text:
    Harland Craig RENFROW, Appellant v. STATE of Mississippi, Appellee.
    No. 2002-KA-00602-COA.
    Court of Appeals of Mississippi.
    Sept. 21, 2004.

      Glen W. Hall, Jackson, James A. Williams, Brookhaven, Percy Stanfield, Jackson, attorneys for appellant.
    Office of the Attorney General by Jean Smith Vaughan, attorney for appellee.
   MODIFIED OPINION ON MOTION FOR REHEARING

GRIFFIS, J.,

for the Court.

¶ 1. The Appellant’s motion for rehearing is granted. The original opinion is withdrawn, and this opinion is substituted.

2. Harland C. Renfrow was convicted in the Circuit Court of Lauderdale County of sexual battery of a three-year-old female child and was sentenced to serve life in the custody of the Mississippi Department of Corrections. Renfrow appeals asserting that (1) the trial court erred in allowing the child to testify, (2) the indictment was flawed, (3) the trial court erred in allowing an instruction which referred to the child as a victim, and (4) his counsel rendered ineffective assistance. We find no error and affirm.

FACTS

¶ 3. On June 11, 2000, Tracy Hill-Watts, an investigator for the Lauderdale County Sheriffs Department, was called to Riley’s Hospital on a report of an alleged sexual assault on a child. The child was a three-year-old female, who was brought into the hospital that morning by Renfrow.

¶ 4. After an examination, Dr. James Purdy, an obstetrician and gynecologist, determined that the child had extensive damage to her vagina, pelvic peritoneum, and rectum. The child was transported to the University Medical Center in Jackson where she underwent several surgeries, including a sigmond loop colostomy, to repair the damage.

¶ 5. Renfrow was indicted and charged with sexual battery. The indictment, in pertinent part, provided:

Harland Craig Renfrow ... on or about the 10th day of June. A.D.2000, did then and there willfully, unlawfully, and felo-niously engage in sexual penetration with a foreign object, as defined in MCA: 97-3-97, with [the child] ..., a female child under the age of fourteen(14) years, and the said Harland C. Renfrow ... is a person twenty-four or more months older than the said child, in violation of Section 97 — 3—95(d), Mississippi Code.

¶ 6. At trial, the child took the stand, at age five, and testified that Renfrow hurt her. The defense moved to strike the child’s testimony, and the motion was granted. After continued questioning, the trial judge ruled that the child was not competent to testify. The judge found that the child was not yet capable of accurately recalling past events, and he instructed the jury to disregard the testimony of the child. Each juror indicated that they would follow the judge’s instructions. The judge denied the defense motion for a mistrial.

¶ 7. Investigator Tracy Hill-Watts testified that she accompanied investigator Brenda Snowden, a Wesley House Community Center social worker, and Vicki Whitlock, a Department of Human Services social worker, to the home of the child and her mother after she had been released from the hospital. Hill-Watts testified that the child responded to questions about who hurt her by answering, “[Renfrow] hurt me.”

¶8. Hill-Watts further testified that Renfrow had claimed that the child’s injur ries resulted from a fall onto a toy baby doll’s bottle. A toy bottle that Hill-Watts retrieved from the hospital’s medical personnel was admitted into evidence. Hill-Watts testified that, during her investigation, she discovered that the child, in the presence of Renfrow, nodded to the nurse at the hospital when asked whether she fell-onto -a bottle.

¶ 9. The prosecution introduced a sex toy, described as a dildo or a vibrator, into evidence. Judy Womack, Renfrew’s former wife, identified the sex toy as her property. She testified that she took this sex toy to Renfrew’s home on May 28. After June 11th, Womack got permission from the authorities to retrieve the sex toy from Renfrew’s home. Since that time, she testified that she retained custody of it.

¶ 10. Dr. Purdy testified that the injuries he observed were not consistent with the baby bottle or self auto insertion. Dr. Purdy testified that the toy baby doll bottle explanation was inaccurate and not plausible. According to Dr. Purdy, the child’s injuries were consistent with the insertion of a vibrator, similar to the sex toy that was entered into evidence. Dr. Purdy further testified that the injury was not recent to his examination. Instead, Dr. Purdy determined that the injury occurred several hours before the child was brought to the hospital.

¶ 11. The child’s mother testified that she had sexual relations with Renfrow on June 10, 2000. She testified that Renfrow attempted-to use a vibrator on her. She identified the sex toy/vibrator introduced in evidence as the vibrator Renfrow attempted to use on her. She testified that this sexual encounter with Renfrow occurred the night before the child was brought into the hospital for her injuries.

¶ 12. Brenda Snowden testified that she accompanied investigator Hill-Watts and VicM Whitlock to the child’s home after she had been released from the hospital. Snowden testified that when investigator Hill-Watts asked the child to tell who hurt her, the child said, “[Renfrow] hurt me.” She testified that Ms. Whitlock also asked the child to tell us again who hurt you. And the child again said, “[Renfrow] hurt me.” The child’s mother also testified that the child’s response was that Renfrow had hurt her.

¶ 13. Jerri Clay, a registered nurse at Riley’s Hospital, testified that she was on duty when the child arrived. Clay testified that when she asked the child what happened, Renfrow interrupted and told her that the child fell on the bottle. Clay testified that the child nodded, affirming Renfrow’s explanation. Clay further testified that she called the Rape Crisis Center and the sheriffs department because she believed that this injury was the result of a sexual offense.

¶ 14. Renfrow testified that the child and his minor daughter stayed with him at his trailer on the weekend in question. Renfrow testified that he heard the child screaming and that he went to her room. He testified that the child told him that she had fallen on the toy bottle. He testified that he took her diaper off, sat her on the bed, and examined her. He testified that he saw the bottle and then took the bottle out of her. Renfrow testified that he then took the child to the bathroom, washed her, wrapped her in a towel, and brought her to the hospital.

¶ 15. Renfrow testified that there was a hole in the diaper the child was wearing. After he took it off, Renfrow claimed he placed the diaper on a barrel in the back of his house where he puts his trash. After being questioned as to the whereabouts of the diaper, Renfrow testified that he did not know where the diaper was and speculated that some dogs probably took it away. Hill-Watts testified that the diaper was not recovered.

¶ 16. Renfrow admitted that the vibrator introduced into evidence was in his home the night of the incident. However, he claimed that he did not attempt to use the vibrator during sex with the child’s mother.

¶ 17. Renfrow further testified that only he, his minor daughter, and the child’s mother had access to the child on the night in question. Renfrow admitted that the child’s mother, however, did not see the child that night. When he returned from the hospital, Renfrow testified that he took the sheets off the bed and “stuck them in the washing machine and put some water on them,” but never washed them. Renfrow testified that since he had only two pair of sheets, he put them in the washer because of the blood stains. Hill-Watts testified that the bloody sheets were not recovered.

¶ 18. The jury found Renfrow guilty. The trial court denied Renfrow’s motion for judgment notwithstanding the verdict or, in the alternative, a new trial.

LEGAL ANALYSIS

I. Whether Renfrow was denied a fair trial and due process when the child was allowed to testify before a ruling on the competency of the child, when there was no cross-examination of the child, and when statements from the child to others that defendant injured her were disclosed to the jury.

¶ 19. On appeal, Renfrow argues that he was denied a fair trial because the child was allowed to take the witness stand without first having been qualified as a competent witness.

¶ 20. The child, at age five, took the stand to testify. The prosecutor asked, “who hurt you on June 10th 2000?” The child responded, “[Renfrow].” Defense counsel then objected on the basis that the question was leading. The objection was sustained.

¶ 21. The child then testified that she did not recall going to the hospital or talking to a doctor or a nurse. She testified that she did not know when she was hurt or how old she was when she got hurt. In response to further -questioning, the child again testified that Renfrow hurt her. The defense 'again objected. The court sustained the objection and struck the testimony.

¶ 22. The child then testified that she did not know where she got hurt. She did not remember being in pain. And, for the third time, she testified that Renfrow hurt her in response to the prosecutor's question, “[E]arlier when you said you got hurt, you said you knew who hurt you?” The court again sustained the defense’s objection.

¶ 23. At this point, the defense moved to strike and for a mistrial. The court granted the motion to strike, based on Rules 601 and 603 of the Mississippi Rules of Evidence, but denied the mistrial. The court then stated, “it is with due regret, counsel, but I can’t rule this witness to be competent to testify.” Defense counsel then requested the court to instruct the jury as to the motion to strike, and the judge instructed the jury to disregard the comments of the child. Each juror then indicated that they would follow the judge’s instructions. Renfrow claims that the trial judge committed error in this ruling.

124. Prior to the trial, the defense chose not to challenge the child’s competency to testify. The prosecutor, during pretrial motions, announced that they intended to call the child as a witness. The testimony they intended to use had been provided in discovery. Renfrow did not file a motion in limine to prevent this testimony and did not request. that the trial judge hold a competence hearing, outside the presence of the jury, prior to the child taking the stand.

¶ 25. The determination of the competency of a witness is made at the discretion of the trial judge. Burbank v. State, 800 So.2d 540, 544 (¶ 6) (Miss.Ct. App.2001). Every person is assumed conn petent to testify. Barnett v. State, 757 So.2d 323, 328 (¶ 13)(Miss.Ct.App.2000). “Although the court did not conduct a preliminary investigation of the child to determine competency, it was not required to do so.” Burbank, 800 So.2d at 544 (¶ 6). Therefore, we find Renfrew’s argument that he was denied a fair trial because the child was allowed to take the stand without first having been qualified as a competent witness to be without merit. Further, Renfrow has not demonstrated that the trial judge abused his discretion. Without a demonstration of an abuse of that discretion, there is no basis for this Court to overturn that ruling. Id.

¶ 26. Renfrow next argues that he was denied his constitutional right to confront the child. As discussed above, the defense objected to the child’s testimony, and the child’s testimony was determined to be incompetent in -response to the defense’s objection. The court struck the child’s testimony based on Rules 601 and 603 of the Mississippi Rules of Evidence. The judge then instructed the jury to disregard the comments of the child. Since the child’s testimony was stricken from the record, there was no need or basis for the court to allow cross-examination. There was no testimony in the record for Ren-frew to rebut. Since an incompetent witness cannot testify, it follows that there is no constitutional right to cross-examine an incompetent witness.

¶ 27. The trial judge instructed the jury to disregard the child’s testimony, and the jurors confirmed that they would by a showing of their hands. There is a strong presumption that the jury follows the instructions of the court. McGilberry v. State, 741 So.2d 894, 913 (¶ 68) (Miss.1999). Renfrew has failed to rebut this presumption. Therefore, we find that Renfrew has not established a constitutional violation or an abuse of discretion by the trial judge. Consequently, we find no error.

