text:
    Terrance GARY, Appellant v. STATE of Mississippi, Appellee.
    No. 2008-KA-00619-COA.
    Court of Appeals of Mississippi.
    June 16, 2009.

      Michael E. Robinson, attorney for appellant.
    Office of the Attorney General by Billy Gore, attorney for appellee.
    Before MYERS, P.J., IRVING and ROBERTS, JJ.
   ROBERTS, J.,

for the Court.

¶ 1. A jury sitting before the Claiborne County Circuit Court found Terrance Gary guilty of manslaughter by culpable negligence. The circuit court sentenced Gary to twenty years in the custody of the Mississippi Department of Corrections (MDOC). Aggrieved, Gary appeals and claims the circuit court erred when it: (1) denied his motion for a directed verdict and (2) denied his motion for a new trial. Finding no error, we affirm the judgment of the circuit court.

FACTS AND PROCEDURAL HISTORY

¶ 2. On November 8, 2006, Louis Trevil-lion and Gary’s cousin, Vernon Gary (Vernon), were involved in an altercation in the parking lot of the New Store on Highway 18 in Hermanville, Mississippi. A crowd gathered shortly after the fight began. Gary and Louis’s brother, John, were in the crowd. Gary wanted to break up the fight, but John wanted to let Louis and Vernon fight. Vernon had Louis on the ground, and the two were locked up in more of a wrestling match.

¶ 3. John was near the fight wielding a stick. Gary went to Vernon’s car and armed himself with a 9 millimeter pistol and walked back to the area of the fight. John was also armed with a .45 caliber pistol. Gary pulled his pistol and pointed it at John. When John drew his own pistol, Gary fired. There was other testimony, however, that John fired the first shot. In either event, John returned fire and then ran away. Gary began shooting in John’s direction across the parking lot. Several shots were fired. The shooting ceased when the victim, Louis, yelled after being shot. When Vernon realized that Louis had been shot, he got off of him and ran to his car. John and Gary both fled the scene of the shooting. Edward Jenkins, a bystander, ran to get his truck to take Louis to the hospital. By this time, however, Louis had collapsed in the parking lot. An autopsy determined that Louis was killed by a bullet that entered his left shoulder and punctured both of his lungs and his heart.

¶ 4. Officers from the Claiborne County Sheriffs Department arrived at the scene shortly after the shooting and were notified that Gary was at the station to turn himself in. The 9 millimeter pistol that Gary shot was also recovered from one of Gary’s relatives. Later that day, officers picked up John, and he turned the .45 caliber pistol that he had shot over to the officers. Both Gary and John admitted that they shot their pistols that day, and both pistols were turned in as evidence to the Mississippi Crime Laboratory.

¶ 5. The bullet recovered from Louis’s body was identified by the Mississippi Crime Laboratory as a 9 millimeter bullet. It was determined that the bullet could not have been fired from John’s pistol. However, it was consistent with ammunition used in Gary’s pistol.

¶ 6. At the close of the State’s case-in-chief, Gary filed an unsuccessful motion for a directed verdict. The jury found Gary guilty of manslaughter by culpable negligence, and he was sentenced to twenty years in the custody of the MDOC. Gary filed a post-trial motion for a judgment notwithstanding the verdict or, alternatively, for a new trial, which was denied. Aggrieved, Gary now appeals.

ANALYSIS

I. SUFFICIENCY OF THE EVIDENCE

¶ 7. Gary claims that the evidence against him was legally insufficient to find him guilty of manslaughter by culpable negligence. The State contends that Gary is procedurally barred from raising the issue of whether the trial court erred in denying his motion for directed verdict because he presented evidence after the circuit court denied his motion for a directed verdict. When a defendant files an unsuccessful motion for directed verdict, and then puts forth his own evidence, that motion is waived. Jordan v. State, 936 So.2d 368, 372(1119) (Miss.Ct.App.2005). However, in his motion for a JNOV, Gary again challenged the sufficiency of the evidence, thereby preserving the issue for review. Lambert v. State, 462 So.2d 308, 313 (Miss.1984).

¶ 8. A motion for a JNOV in which the sufficiency of the evidence is challenged must be specific. Jordan, 936 So.2d at 372(¶ 20). Without specificity as to how the evidence was insufficient, the trial court will not be determined to be in error for denying the motion. Id. Gary’s motion for a JNOV was very general in nature. It states only that (1) the “verdict is contrary to the evidence and without sufficient evidence to support it”; (2) “the verdict is strongly against the weight of the evidence”; (3) “the testimony of the State’s expert witnesses contradicted each other”; (4) “the verdict is contrary to law and principles of justice and equity”; and (5) “the interest of justice is best served by granting the defendant a new trial.” This does not pass for specificity. However, notwithstanding Gary’s failure to challenge the sufficiency of the evidence with specificity, we will address this issue for the sake of discussion.

¶ 9. In reviewing the sufficiency of the evidence, the standard of review dictates that: “We give the prosecution the benefit of all favorable inferences that may reasonably be drawn from the evidence.” Id. at 373(¶ 24). In reviewing the evidence, if we find that reasonable fair-minded men in the exercise of impartial judgment might reach different conclusions on every element of the offense, the evidence will be deemed to be sufficient. Bush v. State, 895 So.2d 836, 843(¶ 16) (Miss.2005) (citing Edwards v. State, 469 So.2d 68, 70 (Miss.1985)). We review the circuit court’s ruling on the last occasion when the sufficiency of the evidence was challenged. Hodges v. State, 743 So.2d 319, 325(¶ 36) (Miss.1999). Gary last challenged the sufficiency of the evidence in his motion for a JNOV.

¶ 10. Gary admitted that he shot his 9 millimeter pistol during the fight. John fired a .45 caliber pistol. Although Gary argues that the State’s expert witnesses contradicted each other, there was no such contradiction. The autopsy report prepared by Dr. Steven Hayne indicated that the bullet found lodged in the victim’s rib cage was “consistent with a .380 caliber projectile.” Dr. Hayne testified at trial that he indeed reported that the bullet was consistent with a .380 caliber projectile, but that he always defers to the Mississippi Crime Laboratory to make the final determination on the caliber of the bullet and any other examination of the weapon. Dr. Hayne stated that he is not a firearms expert. Starks Hathcock, a forensic scientist specializing in firearm examination at the Mississippi Crime Laboratory, testified that the bullet was, in fact, a 9 millimeter bullet. He explained that a 9 millimeter bullet is very similar to the .380 caliber bullet and that the only difference is that the .380 caliber bullet is slightly shorter and, therefore, weighs less. The testimony of the two expert witnesses is not contradictory.

¶ 11. Several witnesses testified that they saw two people firing their weapons in the parking lot that day. Only one witness, Jenkins, testified that there was a third handgun at the scene. He testified that when Gary went to Vernon’s vehicle to arm himself, that David, a passenger in that vehicle, also had a pistol. Jenkins could not identify that pistol and testified that “[i]t could have been fake.” Where the evidence is conflicting, the jury will be the sole judge of the credibility of the witnesses and the weight and credibility of their testimonies. Gathright v. State, 380 So.2d 1276, 1278 (Miss.1980). In a criminal prosecution, the jury may accept the testimony of some witnesses and reject that of others, and the jury may accept in part and reject in part the evidence on behalf of the State or on behalf of the accused. Id. The credibility of the witnesses is not for the reviewing court to decide. Id.

¶ 12. Culpable-negligence manslaughter is provided for in Mississippi Code Annotated section 97-3-47 (Rev.2006), which states that “[e]very other killing of a human being, by the act, procurement, or culpable negligence of another, and without authority of law, not provided for in this title shall be manslaughter.” Culpable negligence has been defined as “negligence of a degree so gross as to be tantamount to a wanton disregard of, or utter indifference to, the safety of human life.” Staten v. State, 989 So.2d 938, 944(¶ 13) (Miss.Ct.App.2008) (citing Clayton v. State, 652 So.2d 720, 726 (Miss.1995)).

¶ 13. Testimony shows that there were two guns fired, a .45 caliber pistol and a 9 millimeter pistol. The wounds caused by a 9 millimeter bullet were determined to be the cause of Louis’s death. Gary argues that since the State’s experts could not positively include or exclude Gary’s gun as the one that fired the fatal bullet, the evidence is not sufficient to convict. Hath-cock testified that the fatal bullet featured class characteristics of having been fired from a 9 millimeter pistol, and he positively ruled out the bullet having been fired from the .45 caliber pistol. Gary testified and admitted that he fired a 9 millimeter pistol when Louis and Vernon were fighting.

¶ 14. Reviewing the evidence in the light most favorable to the State and “giv[ing] the State the benefit of all favorable inferences that may reasonably be drawn from the evidence” we find that fair-minded jurors could have found that Gary, having fired the 9 millimeter pistol, was the one who fired the fatal bullet. Jordan, 936 So.2d at 373(¶ 24). In firing his pistol across a crowded parking lot, the jury found that Gary possessed “the conscious and wanton or reckless disregard of the probabilities of fatal consequences to others as the result of the willful creation of an unreasonable risk” required to convict him of manslaughter by culpable negligence. Campbell v. State, 285 So.2d 891, 893 (Miss.1973). We find that there was sufficient evidence to support that conclusion.

