author: CARLTON, J., for the Court: IRVING, P.J.,

text:
    Richard P. SIZEMORE, Appellant v. Francis Clifton PICKETT, Appellee.
    No. 2010-CP-01183-COA.
    Court of Appeals of Mississippi.
    Dec. 13, 2011.

      Richard P. Sizemore, appellant, pro se.
    Francis Clifton Pickett, appellee, pro se.
   CARLTON, J., for the Court:

¶ 1. On November 16, 2009, Richard P. Sizemore (Richard) filed a “Motion for Writ of Habeas Corpus & for Other Relief’ in the Jackson County Chancery Court, seeking to have his fifteen-year-old son, John Blake Sizemore (Blake), removed from the home of Francis Clifton Pickett (Cliff), Blake’s older half brother, in Colorado Springs, Colorado, and returned to him in Ocean Springs, Mississippi. In Richard’s petition for habeas corpus, he asserted entitlement to custody as the natural parent and provided while his previous judgment of divorce awarded his wife, Blake’s mother, custody of the children, his former wife was deceased.

¶ 2. On December 15, 2009, the chancery court initially granted Richard’s writ of habeas corpus and ordered Cliff to return Blake immediately to Richard. Then, on January 4, 2010, Cliff filed a motion to reconsider and a motion for emergency injunctive relief, wherein Cliff asserted the court lacked personal jurisdiction over him and alleged, among other things, he received improper service and notice via fax contrary to the requirements of Mississippi Rule of Civil Procedure 81 for service of out-of-state defendants. In addition to Cliff’s assertions of lack of personal jurisdiction, Cliff raised the issue of parental fitness before the court, asserting Richard was not entitled to the natural-parent presumption for custody because Richard abandoned Blake and his other siblings upon the death of their mother in 2005 by failing to support them, by failing to exercise his visitation, by doing nothing to assist them, and by failing to seek custody for almost five years. Cliff also averred, even though Richard allowed Cliff to raise Blake and his siblings, Richard now sought to have Cliff arrested for providing such support to them. The chancery court set the motions for hearing on January 5, 2010. However, on January 5, 2010, the court reset the hearing by agreed order for June 7, 2010.

¶ 3. Then, on April 23, 2010, Richard’s attorney, David C. Morrison, filed a motion to withdraw, asserting Richard refused to cooperate and communicate with him and refused to answer correspondence from his attorney. On May 10, 2010, Cliffs attorney filed a response opposing the motion to the extent it would delay the hearing previously set for June 7, 2010, arguing Cliff had already incurred expenses by making arrangements to attend the June 7, 2010 hearing in Mississippi. Then, on June 4, 2010, Richard’s attorney mailed Richard a copy of a motion for continuance of the June 7, 2010 hearing.

¶ 4. The chancery court held the hearing on June 7, 2010, as scheduled by the prior agreed order. However, despite the prior agreed order resetting the hearing for June 7, 2010, Richard failed to appear and also failed to communicate with the court or his attorney prior to or on the date of the June hearing. At the hearing, Cliffs attorney argued against the grant of a continuance, raising hardship and expense incurred due to Cliff and Blake’s travel expenses to attend the hearing from Colorado. The court then proceeded with the hearing. Following the hearing, the chancellor entered an order noting that Richard failed to appear at the hearing and finding that custody with Cliff served Blake’s best interest. Then, on July 30, 2010, the chancery court entered an order allowing Richard’s attorney to withdraw nunc pro tunc to June 7, 2010. Richard sent a post-trial letter to the court asking for a continuance of the hearing already held, but he filed no post-trial motions for relief pursuant to Mississippi Rules of Civil Procedure 59 and 60.

I filed a notice of service of discovery; and on March 2, 2010, I sent a letter to Mr. Morrison advising that the responses to discovery for Mr. Sizemore ... were late. On March 24, 2010, I filed a motion to compel. Then[,] on April 22, 2010[,] sent a request for admission to Mr. Morrison for Mr. Richard P. Sizemore, petitioner, to respond to that. There was a motion to withdraw. Your Honor, it was actually dated April 21, 2010. However, it was filed with the [c]ourt ... April 23, 2010.

¶ 5. Richard now appeals to this Court, arguing the chancery court erred in failing to continue the June 7, 2010 hearing and by inappropriately considering the Al-bright factors in its award of custody of Blake to Cliff. Finding no error, we affirm.

FACTS

¶ 6. Richard and Peggy Lenelle Size-more married on October 4, 1980. The marriage produced four children: Olivia, born July 22, 1980; Lauren, born September 29, 1987; Natalie, born December 14, 1988; and Blake, born August 20, 1994. On May 6,1997, a judgment of divorce was filed in the Jackson County Chancery Court. The court granted Peggy physical and legal custody of the children and granted Richard visitation.

¶ 7. Peggy died on May 11, 2005. Following her death, Blake lived with his aunt on the Mississippi Gulf Coast until the home was destroyed by Hurricane Katrina. Then, in October 2005, Blake moved to Cliffs home in Colorado Springs, Colorado.

¶8. Years later, in 2008, Blake moved back to live with Richard in Mississippi for four brief months. According to testimony from Cliff and John Sizemore at the June 7, 2010 hearing, Blake asked to return to Colorado after a few months of living with Richard due to the volatile and unstable home environment provided by Richard. Additionally, John, Richard’s own father, and Cliff both testified at the hearing that allowing Blake to remain with Cliff served Blake’s best interest.

¶9. In the motion filed by Richard’s attorney, Morrison, on April 28, 2010, to withdraw his representation of Richard, the attorney explained Richard failed to honor his contractual obligations, exhibited an uncooperative attitude, and failed to communicate with him. In essence, Richard’s conduct and failure to communicate prevented his attorney from representing him and from continuing to represent him. The motion was signed and dated on April 21, 2010, and mailed to Richard. However, Richard never responded to his attorney’s attempts to communicate with him, and the motion was never noticed or heard.

¶ 10. The record also contains a motion for continuance signed by Morrison, Richard’s attorney, and dated June 4, 2010. The motion for continuance stated Morrison was representing another client in a federal trial and could not attend the June 7, 2010 hearing. Morrison’s motion also stated he mailed a copy of the motion for continuance to Richard. The record includes a handwritten letter from Richard to the court written after the habeas corpus hearing was over. In the letter, Richard acknowledged receipt of a copy of the motion for continuance on June 5, 2010, and Richard explained that when he received a copy of the motion for continuance, he cancelled his transportation to the June 7, 2010 hearing. In his post-trial letter to the court, Richard does not claim he received any communication from the court that the continuance was approved, and Richard does not claim any attempt by him to communicate with the court or with his attorney in deciding to not appear or upon his failure to appear.

¶ 11. Even though Richard failed to appear at the hearing on June 7, 2010, without communicating with the court or his attorney, the post-trial letter from Richard shows Richard knew about the June 7, 2010 hearing. The record further shows no communication from the court or otherwise indicating that the continuance had been approved by the court or that the hearing date had been reset from the previously scheduled date of June 7, 2010.

¶ 12. Aggrieved, Richard appeals.

STANDARD OF REVIEW

¶ 13. In our review of this case, we must first acknowledge Richard filed a writ of habeas corpus for custody of his son. In habeas corpus proceedings pertaining to the custody of children, the trial court possesses the duty to determine the matter in accordance with the strengths of the rights of the petitioner, the parent, and the children; and this Court will not substitute its judgment for that of the chan-eery court. Reynolds v. Davidow, 200 Miss. 480, 485-86, 27 So.2d 691, 692 (1946); see Walker v. Williams, 214 Miss. 34, 42, 58 So.2d 79, 81 (1952). The best interest of the child is the controlling issue in a habeas corpus proceeding pertaining to the custody of a minor. Bubac v. Boston, 600 So.2d 951, 954 (Miss.1992); see Smith v. Watson, 425 So.2d 1030, 1033 (Miss. 1983) (“In .resolving such custody matters!,] the best interest and welfare of the child is the key.”). The State stands in parens patriae when parental fitness and the child’s welfare are placed in issue before the chancellor in a habeas corpus proceeding. See generally Neal v. Neal, 238 Miss. 572, 577, 119 So.2d 273, 275 (1960). In this case, the pleadings of the parties squarely place the issue of parental fitness before the court in its best-interest determination. In Neal, as in the case before this Court, the parent sought the aid of the court, and the defendant was not a party to the prior court decree. Id. at 579, 119 So.2d at 276 (citations omitted).

¶ 14. Additionally, we review the chancellor’s decision to deny a motion for continuance for abuse of discretion. Robinson v. Brown, 58 So.3d 38, 42 (¶ 10) (Miss.Ct.App.2011).

DISCUSSION

¶ 15. Richard argues, pro se, that the chancellor erred by awarding custody of Blake to Cliff; and in support of his claim, he asserts the chancellor inappropriately applied the Albright factors to the determination of custody in this habeas corpus proceeding. Richard also argues the court erred in failing to grant a continuance for the June 7, 2010 hearing, and he asserts the court should not have held the June 7, 2010 hearing without his presence. Richard’s claimed error attacks the sufficiency of the judgment, the court’s denial of a continuance, and the court’s denial of his habeas corpus petition.

¶ 16. After reviewing the record before us in accordance with our standard of review, we find sufficient evidence in the record to sustain the judgment of the chancellor denying Richard’s petition and granting custody to Cliff. We further find no abuse of discretion in the chancellor’s decision to proceed with the hearing on June 7, 2010, and to not grant a continuance. We note the laws of this State provide a speedy remedy in habeas proceedings. Cole v. Cole, 194 Miss. 292, 12 So.2d 425, 426 (1943).

¶ 17. We will now turn to a review of the alleged errors separately with more particularity.

Purpose of Habeas Proceedings

¶ 18. Richard asserts the chancellor inappropriately considered an Al-bright analysis since he was the natural parent. This alleged error raises the issue of whether the chancellor properly applied the law herein and challenges the sufficiency of the evidence. We find in a habeas corpus proceeding for custody, the best interest of the child constitutes the controlling issue. Bubac, 600 So.2d at 954. See 4 A.L.R.3d 1277 (1965). We also recognize the supreme court in Neal, 238 Miss. at 577, 119 So.2d at 275, clarified that in habeas corpus proceedings for custody wherein issues are raised pertaining to the child’s welfare and parental fitness between a third party and a parent, the court possesses a duty to determine the best interests as parens patriae. In this case, the chancellor appropriately recognized the distinct purpose of a habeas corpus proceeding for custody as reflected by his comments at the June 7, 2010 hearing:

My understanding is when you file a[w]rit of [h]abeas [cjorpus, the [c]ourt at that point is obligated to go to a best interest test. And the [c]ourt doesn’t have to do [an] Albright analysis. It is my policy, however, that I do [an] Al-bright analysis anyway because I consider the two to be so closely related. That’s what do in [w]rit of [h]abeas [c]orpus.