¶ 28. Renfrew next argues that it was error to admit the child’s hearsay statements concerning the cause of the injuries. The State called Tracy Hill-Watts to testify as to what the child had said concerning the investigation of the alleged sex offense. Hill-Watts testified that the child was three and a half years old at the time of her statement. Hill-Watts testified that she visited the child in the hospital soon after the alleged sex offense occurred. She testified that at the time of her visit two social workers, Brenda Snowden and Vicki Whitlock, were present along with the child’s mother. Hill-Watts testified that the child told Whitlock that Renfrew had hurt her. She further testified that the child said it again so that everyone present could hear her.

¶29. Renfrew objected to Hill-Watt’s testimony concerning the child’s statements on the basis that it was hearsay. The trial judge has discretion to either accept or reject evidence offered. Austin v. State, 784 So.2d 186, 193 (¶ 23) (Miss.2001). “That discretion must be exercised within the scope of the Mississippi Rules of Evidence, and reversal will only be had when an abuse of discretion results in prejudice to the accused.” Id. at 193-94 (¶ 23). Here, the trial judge found the testimony admissible under Rule 803(25) of the Mississippi Rules of Evidence, as an exception to the hearsay rule. Rule 803(25) provides:

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.

The comment to Rule 803 lists several factors, sometimes referred to as the “Wright factors,” that a trial judge should consider to determine whether there is a “substantial indicia of reliability.” The factors include:

(1) whether there is an apparent motive on declarant’s part to he; (2) the general character of the declarant; (3) whether more than one person heard the statements; (4) whether the statements were made spontaneously; (5) the timing of the declarations; (6) the relationship between the declarant and the witness; (7) the possibility of the declarant’s faulty recollection is remote; (8) certainty that the statements were made; (9) the credibility of the person testifying about the statements; (10) the age or maturity of the declarant; (11) whether suggestive techniques were used in eliciting the statements; and (12) whether the de-clarant’s age, knowledge, and experience make it unlikely that the declarant fabricated.

M.R.E. 803(25) cmt. The comment also requires that “[a] finding that there is a substantial indicia of reliability should be made on the record.” Id.

¶ 30. The trial judge conducted the required hearing, outside the presence of the jury. The trial judge accepted testimony and made extensive findings as to the factors necessary to ascertain the veracity of the declarant’s testimony. The judge found that there was no motive to lie, that Hill-Watts’s character was not disputed, that the statements were spontaneous and not coerced, and that Hill-Watts’s testimony was credible.

¶ 31. The trial judge followed the proper procedure required by Rule 803(25) of the Mississippi Rules of Evidence. Therefore, the trial judge did not abuse his discretion in allowing this testimony. We find this assignment of error to be without merit.

II. Whether the defendant was denied a fair trial and due process of law when he was indicted on a charge of sexual penetration of a three-year-old tvith a foreign object not specifically named in the indictment and a vibrator in the form of a penis is introduced where there was no medical certainty that the vibrator caused the injuries to the child?

¶ 32. Renfrow next argues that the indictment was flawed because it named the instrument used to injure the child as a “foreign object.” Rule 7.00 of the Uniform Circuit and County Circuit Court Rules requires that the indictment provide “a plain, concise and definite written statement of the essential facts constituting the offense charged and shall fully notify the defendant of the nature and cause of the accusation.” Rule 7.06 commands that an indictment include:

1. The name of the accused;

2. The date on which the indictment was filed in each court;
3. A statement that the prosecution is brought in the name and by the authority of the State of Mississippi;
4. The county and judicial district in which the indictment is brought;
5. The date and, if applicable, the time, at which the offense was alleged to be committed. Failure to state the
. correct date shall not render the indictment insufficient;
6. The signature of the foreman of the grand jury issuing it; and
7.' The words “against the peace and dignity of the state.”

¶ 33. If an indictment includes the seven items enumerated, it is sufficient to provide the defendant with notice of the charge against him. Roberson v. State, 595 So.2d 1310, 1318 (Miss.1992); We find that all seven requirements of Rule 7.06 were met by the indictment, and it “reasonably provide[d] the accused with actual notice” of the charge against him. Roberson, 595 So.2d at 1318.

¶ 34. We also find that the use of the term “foreign object” gave Renfrow sufficient notice that an object used in the crime would be introduced into evidence. The term “foreign object” was broad enough to include the sex toy or vibrator, regardless of how it. was described, as well as the baby bottle, which was Renfrew’s theory about how the child was injured. We find no error in the indictment.

¶ 35. Renfrow also argues that the trial court erred in admitting the vibrator into evidence.- He-contends that, although the vibrator may have met the relevancy requirement set forth in Mississippi Rules of Evidence 401, its prejudicial effect outweighed its probative value as set forth in Mississippi Rules of Evidence 403. Therefore, Renfrow asserts that the vibrator should have been excluded.

¶ 36. The admissibility and relevancy of evidence are within the discretion of the trial court. Absent an abuse of that discretion, the trial court’s decision will not be disturbed on appeal. McCoy v. State, 820 So.2d 25, 31 (¶ 15) (Miss.Ct.App.2002). Here, Dr. Purdy testified that the vibrator introduced at trial was consistent with the child’s injuries. Dr. Purdy testified that the toy baby bottle was not consistent with the injuries, as claimed by the defendant. The child’s mother, testified that Renfrow had attempted to use the vibrator on her during sex the night before. She identified the vibrator presented in court as the vibrator that she saw the defendant with on the night of June 10, 2000. The trial judge admitted both the vibrator and the baby bottle. The trial judge allowed testimony on both so that the jury could weigh the credibility of the witnesses and draw reasonable inferences from the evidence.

¶ 37. The vibrator was certainly probative evidence. Based on this testimony, we cannot say the trial judge erred in his determination that the prejudicial effect of admitting the vibrator into evidence did not outweighed its probative value. Therefore, we find no abuse of discretion in admitting the vibrator into evidence.

III. Whether the defendant was denied a fair trial and due process of law when the jury instructions taken as a whole contained assumptions of fact of material issues.

¶ 38. Renfrow argues that it was error for the State’s instruction on the elements of the crime to refer to the child as the victim. Instruction Sl-A, in pertinent part, reads “and the Defendant is more than twenty four (24) months older than the victim.” Renfrow contends that the use of the word “victim” improperly influenced the jury’s finding that Renfrow was guilty of sexual battery of the child.

¶ 39. Upon review of the record, we find that Renfrow did not object to this language in the State’s amended instruction S-1A. It is well established that the appellant must object with specificity in order to preserve an error for appeal. Oates v. State, 421 So.2d 1025, 1030 (Miss.1982). This assignment of error is procedurally barred.

IV. Whether the defendant was denied effective assistance of counsel.

¶ 40. Renfrow asserts three grounds upon which he claims his counsel was ineffective. Renfrow argues that his counsel was ineffective when his counsel (1) stated during voir dire that the defendant could be released on a technicality even though the proof showed him guilty, (2) failed to eliminate the term “victim” from an instruction, and (3) failed to object to the trial judge’s assistance to the prosecution in Dr. Purdy’s testimony concerning the photographs that were introduced into evidence.

¶ 41. According to Strickland v. Washington, 466 U.S. 668, 684, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), to prove trial counsel to be ineffective, it must be shown that (1) counsel’s performance was deficient, and (2) the defendant was prejudiced by his counsel’s mistakes. There is a strong presumption that counsel’s performance falls within the range of reasonable professional assistance. Id. To overcome this presumption, “the defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result would have been different.” Id.

¶ 42. We consider Renfrew’s arguments in order. As to the first ground, whether his counsel was ineffective when he stated during voir dire that the defendant could be released on a technicality even though the proof showed him guilty, Renfrew has failed to overcome the strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. In Mohr v. State, the Mississippi Supreme Court required the defendant to show the existence of a reasonable probability that, but for counsel’s unprofessional errors, the outcome would have been different. Mohr v. State, 584 So.2d 426, 430 (Miss.1991). Renfrew has failed to show any probability that the outcome would have been different but for his counsel’s comments during voir dire. Renfrew simply relies on conclusory statements. There is no evidence that counsel’s actions were anything other than trial strategy. Accordingly, we find this argument to be without merit.

¶ 43. As to the second ground, whether his counsel was ineffective when he failed to eliminate the term “victim” from an instruction, we find that the jury was free to determine that the child was the victim of a crime and that the injuries she sustained were not accidental. Even if counsel had objected, Renfrew has again failed to demonstrate that the outcome would probably have been different. We find no merit to this argument.

¶ 44. As to the third ground, whether his counsel was ineffective when he failed to object to the trial judge’s assistance to the prosecution in Dr. Pur-dy’s testimony concerning the photographs that were introduced into evidence, during Dr. Purdy’s testimony, the State offered photographs of an external view of the child’s perineum and vulva taken on the night of the incident. Renfrew’s counsel objected arguing that the prejudicial effect outweighed the probative value. The trial court viewed the Polaroid pictures and then asked the prosecution to question Dr. Purdy as to how the photographs depicted the child’s injuries. The State asked Dr. Purdy if the pictures showed the injuries that the child sustained. Dr. Purdy responded that the pictures were representative of what he saw that day. Dr. Purdy testified that the pictures showed the area of the injury, but did not show the intensity of the cut because of the poor illumination.

¶ 45. The trial judge sustained the objection as to all of the photographs except one. The judge found that the pictures had significant probative value and a high degree of prejudicial effect, but because there was an issue regarding how the child was injured, the trial judge allowed only one of the three photographs to be admitted. The trial judge reasoned that the admitted photograph accurately represented what Dr. Purdy saw upon examining the child.

¶ 46. The trial court is vested with broad discretion in determining the admissibility of evidence. Johnson v. State, 655 So.2d 37, 42 (Miss.1995). A trial judge has the responsibility, within judicial discretion, of confining the testimony during trial to the issue before it. Hannah v. State, 336 So.2d 1317, 1320-21 (Miss.1976). In this case, the photograph in issue was relevant to the child’s injuries. We find no abuse of discretion by the trial court in admitting the photograph or prejudice to Renfrew from the court’s request that the prosecution question Dr. Purdy as to how the photographs depicted the child’s injuries.

¶ 47. In addition, Renfrew cites no authority to support a finding that the trial judge was in error. It is Renfrow’s duty to provide authority and support for the issues which he presents. Rigby v. State, 826 So.2d 694, 707 (¶44) (Miss.2002) (citing Hoops v. State, 681 So.2d 521, 526 (Miss.1996)). By failing to demonstrate how the court was in error, Renfrow has again failed to demonstrate that but for his counsel’s alleged deficiency the outcome would have been different. Therefore, we find this assignment of error to be without merit.

