Generally, affidavits are inadmissible to impeach a jury’s verdictf; however, an] affidavit showing that extraneous facts influenced the jury's deliberations is admissible.” Sharrief v. Gerlach, 798 So.2d 646, 652 (Ala.2001) (quoting HealthTrust, Inc. v. Cantrell, 689 So.2d 822, 828 (Ala.1997)).

      . An extraneous fact is one "obtained by the jury or introduced to it by some process outside the scope of the trial.” Sharrief v. Gerlach, 798 So.2d 646, 653 (Ala.2001).

      . Rule 39(d)(3), Ala. R.App. P., requires that the petition contain a “concise statement of the grounds, 39(a)(l)(A)-(E), supra, on which the petition is based." In their brief, Ashley and Richard argue that the juror misconduct resulted in both actual and presumed prejudice, but in their petition they raise only presumed prejudice. We, therefore, address only that issue.


author: PITTMAN, Judge.

text:
    Richard D. ARTHUR and Leila Ashley Arthur v. Bernice Hart STRINGER.
    2991062.
    Court of Civil Appeals of Alabama.
    May 17, 2002.
    Arthur R. Medley, Dothan, for appellants.
    Harry P. Hall II of Lewis, Brackin, Flowers & Hall, Dothan, for appellee.
   On Remand from the Alabama Supreme Court

PITTMAN, Judge.

The prior judgment of this court has been affirmed in part and reversed in part, and the case remanded by the Supreme Court of Alabama. See Ex parte Arthur, 835 So.2d 981 (Ala.2002). On remand to this court and in compliance with the supreme court’s opinion, we affirm the judgment of the circuit court as to Richard Arthur and reverse the judgment as to Ashley Arthur; the cause is remanded to the circuit court for proceedings consistent with the supreme court’s opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

YATES, P.J., and CRAWLEY, THOMPSON, and MURDOCK, JJ., concur.


author: MOORE, Chief Justice.

text:
    Roland RIVARD et al. v. UNIVERSITY OF ALABAMA HEALTH SERVICES FOUNDATION, P.C., and Jorge Alonso, M.D.
    1001840.
    Supreme Court of Alabama.
    May 17, 2002.
    Stephen D. Heninger of Heninger, Burge, Vargo & Davis, L.L.P., Birmingham, for appellants.
    Michael K. Wright and E. Reynolds Edwards of Starnes & Atchison, L.L.P., Birmingham, for appellees.
   MOORE, Chief Justice.

Roland Rivard appeals the trial court’s summary judgment in favor of the University of Alabama Health Services Foundation, P.C. (the “University”), and Jorge Alonso, M.D., in a medical-malpractice action. We reverse and remand.

I.

On March 23, 1995, Rivard was involved in an automobile accident in which he received numerous injuries, including numerous fractures to the left tibia and fibula, a severely fractured left elbow, bilateral knee fractures, large head and facial lacerations, a dislocated right shoulder, a concussion, and pelvic fractures, including fractures to the sacrum and pubic rami. Rivard was immediately transported to a hospital operated by the University, where Dr. Alonso performed emergency surgery upon Rivard. In order to repair some of Rivard’s injuries, Dr. Alonso harvested bone from Rivard’s pelvic area. After Ri-vard recovered from the accident and surgery, he complained of pain, discomfort, and numbness in his buttocks, penis, scrotum, and perineum; Rivard also complained that he was impotent and that the condition was permanent.

On February 6, 1997, Rivard filed a medical-malpractice action against the University and Dr. Alonso, alleging that Dr. Alonso and the University’s performance of the bone-harvesting-and-grafting procedure was below the appropriate standard of care. Specifically, Rivard alleged that Dr. Alonso breached the standard of care and caused his injuries by penetrating a portion of his spinal canal while harvesting the bone. Rivard’s wife claimed that she lost the comfort, care, and services of her husband.

The University and Dr. Alonso moved for a summary judgment, pursuant to Rule 56, Ala. R. Civ. P., contending that Rivard had failed to prove that any act or omission on their part had probably caused or had contributed to his alleged injuries. On June 19, 2001, the trial court entered a summary judgment in favor of Dr. Alonso and the University.

II.