¶ 19. Richard’s argument on appeal fails to embrace jurisprudence establishing that natural parents can forfeit their presumption to custody by their conduct and conditions. The rights or interests in a habeas corpus proceeding involving the custody of a child, involve the rights of the child, the parents, and those who have for years discharged the obligations of the parents. See 39 C.J.S. Ha-beas Corpus § 219 (2003). However, the paramount considerations in a habeas corpus proceeding for custody remain the welfare and best interest of the child. Id. See Oktibbeha County Dep’t of Human Servs. v. N.G., 782 So.2d 1226, 1235 (¶43) (Miss.2001); Neal, 238 Miss. at 577, 119 So.2d at 275. In reviewing the sufficiency of the evidence in support the judgment below, we acknowledge that Mississippi precedent in habeas corpus child-custody cases requires affirmance of the chancellor’s judgment if the evidence supports the judgment, even if the chancellor fails to provide findings of fact. Walker, 214 Miss. at 38, 58 So.2d at 80.

Sufficiency of the Chancery Court’s Findings

¶ 20. With respect to the specific findings in the present case, the record reflects the chancellor stated he would provide findings of fact and conclusions of law post trial upon request of a party. However, the chancellor provided general findings acknowledging applicable law, stating that Blake’s best interest was served by awarding custody of Blake to Cliff. The judgment also reflects a brief summary of the facts, basis for jurisdiction, and dispositions of the court. The judgment specifically found Richard failed to appear, included a no-contact order, and denied Richard visitation until such time as Richard made an appearance before the chancery court. The record reflects no post-trial motion by Richard asking the court for more specific findings and shows Richard failed to appear before the chancellor.

¶ 21. Since Richard failed to request relief or more specific findings post trial, precedent requires no remand for such findings upon appellate review, where substantial evidence clearly supports the judgment, and the chancellor provided sufficient general findings. See M.R.C.P. 52. The record reflects the chancellor set forth general factual findings in the case at hand and also stood ready to provide more specific findings post trial upon request. Richard’s complaint fails to acknowledge the unique purpose of habeas corpus proceedings prosecuted to determine custody.

Review of Precedent in Habeas Corpus Proceedings for Custody

¶ 22. As a general rule:

[W]here habeas corpus is prosecuted for the purpose of determining the right to the custody of a child, the inquiry extends far beyond the issues that ordinarily are involved in a habeas corpus proceeding. The court, in passing upon the writ in a case involving the custody of a child, deals with a matter of an equitable nature; it is not bound by any mere legal right of [a] parent or guardian, but is to give his or her claim to the custody of the child due weight as a claim founded on human nature and generally equitable and just. A court is in no case bound to deliver a child into the custody of any claimant or of any person, but should, in the exercise of a sound discretion, after a careful consideration of the facts, leave it in such custody as the welfare of the child at the time appears to require. In short, the child’s welfare is the supreme consideration, irrespective of the rights and wrongs of its contending parents, although the natural rights of the parents are entitled to due consideration.

4 A.L.R.3d 1277.

¶23. In the case of Mitchell v. Powell, 253 Miss. 867, 877-78, 179 So.2d 811, 815-16 (1965), the Mississippi Supreme Court addressed the limited powers of a court in habeas corpus proceedings. The supreme court explained that in habe-as corpus proceedings, jurisdiction fails to encompass perpetual jurisdiction, and the court in a habeas corpus proceeding tries a single cause, and upon rendering final judgment, the court’s powers and functions cease. Id. at 877-78, 179 So.2d at 815. In its analysis, the court distinguished the chancery court’s authority over matters touching matters pertaining to the determination of custody of children, from the chancery court’s authority to grant the remedy sought in habeas corpus proceedings. Id. at 877-78, 179 So.2d at 815. Similarly, the supreme court in Bubac, 600 So.2d at 955, recognized courts in habeas corpus proceedings possess temporary jurisdiction only to affect custody of the child in accord with the child’s best interest.

¶ 24. We further recognize this Court previously held that in habeas corpus proceedings, in determining the single cause of the child’s best interest before it, the chancellor can ignore prior decrees where circumstances and conditions arising since the decree show the party awarded custody is unfit to exercise or has abandoned custody of the child. Smith, 425 So.2d at 1032. See generally B9A C.J.S. Habeas Corpus § 382 (2003). We acknowledge precedent establishes that where the custody proceeding lies between a parent and a third person, the third party bears the burden of proof to show the rights of parents have been forfeited, surrendered, or otherwise lost and that the best interest of the child will be served by withholding or removing the child from the parent and that the parent is unfit. Id.

¶25. Hence, the Mississippi Supreme Court recognizes jurisprudence re-buttably presumes the best interest of the child are served by his or her parent having his or her care and custody, unless the parent is shown to be an unsuitable person to have the care and custody, or has abandoned the child. Walker, 214 Miss. at 42, 58 So.2d at 81. In Walker, the supreme court recognized in habeas corpus proceedings, the chancellor’s judgment should be affirmed if the evidence was sufficient to sustain the judgment. Id. at 49-50, 58 So.2d 79, 58 So.2d at 85. The supreme court acknowledged in its review that the trial judge provided no specific findings of fact when denying the natural mother’s petition. Id. at 38, 58 So.2d 79 58 So.2d at 80. The Walker court further explained the reviewing court must, therefore, assume the trial judge found disputed issues of fact in favor of the defendants. Id. at 38, 58 So.2d at 80.

¶26. In Walker, the supreme court then reviewed the evidence in the record presented at the habeas corpus proceeding to determine if the record supported the chancellor’s judgment. Id. at 39-50, 58 So.2d 79, 58 So.2d at 80-85. After doing so, the supreme court in Walker found the evidence supported a finding of abandonment by the mother of the child and affirmed the lower court’s decision, even though the lower court provided no findings in support of its judgment. Id. at 45-50, 58 So.2d 79, 58 So.2d at 83-85. In the case before us, the chancellor provided general findings in rendering its judgment, and his findings reflect he also considered the Albright factors. The chancellor in the case before us also stood ready to provide additional findings post trial upon request.

¶ 27. The supreme court in Walker further explained a parent may abandon a child by “contributing nothing to [the child’s] support, taking no interest in [the child], and permitting [the child] to remain continuously in the custody of others, substituting such others in his own place so that they stand in loco parentis to the child, and continuing this condition of affairs for so long a time that the affections of the child and of the foster parents have become mutually engaged to the extent that a severance of this relationship would surely result in destroying the best interest of the child.” Id. at 46, 58 So.2d at 83 (citations omitted). Moreover, the court in Walker explained that such evidence of abandonment, as described by the court, “conclusively rebuts and overthrows the legal presumption that the welfare of the child would, other things being equal, be best served by the custody and control of the parent.” Id. at 47, 58 So.2d at 83 (citations omitted).

¶ 28. In Reynolds, 200 Miss. at 483-86, 27 So.2d at 691-92, also a habeas corpus case, the Mississippi Supreme Court again found the best interests of the children were served by an award of custody to a third party instead of the natural parents. The supreme court found the children were innocent and injured bystanders to riotous contention of an unhappy and disorderly household. Id. at 485, 27 So.2d at 692. Significant to our analysis, the court in Reynolds further explained the right of a natural parent to custody can be forfeited by conditions or by conduct adversely affecting the child. Id. at 483-85, 27 So.2d at 691-92.

¶ 29. The pleadings in this habe-as corpus proceeding raise the issue of Blake’s best interest and welfare and Richard’s parental fitness before the chancellor. Furthermore, upon review, we find the evidence in the record, specifically the testimony of John, Richard’s own father, and the testimony of Cliff, provides substantial evidence supporting the denial of Richard’s habeas corpus petition with evidence that Richard’s own conduct adversely affected Blake’s safety and welfare. Therefore, the chancellor properly considered both Blake’s best interest and welfare in the habeas corpus proceeding.

¶ 30. At the June 7, 2010 hearing, John, Richard’s father, testified Richard failed to care for or support Blake since Blake’s mother’s death, and Blake thrived under Cliffs care in Colorado. John testified he thought Richard possessed suspect motives, desiring custody of Blake for monetary (pecuniary) reasons. John testified:

[COURT]: Why does [Richard] want custody of this child? Your son?
[JOHN]: Honestly?
[COURT]: Yes, sir.
[JOHN]: I think there is some money involved.
[COURT]: What money?
[JOHN]: He’s on disability and if he gets custody of Richard [sic][,] he can also get the other benefits that goes with it.
[COURT]: Is there any other money other than that?
[JOHN]: Well, I imagine that there is probably meal money, that’s what they call it.
[COURT]: What about life insurance? Was there any life insurance on him?
[JOHN]: I don’t think there is any life insurance!,] but medical insurance would be involved.

¶ 31. Cliff testified at the hearing that he cared for Blake for the majority of Blake’s life, and he could adequately continue to provide for Blake. Cliff testified Blake participated in extracurricular activities, including sports, in Colorado Springs; and Blake had also been involved in the youth group at church in Colorado. Cliff testified he held a management position; and he, his wife, and their child provided a stable home environment for Blake. Cliff further testified he feared Blake’s return to the environment provided by Richard. Cliff feared Blake would be harmed in Richard’s custody due to Richard’s drinking problems and abusive behaviors. Cliff testified during the brief time that Blake lived with Richard, Blake called him crying and begging to return to Colorado.

¶ 32. Significantly, John’s testimony was consistent with Cliffs, explaining that he picked Blake up from behind “the telephone pole” when Blake fled from Richard’s house, and John assisted in getting Blake back to Colorado to live with Cliff. At the hearing, the following testimony was presented, which described the tumultuous end to Richard’s attempt at caring for Blake:

[JOHN]: This all started — Richard and his girlfriend tried to bring me into Court before the [g]rand [j]ury here in Jackson County for kidnapping. I was the one that went and picked him up from-behind the telephone pole down from the house when all this started.
[COURT]: You picked the child up?
[JOHN]: Blake up, yes, sir. In turn[,] I brought him to his aunt’s[,] and his aunt turned him over to his sister who brought him back to Texas. And they
sent him back to Colorado where he belonged.
[COURT]: So, you think the best place for him to be is out there?
[[JOHN]]: That is the best place for him to be. He has no business with this father.
[COURT]: That’s your son you are talking about.
[JOHN]: I know.
[COURT]: [Roberta Sizemore], do you agree?
[ROBERTA]: Yes, sir. I do.

¶ 38. In applying precedent to this case, similar to Reynolds and Walker, we find substantial evidence exists in the record to support the chancellor’s judgment finding that Blake’s best interest was served by awarding custody to his older brother, Cliff, instead of awarding custody to his natural father, Richard. Additionally, the record reflects the chancellor properly applied the law, provided sufficient findings, and substantial evidence supported the chancellor’s judgment.