¶ 48. We find no error and affirm.

¶ 49. THE JUDGMENT OF THE CIRCUIT COURT OF LAUDERDALE COUNTY OF CONVICTION OF SEXUAL BATTERY AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LAUDERDALE COUNTY.

KING, C.J., BRIDGES AND LEE, P.JJ., IRVING, MYERS, AND CHANDLER, JJ., CONCUR. BARNES, J„ NOT PARTICIPATING.


source: Caselaw Access Project

author: BROWN, Justice.

license: Public Domain

text:
    HARBOR VILLAGE HOME CENTER, INC. v. Curtis THOMAS.
    1020392.
    Supreme Court of Alabama.
    Nov. 21, 2003.

      Thomas H. Nolan, Jr., and Winston R. Grow of Brown, Hudgens, P.C., Mobile, for appellant.
    J. Charles McCorquodale IV of McCor-quodale & McCorquodale, Jackson, for ap-pellee.
   BROWN, Justice.

Harbor Village Home Center, Inc., appeals from the trial court’s order compelling it to arbitrate the claims filed against it by the plaintiff Curtis Thomas. We reverse and remand.

Facts and Procedural History

On March 31, 2000, Thomas purchased from Harbor Village a new mobile home manufactured by Buccaneer Homes of Alabama, Inc. In connection with the purchase, Thomas and Harbor Village executed three different documents, each of which contained an arbitration provision: a document entitled “Retail Installment Contract, Security Agreement, Waiver of Trial by Jury, and Agreement to Arbitration or Reference or Trial by Judge Alone” (“the retail contract”); a document entitled “Acknowledgment and Agreement” (“the acknowledgment”), which Buccaneer also executed; and a document entitled “Agreement for Binding Arbitration and Waiver of Jury Trial” (“the freestanding arbitration agreement”). The arbitration provision in the retail contract provided, in part:

“ARBITRATION OF DISPUTES AND WAIVER OF JURY TRIAL:
“a. Dispute Resolution. Any controversy or claim between or among you and me or our assignees arising out of or relating to this Contract or any agreements or instruments relating to or delivered in connection with this Contract, including any claim based on or arising from an alleged tort, shall, if requested by either you or me, be determined by arbitration, reference, or trial by a judge as provided below.... YOU AND I AGREE AND UNDERSTAND THAT WE ARE GIVING UP THE RIGHT TO TRIAL BY JURY, AND THERE SHALL BE NO JURY WHETHER THE CONTROVERSY OR CLAIM IS DECIDED BY ARBITRATION, BY JUDICIAL REFERENCE, OR BY TRIAL BY A JUDGE.
“b. Arbitration. Since this Contract touches and concerns interstate commerce, an arbitration under this Contract shall be conducted in accordance with the United States Arbitration Act (Title 9, United States Code), notwithstanding any choice of law provision in this Contract. The Commercial Rules of the American Arbitration Association (‘AAA’) also shall apply..

The retail contract also included two different merger or integration clauses:

“This Contract is the entire agreement between us and I agree that no oral or implied representations have been made to induce me to enter into this Contract.”
‘YOU AND I HAVE READ AND FULLY UNDERSTAND THIS CONTRACT, INCLUDING THE. PARAGRAPH CALLING FOR RESOLVING DISPUTES BY ARBITRATION, REFERENCE, OR TRIAL BY A JUDGE, AND NOT BY JURY TRIAL, AND AGREE THAT THIS CONTRACT SETS FORTH OUR ENTIRE AGREEMENT AND THAT NO OTHER PROMISES. HAVE BEEN MADE.”

(Capitalization in original.)

The arbitration provision in the acknowledgment provided:

“All parties hereto acknowledge and agree that this Agreement and the performance of the transactions contemplated hereby evidence-transactions which involve a substantial nexus with interstate commerce. Accordingly, any dispute, controversy or claim of any kind or nature which has arisen or may arise between the parties, their successors, assigns, heirs, representatives, parents companies, divisions, subsidiaries, affiliates, officers, directors, employees, agents, and contractors, (including any dispute, controversy or claim relating to the validity of this arbitration clause), whether arising out of past, present or future dealings between the parties, their successors, assigns, heirs, representatives, parents companies, divisions, subsidiaries, affiliates, officers, directors, employees, agents, and contractors, shall be governed by the Federal Arbitration Act and shall be settled by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Such arbitration proceedings shall be held at the principal place of business of [Buccaneer] or at such other location as shall be designated by [Buccaneer], and shall be heard 'by an arbitrator who is either a(i) retired judge or (ii) practicing attorney who has conducted more than three (3) arbitra-tions during the proceeding five (5) years.... EACH OF THE PARTIES HERETO WAIVES ANY RIGHT TO A JURY TRIAL WITH RESPECT TO ANY CONTROVERSY BETWEEN THE PARTIES, THEIR SUCCESSORS, ASSIGNS, HEIRS, REPRESENTATIVES, PARENT COMPANIES, DIVISIONS, SUBSIDIARIES, AFFILIATES,. OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND CONTRACTORS.”

(Capitalization in original.) The acknowledgment also contained a merger clause; that clause provided: “This agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, supersedes any oral or written understanding or agreement between the parties with respect to the subject matter hereof and may not be amended or altered except by written agreement signed by the parties.”

The freestanding arbitration agreement stated, in part:

“As part of the consideration for the sale of said mobile home, Buyer and Seller for themselves, their heirs, successors and assigns, hereby enter this Agreement for Binding Arbitration and for Waiver of Jury Trial in the event of any unresolved dispute in any way arising from the purchase and sale of the above described mobile home, each intending and agreeing to be mutually bound by the terms of this Agreement.
“2. All disputes, claims or controversies in any manner arising from the transaction of sale and purchase of the mobile home described herein, or from the relationships which result from the transaction between the Buyer and Seller, including this arbitration by one arbitrator who is to be selected by the Seller or by the Seller’s assignee with the consent of the Buyer.”

(Emphasis added.) The freestanding arbitration agreement does not contain a merger clause.

After purchasing the mobile home, Thomas discovered numerous alleged defects. He then sued Buccaneer and Harbor Village in the Washington Circuit Court, alleging fraud, breach of express and implied warranties, and violation of the Magnuson-Moss Warranty-Federal Trade Commission Improvement Act, 15 U.S.C. § 2301 et seq. The complaint also alleged a negligence claim against Harbor Village.

Buccaneer and Harbor Village removed the action to federal court. While the case was pending in that court, both Buccaneer and Harbor Village moved to compel arbitration. Thomas filed a brief in opposition to their motions to compel arbitration. However, the federal court remanded the case to the Washington Circuit Court without ruling on the motions.

After remand, Buccaneer and Harbor Village each filed motions in the Washington Circuit Court to compel arbitration. Specifically, Harbor Village asked the circuit court to enter an order “compelling the parties to the controversy to submit all claims and causes of action in this present case to binding arbitration before the American Arbitration Association.... ” Harbor Village also included with its motion copies of the arbitration provisions and a supporting affidavit. Thomas filed a response to Buccaneer’s motion only, but filed a motion to strike the affidavit filed in support of Harbor Village’s motion. Thomas also sent a letter to the trial court arguing that even if the court compelled arbitration, arbitration did not have to be conducted under the Commercial Arbitration Rules of the American Arbitration Association (hereinafter “the AAA rules”). Harbor Village says that a copy of a proposed order was attached to this letter; the copy of the letter included in the record, however, includes no such order.

On August 27, 2002, the trial court issued an order in response to the motions to compel arbitration filed by Buccaneer and Harbor Village. The order stated, in part:

“The agreement for arbitration between the buyer and the seller requires that all disputes, claims, or controversies in any manner arising from the transaction shall be resolved by one arbitrator selected by the seller with the consent of the buyer and selected and agreed upon by both the buyer and seller.
“On the motions of the defendants, Buccaneer Homes of Alabama, Inc. and Harbor Village Home Center, Inc., to compel this cause to arbitration and based on the pleadings, affidavits, and arguments before this Court, it is hereby
“ORDERED, ADJUDGED and DECREED, that Curtis Thomas is entitled to a jury trial against [Buccaneer] for the express warranty claims and the claims brought pursuant to the Magnu-son-Moss Warranty Act;
“And further, it is ORDERED, ADJUDGED and DECREED, that the other claims filed in this Court between the parties, including the implied warranty claims, be and the same hereby are sent to arbitration pursuant to the terms of the agreements for arbitration.”

Harbor Village then filed a motion pursuant to Rule 59(e), Ala. R. Civ. P., to alter, amend, or vacate the trial court’s August 27 order, claiming that the trial court erred in ordering arbitration under the freestanding arbitration agreement instead of under the retail contract or the acknowledgment. The trial court denied this motion on October 28, 2002. Harbor Village appeals.

Standard of Review

“This Court’s review of an order granting a motion to compel arbitration is de novo. See W.D. Williams, Inc. v. Ivey, 777 So.2d 94 (Ala.2000); Patrick Home Ctr., Inc. v. Karr, 730 So.2d 1171 (Ala.1999). Therefore, this Court must determine ‘whether the trial judge erred on a factual or legal issue to the substantial prejudice of the party seeking review.’ Ex parte Roberson, 749 So.2d 441, 446 (Ala.1999).”

BankAmerica Housing Servs. v. Lee, 833 So.2d 609, 617 (Ala.2002).

Discussion

I.

Harbor Village argues that the trial court failed to apply standard principles of contract interpretation in ordering arbitration in this case. Specifically, Harbor Village claims that the trial court, in ordering that the arbitrator be selected by “the seller with the consent of the buyer and selected and agreed upon by both the buyer and seller,” erroneously compelled arbitration under the freestanding arbitration agreement. Harbor Village argues that the trial court should have instead compelled arbitration under the retail contract and the acknowledgment, which call for arbitration under the AAA rules. Those rules, Harbor Village argues, set out a procedure for selecting an arbitrator different from the procedure found in the freestanding arbitration agreement.

The three documents executed by Thomas and Harbor Village in conjunction with Thomas’s purchase of the mobile home set out three different arbitration procedures. The retail contract and the acknowledgment, however, contain merger clauses that, Harbor Village argues, prevent the trial court from considering the freestanding arbitration agreement.