A summary judgment is proper where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Rule 56(c)(3), Ala. R. Civ. P. When a party moving for a summary judgment makes a prima facie showing that there is no genuine issue of material fact and that the party is entitled to a judgment as a matter of law, the burden then shifts to the non-movant 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). “[Substantial evidence is evidence 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 Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). In determining whether a summary judgment is proper, a court must construe the evidence in a light most favorable to the nonmoving party, and all reasonable doubts concerning the existence of a genuine issue of material fact must be resolved against the movant. Wilma Corp. v. Fleming Foods of Alabama, Inc., 613 So.2d 359 (Ala.1993).

In a medical-malpractice action, the plaintiff must present expert testimony establishing the appropriate standard of care, the doctor’s deviation from that standard, and “a proximate causal connection between the doctor’s act or omission constituting the breach and the injury sustained by the plaintiff.” Bradford v. McGee, 534 So.2d 1076, 1079 (Ala.1988). “To present a jury question, the plaintiff must adduce some evidence indicating that the alleged negligence (the breach of the appropriate standard of care) probably caused the injury. A mere possibility is insufficient. The evidence produced by the plaintiff must have ‘selective application’ to one theory of causation.” 534 So.2d at 1079 (emphasis added).

III.

In opposition to the motion for a summary judgment, Rivard, who is also an orthopedic surgeon licensed by the State of Alabama, proffered his own deposition testimony. Dr. Rivard testified:

“Q. And with respect to — to the injuries that are — for which you are making a claim in this case, it is — or they are the impotence and the pain or discomfort in the — such as numbness in the buttocks and in the penis; am I correct about that?
“A. And the scrotum and perineum, yes.
“Q. The enervation?
“A. Yes, right.
“Q. Okay. Now — and you attribute that to, as I understand, the defect in the sacral canal that you have described, correct?
“A. Correct.”

Although Dr. Rivard admitted that his injuries could have resulted from other causes, such as the dislocation of an occult fracture suffered in the accident, he opined that it was not probable, absent medical malpractice by the orthopedic surgeon — • i.e., Dr. Alonso — for the sacral defect to be present. In fact, Dr. Rivard stated that, absent medical negligence, he has never observed this type of sacral defect.

Dr. Rivard also offered the testimony of Dr. Carl Sanfelippo, a board-certified urologist. Dr. Sanfelippo testified that the accident and the surgical procedure combined to cause Dr. Rivard’s infirmities. When asked specifically, Dr. Sanfelippo admitted: “I would hate to put a number on either of those [the accident or the surgical procedure] as to what percentage to [sic] you think that interfered with his impotence.” However, Dr. Sanfelippo specifically testified that, in his opinion, the effects of the accident and the surgery probably combined to cause Dr. Rivard’s injury. See Marsh v. Green, 782 So.2d 223 (Ala.2000); Atkins v. Lee, 603 So.2d 937 (Ala.1992).

Finally, Dr. Rivard presented the expert testimony of Dr. Max Burr, a board-certified orthopedic surgeon. Dr. Burr testified that Dr. Alonso deviated from the standard of care when he invaded Dr. Ri-vard’s sacroiliac joint and sacrum. Dr. Burr also testified that, in his opinion, it was the bone-grafting procedure that probably caused the injury to Dr. Rivard’s sacral canal. As Dr. Alonso and the University point out, Dr. Burr admitted that other circumstances could have caused that injury, but he specifically characterized those other possibilities as “long-shot possibilities.”

IV.

Viewing the evidence in a light most favorable to Dr. Rivard, as we must, and resolving all reasonable doubts and inferences in his favor, we conclude that the testimony offered does present a genuine issue of material fact as to the cause of Dr. Rivard’s injuries. See University of Alabama Health Services Foundation, P.C. v. Bush, 638 So.2d 794, 802 (Ala.1994). This is sufficient to prevent the entry of a summary judgment.

For the foregoing reasons, we reverse the trial court’s summary judgment in favor of the University and Dr. Alonso, and we remand this case for proceedings consistent with this opinion.

REVERSED AND REMANDED.

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


author: STUART, Justice. MOORE, Chief Justice

text:
    SouthTRUST BANK v. Melody FORD and Eddie Ford.
    1010124.
    Supreme Court of Alabama.
    May 17, 2002.

      A. Joe Peddy and Clair Maloney Gam-mill of Smith, Spires & Peddy, P.C., Birmingham, for appellant.
    Chuck Hunter, Birmingham, for appel-lees.
   STUART, Justice.

SouthTrust Bank (“SouthTrust”) is a defendant in an action pending in the Jefferson Circuit Court. It appeals from the trial court’s denial of its motion to compel arbitration. We affirm in part, reverse in part, and remand with instructions.