Failure to Appear

¶ 34. We find Richard’s claim that he received inadequate notice of the June 7, 2010 habeas corpus proceeding without merit, and we find no abuse of discretion in the chancellor’s decision to proceed with the habeas corpus proceeding and to not grant a continuance of the hearing. See Robinson, 58 So.3d at 42 (¶ 10). The June 7, 2010 hearing had been scheduled since January 2010 by agreed order, and the record clearly shows Richard knew the hearing was reset for June 7, 2010, from January 2010. See generally Dufrene v. Slade, 21 So.3d 703, 705 (¶ 9) (Miss.Ct.App.2009) (finding adequate notice of trial date set by agreed order was provided and failure to appear does not warrant relief) (citing M.R.C.P. 40(b),(c)). Additionally, the laws of this state provide a speedy remedy in habeas corpus proceedings. See Cole, 12 So.2d at 426. The judge in a habeas corpus proceeding may not prolong by special order its powers or jurisdiction. Bubac, 600 So.2d at 953 (citation omitted).

¶ 35. A review of Richard’s own handwritten letter in the record to the chancery court after the June 7, 2010 hearing, demonstrates Richard was aware of the June 7, 2010 hearing. In the letter, Richard acknowledged receiving a copy of the “motion” of continuance. Richard also complained in the letter that the chancellor decided to proceed with the hearing, and in this post-trial letter, Richard requested a continuance. Despite the chancellor’s acknowledgment in his judgment that Richard’s rights would be revisited upon his appearance before the court, Richard failed to appear post trial to seek relief from the chancellor. Furthermore, Richard does not claim he received an order from the court granting the continuance, and Richard asserts no denial of his awareness that the hearing was reset from January 5, 2010, to June 7, 2010, by agreed order. As evidenced by his letter to the court contained in the record before us, Richard failed to appear at the June 7, 2010 hearing and failed to communicate with his attorney and the court at his own peril.

¶ 36. Based on the foregoing reasons, we affirm the judgment of the chancellor. See Bubac, 600 So.2d at 954.

¶ 37. THE JUDGMENT OF THE JACKSON COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., GRIFFIS, P.J., ISHEE, ROBERTS, MAXWELL AND RUSSELL, JJ., CONCUR. BARNES, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. IRVING, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION. MYERS, J., NOT PARTICIPATING.

IRVING, P.J.,

dissenting:

¶ 38. The majority finds that the chancery court did not err in awarding custody of Richard’s son, Blake, to Cliff, Blake’s half brother. Because I believe that the chancery court failed to give appropriate deference to the natural-parent presumption, I dissent. I would reverse the chancery court’s judgment and remand this case for a determination of whether Richard is an unfit parent or has abandoned Blake. I also believe that Richard did not have proper notice of the hearing wherein his custody of Blake was terminated and transferred to Cliff. Therefore, for this additional reason, I dissent.

¶ 39. After the chancery court granted Richard’s writ of habeas corpus and ordered Cliff to return Blake to Richard, Cliff filed a motion to reconsider and a motion for emergency injunctive relief. On June 7, 2010, the chancery court held a hearing on the motions; however, neither Richard nor his attorney appeared at the hearing. Despite their absence, the chancery court proceeded with the hearing and determined that it was in Blake’s best interest to remain with Cliff.

¶40. In my judgment, the chancery court failed to give appropriate deference to the natural-parent presumption before it awarded custody of Blake to Cliff. The law regarding custody disputes between natural parents and third parties is well settled:

In custody battles involving a natural parent and a third party, it is presumed that a child’s best interest will be served by placement in the custody of his or her natural parent, as against any third party. In order to overcome this presumption[,] there must be a clear showing that the natural parent has (1) abandoned the child; (2) the conduct of the parent is so immoral as to be detrimental to the child; or (3) that the parent is unfit mentally or otherwise to have custody.

Sellers v. Sellers, 638 So.2d 481, 484 (Miss. 1994) (citations omitted). Based on my review of the record, there was no clear showing that Richard was an unfit parent or had abandoned Blake.

¶ 41. At the June 7, 2010 hearing, John Sizemore, Richard’s father, testified that it was in Blake’s best interest to live with Cliff. The chancery court pressed John for the basis for his opinion, and the following exchange occurred:

[THE COURT]: Mr. Sizemore, what can you tell me about where you think this child needs to be?
[JOHN]: This child needs to be in Colorado with his brother.
[THE COURT]: Why would you say that? You live in Gulfportf, Mississippi]?
[JOHN]: I live in Gulfport, but Blake would be much happier where he is. Roberta and I[,] at our age[,] are not ready to take care of a child again.
[THE COURT]: Well, you appear to be healthy to me[,] and you probably could do it. How long has Blake been living in Colorado?
⅝ ⅜ ⅝
[JOHN]: Shortly after his mother died. Shortly — he was there during [Hurricane] Katrinaf,] and he left [in] October — right after [Hurricane] Katrina. * * ⅜
[THE COURT]: So has [Cliff] been caring for Blake since his mother died?
[JOHN]: Yes, sir.
[THE COURT]: Why does [Richard] want custody of this child?
[JOHN]: Honestly?
[THE COURT]: Yes, sir.
[JOHN]: I think there is some money involved.
[THE COURT]: What money?
[JOHN]: He’s on disability[,] and if he gets custody of [Blake,] he can also get the other benefits that goes [sic] with it.

¶ 42. While John thought that Blake should remain with Cliff, he offered no explanation for his opinion other than speculation that Richard might be seeking custody to obtain additional social security benefits. He offered no testimony regarding Richard’s fitness as a parent, nor did he testify that Richard had abandoned Blake.

¶43. The chancery court also questioned Roberta Sizemore, Richard’s stepmother, regarding Richard’s relationship with Blake:

[THE COURT]: Mrs. Sizemore, is [Cliff] a better parent than [Richard]?
[ROBERTA]: Yes, sir.
[THE COURT]: How do you know?
[ROBERTA]: Because we have seen his natural father [Richard]. We have not seen Cliff because he is in Colorado. We have seen his natural father and—
[THE COURT]: That is your son? The natural father is your son; isn’t that right? Is he your son?
[ROBERTA]: I am the stepmother.

Roberta offered no testimony that Richard was an unfit parent. She stated that she believes that Cliff is a better parent than Richard, but that does not answer the question of whether Richard is an unfit parent. Furthermore, Roberta admitted that she had never witnessed Cliffs parenting skills because he lives in Colorado.

¶ 44. Finally, the chancery court questioned Cliff regarding Blake’s best interest:

[THE COURT]: Is there anything that you need to tell me that you want to tell me that I should know?
[CLIFF]: When you make your decision, you know, my dad, again he is my stepfather, Richard Sizemore. I am concerned [that] if he were to go back and live with him[ — ] I think the environment would be very difficult because my dad has a drinking problem. He was an abusive alcoholic my entire growing up [sic] life. I would be very concerned for Blake if he were to be placed back in that environment.
He spent a couple of months there and called us crying and begging us to get him out of there. That is what started this whole mess. Once he came back[,] they started to fight us to get Blake back again. It would be disastrous to send him back there. I just hope you see that we can offer Blake a more stable environment. We love him and want the best for him.

¶ 45. While Cliff testified that Richard was an abusive alcoholic during Cliffs childhood, there was no evidence in the record that Richard had abused Blake. The chancery court did not question Cliff further regarding his allegations that Richard was an abusive alcoholic, nor did it ask Cliff to elaborate regarding his opinion that Richard could not provide a stable home environment for Blake. Finally, Cliffs attorney stated that the Mississippi Department of Corrections web site listed Richard as being on house arrest, but the web site did not list the offense. In my judgment, Cliffs testimony, along with his attorney’s statement, does not rise to the level of a “clear showing” that Richard is an unfit parent.

¶ 46. Based on my review of the record, the chancery court failed to give appropriate deference to the natural-parent presumption, as required under well-established Mississippi law, before awarding custody of Blake to Cliff. As stated, the testimony offered at the June 7, 2010 hearing does not provide a “clear showing” that Richard is an unfit parent or has abandoned Blake. Accordingly, I would reverse the chancery court’s judgment and remand this case for a determination of whether Richard is an unfit parent or has abandoned Blake.

¶ 47. Furthermore, it does not appear that Richard had proper notice of the June 7, 2010 hearing. Following the chancery court’s decision to grant Richard’s writ of habeas corpus, Cliff filed a motion to reconsider. The motion was set for a hearing on January 5, 2010. However, on January 5, 2010, the chancery court entered an order resetting the hearing for June 7, 2010. At the June 7, 2010 hearing, Cliffs attorney explained that only he and Richard’s attorney were present on January 5, 2010, when the agreement to reset the hearing was made. There is no evidence in the record that Richard’s attorney ever communicated to Richard that the motion for reconsideration would be heard on June 7, 2010. However, as I explain in further detail later in this dissent, since Richard was then represented by an attorney, he was chargeable with knowledge of the June 7 hearing. Nevertheless, on June 4, 2010, Richard’s attorney filed a motion for a continuance of the June 7 hearing and mailed Richard a copy. Richard received the copy of the motion on June 5, 2010, which was a Saturday. Richard assumed that the hearing would be continued. However, he called the clerk’s office — apparently on the morning of the hearing — to confirm that the hearing had been continued. To his surprise, he was told that the continuance had not been granted and that the hearing “was on for Monday [at] 9[:00] a.m.” Since Richard had assumed that the hearing would be continued, he had not made any preparation to attend the hearing. Therefore, the earliest that he could have known that the hearing was not being continued was no more than one hour prior to the hearing, as the clerk’s office does not open until 8:00 a.m. Neither Richard nor his attorney appeared for the hearing.

¶48. On the morning of the hearing, Cliffs attorney advised the chancery court that Richard’s attorney was in trial in federal court. The chancery court stated that it could not take judicial notice of that fact but observed that trial settings of federal court cases generally trump trials of state court cases. Further, the chancery court acknowledged that someone had called on the morning of the hearing at approximately 8:05 and advised that Richard’s attorney would not be in court for the hearing.