II. WEIGHT OF THE EVIDENCE

¶ 15. Gary argues the same facts in this assignment of error that he did in his challenge of the sufficiency of the evidence. Gary claims that the bullet which killed Louis was not fired from his pistol and that there is no causal connection between Louis’s death and the fact that he fired his pistol during the fight.

¶ 16. “When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush, 895 So.2d at 844(¶ 18) (citing Herring v. State, 691 So.2d 948, 957 (Miss.1997)). On a motion for new trial, the circuit court sits as a thirteenth juror and only in exceptional cases in which the evidence preponderates heavily against the verdict will a new trial be granted. Id. (citing Amiker v. Drugs For Less, Inc., 796 So.2d 942, 947(¶ 18) (Miss.2000)). Our review requires that we weigh the evidence in the light most favorable to the verdict. Id.

¶ 17. Looking at the evidence as a limited “thirteenth juror” in this case and viewing the evidence in the light most favorable to the verdict, we cannot say that the guilty verdict would sanction an unconscionable injustice. We find that the evidence does not preponderate heavily against the verdict, and the trial court did not abuse its discretion in denying Gary’s motion for a new trial. This issue is without merit.

¶ 18. THE JUDGMENT OF THE CLAIBORNE COUNTY CIRCUIT COURT OF CONVICTION OF MANSLAUGHTER BY CULPABLE NEGLIGENCE AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE, CARLTON AND MAXWELL, JJ., CONCUR.

      . When Jenkins testified, he did not give David's last name, and he was not asked to elaborate further.


source: Caselaw Access Project

author: CARLTON, J.,

license: Public Domain

text:
    Vickie CLARK, Appellant v. SPHERION CORPORATION, Appellee.
    No. 2008-WC-01202-COA.
    Court of Appeals of Mississippi.
    June 16, 2009.

      Desoto County Circuit Court, Hon. Robert P. Chamberlin, J.
    David L. Walker, attorney for appellant.
    Robert F. Stacy, Oxford, attorney for appellee.
    Before LEE, P.J., GRIFFIS and CARLTON, JJ.
   CARLTON, J.,

for the Court.

¶ 1. Vickie Clark appeals from the DeSo-to County Circuit Court’s order affirming the Mississippi Workers’ Compensation Commission’s (Commission) decision that: (1) Clark failed to prove that her carpal tunnel syndrome was caused by a work-related injury, and (2) Clark failed to meet her burden of proof that she was entitled to temporary total disability benefits or permanent disability benefits. Finding no error, we affirm.

FACTS

¶ 2. On February 7, 2003, while hammering socket sets for her employer, Spherion Corporation (Employer), Clark felt a sharp pain through her right arm and shoulder that gradually went down through her right hand. Clark had hammered for approximately eight hours that day. Clark reported her injury to her employer. Clark had not had any pain in her right shoulder or arm before February 7. Clark testified that her employment was terminated on February 10, 2003, because of her injury. Clark filed a petition to controvert on June 10, 2003, alleging that she suffered injuries to her whole body, right shoulder, right arm, and right hand on or about February 7, 2003, while hammering socket sets for her employer. The Employer responded by filing an answer on June 23, 2003, admitting that the injury to Clark’s right arm and right shoulder was a work-related injury. The Employer disputed the extent of Clark’s injuries and denied any injury to Clark’s right hand.

¶ 3. Clark saw Dr. John Black at the emergency room at Baptist Memorial Hospital in DeSoto County, Mississippi, on February 9, 2003, complaining of pain in her right shoulder. Dr. Black prescribed pain medication and instructed Clark to follow up with her primary-care physician. The records from the emergency room visit do not indicate that Clark ever complained of right-wrist pain.

¶ 4. Clark sought treatment from Dr. Bruce Randolph on May 13, 2003, complaining this time of right-arm and right-shoulder pain. At this visit, Clark complained of a knot in her right wrist, which Dr. Randolph initially diagnosed as a ganglion cyst. Dr. Randolph could not say for certain if Clark’s cyst was work related. Dr. Randolph instructed Clark to perform therapeutic exercises. He released her to work on modified duty on May 14, 2003, with restrictions limiting overhead work, repetitive movements, and climbing. He also instructed her to lift no more than ten pounds.

¶ 5. Clark returned to Dr. Randolph on May 23, 2003. Clark complained that she suffered continued pain in her right arm, including pain in her right thumb area which was aggravated by thumb movement. Dr. Randolph noted in his records that Clark had not returned to work since the accident and did not intend to return to work. Dr. Randolph diagnosed Clark’s wrist pain as mild tendinitis. Dr. Randolph kept Clark on modified duty, but he increased her lifting limit to twenty pounds.

¶ 6. Dr. Randolph saw Clark on June 11, 2003, and again on June 18, 2003. He finally diagnosed Clark with persistent right-shoulder tendinitis, with pain radiating to her right hand. Dr. Randolph referred Clark to Dr. A.H. Manugian, an orthopedic surgeon, for evaluation.

¶ 7. Clark finally saw Dr. Manugian on November 26, 2003, nearly nine months after her work injury. Dr. Manugian diagnosed Clark with rotator-cuff tendinitis, which had resolved, and intermittent par-esthesia of her right hand. He determined Clark to be at maximum medical improvement as far as her right-shoulder injury was concerned. Clark saw Dr. Manugian again in July 2004 and reported worsening symptoms indicating carpal tunnel syndrome. Dr. Manugian never restricted Clark from returning to work. Clark’s symptoms had continued to worsen, although she had not worked since February 2003.

¶ 8. Dr. Manugian testified in a deposition that if the injury on February 7, 2003, caused Clark’s carpal tunnel syndrome, he would have expected her to have experienced symptoms immediately. Further, Dr. Manugian testified that it is unusual for a single traumatic event to cause carpal tunnel syndrome. Dr. Manugian could not say to a reasonable degree of medical probability that the work injury caused Clark’s carpal tunnel syndrome.

¶ 9. Neither Dr. Manugian nor Dr. Randolph ever suggested to Clark that she should not work. The Employer offered Clark a light-duty position at their offices in Memphis, Tennessee, which Clark refused because she felt uncomfortable driving in Memphis. Clark testified that she also refused the position because she had never been trained to work in an office. The Commission noted that the offices of Dr. Manugian and Dr. Bass were located in Memphis.

¶ 10. The parties had a hearing on the merits on August 17, 2006. At the time of the hearing, Clark worked for Byrd Cleaning Service making $9.00 per hour. She began working for the cleaning service in April 2005. Clark’s duties included cleaning bathrooms, mopping, and washing bathtubs. Clark testified that she does not wear a wrist splint or brace while working for the cleaning service.

¶ 11. On January 18, 2007, the administrative law judge entered her order finding Clark entitled to temporary total disability benefits in the amount of $173.67 per week. The Employer appealed to the Commission. On November 8, 2007, the Commission entered an order finding that Clark had failed to prove that her carpal tunnel syndrome was related to her work. Further, the Commission found that Clark had failed to prove that she was entitled to temporary total disability benefits or permanent disability benefits for her right-shoulder injury. The Commission affirmed the award of compensation for medical treatment related to Clark’s right-shoulder injury.

¶ 12. Clark appealed the Commission’s decision to the Circuit Court of DeSoto County. The circuit court affirmed the Commission’s decision. Clark now appeals the judgment of the circuit court and is now before this Court. On appeal, Clark argues that the circuit court’s judgment affirming the Commission’s decision is not based on substantial evidence and should be reversed. We find no error and affirm the circuit court’s judgment.

STANDARD OF REVIEW

¶ 13. This Court’s standard of review in a workers’ compensation appeal is limited to determining whether the Commission’s decision is supported by substantial evidence. Casino Magic v. Nelson, 958 So.2d 224, 228(¶ 13) (Miss.Ct.App.2007) (citing Westmoreland v. Landmark Furniture, Inc., 752 So.2d 444, 447(¶ 7) (Miss.Ct.App.1999)). “The Commission sits as the ultimate finder of facts; its findings are subject to normal, deferential standards upon review.” Id. (citing Natchez Equip. Co. v. Gibbs, 623 So.2d 270, 273 (Miss.1993)). Because our review is limited, this Court “will only reverse the Commission’s rulings where findings of fact are unsupported by substantial evidence, matters of law are clearly erroneous, or the decision was arbitrary and capricious.” Id. (citing Westmoreland, 752 So.2d at 448(¶ 8)). We maintain this deferential standard even when we would have been persuaded to rule otherwise if we had been the fact-finder. Vance v. Twin River Homes, Inc., 641 So.2d 1176, 1180 (Miss.1994) (quoting Fought v. Stuart C. Irby Co., 523 So.2d 314, 317 (Miss.1988)). Though we defer to the Commission’s findings of fact, “[w]e review the Commission’s application of the law de novo.” Univ. of Miss. Med. Ctr. v. Smith, 909 So.2d 1209, 1218(¶ 30) (Miss.Ct.App.2005) (citing ABC Mfg. v. Doyle, 749 So.2d 43, 45(¶ 10) (Miss.1999)).