Fads

Melody Ford and Eddie Ford are husband and wife. Upon the death of Melody’s father, Edwin Edwards, Melody was appointed the administratrix of his estate. At the time of Edwards’s death, he maintained at least one checking account with SouthTrust. Before his death, Edwards and SouthTrust were involved in a dispute regarding SouthTrust’s payment of an allegedly forged check drawn on Edwards’s account.

Edwards’s checking account with South-Trust was governed by a “deposit agreement.” That deposit agreement incorporated by reference SouthTrust’s “Rules and Regulations Governing Deposit Accounts” and all amendments thereto. Those rules and regulations contained the following arbitration provision:

“ARBITRATION OF DISPUTES. You and we agree that the transactions in your account, involve ‘commerce’ under the Federal Arbitration Act (‘FAA’). ANY CONTROVERSY OR CLAIM BETWEEN YOU AND US, OR BETWEEN YOU AND ANY OF OUR OFFICERS, EMPLOYEES, AGENTS OR AFFILIATED ENTITIES, THAT ARISES OUT OF OR IS RELATED TO YOUR ACCOUNT, OR ANY AGREEMENT RELATED TO YOUR ACCOUNT, OR ANY SERVICE RELATED TO YOUR ACCOUNT OR ANY SUCH SERVICE, WHETHER BASED ON CONTRACT OR IN TORT OR ANY OTHER LEGAL THEORY, INCLUDING CLAIMS OF FRAUD, SUPPRESSION, MISREPRESENTATION AND FRAUD IN THE INDUCEMENT (COLLECTIVELY, ANY ‘CLAIM’), WILL BE SETTLED BY BINDING ARBITRATION UNDER THE FAA. EACH PARTY WAIVES ALL RIGHTS TO TRIAL IN ANY DISPUTE RELATED TO THESE RULES OR TO ANY RELATED SERVICE .... This agreement to arbitrate disputes will survive the closing of your account and the termination of your deposit agreement with us.”

The Fords instituted this action against SouthTrust, alleging that SouthTrust: (1) negligently cashed a forged item drawn on Edwards’s account; (2) intentionally inflicted emotional distress by causing Edwards’s estate to be depleted and “having to vainly attempt to have [SouthTrust] reimburse the Monies and having to deal with Uncaring and Rude personnel of [SouthTrust]”; and (3) intentionally misrepresented and suppressed material facts concerning the passing and forgery of the check.

SouthTrust filed a motion to dismiss or, in the alternative, to stay the proceedings and compel arbitration. In support of that motion, SouthTrust submitted the affidavit of Heather Thornburgh, who is employed by SouthTrust as a vice president.

The Fords opposed SouthTrust’s motion to compel arbitration. They asserted that the language of the deposit agreement and the language of the arbitration agreement itself pertained only to a dispute between Edwards and SouthTrust and that neither the deposit agreement nor the arbitration agreement addressed claims asserted by the administratrix of Edwards’s estate.

The trial court denied SouthTrust’s motion to compel arbitration, finding that the “substantial-effect-on-interstate-commerce” requirement had been satisfied but that the arbitration agreement did not apply to claims asserted by the depositor’s agents, assigns, or representatives. SouthTrust appeals from the trial court’s denial of its motion to compel arbitration.

Standard of Review

In American General Finance, Inc. v. Morton, 812 So.2d 282, 284 (Ala.2001), Justice Harwood, writing the main opinion, set forth the standard of review on an appeal from the trial court’s denial of a motion to compel arbitration:

“This Court reviews the denial of a motion to compel arbitration de novo. Green Tree Fin. Corp. v. Vintson, 758 So.2d 497, 502 (Ala.1999); Patrick Home Ctr., Inc. v. Karr, 730 So.2d 1171, 1172 (Ala.1999). The party seeking to compel arbitration has the initial burden of proving the existence of a contract calling for arbitration and proving that the contract evidences a transaction substantially affecting interstate commerce. TranSouth Fin. Corp. v. Bell, 739 So.2d 1110, 1114 (Ala.1999); Sisters of the Visitation v. Cochran, 775 So.2d 759 (Ala.2000). ‘[A]fter a motion to compel arbitration has been made and supported, the burden is on the nonmovant to present evidence that the supposed arbitration agreement is not valid or does not apply to the dispute in question.’ Jim Burke Auto., Inc. v. Beavers, 674 So.2d 1260, 1265 n. 1 (opinion on application for rehearing) (Ala.1995).”