A merger clause, also known as an integration clause, “is a portion of a particular contract that restates the rationale of the parol evidence rule within the terms of the contract.”. Environmental Sys., Inc. v. Rexham Corp., 624 So.2d 1379, 1383 (Ala.1993). These clauses “are properly used to ensure that preliminary negotiations, whether oral or written!,] are either memorialized in the final contract or are not considered part of it.” Crown Pontiac, Inc. v. McCarrell, 695 So.2d 615, 618 (Ala.1997). Moreover, a merger clause “establish[es] that a written agreement is a completely integrated document, into which all prior and contemporaneous negotiations are merged.” Crimson Indus., Inc. v. Kirkland, 736 So.2d 597, 601 (Ala.1999). “Merger clauses thus create a presumption that the writing represents an integrated, that is, the final and complete, agreement of the parties.” Ex parte Palm Harbor Homes, Inc., 798 So.2d 656, 660 (Ala.2001).

Whether a contract is integrated is ordinarily a question of law for the court. Palm Harbor Homes, 798 So.2d at 661. In this case, we are presented with two documents purporting to be the entire, complete, and final agreement of the parties — the retail contract and the acknowledgment.

We hold that the retail contract is the only fully integrated agreement between Harbor Village and Thomas. First, the retail contract contains all of the terms necessary to the contract, including a description of the mobile home, the identities and signatures of the parties, the price of the mobile home and the terms of the financing, the assignment, and an arbitration provision. The inclusion of these necessary details indicates that the retail contract is the fully integrated agreement. See Palm Harbor Homes, 798 So.2d at 661 (holding that an installment contract, even if the merger clause were to be ignored, appeared to be a fully integrated agreement of a purchase of a mobile home because it contained the essential terms detailing the transaction). Moreover, the retail contract contains a merger clause, which creates a “presumption” that the writing is the final and complete agreement of the parties. Palm Harbor Homes, 798 So.2d at 660.

Additionally, it is clear that neither the freestanding arbitration agreement nor the acknowledgment is the fully integrated agreement of the parties. First, we note that the freestanding arbitration agreement, unlike the retail contract and the acknowledgment, does not contain a merger clause. Harbor Village argues, citing Ex parte Palm Harbor Homes, supra, that it should thus be excluded from consideration by the trial court. In Palm Harbor Homes, the parties in purchasing a mobile home contemporaneously executed a retail contract, which contained an arbitration clause, and two freestanding arbitration agreements. 798 So.2d at 657-59. The retail contract, unlike the freestanding agreements, contained both a merger clause and all the terms necessary to complete the purchase. However, the terms of the freestanding arbitration agreements contradicted the terms of the arbitration clause found in the retail contract. In determining which arbitration provision controlled, this Court held that the merger clause in the retail contract established that the retail contract represented the entire agreement between the parties and superseded the freestanding arbitration agreements. 798 So.2d at 660-62.

Like the freestanding arbitration agreements in Palm Harbor, the freestanding arbitration agreement in this case does not set forth any terms of the purchase of the mobile home and does not contain a merger clause. Therefore, it is superseded by the retail contract, and the trial court erred in ordering arbitration under the terms of the freestanding arbitration agreement.

Similarly, we conclude that the acknowledgment, despite the fact that it contains a merger clause, is not the final and complete agreement of the parties. As its name implies, the document simply recites certain acknowledgments made by the parties, e.g., that Thomas had received certain documents and notices, that he acknowledged the identity of the parties, and that he had inspected and was satisfied with the mobile home. It also contains an arbitration provision. It does not, however, specify the purchase price, the financing arrangements, the identity of the assignee, or other essential terms of the purchase. Therefore, we hold that the retail contract, and not the acknowledgment, is the fully integrated agreement between the parties.

Because the retail contract is the only fully integrated agreement entered into by the parties, we presume that all prior and contemporaneous negotiations are merged into it. Thus, the conflicting terms of the acknowledgment and freestanding arbitration agreement, including their arbitration provisions, are extinguished by the retail contract. See 11 Richard A. Lord, Williston on Contracts, § 38:26 (4th ed.1999) (evidence of collateral agreements is barred by a merger clause if such evidence contradicts the written contract).

A trial court may compel arbitration only in a manner consistent with the terms of the arbitration agreement entered into by the parties. BankAmerica Hous. Servs. v. Lee, 833 So.2d at 618. The retail contract in this case calls for arbitration to be conducted under the AAA rules, thereby incorporating those rules into the contract by reference. See BankAmerica Hous. Servs., 833 So.2d at 615 (holding that an arbitration provision, which recited that the Commercial Rules of the American Arbitration Association shall apply to the arbitration proceedings, incorporated those rules by reference, making them applicable to the parties). Therefore, the trial court’s order compelling arbitration in a manner not in accordance with the AAA rules is erroneous.

II.

Thomas argues that this Court should affirm the trial court’s order because arbitration conducted under the AAA rules would .be unconscionable. We disagree.

It is well settled that h motion to compel arbitration is treated procedurally as a motion for a summary judgment. Lewis v. Conseco Fin. Corp., 848 So.2d 920, 922 (Ala.2002) (“ ‘A motion to compel arbitration is analogous to a motion for a summary judgment.’ ” (quoting Fleetwood Enters., Inc. v. Bruno, 784 So.2d 277, 280 (Ala.2000))); see also Brookfield Constr. Co. v. Van Wezel, 841 So.2d 220 (Ala.2002). A party opposing arbitration, on the ground of unconscionability has the duty of proving that affirmative defense. Conseco Fin. Corp. v. Boone, 838 So.2d 370, 373 (Ala.2002). Harbor Village filed a motion to compel arbitration specifically seeking to compel arbitration under the AAA rules. Once Harbor Village made its prima facie showing in support of its motion for arbitration, the burden shifted to Thomas to present evidence indicating that the arbitration agreements were not valid or that they did not apply to the dispute in question. Vann v. First Cmty. Credit Corp., 834 So.2d 751, 753 (Ala.2002).

Thomas filed no response to Harbor Village’s motion to compel arbitration. Instead, he responded only to Buccaneer’s motion, and even in that response he did not argue that the arbitration agreements were unconscionable because they called for arbitration under the AAA rules. In fact, Thomas first argued that arbitration under the AAA rules was unconscionable in his pleadings filed in response to Harbor Village’s Rule 59(e), Ala. R. Civ. P., motion, well after the trial court compelled arbitration as to his claim against Harbor Village.

An affirmative defense, including unconscionability, not pleaded before the trial court’s ruling on a motion for a summary judgment or a motion to compel arbitration is deemed waived and will not be considered by this Court. Ryan’s Family Steak Houses, Inc. v. Regelin, 735 So.2d 454, 457 n. 1 (Ala.1999)(“the propriety of a ruling on a motion to compel arbitration, like the propriety of a ruling on a summary-judgment motion, must be tested by reviewing the pleadings' and the evidence the trial court had before it when it ruled”). See also Mardis v. Ford Motor Credit Co., 642 So.2d 701, 705 (Ala.1994) (noting that “ ‘[t]he trial court can consider only that material before it at the time of submission of [a] motion [for a summary judgment]’ and that ‘[a]ny material filed after submission of the motion comes too late.’ ” (quoting Guess v. Snyder, 378 So.2d 691, 692 (Ala.1979))); Purvis v. PPG Indus., Inc., 502 So.2d 714, 716 (Ala.1987) (holding that this Court will not consider on appeal evidence and facts submitted to a trial court after it has entered a summary judgment). Thomas did not argue in response to the motion to compel arbitration that arbitration under the AAA rules is unconscionable; therefore, that issue is waived.

Conclusion

The trial court erred in ordering arbitration under the terms of the freestanding arbitration agreement; instead, the trial court should have ordered arbitration pursuant to the terms of the retail contract. Moreover, Thomas has waived his argument that arbitration under the retail contract is unconscionable. Therefore, we reverse the trial court’s order and remand the cause.

REVERSED AND REMANDED.

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

      . We note that this Court has previously treated identical language as a merger clause. See Ronnie Smith’s Home Ctr., Inc. v. Luster, 845 So.2d 764 (Ala.2002).

      . In Belmont Homes, Inc. v. Law, 841 So.2d 237, 239 (Ala.2002), this Court recognized a virtually identical clause at issue in that case as a merger clause.

      . Harbor Village claims that this order was identical to the proposed order submitted by Thomas.

      . Buccaneer is not a party to this appeal. Additionally, Thomas has not challenged on cross-appeal the trial court's order to compel arbitration.

      . Harbor Village incorrectly claims that enforcement of the arbitration provisions in both the retail contract and the acknowledgment would lead to the same result, namely, that the AAA rales would control in the selection of the arbitrator. We note that the acknowledgment sets forth certain qualifications for the arbitrator — that the arbitrator be a retired judge or an attorney with certain prior arbitration experience. Those qualifications are not found in the copy of the AAA rales contained in the record. The retail contract contains no such restrictions or qualifications.

      . Indeed, we note that Thomas, in his opposition to the motions to compel arbitration filed in the federal court, stated:
      "If the Court refuses to strike all arbitration clauses that the plaintiff was required to sign, then arbitration should be held in accordance with the [retail contract]. No extrengent [sic] evidence of prior or contemporaneous agreements will be admissible to change, alter, or contradict the [retail contract]. All prior and contemporaneous negotiations are deemed to be merged into that writing.
      "The [retail contract] was a fully integrated contract that includes all of the terms necessary for the contract.... [P]laintiff requests the Court to deny defendant's request for arbitration, or, in the alternative, order arbitration pursuant to the [retail contract]....”
      (Citations omitted.)

      . Instead, Thomas generally alleged that the arbitration provision contained in the acknowledgment was unconscionable because its terms were grossly favorable to Buccaneer and because Thomas possessed no bargaining power in his transaction with Buccaneer.


author: JOHNSTONE, Justice. LYONS, Justice

text:
    Ex parte ALLOY WHEELS INTERNATIONAL, LTD. (In re Sue S. Vance, as personal representative of the estate of Katherine Victoria Vance, deceased v. Sonic-Williams Imports, Inc., d/b/a Tom Williams Land Rover; et al.)
    1020778.
    Supreme Court of Alabama.
    Nov. 21, 2003.

      Thomas S. Rue, Tracy P. Turner, and William H. Hardie, Jr., of Johnstone, Adams, Bailey, Gordon & Harris, L.L.C., Mobile; and Nathan G. Watkins, Jr., Livingston, for petitioner.
    D. Bruce Petway and Rodney F. Barga-nier of Lucas, Wash, Petway, Tucker & Stephens, P.C., Birmingham; and David T. Shaw of Griess & Shaw, Eutaw, for respondent (Sue S. Vance).
   JOHNSTONE, Justice.