DISCUSSION

¶ 14. The Commission reversed the administrative law judge’s finding that Clark was entitled to total disability benefits for her right-shoulder injury as well as her holding that Clark’s carpal tunnel syndrome was caused by her work injury. This Court must determine whether substantial evidence in the record supports the Commission’s findings. Casino Magic, 958 So.2d at 228(¶ 13) (citing Westmoreland, 752 So.2d at 447(¶ 7)). Therefore, we have separated Clark’s argument into two issues: (1) whether the Commission erred in finding that Clark failed to prove that her carpal tunnel syndrome was related to her work, and (2) whether Clark failed to prove her entitlement to temporary total disability benefits for her right-shoulder injury.

I. Whether Clark failed to prove that her carpal tunnel syndrome was work related.

¶ 15. Under workers’ compensation law, the claimant has the burden of proof in showing the causal connection between the claimant’s employment and the resulting disabling condition. Hedge v. Leggett & Platt, Inc., 641 So.2d 9, 13 (Miss.1994). The claimant must prove by a preponderance of the evidence each element of her case. Tex. Gas Transmission Corp. v. Dabney, 919 So.2d 1079, 1085(21) (Miss.Ct.App.2005).

¶ 16. “In all but the simple and routine cases ... it is necessary to establish medical causation by expert testimony.” Cole v. Superior Coach Corp., 234 Miss. 287, 291, 106 So.2d 71, 72 (1958). A “claim of disability must be supported by medical findings.” Howard Indus. v. Robinson, 846 So.2d 245, 252(17) (Miss.Ct.App.2002) (citing Miss.Code Ann. § 71 — 3—3(i) (Supp.2001)). “[M]edical evidence must prove not only the existence of a disability but also its causal connection to employment.” Id. at 259(¶ 49) (citation omitted).

¶ 17. When asked whether he could say with a reasonable degree of medical probability that Clark’s work injury caused the carpal tunnel symptoms in her right hand, Dr. Manugian answered that he could not. He testified that, in his experience, it would be unusual for a single traumatic event to cause carpal tunnel syndrome. Further, Dr. Manugian testified that it would be even more unusual for carpal tunnel syndrome to be caused by a single traumatic event when the patient did not complain of the carpal tunnel symptoms very soon after the event. Dr. Manugian gave the following testimony in response to questions from the Employer:

Q: Do you have an estimate for a period of time that you would have expected her wrist to begin hurting and her having the symptoms [if] the hammering had been the producing cause of these symptoms?
A: It is hard' — that is a difficult question to answer because individuals are variable. Some people will begin to have, if they have the tendency to get carpal tunnel problems, it could happen within a few days of starting a job. Some people take a lot longer to develop symptoms, and some people can do all of this with never having symptoms. So, I can’t answer that any better than that.
Q: Well, I guess the only injury that, or incident that, she reported was a single incident where she was hammering a socket set, is that accurate?
A: According to records, that seems to be the case.
Q: So, if we are not talking about repetitive use but if we are talking about a single incident, when would you typically expect the symptoms to appear in [sic] an acute or traumatic injury produce the symptoms?
A: I think if you had a traumatic carpal tunnel, the symptoms would start immediately.
Q: And would it be fair to say that the more remote or distant in time from that acute injury or incident that the carpal tunnel appeared, it would be less likely to be caused by that one incident?
A: Yes, I would think so.

¶ 18. The Commission found that Clark failed to prove a causal connection between her carpal tunnel syndrome and her work injury on February 7, 2003. Clark’s physician, Dr. Manugian, was unwilling to testify that her work injury caused her carpal tunnel symptoms, or even that it was likely that the injury caused her symptoms. Clark failed to meet her burden of proof to show a causal connection between her employment and the carpal tunnel syndrome. See Hedge, 641 So.2d at 12-13. Therefore, we find no error in the Commission’s decision to deny compensation for Clark’s carpal tunnel syndrome. This issue is without merit.

II. Whether Clark failed to meet her burden of proof that she is entitled to temporary total disability benefits.

¶ 19. The Mississippi Workers’ Compensation Act (the Act) defines disability as “incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or other employment....” Miss. Code Ann. § 71-3-3(i) (Rev.2000). Further, that “incapacity and the extent thereof must be supported by medical findings.” Id.

¶ 20. Clark’s employer offered her light-duty work in their offices in Memphis, Tennessee. In a letter dated February 20, 2003, Stacy Kail, a client-service supervisor for the Employer, offered Clark office work at a wage of $7.50 per hour, working a forty-hour week. Kail’s letter to Clark stated the following:

Dear Vickie:
We have been notified that your physician has released you to return to work. Your employer and our Nurse Case Manager have used the guidelines provided by your physician to identify an appropriate temporary modified duty work assignment for you. Your physician has agreed that the work assignment listed below meets those guidelines and has released you to work accordingly-
You are scheduled to return to work at Spherion, 4945 American Way, Ste. 5. Your assignments start on 2/21/03 at 8:00 a.m. You are scheduled to work 8 hours per day, 5 days per week at this assignment. You will report to Marlon. The job pays $7.50 per hour.
You[r] modified'job duties will consist of the following:
No lifting arms over the head
No lifting over 10 lbs.
If necessary, we will work with you and your physician to modify the job duties to meet any limitations as you work towards a full-duty release. We will accommodate your medical and/or physical therapy appointments.
I spoke to you today, 2/20/03 about this assignment and are [sic] happy you have accepted this assignment. Per our conversation, I look forward to seeing you [on] 2/21/03.
[signature]
Note: Failure to return to work in a temporary modified duty assignment approved by your physician may results [sic] in suspension of your Workers’ Compensation benefits.

¶ 21. Both Clark and Kail testified at the hearing that Clark failed to return to work. Clark testified that she did not accept the offer because she does not drive in Memphis. Clark testified that she was unaccustomed to driving in Memphis. Further, she testified that, she had no training to work in an office. Kail testified, however, that the Employer would have provided any necessary training for Clark. Further, Clark testified that if someone had shown her how to drive from her home in Byhalia, Mississippi to the Employer’s office in Memphis, she would have been able to drive there. Clark never requested training for the office position or expressed any concern about driving in Memphis.

¶ 22. At the time of the hearing, Clark was employed by Byrd Cleaning Services and earned approximately $9.00 per hour, though she testified that she usually only worked eighteen to twenty-five hours per week.

¶ 23. Neither Dr. Randolph nor Dr. Manugian ever instructed Clark that she could not work. Rather, Clark was released with minimal restrictions, which included limitations on repetitive activity and on lifting in excess of ten pounds. In a letter to Dr. Randolph on November 26, 2003, Dr. Manugian stated: “I am enclosing a copy of the office dictation for your records. I certainly agree with your recommendation of an EMG which apparently has not been done and I will keep you informed as to the findings. In the interim I see no reason why [Clark] should not continue to work.” Dr. Randolph had released Clark to return to work at modified duty on May 14, 2003. Neither Dr. Manu-gian nor Dr. Randolph assigned an impairment rating for Clark.

¶ 24. The Commission determined that Clark failed to put forth sufficient proof to support an award for temporary total disability benefits for the injury to her right shoulder. This Court finds the Commission’s decision on this issue to be supported by substantial evidence.

CONCLUSION

¶ 25. The Commission found that Clark failed to prove that her carpal tunnel syndrome was work related. Further, the Commission found that Clark failed to prove her entitlement to temporary total disability benefits. This Court is bound by the Commission’s findings of fact because they are supported by substantial evidence in the record. See Casino Magic, 958 So.2d at 228(¶ 13) (citing Westmoreland, 752 So.2d at 447(¶ 7)). Therefore, we find no error and affirm.

¶ 26. THE JUDGMENT OF THE DE-SOTO COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE, AND ROBERTS, JJ„ CONCUR. MAXWELL, J., NOT PARTICIPATING.

      . The record reflects that Clark also saw a chiropractor, Dr. Bass, in Memphis, Tennessee. The record does not show when Clark visited Dr. Bass or what findings he made regarding her condition. Dr. Bass’s full name is not provided in the record.


author: LEE, P.J.,

text:
    Thomas S. BEDDINGFIELD, Appellant v. Jennifer L. BEDDINGFIELD, Appellee.
    No. 2008-CA-00512-COA.
    Court of Appeals of Mississippi.
    June 23, 2009.

      John E. Howell, Meridian, attorney for appellant.
    C. Joy Harkness, Durant, attorney for appellee.
    Before LEE, P.J., GRIFFIS and CARLTON, JJ.
   LEE, P.J.,

for the Court.

PROCEDURAL HISTORY

¶ 1. Thomas and Jennifer Beddingfield were married in 1995. The parties separated sometime in 2006, and Thomas filed for a divorce in the Lauderdale County Chancery Court in November 2006. There were no children born to the parties during the marriage.

¶ 2. In October 2007, Thomas and Jennifer filed a consent to a divorce on the ground of irreconcilable differences, asking the chancellor to decide whether Jennifer was entitled to alimony and to divide the marital property. After a hearing on the matter, the chancellor divided the marital property and ordered Thomas to pay $800 per month in periodic alimony and the note on Jennifer’s mobile home. Thomas was also ordered to pay as lump-sum alimony the amount necessary to pay the delinquent balance on the monthly installment note on the mobile home. Thomas now appeals asserting that the chancellor erred in ordering him to pay alimony.