Here, SouthTrust bears the initial burden of proving the existence of a contract calling for arbitration and proving that the contract evidences a transaction substantially affecting interstate commerce.

If SouthTrust met this burden of proof, then the burden of persuasion shifted to the Fords as the parties opposing the motion to compel arbitration. Once that burden has shifted, we consider whether the Fords have established that the arbitration agreement is inapplicable or whether they have a valid defense to the enforcement of that agreement.

Has SouthTrust Met its Burden of Proof ?

The parties do not dispute that Edwards’s checking account was governed by SouthTrust’s deposit agreement, or that the deposit agreement included the arbitration agreement. Thus, SouthTrust established the existence of a contract calling for arbitration.

SouthTrust also presented evidence concerning the effect of its banking activities on interstate commerce; the trial court held that SouthTrust had proved that the transaction had a substantial effect on interstate commerce. On appeal, the Fords do not challenge SouthTrust’s assertion or the trial court’s finding that the transaction at issue in this case had a substantial effect on interstate commerce. Thus, the burden of persuasion shifted to the Fords to oppose SouthTrust’s properly supported motion to compel arbitration.

The Fords’ Defenses to the Arbitration Provision

The Fords oppose arbitration because, they allege, SouthTrust’s deposit agreement governs only a transaction between SouthTrust and Edwards and does not include Edwards’s estate. They further assert that the language of the arbitration agreement itself does not encompass the claims asserted by a depositor’s agents, assigns, or representatives but limits the application of the agreement solely to disputes between Edwards and SouthTrust.

We recognize that an administra-trix of a decedent’s estate stands in the shoes of the decedent. See Conseco Fin. Corp. v. Sharman, 828 So.2d 890 (Ala.2001). We also recognize that the “[powers [of an executor], in collecting the debts constituting the assets of the estate, are just as broad as those of the deceased.” Webb v. Sprott, 144 So. 569, 571, 225 Ala. 600, 603 (1932). For the same reason the powers of an executor or an administrator encompass all of those formerly held by the decedent, those powers must likewise be restricted in the same manner and to the same extent as the powers of the decedent would have been. Thus, where an executor or administrator asserts a claim on behalf of the estate, he or she must also abide by the terms of any valid agreement, including an arbitration agreement, entered into by the decedent.

We agree that the arbitration agreement at issue in this case is limited to disputes arising between Edwards and SouthTrust. If Edwards were alive and asserting against SouthTrust a claim to recover the value of the purportedly forged check, he would be bound to arbitrate. Because Melody serves as the ad-ministratrix of Edwards’s estate, she stands in his shoes. We conclude that Melody’s claim to recover the value of the improperly paid check is subject to arbitration because she is asserting that claim in her role as the administratrix of Edwards’s estate.

Additionally, Edwards agreed to arbitrate any dispute with SouthTrust “that arises out of or is related to [his] account, or any agreement related to [his] account, ... whether based on contract or in tort.” Thus, to the extent that Melody’s tort claims of intentional infliction of emotional distress and fraud are based upon an injury sustained by Edwards before his death, those claims would be subject to the agreement to arbitrate. This Court, however, expresses no opinion as to whether any such claims survived Edwards’s death. See § 6-5-462, Ala.Code 1975 (“In all proceedings not of an equitable nature, all claims upon which an action has been filed and all claims upon which no action has been filed on a contract, express or implied, and all personal claims upon which an action has been filed, except for injuries to the reputation, survive in favor of and against personal representatives; and all personal claims upon which no action has been filed survive against the personal representative of a deceased tortfeasor.”).

However, this Court has noted: “ ‘ “[Arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.” ’ ” Modern Woodmen of America v. McElroy, 815 So.2d 520, 526 (Ala.2001), quoting AT & T Techs., Inc. v. Communications Workers of America, 475 U.S. 643, 648, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986), quoting in turn United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960). Although this Court has recognized certain situations in which an agreement to arbitrate may extend to nonsignatories, see, e.g., Oakwood Mobile Homes, Inc. v. Godsey, 824 So.2d 713 (Ala.2001) (discussing third-party beneficiaries and the doctrine of intertwining), those limited exceptions are not applicable in this case.