The defendant Alloy Wheels International, Ltd., a foreign corporation engaged in manufacturing aluminum alloy wheels, petitions this Court for a writ of mandamus directing the trial judge to vacate his order denying the motion of Alloy Wheels for a summary judgment grounded on lack of personal jurisdiction. Alloy Wheels asks this Court to issue a writ of mandamus directing the trial judge to issue an order granting a summary judgment in favor of Alloy Wheels. Because the materials before us establish that the trial court lacked personal jurisdiction over Alloy Wheels, we grant the petition and issue the writ.

On September 26,1999, Katherine Victoria Vance was killed in the rollover wreck of her 1998 Land Rover Discovery sport-utility vehicle. On September 10, 2001, Katherine’s mother, Sue Vance, as the personal representative of Katherine’s estate, sued a number of defendants, and eventually added Alloy Wheels as a defendant, for Katherine’s wrongful death. The plaintiff alleged product liability claims and Alabama Extended Manufacturer’s Liability Doctrine claims against the defendants. The plaintiff specifically alleged that Alloy Wheels had defectively designed and manufactured the aluminum alloy wheels on Katherine’s Land Rover and that a crack in at least one of the wheels caused the fatal wreck. Answering the amended complaint, Alloy Wheels asserted, among other defenses, the lack of personal jurisdiction.

Thereafter, Alloy Wheels moved for a summary judgment on the ground that the trial court lacked personal jurisdiction over Alloy Wheels. Alloy Wheels relied on the allegations of the complaint and on two affidavits of Paul Merritt, the operations director of Alloy Wheels in the United Kingdom. Alloy Wheels argued that it did not have sufficient minimum contacts with the State of Alabama for the trial court to exercise personal jurisdiction over Alloy Wheels.

The plaintiff submitted a brief and evi-dentiary materials in opposition to the motion for summary judgment. The brief submitted by the plaintiff is not among the materials before us, but the evidentiary submissions are.

“[MJandamus is a drastic and extraordinary writ that will be issued 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 Horton, 711 So.2d 979, 983 (Ala.1998). “Subject to certain narrow exceptions ..., the denial of a motion to dismiss or a motion for a summary judgment is not reviewable by petition for writ of mandamus.” Ex parte Liberty Nat’l Life Ins. Co., 825 So.2d 758, 761 (Ala.2002) (citing Ex parte Jackson, 780 So.2d 681, 684 (Ala.2000)). One of the exceptions is the denial of a motion grounded on a claim of lack of personal jurisdiction, Ex parte Sekeres, 646 So.2d 640 (Ala.1994), Ex parte Paul Maclean Land Servs., 613 So.2d 1284 (Ala.1993), and Ex parte Volkswagenwerk Aktiengesellschaft, 443 So.2d 880 (Ala.1983).

“The standard of review applicable to a summary judgment is the same as the standard for granting the motion, that is, we must determine whether there was a genuine issue of material fact and, if not, whether the movant was entitled to a judgment as a matter of law. Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmov-ant and resolve all reasonable doubts against the movant.”

Brewer v. Woodall, 608 So.2d 370, 372 (Ala.1992).

“A summary judgment is proper where there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. The party moving for the summary judgment, here [Alloy Wheels], has the burden of establishing a prima facie showing that there is no genuine issue of material fact. Berner v. Caldwell, 543 So.2d 686 (Ala.1989). If the moving party makes such a showing, then the burden shifts to the nonmoving party to rebut that-showing by presenting substantial evidence creating a genuine issue of material fact. 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).”

Young v. La Quinta Inns, Inc., 682 So.2d 402, 403 (Ala.1996).

“Rule 4.2, Ala. R. Civ. P., [Alabama’s long-arm statute] extends the personal jurisdiction of Alabama courts to the limit of due process under the federal and state constitutions. Sieber [v. Campbell, 810 So.2d 641 (Ala.2001)]. See also World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980); Duke [v. Young, 496 So.2d 37 (Ala.1986)]; Brooks v. Inlow, 453 So.2d 349 (Ala.1984); and Alabama Waterproofing Co. v. Hanby, 431 So.2d 141, 144-146 (Ala.1983). ‘A physical presence in Alabama is not a prerequisite to personal jurisdiction over a nonresident.’ Sieber, 810 So.2d at 644. See also Sudduth [v. Howard], 646 So.2d [664] at 667 [ (Ala.1994) ].
“ ‘ “ ‘What is required is that the out-of-state resident have “some minimum contacts with this state [so that], under the circumstances, it is fair and reasonable to require the person to come to this state to defend an. action.” Rule 4.2(a)(2)(I), Ala. R. Civ. P. [ (Emphasis added.) ]
“ ‘ “ ‘ “ ‘[D]ue process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend “traditional notions of fair play and substantial justice.” ’ ” ’ McGee v. International Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957), quoting International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945)....
“ ‘ “A relevant factor in a due process analysis is whether the defendant should have reasonably anticipated that he would be sued in the forum state. [(Emphasis added.)] In Dillon Equities [v. Palmer & Cay, Inc., 501 So.2d 459, 462 (Ala.1986)], this Court, quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980), noted:
“ ‘ “ ‘ “The foreseeability that is critical to due process analysis ... is that the defendant’s conduct and connection with the forum state are such that he should reasonably anticipate being haled into court there.” (Citations omitted.) [ (Emphasis added.) ]’ ” ’
“Sudduth, 646 So.2d at 667 (quoting Knowles v. Modglin, 553 So.2d 563, 565-66 (Ala.1989)).”

Ex parte McInnis, 820 So.2d 795, 802-03 (Ala.2001) (quoting Sudduth v. Howard, 646 So.2d 664, 667 (Ala.1994)). Rule 4.2(a) provides, in pertinent part:

“(2) Sufficient Contacts. A person has sufficient contacts with the state when that person, acting directly or by agent, is or may be legally responsible as a consequence of that person’s
“(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 revenues 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 requirements 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.”

In Ex parte McInnis, this Court explained the application of the stream of commerce doctrine to a products liability case:

“In World-Wide Volkswagen Corp. [v. Woodson], 444 U.S. [286] at 297-98, 100 S.Ct. 559 [ (1980) ], the Supreme Court stated that ‘[t]he forum State does not exceed its powers under the Due Process Clause if it asserts personal jurisdiction over a corporation that delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum State.’ In Asahi Metal Industry Co., Ltd. v. Superior Court of California, Solano County, 480 U.S. 102, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987), the Supreme Court clarified the ‘stream of commerce’ doctrine of personal jurisdiction:
“ ‘Since World-Wide Volkswagen, lower courts have been confronted with cases in which the defendant acted by placing a product in the stream of commerce, and the stream of commerce eventually swept defendant’s product into the forum State, but the defendant did nothing else to purposefully avail itself of the market in the forum State. Some Courts have understood the Due Process Clause, as interpreted in World Wide Volkswagen, to allow an exercise of personal jurisdiction to be based on no more than the defendant’s act of placing the product in the stream of commerce. Other courts have understood the Due Process Clause and the above-quoted language in World-Wide Volkswagen to require the action of the defendant to be more purposefully directed at the forum State than the mere act of placing a product in the stream of commerce.
“ ‘We now find this latter position to be consonant with the requirements of due process. The “substantial connection,” [Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985); McGee v. International Life Ins. Co., 355 U.S. 220, 223, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957)], 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. Burger King, supra, 471 U.S., at 476, 105 S.Ct. 2174.... The placement of a product into the stream of commerce, without more, is not an act of the defendant purposefully directed toward the forum State. Additional conduct of the defendant may indicate an intent or purpose to serve the market in the forum State, for example, designing the product for the market in the forum State, advertising in the forum State, establishing channels for providing regular advice to customers in the forum State, or marketing the product through a distributor who has agreed to serve as the sales agent in the forum State. But 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.’
480 U.S. at 110-12, 107 S.Ct. 1026.”

Ex parte McInnis, 820 So.2d at 803-04 (most original emphasis omitted; new emphasis added).

The affidavit dated July 31, 2002, sworn by Merritt, and submitted by Alloy Wheels states, in pertinent part:

“2. The Federal Motor Vehicle Safety Standards of the United States of America require the manufacturer of rims distributed in the United States to include a rim marking which includes a designation identifying the manufacturer of the rim by name, trademark, or symbol, a designation that includes the source of the rim’s published nominal dimensions identified by ‘T’ for The Tire and Rim Association or ‘E’ for The European Tire and Rim Technical Organization; the symbol ‘DOT’ as a certification that the rim complies with all applicable Motor Vehicle Safety Standards; and the size of the wheel.
“3. When Alloy Wheels International, Ltd. (UK) supplies wheels to Land Rover for use on vehicles to be exported to the United States of America, Alloy Wheels International includes the markings required by the Federal Motor Vehicle Safety Standards.
“4. I have examined photographs of the wheels identified as the wheels mounted on the vehicle which the decedent Katherine Victoria Vance was driving at the time of her death. Those wheels include the markings ‘AWI/K.’ This is the identifier of Alloy Wheels International, Ltd. This identifier was placed on the wheel in accordance with the Federal Motor Vehicle Safety Standards .... ”

The affidavit dated on August 2, 2002, sworn to by Merritt and submitted by Alloy Wheels, states, in pertinent part:

“2. Alloy Wheels International, Ltd. is in the business of manufacturing aluminum alloy wheels for motor vehicles. All of the wheels currently manufactured by Alloy Wheels International, Ltd. are manufactured at the plant in Kent, England. AWI had another plant in Cardiff, Wales until July 2000 when it closed.
“3. One of AWI’s customers is Land Rover Group, which manufactured the Land Rover Discovery driven by Ms. Vance. All wheels sold to Land Rover are either sent to Land Rover’s aftermarket distribution center in Birmingham, England or to a designated tire and wheel assembly point in the U.K. None of the wheels manufactured by AWI for Land Rover are shipped by AWI to the State of Alabama or even the United States for that matter.
“4. AWI has in the past sold wheels to General Motors Corporation, N.A. and Ford Motor Company, U.S. Those wheels were also manufactured at one of the plants in the U.K. and shipped directly to GM and Ford in the U.S. The last shipment to General Motors Corporation, N.A. was October 2, 2000 to its Oshawa, Ontario, Canada assembly plant. The last shipment to Ford Motor Company, U.S. was June 15, 1998 to its Livonia, Michigan facility.
“5. All of AWI’s sales are to original equipment manufacturers such as Land Rover. AWI has no private brand contracts with any U.S. entities.
“6. Since August 4, 1999, AWI has had a wholly owned subsidiary, Alloy Wheels International, Inc., in Bingham Farms, Michigan, which provides customer relationship and marketing services of AWI’s wheels to U.S. auto manufacturers. That subsidiary does not send, regularly or otherwise, its employees, representatives, officers, or agents to Alabama to sell, repair, demonstrate, or maintain aluminum alloy wheels. Nor do said individuals solicit sales orders for said wheels in the State of Alabama by any means.
“7. AWI does not regularly or otherwise send its employees, representatives, officers or agents to the State of Alabama to sell, repair, demonstrate, or maintain aluminum alloy wheels. Nor do said individuals solicit sales orders for said wheels in the State of Alabama by any means.
“8. The aluminum alloy wheels which were on Katherine Vance’s Land Rover Discovery at the time of her motor vehicle accident on September 26, 1999 were manufactured specifically for Land Rover by AWI at its facility in Kent, England. After manufacture, the wheels were sent to Land Rover via one of its tire assembly points in the U.K. This was done pursuant to a contract between AWI and Land Rover which was entered in the U.K.
“9. Never before this litigation did AWI have any contact with the State of Alabama. Any contact with the State of Alabama has arisen solely as a consequence of this litigation and subsequent to January 1, 2002 and is accordingly outside the scope of this affidavit.
“10. AWI is not qualified to do business in the State of Alabama, and AWI does not do business in the State of Alabama in any form or fashion. AWI does not have a registered agent for service of process in the State of Alabama. AWI does not transact any business in the State of Alabama nor does it enter into contracts in the State of Alabama. AWI does not contract to supply goods or services in the State of Alabama. AWI performs no services in the State of Alabama and makes no payments within the State of Alabama. AWI conducts no manufacturing in the State of Alabama, nor does AWI ship products to the State of Alabama either directly for itself or at the request of a customer.
“11. AWI has no employees, representatives, officers or agents in the State of Alabama and none of its officers, agents, employees or representatives come to- Alabama to solicit sales of its wheels, or to market, repair, demonstrate or maintain its wheels on any basis, regular or otherwise.
“12. AWI has no interest in, does not use, possess or own any real property, warehouse, plant or place of business in the State of Alabama.
“13. AWI has no bank accounts in the State of Alabama.
“14. AWI has not contracted to insure any person, property, or risk located within the State of Alabama at any time.
“15. AWI does not conduct any telephone calls to the State of Alabama, . does not mail printed or written materials to individuals or entities within the State of Alabama, and AWI does not advertise or solicit business in Alabama. AWI does not direct any advertising at persons or entities within the-State of Alabama.
“16. AWI has made no direct sales, closed no sales, or otherwise • conducted ■ no business in the State of Alabama.
“17. AWI does not market its wheels through a distributor who has agreed to act as a sales agent in the State of ■ Alabama. AWI does not sell wheels at wholesale or retail in the State of Alabama. ■
“18. AWI did not design or control the system of distribution which carried any of its wheels, whether the subject wheels or otherwise, into the State of Alabama.
“19. AWI does not extend written warranties on its wheels to residents of the State of Alabama. Any warranty on its wheels is extended directly to the original equipment manufacturer to which AWI sold the wheels.
“20. AWI has no channel for providing regular advice to individuals residing in the State of Alabama.
“21. AWI did not have nor did it initiate any contact with Katherine Vance. AWI did not know Katherine Vance would use the wheels in Alabama. AWI did not know Katherine Vance was a resident of the State of Alabama.
“22. AWI did not manufacture its wheels in anticipation of sale in the State of Alabama. AWI did not contemplate that its wheels would end up in the State of Alabama. AWI never contemplated that its sales of wheels to Land Rover in the United Kingdom was subjected to lawsuits in the State of Alabama.”

Because Alloy Wheels submitted sufficient evidence to establish a prima facie case of lack of personal jurisdiction, the burden shifted’ to the plaintiff to present evidence to establish minimum contacts by Alloy Wheels with Alabama sufficient for the trial court to exercise personal jurisdiction. While the plaintiff submitted some evidentiary materials in opposition to the motion for summary judgment filed by Alloy Wheels, none of the plaintiffs materials refutes the statements of fact sworn by Merritt in the affidavits submitted by Alloy Wheels.

The plaintiff relies on Smith v. Yanmar Diesel Engine Co., 855 So.2d 1039 (Ala.2003), Bryant v. Ceat, 406 So.2d 376 (Ala.1981), and Mann v. Hrubetz, 361 So.2d 1021 (Ala.1978), to support her claim of sufficient contacts between Alloy Wheels and the State of Alabama. These cases are materially distinguishable from the case now before us in that, in each of the former, the defendant-foreign-manufacturer “purposefully directed” its actions toward Alabama and thus met the test that “the defendant should have reasonably anticipated that [it] would be sued in” Alabama, McInnis, supra, at 803.

In Smith, the defendant-foreign-manufacturer of tractors, Yanmar, stipulated that it “ ‘sold and continues to sell genuine Yanmar parts in Alabama through authorized Yanmar dealers in Alabama.’ ” Smith, 855 So.2d at 1041. In Bryant, the sales records of the defendant-foreign-manufacturer of tires, Ceat, showed that Ceat had sent, through its distributer Duddy’s Inc., over 13,000 tires to David Tire Company in Birmingham, Alabama. Bryant, 406 So.2d at 378. In Mann, the defendant-foreign-manufacturer of carnival rides sold a carnival ride to an Alabama carnival business, Century 21 Shows, Inc., located in North Birmingham, Alabama. The Mann Court held that, although the sale itself did not occur in Alabama, the defendant had sufficient minimum contacts with Alabama for the trial court to exercise personal jurisdiction over the defendant because the defendant could reasonably have anticipated that injuries would result from the operation of the ride in Alabama.

The plaintiff now before us argues that the evidence establishes an intent or purpose in Alloy Wheels to serve, in the words of its brief, “the American market.” Evidence of an intent or purpose to serve “the American market,” however, absent evidence of “an intent or purpose to serve the market in the forum State,” does not establish the “action of the defendant purposefully directed toward the forum State” that would constitute contact sufficient to warrant the exercise of personal jurisdiction over the defendant by the forum state. McInnis, supra, at 804 (quoting Asahi Metal Industry Co., Ltd. v. Superior Court of California, Solano County, 480 U.S. 102, 112, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987)). On the contrary, the plaintiff now before us has not submitted substantial evidence that Alloy Wheels “purposefully directed” any action “at the forum State [other] than the mere act of placing a product in the stream of commerce.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980), Asahi, and McInnis, supra. No evidence establishes sufficient minimum contacts between Alloy Wheels and the State of Alabama.

Therefore, Alloy Wheels has shown a clear legal right to mandamus relief. We grant the petition of Alloy Wheels and issue a writ of mandamus directing the trial court to vacate its order denying the motion of Alloy Wheels for summary judgment and to enter an order granting the motion on the ground of lack of personal jurisdiction.

PETITION GRANTED; WRIT ISSUED.

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

LYONS, J., concurs specially.

LYONS, Justice

(concurring specially).

I concur fully in the main opinion. I write specially to note that in Smith v. Yanmar Diesel Engine Co., 855 So.2d 1039, 1042 (Ala.2003), this Court observed that a motion to dismiss under Rule 12(b)(2), Ala. R. Civ. P., for lack of jurisdiction over the person is “a more appropriate procedural vehicle” for resolving issues of personal jurisdiction. According to 10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2713 (3d ed.1998), a summary judgment applies to an adjudication of the merits of a case, and a court lacking jurisdiction has no power to enter a judgment.

That portion of Rule 12 mandating that a motion to dismiss is converted to a motion for a summary judgment pursuant to Rule 56, Ala. R. Civ. P., when matters outside the pleadings are presented applies only to motions to dismiss under Rule 12(b)(6) for failure to state a claim upon which relief can be granted. I would permit a Rule 12(b)(2) motion to be accompanied by matters outside the pleadings so long as an adequate opportunity to respond, comparable to the practice under Rule 56, is permitted. However, it would exalt form over substance to allow concerns over the proper nomenclature to interfere with the appellate disposition of this proceeding. Nevertheless, out of an abundance of caution, it should be noted that, unlike the typical effect of a summary judgment going to the merits, the summary judgment in this case resolves only the amenability of Alloy Wheels to jurisdiction in an Alabama court and is not an adjudication on the merits of Vance’s claims.


author: BROWN, Justice. HOUSTON, Justice, LYONS, Justice,

text:
    Lehman Harvey YOUNG et al. v. John Pelham PIMPERL and Judy Aileen Pimperl.
    1020323.
    Supreme Court of Alabama.
    Nov. 21, 2003.
    David A. Simon of Wills & Simon, Bay Minette, for appellants.
    Mark D. Ryan, Bay Minette, for appel-lees.
   BROWN, Justice.

Lehman Harvey Young, Mary Rebecca Orton Newcomber, and Evelyn Alice Hol-lar Young appeal from the Baldwin Circuit Court’s judgment against them and in favor of John Pelham Pimperl and Judy Aileen Pimperl. We reverse and remand.

Facts and Procedural History

Lehman Harvey Young, Mary Rebecca Orton Newcomber, Howard Franklin Young, Jr., Evelyn Alice Hollar Young, and Virginia Caroline Young Martin (hereinafter collectively referred to as “the landowners”) each owned an undivided 1/5 interest in a 20-acre parcel of property located in Baldwin County. John Pimperl and his wife Judy Pimperl discussed with each of the landowners the possibility of the Pimperls’ purchasing the land. When the Pimperls reached what they believed to be an agreement with the landowners as to a fair price for the land, the Pimperls mailed each of the landowners a quitclaim deed, along with a purchase agreement, to be executed and mailed back to the Pim-perls.

Lehman, Mary, Evelyn, and Virginia each executed a copy of the purchase agreement and the quitclaim deed each had received and mailed the documents back to the Pimperls. The Pimperls then contacted Howard and inquired as to why he had not executed his purchase agreement and quitclaim deed. Howard told the Pimperls that he believed that the property was worth more than the price reflected in the purchase agreement as the sales price and that, consequently, he did not intend to execute the purchase agreement and deed.

The Pimperls recorded the deeds they had received from Lehman, Mary, Evelyn, and Virginia, and sent them each a check in the amount of $2,300, representing 1/5 of the purchase price of the entire property. The Pimperls also sent Virginia an additional $1,000 as reimbursement for funds she had expended to redeem the land from a tax sale. The next month, Lehman, Mary, and Evelyn returned to the Pimperls the checks they had received for $2,300 with letters stating that they no longer intended to sell their interests in the land to the Pimperls.