FACTS

¶ 3. At the time of the trial, Thomas lived in a double-wide mobile home located on six acres of land in Meridian, Mississippi with his mother, Rebecca Beddingfield, who currently suffers from Huntington’s disease and requires special care. Thomas possesses an eleventh-grade education and no graduation equivalent diploma. Furthermore, he claimed that he was unemployed. However, Thomas did and continues to manage and collect rent from Rebecca’s mobile-home-park residents, a task which takes about one hour each month. Rebecca refrains from compensating Thomas directly for this task, but she does pay all of his monthly bills and living expenses. Thomas was employed by Quality Logistics, but he was laid off on September 1, 2006. Thomas also earned money by cutting grass and playing in a band.

¶ 4. Jennifer, at the time of trial, was living with friends and storing some property in a mobile home located in Neshoba County. The debt owed on this mobile home is in Thomas’s and Rebecca’s names. Jennifer, at the time of trial, was unemployed and unable to work because of a disability. During the marriage Jennifer held various jobs, but now she complains of multiple physical and mental ailments. Jennifer further claimed that during the marriage, she and Thomas continuously had money in their bank accounts and that this money came primarily from the rent paid by residents at Rebecca’s trailer park. Thomas and Jennifer had no children together, but Jennifer had a child from a previous marriage, James Embry, who now lives with Jennifer, although she is not his custodial parent. Jennifer receives neither child support for James nor does she pay child support for him. Jennifer has also filed for social security benefits, but she has not received approval. At trial, there existed conflicting testimony as to whether Thomas or Jennifer committed adultery during their marriage.

STANDARD OF REVIEW

¶ 5. Our standard of review in chancery matters is well settled. This Court will not reverse a decision of a chancellor unless the chancellor’s findings were clearly erroneous, manifestly wrong, or applied an erroneous legal standard. Pearson v. Pearson, 761 So.2d 157, 162(¶ 14) (Miss.2000).

DISCUSSION

¶ 6. In his only issue on appeal, Thomas argues that the chancellor erred in awarding Jennifer periodic and lump-sum alimony because Thomas is unemployed and the evidence shows that he cannot pay for his own living expenses, much less those of another. He argues that the chancellor incorrectly speculated that he could earn enough money to pay the alimony and that his mother could care for herself without his constant support. He further asserts that Jennifer had the burden of showing that he could afford to pay alimony and that she failed to meet this burden. Finally, Thomas argues that the chancery court disregarded his right to lead a normal life with a decent standard of living by requiring him to pay alimony.

¶ 7. Thomas first contends that the division of the marital property was such that Jennifer did not need alimony. Thomas claims that Jennifer received most of the unencumbered property and did not contribute to the accumulation of any of the marital property. In making an equitable distribution of marital assets, chancellors are directed to consider the following factors as set forth in Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss.1994):

1.Substantial contribution to the accumulation of the property. Factors to be considered in determining contribution are as follows:
a. Direct or indirect economic contribution to the acquisition of the property;
b. Contribution to the stability and harmony of the marital and family relationships as measured by quality, quantity of time spent on family duties and duration of the marriage; and
c.Contribution to the education, training or other accomplishment bearing on the earning power of the spouse accumulating the assets.
2. The degree to which each spouse has expended, withdrawn or otherwise disposed of marital assets and any prior distribution of such assets by agreement, decree or otherwise.
3. The market value and the emotional value of the assets subject to distribution.
4. The value of assets not ordinarily, absent equitable factors to the contrary, subject to such distribution, such as property brought to the marriage by the parties and property acquired by inheritance or inter vivos gift by or to an individual spouse;
5. Tax and other economic consequences, and contractual or legal consequences to third parties, of the proposed distribution;
6. The extent to which property division may, with equity to both parties, be utilized to eliminate periodic payments and other potential sources of future friction between the parties;
7. The needs of the parties for financial security with due regard to the combination of assets, income and earning capacity; and,
8. Any other factor which in equity should be considered.

The chancellor is not required to consider all eight factors but “may consider only those factors he finds ‘applicable’ to the property in question.” Owen v. Owen, 798 So.2d 394, 399(1113) (Miss.2001) (quoting Carrow v. Carrow, 741 So.2d 200, 202(¶ 10) (Miss.1999)). A chancellor’s division and distribution will be upheld if it is supported by substantial credible evidence. Carrow v. Carrow, 642 So.2d 901, 904 (Miss.1994).

¶ 8. The chancellor noted the Ferguson factors and divided the property as follows: Thomas was awarded his 2005 double-wide mobile home; the 5.53 acres the mobile home sits upon; and certain personal property, including electronic equipment, his truck, a storage building, most of the couple’s furniture, and a washing machine and dryer. Jennifer was awarded her 1997 mobile home, including the one acre it sits upon, which she inherited from her father; various electronic equipment; some of the couple’s furniture; a trailer; a storage building; a stackable washer and dryer; and a tanning bed. Several items of Jennifer’s property were actually in the possession of her son. The chancellor noted that Thomas and Jennifer each had admitted to having given away some of the couple’s marital property. Thomas admitted that he sold most of his musical equipment and a trailer. The chancellor also noted that both parties owed more on their respective mobile homes than the mobile homes were worth and that Jennifer’s mobile home was in poor condition. There were values placed on some of the personal items, but many of them were old and had little value. There was not sufficient testimony, other than Thomas’s assertions, that Jennifer did not contribute to the marital assets. We find that the chancellor’s division of the marital assets was supported by substantial credible evidence.

¶ 9. After equitably dividing the marital assets, the chancellor determined that Jennifer should be awarded alimony. In Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993), the supreme court outlined which factors a court should consider when making a general award of alimony. Those factors are as follows: (1) “[t]he income and expenses of the parties”; (2) “[t]he health and earning capacities of the parties”; (3) “[t]he needs of each party”; (4) “[t]he obligations and assets of each party”; (5) “[t]he length of the marriage”; (6) “[t]he presence or absence of minor children in the home, which may require that one or both of the parties either pay, or personally provide, child care”; (7) “[t]he age of the parties”; (8) “[t]he standard of living of the parties, both during the marriage and at the time of the support determination”; (9) “[t]he tax consequences of the spousal support order”; (10) “[f]ault or misconduct”; (11) “[w]asteful dissipation of assets by either party”; or (12) “[a]ny other factor deemed by the court to be ‘just and equitable’ in connection with the setting of spousal support.” Id. “Whether to award alimony, and the amount to be awarded, are largely within the discretion of the chancellor.” Cherry v. Cherry, 593 So.2d 13, 19 (Miss.1991).

¶ 10. Although the chancellor did not specifically state each Armstrong factor, he stated that he considered any evidence relating to the Armstrong factors and then listed the evidence accordingly. The chancellor noted that Thomas was in good health and was physically and mentally able to work. The chancellor stated that Thomas had voluntarily decided not to work to care for his ailing mother. Thomas no longer collects the rent checks from his mother’s mobile-home park. The chancellor noted that Thomas’s income and expenses are paid for by his mother. Thomas also testified that he rarely looks for a job. The chancellor listed all of Thomas’s obligations and assets, including personal property and real property. The chancellor found that the evidence did not establish the parties’ marital standard of living since they had filed for bankruptcy four years prior to the hearing.

¶ 11. The chancellor noted that Jennifer had several physical conditions that limited her ability to work. Jennifer receives Medicaid assistance and approximately $162 per month in food stamps, and she had applied for social security disability benefits. Jennifer stored her possessions in a mobile home, but she was living with a friend while she recovered from a previous surgery. The chancellor further noted that Thomas’s behavior was a factor in the parties’ decision to divorce. We find that there was substantial credible evidence to support the chancellor’s decision to award Jennifer $300 per month in periodic alimony and an additional award to pay the note on her mobile home, including any delinquent payments. This issue is without merit.

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

KING, C.J., MYERS, P.J., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR.


text:
    Walter Reid ELLIOTT, Appellant v. Dolores Elaine Garner ELLIOTT, Appellee.
    No. 2008-CA-00575-COA.
    Court of Appeals of Mississippi.
    June 23, 2009.

      David L. Walker, attorney for appellant.
    H.R. Garner, attorney for appellee.
    Before LEE, P.J., GRIFFIS and CARLTON, JJ.
   CARLTON, J.,

for the Court.

¶ 1. On March 26, 2008, the chancellor granted Walter and Dolores Elliot a divorce on the ground of Walter’s uncon-doned adultery pursuant to Mississippi Code Annotated section 93-5-1 (Supp. 2008). On appeal, Walter contends that the chancellor erred when she awarded Dolores $500 per month in permanent alimony. We find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Dolores and Walter were married on February 12, 1982. On February 9, 2007, Walter filed a complaint for divorce against Dolores. A trial was held on February 28, 2008. Dolores was granted a divorce from Walter on the ground of Walter’s uncondoned adultery. On appeal, Walter does not dispute that the chancellor equitably distributed the couple’s marital assets, nor does he dispute that Dolores was properly awarded custody of the couple’s minor child. Walter only contends that the chancellor erred in awarding Dolores $500 a month in permanent alimony.