First, Melody has not agreed to arbitrate her claims against SouthTrust. Additionally, if Melody is. asserting a tort claim based upon an injury she suffered directly, she is not seeking the benefits of the Edwards-SouthTrust deposit agreement. Thus, she is not a third-party beneficiary of that contract. See, e.g., Tom Williams Motors, Inc. v. Thompson, 726 So.2d 607 (Ala.1998) (the father was not a third-party beneficiary of the contract containing an arbitration provision; he was not a signatory to the contract, his claims were independent of the contract, and he was not seeking to recover benefits due under that contract).

The only possible basis for compelling Melody to arbitrate any personal claims she might have against SouthTrust would be under the doctrine of “intertwining.” The doctrine of intertwining is applicable where arbitrable and nonarbitrable claims are so closely related that the party to a controversy subject to arbitration is equitably estopped from denying the arbi-trability of the related claim. See, e.g., Ex parte Tony’s Towing, Inc., 825 So.2d 96 (Ala.2002); Oakwood Mobile Homes, Inc. v. Godsey, supra; Cook’s Pest Control, Inc. v. Boykin, 807 So.2d 524 (Ala.2001).

However, the doctrine of equitable estoppel is not applicable where the arbitration agreement is specifically limited to the parties that have executed the agreement. Monsanto Co. v. Benton Farm, 818 So.2d 867 (Ala.2001). The arbitration provision at issue in this case encompasses only disputes that arose between Edwards and SouthTrust.

Moreover, the doctrine of es-toppel is applicable only to estop a signatory from avoiding arbitration. See Ex parte Tony’s Towing, Inc., supra (noting that a nonsignatory cannot be estopped from avoiding arbitration and recognizing that the equitable principle of intertwining is applicable only where a signatory to the arbitration agreement seeks to frustrate a nonsignatory from obtaining arbitration). Because arbitration is strictly a matter of contract, this Court has no authority, even under the doctrine of equitable estoppel, to compel parties to arbitrate if they have not agreed to do so. Because Melody has never agreed to submit her personal claims against SouthTrust to arbitration, the doctrine of intertwining is not applicable to any claims asserted by her on her own behalf.

We are unable to determine from the record the factual allegations underlying Melody’s claims of intentional infliction of emotional distress and fraud. Accordingly, the trial court is instructed to conduct further proceedings as necessary to determine which, if any, of Melody’s tort claims are asserted on behalf of Edwards’s estate and which, if any, are asserted on her own behalf. The trial court is instructed to then determine, consistent with this opinion, which of those claims are subject to arbitration.

We now address Eddie’s.claims. Like Melody, Eddie is not a signatory to the arbitration agreement. He is not a third-party beneficiary under the Edwards-SouthTrust deposit agreement, and the arbitration agreement incorporated in that contract is specifically limited to disputes arising between Edwards and SouthTrust. For these reasons, the reasoning we applied to Melody’s claims is equally applicable to the claims asserted by Eddie.

Nothing in the record suggests that Eddie is asserting his claims in any capacity other than an individual one. Because Eddie is not a signatory to the arbitration agreement and because he has not agreed to arbitrate his claims against SouthTrust, his claims are not subject to the arbitration agreement. Again, we express no opinion as to the viability of any of the claims asserted in the complaint.

Conclusion

SouthTrust has properly supported its motion to compel arbitration of the claims asserted on behalf of Edwards’s estate. Any claim asserted by Melody on behalf of Edwards’s estate is subject to the agreement to arbitrate. However, any claim asserted on behalf of Melody or Eddie personally is not subject to arbitration. We affirm the trial court’s order of August 26, 2001, insofar as it pertains to any claim asserted by Melody or Eddie in their personal capacity; we reverse the trial court’s order insofar as it pertains to any claims asserted by Melody in her role as the administratrix of Edwards’s estate; and we remand this case to the trial court for further proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; REMANDED WITH INSTRUCTIONS.

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

MOORE, C.J., concurs in the result in part and dissents in part.

MOORE, Chief Justice

(concurring in the result in part and dissenting in part).

I concur in affirming the trial court’s order denying arbitration as to the claims asserted by Melody and Eddie Ford in their individual capacities; however, I dissent from the reversal of the trial court’s denial of arbitration as to the claims asserted by Melody Ford in her role as administratrix.

      . Eddie is not named as the administrator of Edwards’s estate, and the record is devoid of any basis upon which Eddie could proceed to recover the value of the purportedly forged check on behalf of Edwards's estate. We also find nothing in the record to suggest that Eddie would have a personal cause of action to recover the value of the purportedly forged check.

      . See note 1.