The Pimperls filed an action in the Baldwin Circuit Court, seeking a declaration of ownership of the property interests of Lehman, Mary, and Evelyn, and seeking a partition of the land and a sale against Howard. The defendants answered the complaint and filed a counterclaim, seeking a declaration that the purchase agreements and quitclaim deeds containing their signatures are a nullity and vaguely alleging “misrepresentation.” After a bench trial, the trial court entered an order finding that the purchase agreements and quitclaim deeds executed by Lehman, Mary, and Evelyn were binding contracts for the sale of their undivided interests in the land. The court then ordered the Pim-perls to pay Lehman, Mary, and Evelyn $2,300 each for their interests in the land. The court further found “by stipulation of the parties that the deed [from] Virginia Carolyn [sic] Young Martin is a valid conveyance of her fractional interest in the property subject to the complaint.”

The court then determined that the Pimperls were entitled to purchase the remaining 1/5 undivided interest from Howard. The court appointed a licensed appraiser to perform a valuation of the remaining 1/5 interest to serve as the basis for a purchase price. The Pimperls then had 30 days from the date of the valuation in which to pay to Howard the purchase price as set by the court-appointed appraiser.

Lehman, Mary, and Evelyn (hereinafter collectively referred to as “the appellants”) appeal the trial court’s order finding that their execution of the purchase agreements and deeds constituted binding contracts with the Pimperls for the sale of their interests in the land.

Discussion

The appellants argue that the trial court incorrectly held that the purchase agreement, without Howard’s signature, constituted a binding contract. Specifically, the appellants contend that the purchase agreement, as written by the Pim-perls, stipulated that the transaction would occur only upon the agreement of all five landowners to sell the land. Thus, the appellants argue, because only four of the five landowners signed the purchase agreement, there is no binding contract for the sale of the appellants’ interests in the land. We agree.

Sections 6-6-223 and 6-6-224, Ala.Code 1975, give a trial court the authority to construe a contract and to declare rights thereunder before or after any alleged breach occurs. In this case, the appellants argue that they are not bound by the purchase agreement because, they assert, the purchase agreement clearly required the participation of all five landowners for the transaction to occur. On the other hand, the Pimperls maintain that the appellants are bound by the purchase agreement because, they claim, the purchase agreement allowed each landowner to agree separately to sell his or her interest in the Baldwin County property.

The trial court did not find, and the parties do not argue, that the contract is ambiguous. Thus, the issue in this case is whether the trial court correctly construed the terms of the purchase agreement. We review such a decision de novo:

“As long as the contractual terms are clear and unambiguous, questions of their legal effect are questions of law. Commercial Credit Corp. v. Leggett, 744 So.2d 890 (Ala.1999). Thus, we apply a de novo review to a trial court’s determination of whether a contract is ambiguous and to a trial court’s determination of the legal effect of an unambiguous contract term.”

Winkleblack v. Murphy, 811 So.2d 521, 525-26 (Ala.2001).

The purchase agreement provides, in pertinent part:

“The agreement made and entered into this_day of__, 2000, by and between, Lehman Harvey Young, Mary Rebecca Orton Newcomber, Howard Franklin Young, Jr., Evelyn Alice Hol-lar Young and Virginia Caroline Young Martin, hereinafter called the Sellers, and John Pelham Pimperl and Judy Aileen Pimperl, hereinafter called the Buyers.
“1. Subject property: The Sellers agree to sell and convey by quitclaim deed and the Buyers agree to purchase, the real property situated in Bay Mi-nette, Alabama, more fully described as follows, subject to the provisions herein:
“CALC AC 20 DY AS LOT 33 AKA E 1/2 of SW 1/4 of SE 1/4 SEC 4-1-4 FE
“2. Purchase price: The total purchase price for the property shall be $12,500.00, payable to the Sellers in cash or its equivalent at closing. The sale proceeds are to be divided among the [Sellers] as per their separate agreement.
“3. Terms and conditions: ....
“(c) The Sellers have authorized the Buyers to escrow the sum of $12,500.00 with Mark D. Ryan, P.C .... to be held until such time as all quitclaim deeds are executed and returned by the respective Sellers.
“(d) The Sellers further authorize Mark D. Ryan, P.C., to pay the full purchase price in paragraph 2 herein, to Virginia Caroline Young Martin ... upon performance by Sellers of all terms herein.
“5. Entire agreement: Both the Buyer and the Seller agree that this agreement constitutes the sole and only agreement between them respecting the property and correctly sets forth their obligations to each other as of its date.”

(Emphasis added.)

“ ‘Under general Alabama rules of contract interpretation, the intent of the contracting parties is discerned from the whole of the contract. Where there is no indication that the terms of the contract are used in a special or technical sense, they will be given their ordinary, plain, and natural meaning.’
“Homes of Legend, Inc. v. McCollough, 776 So.2d 741, 746 (Ala.2000) (citations omitted).”

Lewis v. Oakley, 847 So.2d 307, 327 (Ala.2002). WTien the terms of the purchase agreement are read as a whole and each word is given its ordinary, plain, and natural meaning, it is clear that the purchase agreement requires the participation of all of the landowners for the sale of the land to occur.

The introductory paragraph of the purchase agreement explicitly states that all five landowners constitute the “Sellers,” as that term is used in the purchase agreement. In paragraph 1 of the purchase agreement, the “Sellers” agree “to sell and convey by quitclaim deed” the property to the Pimperls. The total purchase price for the land is to be paid to the “Sellers” once they have completed and returned all five of the quitclaim deeds sent to each of them by the Pimperls. Paragraph 3(d) specifically requires that the “Sellers” — all five of the landowners — perform all of the terms contained in the purchase agreement. Thus, when fewer than all five of the “Sellers” explicitly named in the purchase agreement performed according to the terms in the purchase agreement, their actions were insufficient to fulfill the terms of the agreement.

Conclusion

The purchase agreement clearly required the participation of all five landowners to sell their interests in the Baldwin County property- and to execute the purchase agreement and the quitclaim deeds. Because fewer than all five of the landowners agreed to sell their interests and to execute the purchase agreement and quitclaim deeds, there is no binding contract for the sale of the land. Therefore, the trial court’s order finding that the appellants are bound by the purchase agreement to sell their interests in the land is reversed, and this cause is remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED.

SEE, JOHNSTONE, WOODALL, and STUART, JJ., concur.

HOUSTON, LYONS, and HARWOOD, JJ., dissent.

HOUSTON, Justice,

dissenting.

I would affirm. As a result of the ore tenus hearing, the trial judge could have found that the language in the purchase agreement contemplating payment of the purchase price only upon the complete performance by all the landowners was a provision solely for the benefit of the Pim-perls, and the Pimperls could and did waive this requirement. Certainly, the trial court was not palpably wrong in so finding.

LYONS, Justice,

dissenting.

I respectfully dissent. I would treat the trial court’s holding as consistent with a finding that the language of paragraphs 3(c) and 3(d) was included in the purchase agreement to protect the buyers from being required to close if they could not acquire all of the fractional interests in the property. A provision inserted in a contract for the benefit of a party can be waived. See LaGrave v. Jones, 336 So.2d 1330-1332 (Ala.1976). The Pimperls’ conduct clearly constitutes a waiver of the provision protecting them from being required to go forward even if deeds could not be secured for the entire property.

HARWOOD, J., concurs.

      . Throughout the record, Mary is referred to as both "Mary Rebecca Orton Newcomber" and "Mary Rebecca Orton Newcomer."

      . None of the landowners reside in Alabama.

      .According to the record, Virginia was pleased with the transaction and considers her undivided 1/5 interest to have been conveyed to the Pimperls. She was not a party to the action filed by the Pimperls.

      . Section 6-6-223, Ala.Code 1975, provides, in pertinent part:
      "Any person interested under a ... written contract, or other writings constituting a contract or whose rights, status, or other legal relations are affected by a ... contract ... may have determined any question of construction or validity arising under the ... contract ... and obtain a declaration of rights, status, or other legal relations thereunder.”
      Section 6-6-224, Ala.Code 1975, provides as follows:
      "A contract may be construed either before or after there has been a breach thereof.”

      5. This amount apparently includes the $1,000 paid to Virginia to reimburse her for funds she had expended to redeem the land.

      . Because Howard failed to appeal the trial court’s judgment as to his interest in the land, and because Virginia has never been a party to this case, our holding does not reach the status of their interests in the Baldwin County property.


author: SEE, Justice. JOHNSTONE, Justice,

text:
    EDWARD D. JONES & CO., LP, et al. v. John Herbert WEHBY et al.
    1020689.
    Supreme Court of Alabama.
    Nov. 21, 2003.

      M. Dale Marsh and M. Chad Tindol of Marsh, Cotter & Tindol, LLP, Enterprise, for appellants.
    Submitted on appellants’ brief only.
   SEE, Justice.

Edward D. Jones & Co., LP, d/b/a Edward Jones, a Missouri corporation, and its agent, Frank Preziuso, appeal from the trial court’s denial of their motion to compel arbitration of the claims filed against them by John Herbert Wehby, individually, and on behalf of a partnership, J & J Com. The trial court denied the motion to compel arbitration on the ground that the transaction that formed the basis of the claim did not substantially affect interstate commerce. We reverse and remand.

I.

Wehby sued Jefferson Bruce McKit-trick, his former business partner, alleging fraud and breach of contract. Wehby later amended his complaint to include claims of breach of fiduciary duty and suppression against Edward D. Jones & Co., LP, d/b/a Edward Jones, and its agent, Frank Preziuso (hereinafter collectively “Jones”). In March 2000, Wehby and McKittrick formed a general partnership, J & J Com, to manage specific investment accounts located at AmSouth Bank in Jefferson County, Alabama, and at Edward D. Jones & Co. in Cleveland, Ohio. Weh-by’s complaint alleges that McKittrick engaged in trading not authorized under the partnership agreement, resulting in losses to the partnership of approximately $385,000. Wehby sought $500,000 in compensatory, consequential, and incidental damages, as well as costs, attorney fees, and interest on the debt. McKittrick failed to answer Wehby’s complaint, and the trial court entered a default judgment against McKittrick in the amount of $500,000.