¶ 49. “The law of agency generally imputes knowledge and information received by an agent in conducting the business of a principal to the principal, even where that knowledge or information is not communicated by the agent to the principal.” Lane v. Oustalet, 878 So.2d 92, 95-96 (¶ 15) (Miss.2004) (citing Pittman v. Home Indent. Co., 411 So.2d 87, 89 (Miss.1982)). “The relationship between client and attorney ... is a quintessential principal-agent relationship.” O.W.O. Invs., Inc. v. Stone Inv. Co., 82 So.3d 439, 447 (¶22) (Miss. 2010) (quoting C.I.R. v. Banks, 543 U.S. 426, 436, 125 S.Ct. 826, 160 L.Ed.2d 859 (2005)). Accordingly, because Richard’s attorney knew about the June 7, 2010 hearing, Richard would generally be imputed with the same knowledge. However, Richard’s attorney had expressed a desire to dissolve the attorney-client relationship, in so much as he had filed a motion to withdraw on April 23, 2010. However, there is no indication in the record that the motion to withdraw had ever been noticed for hearing or that Richard had reason to believe that he was no longer represented by an attorney.

¶ 50. The Mississippi Supreme Court has stated: “Even though the result might be the same[,] every defendant or respondent has the right to notice in a court proceeding involving him, and to be present, and to introduce evidence at the hearing.” Johnson v. Weston Lumber & Bldg. Supply Co., 566 So.2d 466, 468 (Miss.1990) (quoting Edwards v. James, 453 So.2d 684, 686 (Miss.1984)). In Johnson, our supreme court held that the chancery court erred in refusing to set aside its judgment against Harold Johnson where his counsel withdrew on the same day that the cause was tried; Johnson was not present at trial; and there was no indication that Johnson knew to be present. Id. at 468.

¶ 51. The facts in Johnson are similar to the facts in this case. Richard’s attorney filed a motion to withdraw, which the chancery court granted nunc pro tunc to June 7, 2010. By doing so, the chancery court effectively left Richard without representation at the hearing. In my judgment, the chancery court erred in proceeding with the hearing where Richard did not have adequate notice and his retained attorney failed to appear, apparently because of a conflict with a trial setting in federal court. For the reasons presented, I would reverse the chancery court’s judgment and remand this case for further proceedings.

      . Cliff's motion provided Richard’s writ of habeas corpus had been faxed to him, an out-of-state defendant, in violation of Mississippi Rule of Civil Procedure 81. “Rule 81(d) prescribes the form of summons to be used; however, the method of service is governed by Rule 4.” Deborah H. Bell, Bell on Mississippi Family Law § 19.03 (1st ed. 2005). A nonresident defendant may be served:
      in any manner available for service on a resident defendant. In addition, a nonresident defendant may be served by mailing a copy of the summons and complaint by certified mail, return receipt requested. For service on an individual, the envelope must be marked “restricted delivery.” A nonresident defendant may be served by publication. However, the court will not have jurisdiction to address property division, alimony, or child support. Furthermore, personal service of process on a nonresident defendant will not confer personal jurisdiction over a defendant who lacks the minimum contacts with the state necessary to satisfy due process requirements.
      Bell, § 19.03[2][b],

      . At the June 7, 2010 hearing, Cliff’s attorney, Dustin Thomas, stated:
      [O]n January 4, 2010, I, on behalf of [Cliff] filed a motion to dismiss or reconsider the issuance of the [wjrit of [hjabeas [c]orpus and for emergency injunctive relief. That was set for a hearing on January 5, 2010[,] before Your Honor. On that day ... all the parties to my recollection!,] at least myself and Mr. Morrison [Richard’s attorney] were here. Met with the [c]ourt and on that date agreed that we would set a hearing for — on these matters for today's date, June 7, 2010. That was the order actually setting the trial date. It was an agreed order set that day by Your Honor and counsel for both parties on January 5, 2010.

      . At the hearing on June 7, 2010, Thomas stated:

      . At the conclusion of the hearing, the chancellor noted for the record that the award of custody to Cliff satisfied the Albright factors.

      . John is Richard’s father and Blake’s grandfather.

      . Cliff opposed the motion to withdraw and the motion for continuance because he opposed any delay in the proceedings due to the hardship and expense of travel to the hearing.

        .See Miss.Code Ann. §§ 11-43-1 (Rev.2002); 11-43-7 (Rev.2002) (providing chancery courts the authority to grant a petition for writ of habeas corpus); 9-1-19 (Rev.2002) (vesting courts with the authority to grant remedial writs); 9-5-81 (Rev.2002). See generally Miss. Const. art. 3, § 21.

      . See Miss.Code Ann. §§ 93 — 5—24(l)(e)(i) (Rev.2004) (stating that upon finding the natural parents have abandoned or deserted the child, or the parents are unfit, the court may award physical and legal custody to person with whom the child resides in a stable environment); 11-43-11 (Rev.2002) (if shown that petitioner is not entitled to relief, the court may refuse to grant the petition for habeas corpus).

      . See Smith v. Watson, 425 So.2d 1030, 1032 (Miss. 1983) (providing that in habeas corpus proceedings, "the habeas corpus court can disregard the prior decree where circumstances and conditions arising since the decree show that the party awarded custody is unfit to exercise or has abandoned custody of the child.”); Mitchell v. Powell, 253 Miss. 867, 878, 179 So.2d 811, 815-16 (1965) (citing Talley v. Womack, 249 Miss. 773, 777, 163 So.2d 742, 744 (1964) (explaining the limited powers of a judge in habeas corpus proceedings)).

        .See generally Wade v. Lee, 471 So.2d 1213 (Miss. 1985) (holding that even though chancery court previously ordered child custody in favor of former wife, temporary award to former husband in habeas corpus proceeding was in best interest and welfare of the child where former wife was a continuous drug user and had become emotionally unstable); Roach v. Lang, 396 So.2d 11 (Miss.1981) (discussing habeas corpus custody petitions that go beyond mere legal petition alleging unlawful detention where the petition itself raises the issue of best interest and who should have custody and the parents obligations).

      . See Miss.Code Ann. §§ 93-11-65 (Supp. 2011); 11-43-7; and 93-5-24.

      . See also Miss.Code Ann. § 93-5-24 (custody with parent of history of domestic abuse rebuttably presumed to not be in child’s best interest).

      .The chancellor provided; "The petitioner Richard P. Sizemore is enjoined from bothering, harassing, or interfering with the Respondent Francis Clifton Pickett, either on the telephone, through electronic means, or by any means whatsoever.”

        .See also Myers v. Myers, 741 So.2d 274, 277-78 (¶ 11) (Miss.Ct.App. 1998) (“A court has technically complied with the mandates of Rule 52 where it makes general findings of fact and conclusions of law although requested by a party to make specific findings.”).

      . See M.R.C.P. 52. See also Swiderski v. Swiderski, 18 So.3d 280, 284 (¶ 12) (Miss.Ct. App.2009).

      . See Miss.Code Ann. § 93-11-65.

      . See Miss.Code Ann. § 11-43-7.

      . Mississippi Code Annotated section 11-43-11 provides, if from the showing made by the petition for habeas cotpus, it manifestly appears the person presenting it is not entitled to any relief thereby, the chancellor may refuse to grant the writ. See Miss.Code Ann. §§ 93-5-24; 11-43-7; 93-11-65. In this case, the chancellor not only reviewed the petition, but he held a hearing in this habeas corpus proceeding. The evidence in the record supports the judgments of the chancellor.

      . The supreme court further discussed the test for abandonment, by stating that abandonment occurs ‘‘where a parent, without just cause or excuse, forsakes or deserts his or her infant child, for such a length of time, and under such circumstances, as to show an intent to shirk or evade the duty, trouble or expense of rearing [the child], or a callous indifference to [the child’s] wants, or a reckless disregard of [the child's] welfare, he or she is guilty of such an abandonment of [the child] as to bar his or her right to thereafter reclaim [the child's] custody from any person who may have ministered to and protected [the child] during such period of desertion.” Id. at 46, 58 So.2d at 83 (citations omitted).

      . See J.P. v. S.V.B., 987 So.2d 975, 979-80 (¶¶ 8-12) (Miss.2008) (affirming the trial court's award of the daughter to the grandparents due to the father's history of family violence).

      . John is also Blake’s paternal grandfather.

      . The testimony reflects Richard failed to care and support Blake financially or otherwise.

      .According to the record, Richard B. Size-more made this statement. However, from the surrounding testimony, it is clear from our review that the statement was made by John B. Sizemore about his son, Richard Sizemore.

      . Roberta testified she is Richard’s stepmother.

      . "Under Mississippi law, the 'decision to grant or deny a continuance is within the sound discretion of the trial court and will not be reversed absent an abuse of discretion that resulted in a manifest injustice.’ ” Robinson, 58 So.3d at 42 (¶ 10) (quoting Pool v. Pool, 989 So.2d 920, 924 (¶ 12) (Miss.Ct.App. 2008)).

      . See Robinson, 58 So.3d at 42 (¶ 10) (stating the decision to grant a continuance lies within the sound discretion of the chancellor); Pool, 989 So.2d at 925 (¶ 13) (finding the court will not reverse the denial of a continuance absent a showing of prejudice); Luse v. Luse, 992 So.2d 659, 663 (¶ 12) (Miss.Ct.App.2008) ("A party is not allowed to raise an issue for the first time on appeal.”).

      . The attorney's statement carries no eviden-tiary weight, as he was not a witness.

      . The record indicates that an agreed order (signed by the attorneys for the parties and the court) granting the motion to withdraw was filed on July 30, 2010, nunc pro tunc to June 7, 2010. Interestingly, Richard was not a signatory to this agreed order.


source: Caselaw Access Project

author: STUART, Justice. COBB, Chief Justice MURDOCK, Justice

license: Public Domain

text:
    Ex parte NO. 1 STEEL PRODUCTS, INC. (In re Garrison Steel Fabricators, Inc. v. No. 1 Steel Products, Inc.).
    1091781.
    Supreme Court of Alabama.
    July 29, 2011.
    Gregory S. Ritchey of Ritchey, Simpson, Glick & Burford, PLLC, Birmingham, for petitioner.
    John R. Frawley, Jr., Irondale, for respondent.
   STUART, Justice.

No. 1 Steel Products, Inc., a Massachusetts corporation, petitions this Court for a writ of mandamus directing the St. Clair Circuit Court to dismiss the action filed against it by Garrison Steel Fabricators, Inc., an Alabama corporation, on the basis that the St. Clair Circuit Court lacked personal jurisdiction over it. We grant the petition and issue the writ.

I.

In 2007, No. 1 Steel was engaged as a subcontractor on a construction project at a health and rehabilitation center in Cen-terville, Massachusetts, known as the Cape Regency project. While working on the Cape Regency project, No. 1 Steel determined that it needed to hire out some of the steel fabrication for which it was responsible. The president of No. 1 Steel, Arthur Pimental, stated in an affidavit that No. 1 Steel accordingly took the following action:

“During the project, we were looking for more structural steel fabricators, and it is my recollection that we went through a list of fabricators posted on a website called the Blue Book that is either bluebook.com or thebluebook.com. We sent emails to various companies through the Blue Book website regarding the project, and if a company was interested, it would contact our office. After receiving contact from a company, I would email the company our website, to view drawings on our website, which is www.nolsteel.com, with a password. If the company was interested in submitting a proposal, the company would forward one to our offices in Massachusetts. Our file reflects Garrison Steel Fabricators, Inc., sent a proposal to our offices in Massachusetts, which we reviewed, and which we accepted in Massachusetts by forwarding a purchase order to Garrison Steel Fabricators, Inc. Our acceptance of their proposal was made in Massachusetts.”