¶ 3. In the hearing at which the chancellor ruled on the parties’ divorce case, the chancellor found the following facts: (1) Walter’s monthly income was approximately $3,900; (2) Dolores’s monthly income was approximately $1,000; (3) Walter’s income-earning capacity was three times that of Dolores’s income-earning capacity; (4) neither Dolores nor Walter had completed high school, but both had obtained GEDs; (5) Dolores was a homemaker for the majority of the couple’s marriage; (6) both Dolores and Walter suffered some health problems, but none that were completely debilitating; (7) Dolores and Walter were married for twenty-six years; (8) Dolores was granted physical custody of the couple’s minor child, a full-time college student; (9) both Dolores and Walter were in their mid to late fifties; (10) Walter’s uncondoned adultery ended the marriage; (11) Walter had dissipated marital assets by cashing in a 401(k) without giving Dolores any of the proceeds; and (12) Walter had dissipated marital assets on his two girlfriends in buying them meals, drinks, and gifts.

¶ 4. Additionally, Dolores testified that her net monthly income was approximately $950 while her total monthly expenses amounted to $2,100. Dolores testified that when Walter stopped giving her money in September or October 2007- — approximately six months after Walter filed for divorce and five months before the couple’s divorce trial — she was left in dire financial straits. Dolores told the chancellor that she wanted the marital home so she and her daughter would have a place to live.

¶ 5. In applying the above facts to the issue of equitable distribution of the marital property pursuant to Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss.1994), the chancellor awarded Walter the following marital assets: (1) his state retirement; (2) proceeds from the 401(k) that he cashed in; (8) a 1982 Chevrolet truck; (4) items he had removed from the marital home, including his tools; and (5) forty-percent equity in the marital home.

¶ 6. The chancellor awarded the following marital assets to Dolores: (1) her retirement account; (2) a 1995 Buick; (3) any and all remaining household furnishings that Walter had not taken; (4) exclusive use and possession of the marital home for her lifetime, unless she remarried, moved out of the home, or became romantically involved with a man who moved into the marital home with her; and (5) sixty-percent equity in the marital home.

WHETHER THE CHANCELLOR ERRED IN AWARDING DOLORES $500 A MONTH IN PERMANENT ALIMONY.

¶ 7. Alimony awards are within a chancellor’s discretion, and we will not reverse an award of alimony on appeal unless the chancellor abused her discretion in her fact-finding or misapplied the law. Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993). “To determine the amount of permanent alimony, the chancellor must consider twelve factors identified in Armstrong.” Curtis v. Curtis, 796 So.2d 1044, 1051 (¶ 33) (Miss.Ct.App.2001). The Armstrong factors are listed below:

1. The income and expenses of the parties;
2. The health and earning capacities of the parties;
3. The needs of each party;
4. The obligations and assets of each party;
5. The length of the marriage;
6. The presence or absence of minor children in the home, which may require that one or both of the parties either pay, or personally provide, child care;
7. The age of the parties;
8. The standard of living of the parties, both during the marriage and at the time of the support determination;
9. The tax consequences of the spousal support order;
10. Fault or misconduct;
11. Wasteful dissipation of assets by either party; or
12. Any other factor deemed by the court to be “just and equitable” in connection with the setting of spousal support.

Armstrong, 618 So.2d at 1280.

¶ 8. One of the goals of equitable distribution is to alleviate the need for alimony. Ferguson, 639 So.2d at 929. Accordingly, alimony should be considered only after the equitable division of marital property. See Marsh v. Marsh, 868 So.2d 394, 398 (¶ 16) (Miss.Ct.App.2004). “[T]he purpose of alimony is not punitive, but instead, is designed to assist the spouse in meeting his or her reasonable needs while transitioning into a new life.” Holley v. Holley, 892 So.2d 183, 185 (¶ 7) (Miss.2004) (citation omitted). Generally, permanent alimony should be considered if one spouse is left with a deficit after the division of marital assets. See Kilpatrick v. Kilpatrick, 732 So.2d 876, 880 (¶ 16) (Miss.1999) (citing Johnson v. Johnson, 650 So.2d 1281, 1287 (Miss.1994)).

¶ 9. Walter argues on appeal that Dolores should not have been awarded $500 a month in alimony because: (1) Dolores has no house or car payment as both items are paid off; (2) the minor child contributes to her own support in Dolores’s home through the child’s wages and tips from her part-time job at Sonic; (3) Dolores does not live extravagantly; (4) Dolores did not know how Walter spent the funds he withdrew from his 401(k); (5) Dolores received a $2,000 tax refund which would increase her monthly income; (6) Dolores receives $350 per month in child support for the parties’ minor child; (7) Dolores will inherit one quarter of her father’s estate upon his death; and (8) Dolores has the ability to earn wages. Despite Walter’s list of factual allegations as to why Dolores should not receive $500 a month in permanent alimony, Walter fails to cite to any authority in support of his position.

¶ 10. In turning to the chancellor’s decision, we note that the chancellor discussed in her order the matter of “equalizing” Walter’s and Dolores’s incomes by granting Dolores $500 per month in permanent alimony. Despite the chancellor’s incongruous use of the term “equalizing” as it applied to equitable distribution of the couple’s marital property and to alimony, we find that the chancellor’s Armstrong analysis was on point and that she based her decision upon substantial evidence in the record. Under our standard of review, “[wjhenever a chancellor’s decision is based on credible evidence, this Court will affirm that decision.” C.A.M.F. v. J.B.M., 972 So.2d 656, 666-67 (¶44) (Miss.Ct.App.2007) (citations omitted). “Or differently stated, this Court may reverse a chancellor’s findings of fact only when there is ‘no substantial evidence in the record’ justifying his [or her] findings.” Id. (citations omitted).

¶ 11. Here, pursuant to Armstrong, the chancellor considered in detail each party’s respective incomes, income-earning capacities, needs, assets, obligations, ages, the length of the marriage, Dolores’s custody of the couple’s minor child, Walter’s uncon-doned adultery, and Walter’s dissipation of marital assets when she awarded Dolores $500 a month in permanent alimony. See Holley, 892 So.2d at 185 (¶ 7). In essence, the chancellor found that Dolores suffered a deficit in her ability to meet her reasonable living expenses after the equitable division of the marital property, and to correct this deficit, the chancellor awarded Dolores $500 a month in permanent alimony. See id.; Kilpatrick, 732 So.2d at 880 (¶ 16). Based on the record before us, we find that the chancellor’s judgment was supported by substantial evidence-. See C.A.M.F., 972 So.2d at 666-67 (¶44). Therefore, we find no error and affirm.

¶ 12. THE JUDGMENT OF THE DE-SOTO COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS AND MAXWELL, JJ., CONCUR.


author: WOODALL, Justice. MURDOCK, Justice

text:
    Felicia D. BROWN, as dependent widow and personal representative of the estate of Jeremiah Brown, deceased v. ABUS KRANSYSTEME GMBH.
    1071184.
    Supreme Court of Alabama.
    Dec. 12, 2008.

      Thomas P. Willingham of AMs & Will-ingham, L.L.P., Birmingham; and Allen Richard Stoner, Decatur, for appellant.
    Jackson H. Abies III and Brandi N. Smith of Daniel Coker Horton & Bell, P.A., Jackson, Mississippi, for appellee.
   WOODALL, Justice.

Felicia D. Brown, as dependent widow and personal representative of the estate of Jeremiah Brown, deceased, appeals from a judgment dismissing for lack of in personam jurisdiction her product-liability action against ABUS Kransysteme GmbH (“ABUS”), a limited liability company organized under the laws of the Federal Republic of Germany and the manufacturer of the component part of a crane that allegedly malfunctioned, resulting in the death of her husband. We affirm.

I. Factual Background

On August 2, 2006, Jeremiah Brown was operating a crane for his employer Steel Related Technology New, LLC (“SRT”). The crane was manufactured by Wolverine Crane & Service, Inc. (“Wolverine”), a Michigan corporation, and was equipped with a hoist manufactured by ABUS bearing serial number 78838. He was killed when a wire rope on the hoist snapped, allowing a beam to fall on him. On October 4, 2006, Felicia Brown sued ABUS and others asserting claims under the Alabama Extended Manufacturer’s Liability Doctrine and other theories.

On December 20, 2006, ABUS moved to dismiss the claims against it, arguing that it “lack[ed] minimum contacts with the State of Alabama sufficient to permit an exercise of in personam jurisdiction consistent with the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States.” In support of its motion, ABUS filed the affidavit of Lothar Bühne, a managing partner of ABUS. The affidavit stated, in pertinent part:

“3. ABUS does not have any contacts with the State of Alabama.
“4. ABUS has no offices, factories, real or personal property, product inventory, bank accounts, or assets of any kind in the United States of Amei'ica or in the State of Alabama.
“5. ABUS has no employees or regular agents anywhere in the United States of America and no employees or agents whatsoever in the State of Alabama.
“6. ABUS’ sole representative on the North American continent is located in the Commonwealth of Canada, and only handles sales in Canada. ABUS has never had any sales representative relations with any person or entity in the State of Alabama.
“7. ABUS has not designed, manufactured for, or sold any ABUS product, including wire rope product, to the employer of plaintiffs decedent.
“8. ABUS did not send the crane or hoist product described in the complaint into the United States of America or into the State of Alabama.
“9. ABUS has had no contacts in or with or any presence in or any involvement with the State of Alabama.
“10. ABUS has never purposefully availed itself of any privilege, benefit or protection afforded by the laws of the State of Alabama.”