Edward D. Jones & Co. and J & J Com had previously entered into a customer account agreement that addressed the partnership account the parties maintained with Edward D. Jones & Co. This agreement contained the following arbitration provision:

“Arbitration

“1. Arbitration is final and binding on the parties.
“2. The parties are waiving their right to seek remedies in court, including the right to a jury trial.
“3. Pre-arbitration discovery is generally more limited than and different from court proceedings.
“4. The arbitrators’ award is not required to include factual findings or legal reasoning and any party’s right to appeal or to seek modification of rulings by the arbitrators is strictly limited.
“5. The panel of arbitrators will typically include a minority of arbitrators who were or are affiliated with the securities industry.
“I agree that this Agreement shall be governed by the laws of the State of Missouri without giving effect to the choice of law or conflict of laws provisions thereof. Any controversy arising out of or relating to any of my accounts or transactions with you, your officers, directors, agents and/or employees for me, or to this agreement, or the breach thereof, or relating to transactions or accounts maintained by me with any of your predecessor or successor firms by merger, acquisition or other business combinations from the inception of such accounts shall be settled by arbitration in accordance with the rules then in effect of the Boards of Directors of the New York Stock Exchange, Inc., the American Stock Exchange, Inc., the Municipal Securities Rulemaking Board, or the National Association of Securities Dealers, Inc. as I may elect. If I do not make such elections by registered mail addressed to you at your main office within five (5) days after demand by you that I make such an election, then you will have the right to elect the arbitra- , tion tribunal of your choice. Judgment upon any award rendered by the arbitrators may be entered in any court having jurisdiction thereof.”

Jones moved the court to dismiss the action by Wehby and the partnership and to compel arbitration. The trial court denied Jones’s motions to dismiss and to compel arbitration. Jones appealed.

II.

Review of a trial court’s denial of a motion to compel arbitration is properly sought through a direct appeal. Rule 4(d), Ala. R.App. P.; A.G. Edwards & Sons, Inc. v. Clark, 558 So.2d 358, 360 (Ala.1990). The standard of review for a ruling- on a motion to compel arbitration is as follows:

“ ‘ “This Court reviews de novo the [grant or] denial of a motion to compel arbitration. Parkway Dodge, Inc. v. Yarbrough, 779 So.2d 1205 (Ala.2000). A motion to compel arbitration is analogous to a motion for a summary judgment. TranSouth Fin. Corp. v. Bell, 739 So.2d 1110, 1114 (Ala.1999). The party seeking to compel arbitration has the burden of proving the existence of a contract calling for arbitration and proving that [the] contract evidences a transaction affecting interstate commerce. Id. ‘[A]fter a motion- to compel arbitration has been made and supported, the burden is on the non-movant to present evidence that the supposed arbitration agreement is not valid or does not apply to the dispute in question.’ Jim Burke Automotive, Inc. v. Beavers, 674 So.2d 1260, 1265 n. 1 (Ala.1995) (opinion on application for rehearing).”
‘Fleetwood Enters., Inc. v. Bruno, 784 So.2d 277, 280 (Ala.2000) (emphasis omitted).’ ”

Parkway Dodge, Inc. v. Hawkins, 854 So.2d 1129, 1132 (Ala.2003) (quoting Lewis v. Conseco Fin. Corp., 848 So.2d 920, 922 (Ala.2002)).

III.

Jones argues that it met its “burden of proving the existence of a contract calling'for arbitration” and “proving that that contract evidences a transaction affecting interstate commerce.” TranSouth Fin. Corp. v. Bell, 739 So.2d 1110, 1114 (Ala.1999). The customer account agreement contains a binding provision to arbitrate. Therefore, we need address only whether this transaction involves interstate commerce within the meaning of the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“the FAA”), which states, in pertinent part, that:

“A written provision in ... a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction ... shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.”

9 U.S.C. § 2 (emphasis added).

Under the FAA, the enforcement of arbitration agreements is “ ‘within the full reach of the Commerce Clause.’ ” Citizens Bank v. Alafabco, Inc., 539 U.S. 52, 56, 123 S.Ct. 2037, 2040, 156 L.Ed.2d 46 (2003) (quoting Perry v. Thomas, 482 U.S. 483, 490, 107 S.Ct. 2520, 96 L.Ed.2d 426 (1987)). “[T]he FAA encompasses a wider range of transactions than those actually ‘in commerce’ — that is, ‘within the flow of interstate commerce.’ ” Id. (quoting Allied Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 273, 115 S.Ct. 834, 130 L.Ed.2d 753 (1995)).

In Citizens Bank, the Supreme Court of the United States rejected a restrictive view of Congress’s Commerce Clause power, stating that “Congress’ Commerce Clause power ‘may be exercised in individual cases without showing any specific effect upon interstate commerce’ if in the aggregate the economic activity in question would represent ‘a general practice ... subject to federal control.’ ” Citizens Bank, 539 U.S. at 56-57, 123 S.Ct. at 2040 (quoting Mandeville Island Farms, Inc. v. American Crystal Sugar Co., 334 U.S. 219, 236, 68 S.Ct. 996, 92 L.Ed. 1328 (1948)). Thus, the applicable test is whether the transaction in issue “involved commerce” and therefore “triggered] application of the FAA.” Wolff Motor Co. v. White, 869 So.2d 1129 (Ala.2003).

Citizens Bank concerned commercial loans between Citizens Bank and Alafabco, an Alabama construction company. Citizens Bank moved to compel arbitration of a dispute regarding the loans. The transaction underlying the dispute involved interstate commerce “for at least three reasons”: (1) Alafabco engaged in business throughout the southeastern United States; (2) the debt was secured by Alaf-abco’s business assets, which involved substantial quantities of goods that had moved in interstate commerce; and (3) the “general practice” represented by the transaction was of a type subject to Congress’s Commerce Clause power. See Citizens Bank, 539 U.S. at 56-57,123 S.Ct. at 2040-41.

The transaction at issue in this case between Jones and Wehby involves interstate commerce for at least two of the reasons recited by the Supreme Court of the United States in Citizens Bank and, thus, falls within the scope of the FAA. First, the relationship between J & J Com and Jones involved interstate commerce because J & J Com operated investment accounts at AmSouth Bank in Jefferson County, Alabama, and at Edward D, Jones & Co. in Cleveland, Ohio. The transactions involved residents of both Alabama and Ohio, and Edward D. Jones & Co. is incorporated in Missouri. In Citizens Bank and Wolff, the transactions were found to involve interstate commerce based upon the fact that the parties engaged in business in other states. See Citizens Bank, 539 U.S. at 56, 123 S.Ct. at 2040; Wolff, supra.

Second, this case involves interstate commerce because the “general practice” of the transaction is of the type subject to Congress’s Commerce Clause power. Investing and trading in securities profoundly impact our national economy. Congress may regulate these activities pursuant to its Commerce Clause power. See Investment Advisors Act of 1940, § 201, 54 Stat. 847, 15 U.S.C. § 80b-1 (finding that investment advisory activities affect interstate commerce); North American Co. v. Securities & Exch. Comm’n, 327 U.S. 686, 704, 66 S.Ct. 785, 90 L.Ed. 945 (1946) (“Congress must be able to act in terms of economic and financial realities. The commerce clause gives it authority so to act.”).

IV.

Jones has met its burden in support of its motion to compel arbitration; therefore, the trial court erred in denying Jones’s motion to compel arbitration. We reverse its order and remand the cause.

REVERSED AND REMANDED.

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

JOHNSTONE, J., concurs in the rationale in part and concurs in the judgment.

JOHNSTONE, Justice,

concurring in the rationale in part and concurring in the judgment.

I concur in that part of the rationale to the effect that “the relationship between J & J Com and Jones involved interstate commerce,” 882 So.2d at 837, except that I express no opinion on the reliance on Citizens Bank v. Alafabco, Inc., 539 U.S. 52, 123 S.Ct. 2037, 156 L.Ed.2d 46 (2003), and Wolff Motor Co. v. White, 869 So.2d 1129 (Ala.2003). I likewise express no opinion on any other aspect of the analysis of the sufficiency of the nexus between this transaction and interstate commerce to invoke the Federal Arbitration Act. I concur in footnote 2 to the effect that Wehby is bound by the arbitration agreement. Finally, I concur in the judgment.

      . Apparently, McKittrick did not appeal this default judgment.

      . Wehby argues that he did not authorize his signature on the customer account agreement or on the partnership account form. However, it is undisputed that J & J Com is a general partnership and that the account with Edward D. Jones & Co. was the property of the partnership. Thus, the signature of one general partner is sufficient to bind the partnership. Section 10-8A-301(1), Ala.Code 1975, provides:
      "Each partner is an agent of the partnership for the purpose of its business. An act of a partner, including the execution of an instrument in the partnership name, for apparently carrying on in the ordinary course the partnership business ... binds-the partnership, unless the partner had no authority to act for the partnership in the particular matter and the person with whom the partner was dealing knew or had received a notification that the partner lacked authority-” .
      McKittrick signed the customer account agreement and the partnership account form with Edward D. Jones & Co.; in doing so he bound the partnership to arbitrate "[a]ny controversy arising out of or relating to” the partnership account. There is no evidence to suggest that McKittrick’s authority was restricted so that his signature on those documents would not bind the partnership. Because Wehby has not put forth evidence to the contrary, the partnership, is bound by McKit-trick’s signature on the customer account agreement, which contains the arbitration provision.

      . The FAA is a proper exercise of Congress’s Commerce Clause power. See Southland Corp. v. Keating, 465 U.S. 1, 11, 104 S.Ct. 852, 79 L.Ed.2d 1 (1984) (“The Federal Arbitration Act rests on the authority of Congress to enact substantive rules under the Commerce Clause.”).

      . Subsequently, this Court applied Citizens Bank in Wolff Motor Co. In Wolff, the buyer of a car-hauling tow truck sued the seller of the vehicle, Wolff Motor Co., alleging misrepresentation and suppression of material facts concerning the condition of the car-hauler at the time of the sale. This Court held that the trial court erred in denying Wolff Motor Co.’s motion to compel arbitration because the transaction involved commerce, which triggered the application of the FAA.
      In Wolff, this Court held that interstate commerce was involved for the three reasons cited in Citizens Bank and for an additional reason. Wolff involved interstate commerce because (1) "both of the commercial enterprises in the case regularly deal[t] in interstate commerce”; (2) Wolff Motor "purchased substantial quantities of goods that [had] moved in interstate commerce”; (3) the " 'general practice’ of the transaction at issue was of the sort subject to Congress’s Commerce Clause power”; and (4) a "car-hauler is an instrumentality of commerce.” Wolff Motors, 869 So.2d at 1135.

      . We note that to support a finding that the transaction involves interstate commerce it is sufficient if the transaction involves interstate commerce in any one of the ways described by the Supreme Court of United States in Citizens Bank, 539 U.S. at 56-57, 123 S.Ct. at 2040-41.