The purchase order was sent on October 24, 2007, and according to its terms No. 1 Steel was to pay Garrison Steel $124,200 for the completed product and fabrication services. Garrison Steel thereafter commenced fabrication of the ordered product at its facility in Pell City. The companies apparently communicated via telephone, fax, and e-mail during the negotiation and fabrication process; however, representatives from No. 1 Steel never visited Garrison Steel’s facility in Alabama. When the fabrication was complete, Garrison Steel sent the product to No. 1 Steel at its work site in Massachusetts. Although the materials before this Court do not fully explain why, it is apparent that No. 1 Steel was in some way dissatisfied with the delivered product, and No. 1 Steel refused to pay Garrison Steel anything beyond the $64,200 it had previously paid.

In an attempt to collect the remaining $60,000 it claimed No. 1 Steel owed it, Garrison Steel sent No. 1 Steel notice that it intended to file a mechanic’s lien unless it was paid the balance of the agreed-upon price. Attached to this notice was a draft of the lien to be filed if no settlement was reached. Upon receiving the notice, No. 1 Steel filed in a Massachusetts court a motion to discharge and release the not yet filed lien, arguing that Garrison Steel was not registered to do business in Massachusetts and that no written contract of the parties’ agreement existed; the Massachusetts court granted the motion without stating a rationale.

On June 17, 2009, Garrison Steel sued No. 1 Steel in the St. Clair Circuit Court, asserting claims of open account, implied contract, and labor and work performed and seeking damages in the amount of $60,000. On July 16, 2009, No. 1 Steel moved the trial court to dismiss the action or, in the alternative, to enter a summary judgment in its favor, arguing, among other things, that the trial court lacked personal jurisdiction over it because No. 1 Steel did not do business in Alabama and lacked the required contacts with Alabama to subject it to personal jurisdiction here. Attached to this motion was the affidavit, quoted earlier, of No. 1 Steel’s president, Pimental. Garrison Steel filed a response in opposition to No. 1 Steel’s motion, arguing that No. 1 Steel had had sufficient contact with Alabama for an Alabama court to exercise jurisdiction over it. Garrison Steel supported its response with copies of the plans and requirements it alleged No. 1 Steel had sent it and copies of e-mail correspondence between the two companies concerning the project. Garrison Steel also submitted an affidavit from its controller, Keith Cornelius, in which he swore that Garrison Steel’s relationship with No. 1 Steel had begun sometime in the latter part of 2007 when “sales representatives with my company were contacted by representatives of [No. 1 Steel] regarding my company constructing various structural steel items for delivery to a project being supplied by [No. 1 Steel].”

No. 1 Steel then filed a reply to Garrison Steel’s response, disputing the assertion in Cornelius’s affidavit that No. 1 Steel had initiated contact with Garrison Steel in Alabama. Accompanying this reply was an affidavit from David Malone, a former sales representative at Garrison Steel, who stated that, sometime in 2007, he had learned about No. 1 Steel’s need for steel-fabrication services in association with the Cape Regency project from his previous employer, Smith Ironworks, a Georgia company, which was itself too busy to bid on the project. Malone further stated that, upon learning of the opportunity, he contacted No. 1 Steel and was told how to access specific information about the project on No. 1 Steel’s Web site, which he did before preparing the bid that was then submitted and ultimately accepted.

In response to Malone’s affidavit, Garrison Steel filed a response supported by an affidavit from its president, John Garrison, asserting that Malone was a disgruntled former employee and noting that Malone’s affidavit testimony appeared to contradict the affidavit testimony of No. 1 Steel’s president, Pimental, who had previously stated that “[w]e [i.e., No. 1 Steel] sent emails to various companies through the Blue Book website regarding the project.”

On September 9, 2010, the trial court, treating No. 1 Steel’s motion seeking a dismissal of the case on the basis of a lack of personal jurisdiction as a summary-judgment motion, denied the motion. On September 24, 2010, No. 1 Steel petitioned this Court, seeking mandamus review of the trial court’s decision. We subsequently ordered Garrison Steel to file a response to No. 1 Steel’s petition, which it timely submitted, and, on June 28, 2011, we heard oral arguments from the parties concerning the personal-jurisdiction issue.

II.

A petition for a writ of mandamus is the appropriate manner in which to challenge a trial court’s order deciding the question of personal jurisdiction. Ex parte Lowengart, 59 So.3d 673, 677-78 (Ala. 2010). We review such a petition pursuant to the following standard of review:

“ ‘ “The writ of mandamus is a drastic and extraordinary writ, to 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 United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala. 1993); see also Ex parte Ziglar, 669 So.2d 133, 134 (Ala.1995).” Ex parte Carter, [807 So.2d 534,] 536 [(Ala. 2001) ].’
“Ex parte McWilliams, 812 So.2d 318, 321 (Ala.2001). ‘An appellate court considers de novo a trial court’s judgment on a party’s motion to dismiss for lack of personal jurisdiction.’ Elliott v. Van Kleef, 830 So.2d 726, 729 (Ala.2002).”

Ex parte Bufkin, 936 So.2d 1042, 1044-45 (Ala.2006).

III.

In Ex parte Excelsior Financial, Inc., 42 So.3d 96 (Ala.2010), we reviewed the due-process concerns that govern a court’s decision whether to exercise personal jurisdiction over an out-of-state party, stating:

“ ‘The extent of an Alabama court’s personal jurisdiction over a person or corporation is governed by Rule 4.2, Ala. R. Civ. P., Alabama’s “long-arm rule,” bounded by the limits of due process under the federal and state constitutions. Sieber v. Campbell, 810 So.2d 641 (Ala.2001). Rule 4.2(b), as amended in 2004, states:
“ ‘ “(b) Basis for Out-of-State Service. An appropriate basis exists for service of process outside of this state upon a person or entity in any action in this state when the person or entity has such contacts .with this state that the prosecution of the action against the person or entity in this state is not inconsistent with the constitution of this state or the Constitution of the United States.... ”
“ ‘In accordance with the plain language of Rule 4.2, both before and after the 2004 amendment, Alabama’s long-arm rule consistently has been interpreted by this Court to extend the jurisdiction of Alabama courts to the permissible limits of due process. Duke v. Young, 496 So.2d 37 (Ala. 1986); DeSotacho, Inc. v. Valnit Indus., Inc., 350 So.2d 447 (Ala.1977). As this Court reiterated in Ex parte McInnis, 820 So.2d 795, 802 (Ala. 2001) (quoting Sudduth v. Howard, 646 So.2d 664, 667 (Ala.1994)), and even more recently in Hiller Investments Inc. v. Insultech Group, Inc., 957 So.2d 1111, 1115 (Ala.2006): “Rule 4.2, Ala. R. Civ. P., extends the personal jurisdiction of the Alabama courts to the limit of due process under the federal and state constitutions.” (Emphasis added.)
“ ‘This Court discussed the extent of the personal jurisdiction of Alabama courts in Elliott v. Van Kleef, 830 So.2d 726, 730 (Ala.2002):
“ ‘ “This Court has interpreted the due process guaranteed under the Alabama Constitution to be coextensive with the due process guaranteed under the United States Constitution. See Alabama Waterproofing Co. v. Hanby, 431 So.2d 141, 145 (Ala.1983), and DeSotacho, Inc. v. Valnit Indus., Inc., 350 So.2d 447, 449 (Ala.1977). See also Rule 4.2, Ala. R. Civ. P., Committee Comments on 1977 Complete Revision following Rule 4.4, under the heading ‘ARCP 4.2.’ (‘Subpara-graph (I) was included by the Committee to insure that a basis of jurisdiction was included in Alabama procedure that was coextensive with the scope of the federal due process clause....’).
“ ‘ “The Due Process Clause of the Fourteenth Amendment permits a forum state to subject a nonresident defendant to its courts only when that defendant has sufficient ‘minimum contacts’ with the forum state. International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945). The critical question with regard to the nonresident defendant’s contacts is whether the contacts are such that the nonresident defendant ‘ “should reasonably anticipate being haled into court” ’ in the forum state. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 473, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985), quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 295, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980).” ’

“Ex parte DBI, Inc., 23 So.3d 635, 643-44 (Ala.2009) (footnote omitted).

“ ‘Furthermore, this Court has explained:

The sufficiency of a party’s contacts are assessed as follows:
“ ‘ ‘Two types of contacts can form a basis for personal jurisdiction: general contacts and specific contacts. General contacts, which give rise to general personal jurisdiction, consist of the defendant’s contacts with the forum state that are unrelated to the cause of action and that are both “continuous and systematic.” Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 n. 9, 415, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984); [citations omitted]. Specific contacts, which give rise to specific jurisdiction, consist of the defendant’s contacts with the forum state that are related to the cause of action. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472-75, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). Although the related contacts need not be continuous and systematic, they must rise to such a level as to cause the defendant to anticipate being haled into court in the forum state. Id.’
“ ‘ “Ex parte Phase III Constr., Inc., 723 So.2d 1263, 1266 (Ala.1998) (Lyons, J., concurring in the result) ....
“ ‘ “In the case of either general in personam jurisdiction or specific in personam jurisdiction, ‘[t]he “substantial connection” between the defendant and the forum state necessary for a finding of minimum contacts must come about by an action of the defendant purposefully directed toward the forum State.’ Asahi Metal Indus. Co. v. Superior Court of California, 480 U.S. 102, 112, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987).”
“‘Elliott [v. Van Kleef], 830 So.2d [726,] 730-31 [ (Ala.2002) ] (emphasis added).’
“Sverdrup Tech., Inc. v. Robinson, 36 So.3d 34, 42-13 (Ala.2009).”

42 So.3d at 100-02 (some emphasis omitted). There is no allegation that in per-sonam jurisdiction based on general contacts would be appropriate in this case; we must accordingly determine whether No. 1 Steel’s contacts with Alabama in connection with its transaction with Garrison Steel, i.e., the specific contacts, were sufficient such that No. 1 Steel should have anticipated being haled into court here. For the reasons that follow, we hold that they were not.