On February 1, 2007, Brown moved to continue consideration of ABUS’s motion to dismiss, asserting that resolution of the question of personal jurisdiction should be deferred until she could “conduct jurisdictional discovery.” More specifically, Brown contended:

“[Jjurisdictional discovery might shed information on how the ABUS hoist got to Alabama, whether it was designed for the American market, whether it was designed for the specific Alabama application for which it was being used, the extent of ABUS’ ‘subsidiary and partner’ distribution network in the United States, whether it or its network is servicing the Decedent’s employer’s needs, and whether it is otherwise aiming its activities to a multi-state market that includes Alabama.”

On March 7, 2007, the trial court granted Brown’s motion.

On March 21, 2007, ABUS’s counsel sent a letter to Brown’s counsel; that letter states:

“Yesterday I received a copy of [Brown’s] Amended Complaint and just today received a copy of [Brown’s] First Set of Interrogatories and Requests for Production of Documents.... Given that ABUS has a pending motion to dismiss based on personal jurisdiction ABUS will not be participating in any discovery not relating to its personal jurisdiction defense.

(Emphasis added.)

On approximately April 10, 2007, Brown sent ABUS a “notice of [Ala. R. Civ. P.] 30(b)(6) deposition of corporate representative of defendant [ABUS] and request for production of documents under [Ala. R. Civ. P.] 30(b)(5)” (hereinafter “the deposition notice”). The deposition notice contained 50 paragraphs with subparagraphs describing the requested information and documents. Approximately 24 of the paragraphs sought information regarding the sales of ABUS’s products “in the United States,” as well as information regarding ABUS’s business contacts “in the United States” or “in North America.” Examples of these paragraphs are as follows:

“1. Testimony and documents regarding all relationships, agreements and/or contracts, including but not limited to distribution agreements, service contracts, and/or sales agreements, [ABUS has] with any natural person, corporation, partnership, proprietorship, association, organization, group of persons, or any governmental body or subdivision thereof, company or other business entity in the United States.
“4. Testimony and documents related to the distribution of ABUS ... products, including any crane, hoist, gantry, accessory, component part, spare part, or other item manufactured, produced, designed and/or distributed by ABUS ... or any of its subsidiaries, including but not limited to the ABUS ... crane/ hoist which bears Serial Number 78838 (‘the subject crane’), in the United States.
“5. Testimony and documents, including but not limited to invoices, receipts, sales records, sales ledgers, and/or electronically stored information, relating to the sales of ABUS Kransysteme GmbH products made to any natural person, corporation, partnership, proprietorship, association, organization, group of persons, or any governmental body or subdivision thereof, company or other business, in the United States.
“6. Testimony and documents which evidence, refer or relate to all payments received directly or indirectly, from any person, company or other business entity in the United States for the purchase of your products, including but not limited to the subject crane.
“7. Testimony and documents, including but not limited to all invoices, receipts, records, electronically stored information, or other documentation, regarding shipment, directly or indirectly, of your products to the United States.”

(Emphasis added.) The deposition notice also sought “[testimony and documents, including but not limited to agreements and/or contracts, describing and/or reflecting [ABUS’s] relationship with [EMH, Inc., an Ohio corporation, whose principal place of business is Cleveland, Ohio].”

On approximately April 17, 2007, ABUS sent Brown a letter, stating, in pertinent part:

“In reviewing the proposed deposition topics, I noticed that a number of these topics have no relevance to any contacts of ABUS within the State of Alabama, and some of the other topics are in part not related to Alabama jurisdiction. Obviously, I will be filing objections to those topics and/or parts. If'you disagree with those objections and want Judge Thompson[] to review validity of those, I will be glad to cooperate with you in getting a hearing scheduled to address that before the deposition on jurisdictional contacts.
“In view of this information, if you would like to revise the topic list and limit it to personal jurisdiction contacts only, instead of using the current topic list, ... the deposition can probably be expedited to some further degree.”

(Emphasis in original.)

On May 25, 2007, ABUS filed a notice of objections to the deposition notice. Typical of the objections was the response to paragraph six, which stated, in pertinent part: “ABUS objects to the topic as overly broad insofar as it seeks information not relevant to alleged contacts by ABUS with the State of Alabama.” (Emphasis added.)

On September 6, 2007, Brown took the deposition of Karl Rudolph Vom Stein, who was in charge of ABUS’s exports. During the deposition, however, ABUS’s coimsel instructed Vom Stein not to answer questions from Brown’s counsel regarding ABUS’s nationwide sales or business operations. On September 27, 2007, Brown filed a motion to compel ABUS “to fully and completely respond to [her deposition notice].”

However, on November 19, 2007, before the trial court ruled on Brown’s motion to compel, ABUS filed a 23-page affidavit of Vom Stein, in which, as Brown concedes, he “gave detailed facts ... concerning topics foreclosed by ABUS’ counsel during his deposition.” Brown’s brief, at 20. According to Vom Stein, for example, the only entity in the United States authorized to sell ABUS’s products is EMH, Inc. (“EMH”). The pertinent facts of the affidavit were succinctly summarized by the trial court as follows:

“[Vom Stein] identifie[d] hoist number 78838 as a model GM 7000 and state[d] that this ABUS model is not authorized for sale to anyone in the United States. In addition, Mr. Vom Stein reiterate[d] that neither ABUS, nor its sole distributor in the United States, [EMH], sold hoist number 78838 to any party to this civil litigation and that ABUS did not sell, deliver, install, service or maintain this hoist in the State of Alabama and did not sell any replacement parts for this hoist in the United States or the State of Alabama.
“Instead, according to Mr. Vom Stein, ABUS manufactured hoist number 78838 in Germany in the year 2000 pursuant to a special order by its former customer, Kaverit Steel and Cranes, Ltd. (hereinafter ‘Kaverit’), a Canadian-based crane manufacturer. Mr. Vom Stein further state[d] the sale of hoist number 78838 to Kaverit was transacted in Germany and that prior to this sale ‘it was agreed between ABUS and Kaverit, and Kaverit acknowledged in writing],] that Kaverit would not resell ABUS products to any Kaverit customer in the United States of America.’ ... Sometime after this sale, hoist number 78838 was acquired by Wolverine ... a crane manufacturing company incorporated in the State of Michigan that markets its goods and services in the United States. Thereafter, Wolverine incorporated hoist number 78838 into a crane system that was installed at the [SRT] facility in the State of Alabama. In his affidavit, Mr. Vom Stein state[d] that ABUS did not sell hoist number 78838 to Wolverine and also state[d] his understanding— based on information obtained in the course of this litigation — that Wolverine purchased this hoist from Kaverit.
“Mr. Vom Stein further state[d] that hoist number 78838 ‘was not manufactured in anticipation of a sale to any kind of purchaser in the State of Alabama’ and that, at the time the hoist was manufactured for and sold to Kaverit, ‘ABUS did not contemplate that the purchase of an ABUS custom-ordered hoist by a Canadian crane manufacturer {who was forbidden to sell ABUS products to its O’wn customers in the U.S.A.) would subject ABUS to a lawsuit in the State of Alabama.’ In addition, Mr. Vom Stein statefd] that ABUS was not aware until after the initiation of this lawsuit that Kaverit had sold the hoist to Wolverine or that the hoist had been installed in a crane system located in the State of Alabama.”

(Emphasis added; footnote omitted.)

Apparently, the “acknowledgement] in writing” to which the trial court referred, namely, “that Kaverit would not resell ABUS products to any Kaverit customer in the United States,” is a document purporting to be the redacted version of a letter from Kaverit to ABUS, dated January 12, 1996 (hereinafter referred to as “the Kaverit letter”). The Kaverit letter, which was filed with Vom Stein’s affidavit, states: “ABUS does not allow Kaverit to sell its products into the USA. We sell cranes into Washington, Oregon, California, Alaska, Idaho, Nevada, Montana, Utah, and Wyoming. We do not consider ABUS on any of these crane inquiries. This is madness, but we are following your rules.”

On November 27, 2007, at a hearing on ABUS’s motion to dismiss, the trial court ordered Brown to file a response to that motion. The next day, the court entered an order stating that it was taking “under advisement” Brown’s motion to compel ABUS to respond to her deposition notice. Also that day, Brown filed a “preliminary response” to the motion to dismiss.

On December 20, 2007, the trial court entered an order denying Brown’s motion to compel, but allowing her an additional 21 days to file a “final response” to ABUS’s motion to dismiss. The order stated, in pertinent part:

“As to [Brown’s) request that ABUS be required to tender a corporate representative to continue the noticed [Rule] 30(b)(6) deposition and to produce all the requested documents in her [Rule] 30(b)(5) request for production, the Court finds that [Brown] has failed to identify any specific area of inquiry or potentially responsive materials that if compelled would be ‘material to the disposition of the issue of personal jurisdiction.’ See Ex parte Duck Boo Int'l Co., Ltd., 985 So.2d 900, 907 (Ala.2007).
“Based on the allegations in [Brown’s] complaint, the injury giving rise to this action was caused by an ABUS model GM 7000 wire rope hoist (serial number 78838) that was originally manufactured by ABUS and thereafter was installed in a crane system that was ultimately located and used on the premises of the defendant [SRT], located in Morgan County, Alabama.
“As to in personam jurisdiction based on specific contacts with Alabama, [Brown] has not asserted that any outstanding testimony or materials responsive to her [Rule] 30(h)(6) and [Rule] 30(b)(5) notices will lead to evidence relevant to whether or not ABUS played a direct role, either acting on its own or through an authorized agent, in causing this hoist to be installed in a crane system or effecting the sale or delivery of this crane system to a facility located in Alabama.”