No. 1 Steel’s contacts with Alabama appear to consist entirely of telephone, fax, and e-mail correspondence between it and Garrison Steel concerning the negotiation of an agreement between the parties and the subsequent fabrication and delivery of the ordered pieces. The parties hotly dispute which party initiated contact, because this Court has stated that that fact is “of particular relevance” in determining whether an out-of-state defendant has purposefully availed itself of the privilege of conducting business activities within Alabama such that it reasonably should anticipate being haled into court in this State. Ex parte Troncalli Chrysler Plymouth Dodge, Inc., 876 So.2d 459, 465 (Ala.2003). The evidence on that disputed point is ultimately unclear. Even if we were to conclude that the initial contact was made by No. 1 Steel, however, that fact is not controlling, Vista Land & Equip., L.L.C. v. Computer Programs & Sys., Inc., 953 So.2d 1170, 1176 n. 3 (Ala.2006), and Garrison Steel concedes that “it really doesn’t matter.” (Garrison Steel’s brief, p. 4.)

We have also held that the mere fact that an out-of-state party initiates telephone calls to Alabama or otherwise makes use of interstate forms of communication is not controlling, stating “ ‘[t]he use of interstate facilities (telephone, the mail) ... [is a] secondary or ancillary factor[ ] and cannot alone provide the “minimum contacts” required by due process.’ ” Steel Processors, Inc. v. Sue’s Pumps, Inc. Rentals, 622 So.2d 910, 913 (Ala.1993) (quoting Scullin Steel Co. v. National Ry. Utilization Corp., 676 F.2d 309, 314 (8th Cir.1982)). What is controlling is the nature and extent of the relationship between the out-of-state defendant and the Alabama resident with which it engaged. In Vista Land & Equipment, we considered a dispute between an out-of-state company, Vista Land and Equipment (“VLE”), and Computer Programs & Systems, Inc. (“CPSI”), a Mobile company from which VLE had purchased equipment, software, and maintenance services. In concluding that VLE was subject to the jurisdiction of the Alabama courts, this Court focused on the fact that VLE had entered into an ongoing business relationship with CPSI rather than being merely a one-time purchaser of goods, stating: “ ‘What appears to be determinative is the fact that [the nonresident defendant] was involved in an ongoing business transaction with [the plaintiff].”’ 953 So.2d at 1175 (quoting Andalusia Distrib. Co. v. Singer Hardware Co., 822 So.2d 1180, 1184 (Ala.2001)). We further explained:

“As with the revolving-credit account in Andalusia Distributing Co., the promissory note in Ex parte AmSouth Bank, N.A., 675 So.2d 1305 (Ala.1996), and the services contract in Corporate Waste Alternatives, Inc. v. McLane Cumberland, Inc., 896 So.2d 410 (Ala. 2004), all cases in which this Court authorized an Alabama court to exercise jurisdiction over a nonresident defendant, the contract between VLE and CPSI created an ongoing relationship between the two parties. It was not a one-time contract for the purchase of goods as was the contract in Steel Processors, in which this Court held that the Alabama court had no jurisdiction over the nonresident defendant. Rather, the contract between VLE and CPSI was ongoing; it was to renew automatically each year unless one of the parties gave advance notice under the terms of the contract. This contractual relationship, when combined with the additional contacts incidental to that relationship, should have put VLE on notice that it might be haled into an Alabama court in connection with that contract.
“This Court’s decision in Corporate Waste Alternatives is particularly instructive. In that case, Corporate Waste Alternatives, Inc. (‘CWA’), an Alabama corporation, entered into a contract with McLane Cumberland, Inc. (‘Cumberland’), a Kentucky-based company, to help Cumberland reduce its waste-management expenses at a Kentucky distribution center. In return, Cumberland agreed that CWA would be entitled to 50% of its resultant savings.

The contract had an initial 5-year term; however, under the terms of the contract the relationship could be extended to 10 years under certain circumstances. CWA performed most of the work under the contract on-site in Kentucky, but Cumberland officials made multiple telephone calls to CWA in Alabama to discuss the work. They also sent multiple payments to CWA in Alabama.

“After approximately 18 months, Cumberland terminated the contract and refused to make further payments to CWA. CWA then sued Cumberland in the Baldwin Circuit Court, alleging breach of contract, and the personal-jurisdiction issue ultimately arrived in this Court. After reviewing Cumberland’s contacts with Alabama, this Court ultimately concluded that Cumberland could be haled into an Alabama court, holding:

“ ‘Because Cumberland was involved in an ongoing business relationship with CWA, an Alabama corporation, and because of the activities undertaken by Cumberland as part of that relationship — including telephoning CWA in Alabama and mailing payments to CWA in Alabama — we conclude that “it is fair and reasonable to require [Cumberland] to come to this state to defend an action.” Rule 4.2(a)(2), Ala. R. Civ. P.’

896 So.2d at 416. The instant case is almost identical; VLE and CPSI were involved in a similar ongoing business relationship that was supported by multiple telephone calls from VLE to CPSI in Alabama, as well as by multiple payments mailed to CPSI in Alabama. The facts that VLE representatives traveled to Alabama to learn about CPSI’s products and that it was VLE that reinitiated contact with CPSI in Alabama before entering into the contract further bolster a finding that VLE should be subject to the jurisdiction of Alabama courts.

“VLE attempts to distinguish Corporate Waste Alternatives in two ways. First, it argues that the Supreme Court of the United States in Burger King Corp. v. Rudzewicz, 471 U.S. 462, 478, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985), specifically refuted the proposition that a party subjects itself to a foreign court’s jurisdiction simply by entering into a contract with a party within that jurisdiction:

“ ‘At the outset, we note a continued division among lower courts respecting whether and to what extent a contract can constitute a “contact” for purposes of due process analysis. If the question is whether an individual’s contract with an out-of-state party alone can automatically establish sufficient minimum contacts in the other party’s home forum, we believe the answer clearly is that it cannot.’
“(Footnote omitted.) Neither Corporate Waste Alternatives nor our holding today conflicts in any way with Rudzewicz. This Court has never held that a party may be subject to jurisdiction in the courts of this State simply because that party contracted with an Alabama party. To the contrary, in Steel Processors, we explicitly recognized that a one-time contract for the purchase of goods was an insufficient basis for jurisdiction.
“VLE’s argument fails to recognize that our caselaw does not authorize the exercise of personal jurisdiction over a nonresident defendant solely on the basis of contracts it may have entered into with Alabama parties; rather, such jurisdiction is authorized when there is an ongoing contractual relationship supported by the additional contacts that are incidental to such a relationship. See Andalusia Distrib. Co., 822 So.2d at 1184 (‘What appears to be determinative is the fact that [the nonresident defendant] was involved in an ongoing business transaction with [the plaintiff] ....’); Rudzewicz, 471 U.S. at 475-76, 105 S.Ct. 2174 (‘Thus where the defendant “deliberately” has engaged in significant activities within a State, or has created “continuing obligations” between himself and residents of the forum, he manifestly has availed himself of the privilege of conducting business there.... ’ (emphasis added; citations omitted)). Even ‘Steel Processors expressly acknowledges that a contractual relationship will justify the exercise of personal jurisdiction where that relationship has a “ ‘substantial connection! ]’ ” to the forum state.’ Ex parte AmSouth Bank, 675 So.2d at 1308.”

953 So.2d at 1175-77 (footnote omitted).

It is undisputed that No. 1 Steel’s relationship with Garrison Steel was limited to a one-time purchase of goods. It is true that No. 1 Steel purchased a customized product as opposed to off-the-shelf goods. This fact alone, however, does not merit a deviation from our established caselaw. We have in previous cases “explicitly recognized that a one-time contract for the purchase of goods is an insufficient basis for jurisdiction,” 953 So.2d at 1177, and we reaffirm that principle today and hold that there was no basis for the trial court to exercise personal jurisdiction over No. 1 Steel. Id.

IV.

The trial court treated No. 1 Steel’s motion to dismiss Garrison Steel’s action against it on the basis of a lack of personal jurisdiction as a motion for a summary judgment and denied it. However, because No. 1 Steel’s contacts with the State of Alabama in connection with its transaction with Garrison Steel did not rise to such a level that No. 1 Steel should have anticipated being haled into court here, that denial was erroneous. Accordingly, No. 1 Steel’s petition for a writ of mandamus is granted, and the trial court is hereby directed to enter an order dismissing the action filed by Garrison Steel against No. 1 Steel because the court lacked personal jurisdiction over No. 1 Steel.

PETITION GRANTED; WRIT ISSUED.

WOODALL, BOLIN, SHAW, MAIN, and WISE, JJ., concur.

’ COBB, C.J., and PARKER and MURDOCK, JJ., dissent.

COBB, Chief Justice

(dissenting).

I respectfully dissent. Although this Court reviews the instant petition for a writ of mandamus under the long-settled “clear legal right” standard of review for such petitions, see, e.g., Ex parte Buflcin, 936 So.2d 1042, 1044-45 (Ala.2006), I believe that it is appropriate to review the trial court’s findings of fact that are implicit in its judgment on a party’s motion to dismiss for lack of personal jurisdiction under the same standard this Court uses when it reviews a trial court’s ruling on a motion for a summary judgment, i.e., that we review any evidence in a light most favorable to the nonmovant. Jerkins v. Lincoln Elec. Co., [Ms. 1091533, June 30, 2011] — So.3d-(Ala.2011); Nationwide Mut. Ins. Co. v. J-Mar Mach. & Pump, Inc., 73 So.3d 1248 (Ala.2011). It follows that it is appropriate in reviewing this petition to infer that No. 1 Steel Products, Inc., initiated the contact that led to the contract in dispute in light of the fact that the materials submitted with the petition contain the affidavit of Arthur Pimen-tal, the president and general manager of No. 1 Steel, who testified that No. 1 Steel sent e-mails to various businesses through a Web site and that Garrison Steel Fabricators, Inc., was one of the businesses that responded to those e-mails. Further, it is undisputed that No. 1 Steel solicited the instant contract from Garrison with a purchase order seeking approximately $124,000 worth of specially fabricated steel, that the fabrication took place in Alabama at Garrison’s plant, and that No. 1 Steel actively participated in the fabrication by instructional e-mails and telephone communications.

The cases relied upon by the majority, e.g., Steel Processors, Inc. v. Sue’s Pumps, Inc. Rentals, 622 So.2d 910, 918 (Ala.1993), resolve to a single point — that because the transaction between Garrison and No. 1 Steel was a “single,” one-time transaction, it does not afford sufficient “minimum contacts” to vest the courts of this State with in personam jurisdiction. International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945). Although this case represents a single transaction, it differs from Steel Processors on a number of significant points. First, unlike the instant case, there was no question of fact in Steel Processors as to who initiated the contact: it was the Alabama corporation. Second, although the opinion in Steel Processors speaks of “fabrication” of pumps by the Alabama corporation, it is inferable that this “fabrication” involved the manufacture of pumps the Alabama corporation made in the ordinary course of its business, i.e., “off-the-shelf’ products. Thus, the fabrication in Steel Processors was not the same as the fabrication in the instant case, where Garrison followed No. 1 Steel’s specifications to create a large and complex steel construction that was a unique, one-of-a-kind product. And third, unlike Steel Processors, where the Alabama corporation fabricated the materials in Alabama but then completed the work in Florida, in this case all the work by Garrison was performed in Alabama.

Under these circumstances, I conclude that No. 1 Steel should have reasonably anticipated being haled into an Alabama court in the event that it accepted the fabricated-steel project and then refused to make full payment. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980); Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985); and Ex parte DBI, Inc., 23 So.3d 635 (Ala.2009). Given that this was a large transaction that involved many thousands of dollars and entailed significant work being performed in Alabama with the active participation of No. 1 Steel in the fabrication process, I would hold that the size and quality of this single transaction are sufficient to establish the requisite “minimum contacts” to establish this State’s jurisdiction. I would reject the idea that the fact that this is a single transaction is in itself sufficient to defeat this State’s jurisdiction, and I note that many other American jurisdictions also reject any such simplistic formula for establishing jurisdiction.

“The United States Supreme Court has rejected any ‘talismanic jurisdictional formula’ to determine the requisite minimum contact. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 485-86, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). Subjecting a defendant to in personam jurisdiction based on a single, isolated transaction by the nonresident defendant does not necessarily offend due process. Lacy v. Force V Corporation, 403 So.2d 1050, 1054 (Fla. 1st DCA 1981); see also Godfrey v. Neumann, 373 So.2d 920 (Fla.1979).”

Acquadro v. Bergeron, 851 So.2d 665, 677 (Fla.2003)(Wells, J., dissenting) (Florida courts had in personam jurisdiction over plaintiffs defamation action against nonresident relatives of her male companion). See also Allerion, Inc. v. Nueva Icacos, S.A. de C.V., 283 Ill.App.3d 40, 669 N.E.2d 1158, 218 Ill.Dec. 632 (1996); Maglio & Kendro, Inc. v. Superior Enerquip Corp., 233 N.J.Super. 388, 558 A.2d 1371 (1989) (single transaction consisting of purchase of computer equipment was sufficient minimum contact to support jurisdiction); Hammond v. Cummins Engine Co., 287 S.C. 200, 336 S.E.2d 867 (1985) (purchase of boat engine by South Carolina buyer created sufficient contacts with out-of-state engine manufacturer to establish jurisdiction in South Carolina); and Nicholstone Book Bindery, Inc. v. Chelsea House Publishers, 621 S.W.2d 560 (Tenn.1981) (bookbinding work by Tennessee book-binding company in single transaction for a New York publishing house established jurisdiction in Tennessee), all cases holding a single transaction sufficient to invoke in per-sonam jurisdiction.

In this case Garrison advanced significant expenditures of time and materials in reliance on payment according to No. 1 Steel’s purchase order, and No. 1 Steel received the product and refused to make full payment. It is truly regrettable that, under the facts of this case, Garrison may be deprived of any remedy to seek redress for No. 1 Steel’s breach, particularly because I believe that the requisite “minimum contacts” have been established. It is also regrettable that the effect of this decision will likely diminish the willingness of businesses in this State to contract with businesses from other jurisdictions on a good-faith basis. Accordingly, I respectfully dissent.

MURDOCK, Justice

(dissenting).

I respectfully dissent. Although my vote is consistent with the outcome achieved by the trial court, I find it necessary first to address briefly my disagreement with the trial court as to a procedural matter. I thereafter address the merits of the personal-jurisdiction issue.

A. The Trial Court’s Treatment of No. 1 Steel’s Motion as Summary-Judgment Motion

I cannot agree with the trial court’s treatment of the motion filed by No. 1 Steel Products, Inc., as a motion for a summary judgment. The motion was one for dismissal for lack of personal jurisdiction over the defendant, a ground cognizable under Rule 12(b)(2), Ala. R. Civ. P. Rule 12(b) makes it proper to treat a motion filed under Rule 12(b)(6) (“for failure to state a claim” cognizable under Alabama law) as a motion for a summary judgment if matters outside the pleadings are presented to and are not excluded by the court; this treatment does not apply to motions seeking dismissal of an action for lack of personal jurisdiction.

In evaluating a motion for a summary judgment, it is not the trial court’s task to decide facts, but instead merely to determine whether any genuine issue of material fact remains for decision in a trial. In contrast, the task of the trial court in evaluating a motion to dismiss for lack of personal jurisdiction is to make actual findings of fact regarding “contacts” and other matters as necessary to a pretrial disposition by the court of the question whether the defendant is properly before that court.

B. Personal Jurisdiction

“It is evident that the criteria by which we mark the boundary line between those activities which justify the subjection of a corporation to suit, and those which do not, cannot be simply mechanical or quantitative. The test is not merely, as has sometimes been suggested, whether the activity, which the corporation has seen fit to procure through its agents in another state, is a little more or a little less. St. Louis S.W.R. Co. v. Alexander, 227 U.S. [218,] 228 [ (1913) ]; International Harvester Co. v. Kentucky, 284 U.S. [579,] [ (1914) ]. Whether due process is satisfied must depend rather upon the quality and nature of the activity in relation to the fair and orderly administration of the laws which it was the purpose of the due process clause to insure.”

International Shoe Co. v. Washington, 326 U.S. 310, 319, 66 S.Ct. 154, 90 L.Ed. 95 (1945) (emphasis added).

Consistent with these principles, I agree with the main opinion that the “mechanical” issue of who contacted whom first should not be dispositive, especially in the context of facts such as those presented here.

These same principles, however, bring into question the notion, admittedly found in cases relied upon in the main opinion, that a one-time contractual purchase of goods by an out-of-state purchaser from an Alabama manufacturer cannot be an appropriate basis for the exercise of in per-sonam jurisdiction over the out-of-state purchaser, whereas the occurrence of such a purchase more than once can be. Logically, if a given transaction is not possessed of the intrinsic qualities necessary to justify the exercise of in personam jurisdiction over the out-of-state party, why would it matter that the same type of transaction is repeated? Does not such an approach implicate the “quantitative” or “little-more-or-little-less” criteria eschewed by the United States Supreme Court in International Shoe?

The Court in International Shoe stated that what matters is “the quality and nature of the activity.” 326 U.S. at 319. As the Supreme Court has further explained as to contract disputes in particular (as opposed to produets-liability cases, in which the jurisprudence has of necessity focused largely on preventing the exercise of jurisdiction based on merely “fortuitous” contacts):

“If the question is whether an individual’s contract with an out-of-state party alone can automatically establish sufficient minimum contacts in the other party’s home forum, we believe the answer clearly is that it cannot.... Instead, we have emphasized the need for a ‘highly realistic’ approach that recognizes that a ‘contract’ is ‘ordinarily but an intermediate step serving to tie up prior business negotiations with future consequences which themselves are the real object of the business transaction.’ ... It is these factors — prior negotiations and contemplated future consequences, along with the terms of the contract and the parties’ actual course of dealing — that must be evaluated in determining whether the defendant purposefully established minimum contacts within the forum.”

Burger King Corp. v. Rudzewicz, 471 U.S. 462, 478-79, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) (final emphasis added).

What appears to matter then is not that the parties are engaged in a contractual transaction that might not be repeated, but the nature and quality of that transaction, including the nature and location of the obligations assumed, the performance induced thereby, and the contemplated nature and location of the consequences of any default thereunder. This has been the reasoning of a number of decisions where courts have exercised personal jurisdiction over out-of-state defendants based on a one-time purchase of goods or materials or other one-time contract. See, e.g., Ex parte Lord & Son Constr., Inc., 548 So.2d 456 (Ala.1989) (affirming a trial court’s exercise of personal jurisdiction over a Florida defendant on the basis of the Florida defendant’s commitment to sénd payments to an Alabama supplier for materials purchased for a construction project in Florida).

The present case involves the alleged breach by No. 1 Steel of a contractual undertaking by it to make a substantial payment to Garrison Steel Fabricators, Inc., an Alabama corporation with its principal place of business in this State. The contract is one by which No. 1 Steel caused Garrison to exert considerable time and effort specially fabricating steel product of substantial value at Garrison’s plant in Alabama, the fabrication of which was accomplished pursuant to significant interaction with and instruction by No. 1 Steel over the course of a working relationship that lasted almost a year. Given this set of facts, I find particularly helpful the review of cases from various jurisdictions conducted by the Supreme Court of Tennessee in Nicholstone Book Bindery, Inc. v. Chelsea House Publishers, 621 S.W.2d 560 (Tenn.1981):