(Emphasis added; footnote omitted.)

On January 4, 2008, Brown filed a brief in opposition to ABUS’s motion to dismiss. In that brief, she conceded that this Court, in Ex parte Alloy Wheels International, Ltd., 882 So.2d 819 (Ala.2003), adopted the “stream-of-commerce-plus” test for in per-sonam jurisdiction set out in Asahi Metal Industry Co. v. Superior Court, 480 U.S. 102, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987) (plurality opinion by O’Connor, J.) (hereinafter “the O’Connor plurality”). See Ex parte Duck Boo Int'l Co., 985 So.2d 900, 911 (Ala.2007). Brown argued, however, that the trial court should apply the more liberal “stream-of-commerce” test espoused in a second Asahi plurality, which was authored by Justice Brennan (hereinafter “the Brennan plurality”). According to Brown, the exercise of jurisdiction over ABUS was proper under the rule set out in the Brennan plurality.

On March 24, 2008, the trial court granted ABUS’s motion to dismiss. In so doing, it declined Brown’s invitation to depart from the binding precedent of Alloy Wheels and held that jurisdiction was lacking under the test adopted in that case. The court went further, however, and held:

“[E]ven if ABUS’s [contacts with Alabama] were to be assessed according to the less stringent stream-of-commerce test articulated [by the Brennan plurality], the result in this case would be the same, that is, a finding that the assertion of jurisdiction over ABUS would exceed this court’s powers under the Due Process Clause.”

After the trial court certified that order as a final judgment pursuant to Ala. R. Civ. P. 54(b), Brown filed a timely notice of appeal.

Brown essentially makes three arguments on appeal. First, she contends that this Court should overrule Alloy Wheels and replace the test based on the O’Con-nor plurality with one based on the Brennan plurality as the framework for the exercise of personal jurisdiction in the stream-of-commerce context. Second, she argues that the record establishes the basis for jurisdiction over ABUS under the test of Alloy Wheels. Finally, in the alternative, she contends that the trial court exceeded its discretion in denying her motion to compel ABUS to fully respond to her deposition notice.

II. Discussion

“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.” Elliott v. Van Kleef, 830 So.2d 726, 730 (Ala.2002) (quoting International Shoe Co. v. Washington, 326 U.S. 310, 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.” Id. (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 473, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985), quoting in turn World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 295, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980)).

Alabama recognizes two categories of in personam jurisdiction — general and specific. Alabama courts have general jurisdiction over a nonresident defendant if that defendant’s activities in Alabama “ ‘ “are ‘substantial’ or ‘continuous and systematic,’ regardless of whether those activities give rise to the lawsuit.” ’ ” Ex parte Troncalli Chrysler Plymouth Dodge, Inc., 876 So.2d 459, 463 (Ala.2003) (quoting Ex parte Dill, Dill, Carr, Stonbraker & Hutchings, P.C., 866 So.2d 519, 525 (Ala.2003), quoting in turn Leventhal v. Harrelson, 723 So.2d 566, 569 (Ala.1998)). Our courts have “ ‘ “specific jurisdiction when a defendant has had few contacts with the forum state, but those contacts gave rise to the lawsuit.” ’ ” 876 So.2d at 463 (quoting Ex parte Dill, 866 So.2d at 525, quoting in turn Leventhal, 723 So.2d at 569). “Furthermore, this Court has held that, for specific in personam jurisdiction, there must exist ‘a clear, firm nexus between the acts of the defendant and the consequences complained of.’ ” Elliott v. Van Kleef, 830 So.2d at 731 (quoting Duke v. Young, 496 So.2d 37, 39 (Ala.1986)).

“[T]he stream of commerce theory provides a valid basis for finding requisite minimum contacts.” Beverly Hills Fan Co. v. Royal Sovereign Corp., 21 F.3d 1558, 1566 (Fed.Cir.1994). It is widely regarded as a basis for asserting specific jurisdiction. See Purdue Research Found, v. Sanofi-Synthelabo, S.A., 338 F.3d 773, 788 (7th Cir.2003); Pennzoil Prods. Co. v. Colelli & Assocs., Inc., 149 F.3d 197, 203 (3d Cir.1998); and Matthews v. Brookstone Stores, Inc., 469 F.Supp.2d 1056, 1064 (S.D.Ala.2007).

A. Standards of Review

“ ‘[T]he plaintiff bears the burden of proving the court’s personal jurisdiction over the defendant.’ ” Ex parte Dill, 866 So.2d at 525 (quoting Daynard v. Ness, Motley, Loadholt, Richardson & Poole, P.A., 290 F.3d 42, 50 (1st Cir.2002)). “An appellate court considers de novo a trial court’s judgment on a party’s motion to dismiss for lack of personal jurisdiction.” Elliott, 830 So.2d at 729. “[I]f the defendant makes a prima facie evidentiary showing that the Court has no personal jurisdiction, ‘the plaintiff is then required to substantiate the jurisdictional allegations in the complaint by affidavits or other competent proof ....’” Ex parte Covington Pike Dodge, Inc., 904 So.2d 226, 229-30 (Ala.2004) (quoting Mercantile Capital, LP v. Federal Transtel, Inc., 193 F.Supp.2d 1243, 1247 (N.D.Ala.2002)).

“ ‘The trial court has broad and considerable discretion in controlling the discovery process and has the power to manage its affairs ... to ensure the orderly and expeditious disposition of cases.’ ” Ex parte Vulcan Materials Co., 992 So.2d 1252, 1259 (Ala.2008) (quoting Salser v. K.I.W.I., S.A., 591 So.2d 454, 456 (Ala.1991)). “Therefore, this Court will not interfere with a trial court’s ruling on a discovery matter unless this Court ‘ “determines, based on all the facts that were before the trial court, that the trial court clearly [exceeded] its discretion.” ’ ” Id. (quoting Ex parte Henry, 770 So.2d 76, 80 (Ala.2000), quoting in turn Ex parte Horton, 711 So.2d 979, 983 (Ala.1998)).

B. The Applicability of the Streanir-of-Commerce Theory and Alloy Wheels

Brown insists that the test adopted in Alloy Wheels conflicts with an opinion of the United States Supreme Court, World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980), which she characterizes as “binding precedent.” She urges this Court to overrule Alloy Wheels. We decline to do so, because this case involves neither the stream-of-coramerce theory of the Brennan plurality nor the stream-of-commerce-plus theory of the O’Connor plurality as adopted in Alloy Wheels.

The source of both versions of the stream-of-commerce doctrine, which divided the Asahi Court, is dictum in World-Wide Volkswagen Corp. v. Woodson. In Woodson, New York residents Harry Robinson and Kay Robinson purchased a new Audi automobile from Seaway Volkswagen, Inc. (“Seaway”), a retail dealer in Massena, N.Y. 444 U.S. at 288, 100 S.Ct. 559. The regional distributor for Audi automobiles — which served the states of New York, New Jersey, and Connecticut — was World-Wide Volkswagen Corporation (“World-Wide”). Id. at 288-89, 100 S.Ct. 559. The automobile was manufactured by Audi NSU Auto Union Aktiengesells-chaft (“Audi”) and was imported by Volkswagen of America, Inc. (“Volkswagen”). 444 U.S. at 288, 100 S.Ct. 559.

The following year, the Robinsons were driving through Oklahoma when their automobile collided with another vehicle. The impact created a fire, and Kay Robinson and the Robinsons’ two children were injured. “The Robinsons subsequently brought a products-liability action in the District Court for Creek County, Okla., claiming that their injuries resulted from defective design and placement of the Audi’s gas tank and fuel system.” 444 U.S. at 288, 100 S.Ct. 559. Defendants named in the suit were (1) Seaway, (2) World-Wide, (3) Audi, and (4) Volkswagen. Id.

The New York defendants, Seaway and World-Wide, contested the exercise of personal jurisdiction over them in Oklahoma. Specifically, they sought a writ of prohibition restraining the trial judge “from exercising in personam jurisdiction.” 444 U.S. at 289, 100 S.Ct. 559. From the denial of that relief in the Oklahoma Supreme Court, they sought certiorari review in the United States Supreme Court.

The United States Supreme Court reversed the judgment of the Oklahoma Supreme Court, holding that the unilateral activity of the New York residents in driving a car they had purchased from a New York retailer to Oklahoma did not constitute contacts sufficient to subject the New York retailer and distributor to suit in Oklahoma. 444 U.S. at 299, 100 S.Ct. 559. In the course of its discussion, the Court stated:

“[I]f the sale of a product of a manufacturer or distributor ... is not simply an isolated occurrence, but arises from the efforts of the manufacturer or distributor to serve, directly or indirectly, the market for its product in other States, it is not unreasonable to subject it to suit in one of those States if its allegedly defective merchandise has there been the source of injury to its owner or to others. The forum State does not exceed its powers under the Due Process Clause if it asserts personal jurisdiction over a corporation that delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum State. Cf. Gray v. American Radiator & Standard Sanitary Corp., 22 Ill.2d 432, 176 N.E.2d 761 (1961).”