“[Darby v. Superior Supply Co., 458 S.W.2d 423 (Tenn.1970),] involved the purchase of mahogany lumber by an Alabama individual, from the plaintiff, a Tennessee supply firm in Chattanooga. The order was placed by telephone and the plaintiff filled the order from available stock.... Darby later refused to pay for the lumber and Superior sued for payment due. The Darby majority seemed to be impressed by the following factors in finding a failure of jurisdiction: (1) that the defendant, an individual, entered the forum state only through his servant, the driver of the truck which hauled the lumber away; (2) that the transaction was a retail purchase by an individual involving only the ‘modest amount’, of $3,639.18; and (3) that filling defendant’s order required ‘no special manufacturing operations in Tennessee.’ Id. at 426.
“It should be noted that one of the ingredients of jurisdiction missing in Darby, the presence of a ‘special manufacturing operation,’ is found in this case. These custom-made bindings and casings were not simply taken from stock, as was the lumber in Darby. This point is considered in Gardner Engineering Corp. v. Page Engineering Co., 484 F.2d 27 (8th Cir.1973), where jurisdiction was permitted to reach into Illinois from Arkansas. Involved was defendant’s contract to fabricate certain customized items for the construction of a bridge in Arkansas by plaintiffs. The court found an important ‘contact’ in that the forum state was the place of performance of a customized contract. Id. at 32
“It is an understatement to say that there are numerous cases discussing in personam jurisdiction in the setting of a single business transaction. In Lakeside Bridge & Steel v. Mountain State Const. Co., 597 F.2d 596 [ (1979) ], cert. denied 445 U.S. 907 ... (1980), Justice White, dissenting from the denial of a writ of certiorari, noted that ‘the question of personal jurisdiction over a nonresident corporate defendant based on contractual dealings with a resident plaintiff has deeply divided the federal and state courts.’ He regrets that the Supreme Court refused to offer any clear guidance on this important problem.
“One, however, finds support for our current position in a vast array of sources. In Colony Press Inc. v. Flee-man, 17 Ill.App.3d 14, 308 N.E.2d 78 (1974) an Ohio corporate defendant, by placing a single interstate telephone order, satisfied the ‘minimum contact’ requirements of the due process clause because the defendant voluntarily entered into a business transaction with an Illinois plaintiff. In Product Pro-mot[ions], Inc. v. Cousteau, 495 F.2d 483, 494-499 (5th Cir.1974), a breach of contract suit in which the court held that minimum contacts were sufficient, the court reasoned that neither the defendant nor the defendant’s agents need be physically present within the state so long as the defendant’s contact with the forum was deliberate and not fortuitous. See also, Good Hope Industries v. Ryder Scott Co., [389 N.E.2d 76 (Mass.1979) ]; cf. World-Wide Volkswagen [Corp. v. Woodson, 444 U.S. 286 (1980)].... The Wisconsin Supreme Court in Zerbel v. H.L. Federman & Co., 48 Wis.2d 54, 179 N.W.2d 872 (1970) held that when a non-resident defendant contracted for services, i.e. the preparation of a financial report, which would be performed in part in Wisconsin, the defendant purposefully availed himself of the privilege of conducting activities in Wisconsin.
“Proctor & Schwartz, Inc. v. Cleveland Lumber Co., 228 Pa.Super. 12, 323 A.2d 11 (1974) seems closely analogous to the instant case. A Pennsylvania corporate seller brought suit against a Georgia corporate buyer to recover the balance due on the purchase price of specially ordered lumber drying equipment and related materials. Alleging certain defects in the manufacture of the goods purchased, the defendant refused to make further payments.... In examining the nature of defendant’s conduct, the court noted that it was not a passive purchaser which blandly submitted to the mandates of a foreign seller. Rather the defendant conducted extensive and active negotiations with the plaintiff. Relying upon In-Flight Devices Corp. v. Van Dusen Air, Inc., 466 F.2d 220, 233 (6th Cir.1972) the court stated that ‘(t)o the extent the buyer vigorously negotiates ... and ... departs from the passive buyer role it would seem that any unfairness which would normally be associated with the exercise of long-arm jurisdiction over him disappears.’ The defendant should reasonably have anticipated that a failure to make the installment payments on its obligation would have consequences within the forum state and could result in its being called to defend itself in the state whose laws governed the contract.
“William W. Bond, Jr. & A., Inc. v. Montego Bay Dev. Corp., [405 F.Supp. 256 (W.D.Tenn.1975) ], is persuasive on the facts. In Bond, the plaintiff, a Tennessee corporation, entered into a contract with a Maryland corporation to prepare architectural, mechanical, electrical, and structural plans for a Holiday Tnn to be built in Maryland. Defendant solicited the job. The contract was executed in Maryland. Applying the Mo-hasco [] test, the court found that defendant had purposely availed itself of the privilege of doing business in Tennessee because it was ‘necessarily foreseeable to the parties that at least a substantial part of the services plaintiff was to provide would be performed ... in Tennessee.’ Id., 405 F.Supp. at 259. Citing Mohasco, the court noted that it was not controlling that no representative of defendant ever came to Tennessee in connection with the deal. Id. It summarized:
“ ‘Here, a business transaction set in motion by defendants had a realistic, foreseeable and considerable impact on commerce in Tennessee. Id.’
“... [Finally, the court found that it would be reasonable to require [the] defendant to defend in Tennessee:
“ ‘The interest of Tennessee here is to resolve a contract dispute brought by a resident to recover the alleged benefit of his bargain. Even a one-shot contract, if substantial enough in its effect on Tennessee commerce, appears to be a potentially sufficient contact with the forum state under Sixth Circuit standards.’ 405 F.Supp. 260.”

621 S.W.2d at 562-66.

The United States Supreme Court stated in World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980):

“The protection against inconvenient litigation is typically described in terms of ‘reasonableness’ or fairness.’ We have said that the defendant’s contacts with the forum State must be such that maintenance of the suit ‘does not offend “traditional notions of fair play and substantial justice.’” International Shoe Co. v. Washington, [826 U.S. 310,] at 316 [ (1945) ], quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940). The relationship between the defendant and the forum must be such that it is ‘reasonable ... to require the corporation to defend the particular suit which is brought there.’ 326 U.S., at 317. Implicit in this emphasis on reasonableness is the understanding that the burden on the defendant, while always a primary concern, will in an appropriate case be considered in light of other relevant factors, including the forum State’s interest in adjudicating the dispute, see McGee v. International Life Ins. Co., 355 U.S. 220, 223 (1957); the plaintiffs interest in obtaining convenient and effective relief, see Kullco v. California Superior Court, ... 436 U.S. [84], at 92 [ (1978) ]; the interstate judicial system’s interest in obtaining the most efficient resolution of controversies; and the shared interest of the several States in furthering fundamental substantive social policies, see Kulko v. California Superior Court, supra, 436 U.S., at 93, 98.”

444 U.S. at 292 (emphasis added).

“The Due Process Clause protects an individual’s liberty interest in not being subject to the binding judgments of a forum with which he has established no meaningful ‘contacts, ties, or relations.’ International Shoe Co. v. Washington, 326 U.S. [310], at 319 [(1945)]. By requiring that individuals have ‘fair warning that a particular activity may subject [them] to the jurisdiction of a foreign sovereign,’ Shaffer v. Heitner, 433 U.S. 186, 218 (1977) (Stevens, J., concurring in judgment), the Due Process Clause ‘gives a degree of predictability to the legal system that allows potential defendants to structure their primary conduct with some minimum assurance as to where that conduct will and will not render them liable to suit,’ World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980).”

Burger King Corp., 471 U.S. at 471-72 (footnote omitted).

Given the nature and quality of the transaction in this case, I cannot conclude that it “offends traditional notions of fair play and substantial justice” to require No. 1 Steel to defend the present action in Alabama.

PARKER, J., concurs.

      . After Pimental’s affidavit was filed, and presumably when its lawyers realized that a factor in determining personal jurisdiction in Alabama was which company had initiated the business contact, No. 1 Steel presented affidavits from a terminated Garrison employee, David Malone, suggesting that Malone had received information from a former employer that No. 1 Steel was seeking work from a Georgia steel corporation and that Garrison subsequently contacted No. 1 Steel with a proposal.

      . At the oral argument on this case held on June 28, 2011, it became apparent that the factual inferences regarding No. 1 Steel’s communications with Garrison and instructions regarding the fabrication process could have been much more extensively documented by Garrison in its attempt to rebut No. 1 Steel’s claims. Had the extent of the parties' business dealings been more fully incorporated into the materials made available to the Court with this petition, this dissent might have been unnecessary.

      .The opinion in Steel Processors states only: "Steel Processors fabricated materials in Mobile County for the job, shipped the materials to the job site in Florida, and provided labor and equipment at the job site during the repair work on the barge.” 622 So.2d at 911.

      . Even though I disagree with the majority’s decision to issue this writ to the trial court in this case, I acknowledge that the majority’s opinion has significant support. It is unfortunate that many of the factual points that were presented at the oral argument of this case, e.g., that the fabricated material from Garrison comprised nine tractor-trailer loads for shipment to No. 1 Steel, were not included as part of the materials before this Court. Had they been, the trial court’s decision finding jurisdiction would have been more strongly supported. It is well settled, however, that this Court’s review is limited to the facts in the materials submitted to it. Moody v. State ex rel. Payne, 295 Ala. 299, 329 So.2d 73 (1976); Bateh v. Brown, 289 Ala. 699, 271 So.2d 833 (1972).

      . Except to the extent we must take into consideration a trial court’s factual findings based on evidence received ore tenus, which is not the case here, our appellate review of a trial court’s ruling on a motion to dismiss for lack of in personam jurisdiction is de novo. See generally Elliott v. Van Kleef, 830 So.2d 726, 729 (Ala.2002).

      . See Southern Mach. Co. v. Mohasco Indus., Inc., 401 F.2d 374, 385 (6th Cir.1968) (holding that the "interest of the State cannot be measured by 'a little more or a little less,’ International Shoe Co. v. State of Washington, 326 U.S. 310, 319, 66 S.Ct. 154, 159, 90 L.Ed. 95 (1945); it is not diminished simply because only one contract is relied upon as the basis of jurisdiction”).

      . See also, e.g., Capital Assocs. Dev. Coip. v. James E. Roberts-Ohbayashi Corp., 138 Ill. App.3d 1031, 1037, 487 N.E.2d 7, 12, 93 Ill.Dec. 563, 568 (1985) (where, among other things, the defendant "initiated negotiations with an entity it knew to be an Illinois resident,” it voluntarily entered into a contract with an Illinois resident, and it was aware that performance would flow from Illinois); Empress Int’l, Ltd. v. Riverside Seafoods, Inc., 112 Ill.App.3d 149, 154, 445 N.E.2d 371, 374, 67 Ill.Dec. 891, 894 (1983) (to like effect); Acquadro v. Bergeron 851 So.2d 665, 677 (Fla. 2003) (Wells, J., dissenting) (citing authority for the proposition that the assertion of “in personam jurisdiction based on a single, isolated transaction by the nonresident defendant does not necessarily offend due process " and that "[t]he analysis must focus on the nature of the act": “When dealing with isolated acts of a defendant, rather than centering on continuous economic activity within the state, a key focus is the quality and nature of the interstate transaction." (some emphasis added)).
      In the seminal Sixth Circuit case regarding the exercise of personal jurisdiction consistent with due-process requirements, Southern Machine Co. v. Mohasco Industries, Inc., 401 F.2d 374, 381 (6th Cir.1968), the court synthesized the rules announced in International

        Shoe and subsequent Supreme Court decisions into a "three-part test” as to the presence of "minimum contacts” based on a “single act”:
      "[T]hree criteria emerge for determining the present outer limits of in personam jurisdiction based on a single act. First, the defendant must purposefully avail himself of the privilege of acting in the forum state or causing a consequence in the forum state. Second, the cause of action must arise from the defendant's activities there. Finally, the acts of the defendant or consequences caused by the defendant must have a substantial enough connection with the forum state to make the exercise of jurisdiction over the defendant reasonable.”
      (Emphasis added.) Cf. Andalusia Distrib. Co. v. Singer Hardware Co., 822 So.2d 1180, 1184 (Ala.2001) (identifying as a factor in an ongoing relationship the fact that "any default in [the nonresident’s] payment to [the Alabama corporation] would create hardship [for the Alabama corporation]”).

      . Compare Corporate Waste Alts., Inc. v. Cumberland, Inc., 896 So.2d 410 (Ala.2004) (upholding jurisdiction over a nonresident defendant based on 18 months of communications and payments to a plaintiff in Alabama, notwithstanding the fact that the location of the work performed by the plaintiff was outside Alabama).

      . Southern Mach. Co. v. Mohasco Indus., Inc., 401 F.2d 374, 385 (6th Cir.1968); see supra note 6.