444 U.S. at 297-98, 100 S.Ct. 559 (emphasis added).

This language in Woodson has been correctly characterized as dicta, because there was in Woodson no such manufacturer or importer before the Court contesting jurisdiction. See Nelson v. Park Indus., Inc., 717 F.2d 1120, 1124-25 (7th Cir.1983); Spartan Motors, Inc. v. Lube Power, Inc., 337 Ill.App.3d 556, 564, 786 N.E.2d 613, 620, 272 Ill.Dec. 74, 81 (2003); Ruckstuhl v. Owens Corning Fiberglas Corp., 731 So.2d 881, 887 (La.1999); Juelich v. Yama- zaki Mazak Optonics Corp., 682 N.W.2d 565, 571 n. 4 (Minn.2004); and Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199, 201 (Tex.1985).

Nevertheless, the language served as the foundation for both plurality opinions in Asahi. The point of disagreement between the authors of those plurality opinions was whether jurisdiction may turn on the mere “foreseeability” that the seller’s product would “enter the forum state.” Asahi, 480 U.S. at 111-12, 107 S.Ct. 1026 (due process requires “something more” than mere foreseeability (per O’Connor, J.)); 480 U.S. at 117, 107 S.Ct. 1026 (defendant need only be “aware that the final product is being marketed in the forum State” (per Brennan, J.)).

Thus, the stream-of-commerce doctrine contemplates that the offending product will have been sold by a “participant in the process” with, at a minimum, the “awareness that the stream of commerce may or will sweep the product into the forum State.” 480 U.S. at 116-17, 107 S.Ct. 1026 (Brennan, J.). “The stream of commerce refers not to unpredictable currents or eddies, but to the regular and anticipated flow of products from manufacture to distribution to retail sale.” Asahi, 480 U.S. at 117, 107 S.Ct. 1026 (Brennan, J.) (emphasis added).

In this case, the subject hoist found its way into Alabama, not by a “regular and anticipated flow,” but through “unpredictable currents or eddies.” It was a model that was not authorized for sale in the United States. Based on Vom Stein’s affidavit and deposition, the trial court found that neither Kaverit, ABUS’s customer in Canada, nor EMH, ABUS’s American distributor in Ohio, was authorized to sell the GM 7000 model hoist in the United States. Instead, Kaverit purchased the hoist in Germany with the understanding that it would not place it in the stream of commerce in the United States. In spite of this agreement, Kaver-it apparently sold the hoist to Wolverine, which, in turn, incorporated it into the crane system that was installed at the SRT job site where Brown’s husband was working. Under these uncontroverted facts, ABUS had no “awareness that the stream of commerce [might] or [could] sweep the product into [Alabama].” Asahi, 480 U.S. at 116-17, 107 S.Ct. 1026 (Brennan, J.).

The hoist was, therefore, not within the stream of commerce, as defined by any test proposed in Asahi. See Simeone v. Bombardier-Rotax GmbH, 360 F.Supp.2d 665, 672 (E.D.Pa.2005) (plaintiffs in a product-liability action against the foreign manufacturer of airplane engines could not assert in personam jurisdiction under the stream-of-commerce theory, where the particular engine that was the subject of the action had not entered the United States through the distribution channels the manufacturer had established to serve the market in the United States, there being no connection “between the activities that [the manufacturer] purposefully directed at Pennsylvania and the accident that ultimately occurred”). It is fundamental that “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.” Woodson, 444 U.S. at 297, 100 S.Ct. 559.

Although this Court does not currently operate within the framework of the Brennan plurality, see Alloy Wheels, supra,, it recently signaled a willingness to revisit the issue in the appropriate case. See Ex parte Duck Boo, 985 So.2d at 911-12. According to Brown, this is such a case; we disagree.

Alloy Wheels was a typical stream-of-commerce case. The foreign defendant contesting jurisdiction manufactured aluminum alloy wheels in the United Kingdom (“the UK”). 882 So.2d at 825. Those wheels were installed on Landrover Discovery sport-utility vehicles in the UK. Id. Nevertheless, the manufacturer anticipated that some of its wheels would be used on “ ‘vehicles to be exported to the United States.’ ” 882 So.2d at 824. Indeed, one such vehicle was involved in an automobile accident that formed the basis of the plaintiffs product-liability action against the foreign manufacturer. Thus, the offending product in that case was placed within the stream of commerce. For these reasons, the jurisdictional discussions in Alloy Wheels and Ex parte Duck Boo shed little light on this case.

In short, Brown’s theory of jurisdiction over ABUS — the stream-of-commerce doctrine — is inapplicable. For all that appears, the subject hoist was the only specimen of the GM 7000 model that ever entered the United States. Thus, because the accident arose out of a single contact that is functionally irrelevant under the stream-of-commerce doctrine, that contact affords an insufficient basis for jurisdiction over ABUS.

C. Motion to Compel

Alternatively, Brown contends that the trial court exceeded its discretion in denying her motion to compel ABUS to fully respond to her deposition notice. She asks this Court to “reverse the trial court and remand this case with instructions to allow [her] to retake the deposition of [Vom Stein] on the topics set forth in her notice and to conduct any and all follow-up jurisdictional discovery that is necessary.” Brown’s reply brief, at 24 (emphasis added).

Although Brown was ultimately allowed to depose Vom Stein, she contends that ABUS’s counsel improperly interfered with her deposition, in violation of Ala. R. Civ. P. 26(b) and 30(c). More specifically, she contends that ABUS’s counsel improperly instructed Vom Stein not to answer questions pertaining to ABUS’s nationwide sales or business operations and that ABUS’s counsel made “speaking objections” and otherwise improperly coached Vom Stein during the deposition. According to Brown, questions regarding “ABUS’ contacts with the United States and within North America” were proper, because, she insists, “such discovery was reasonably calculated to lead to the discovery of facts regarding ABUS’ contacts with Alabama.” Brown’s brief, at 46.

However, Brown bears the burden of “showing] that the outstanding discovery is material to the disposition of the issue of personal jurisdiction.” Ex paHe Duck Boo, 985 So.2d at 907. She has failed to make such a showing.

After Vom Stein’s deposition, ABUS filed materials relevant to Brown’s stream-of-commerce theory of jurisdiction, including a lengthy affidavit from Vom Stein. These materials clearly show that Brown’s theory of jurisdiction is unavailable in this case, as discussed in Part II.B. of this opinion. Thus, assuming, without deciding, that ABUS’s counsel improperly interfered with Brown’s deposition of Vom Stein, Brown has failed show how — in light of the information subsequently admitted through the deponent — the answers precluded by the interference were material.

In this connection, Brown focuses on the activities of EMH and its relationship with ABUS. More specifically, she states:

“ABUS admits that it supplies products to EMH, which shows that it knows that the ABUS products will flow into the American market. ABUS’ own testimony and distributorship agreement both establish that [EMH] was to aggressively market and sell its products in all states, including the State of Alabama.” Brown’s brief, at 60.

However, the activities of EMH and its relationship with ABUS are inappo-site. It is undisputed that neither the activities of EMH nor or its relationship with ABUS had any bearing on this accident. Instead, the record establishes conclusively that the product at issue was not authorized for sale in the United States by EMH. The fact that EMH distributes some types of ABUS products in the United States does not supply a nexus to this case, where EMH did not — and could not — sell the product model that allegedly caused the accident. See Simeone v. Bombardier-Rotax GmbH, 360 F.Supp.2d at 672.

The questions Brown proposes to ask Vom Stein on any remand of this case incorrectly presuppose the applicability of her stream-of-commerce theory. She cites a number of such cases, which, she says, stand for the proposition that “ABUS’ contacts with the rest of the United States is relevant because it could lead to evidence of contacts with Alabama.” Brown’s brief, at 51. In particular, her brief includes the following quote from Hanamint Corp. v. Alliant Marketing Group, LLC, 481 F.Supp.2d 444, 447(M.D.N.C.2007):

“ ‘The analytical tool useful in cases in which the defendant’s contacts are the result of establishing a distribution network in the forum State for the sale of defendant’s products is generally referred to as the “stream of commerce” theory.’
“Viam Corp. [v. Iowa Export-Import Trading Co.,] 84 F.3d [424], 427 [ (Fed.Cir.1996) ]. ‘Under this theory, a defendant has minimum contacts with the forum when it purposefully ships a product into the forum [S]tate through an “established distribution channel.” ’ Akeva L.L.C. v. Mizuno Corp., 199 F.Supp.2d 336, 339 (M.D.N.C.2002) (citing Beverly Hills [Fan Co. v. Royal Sovereign Corp.,] 21 F.3d [1558,] 1565 [ (Fed.Cir.1994) ]).
“In determining what constitutes an established distribution channel, it is sufficient that the defendant ‘[arrange] for [the] introduction of [a product] into the United States stream of commerce with the expectation (or at least the intention and hope) that [the product] will be shelved and sold at numerous local outlets in diverse parts of the country.’ Stabilisierungsfonds Fur Wein v. Kaiser Stuhl Wine Distributors Pty. Ltd., 647 F.2d 200, 203 (D.C.Cir.1981) (quoted and cited with approval by the Federal Circuit in Beverly Hills, 21 F.3d at 1567). Indeed, it is not required that a foreign defendant exercise control of the distributing agent in order to show that an established distribution channel exists.”

(Emphasis added.)

Brown also cites Clune v. Alimak AB, 233 F.3d 538 (8th Cir.2000), which, she says, is “[d]irectly on point.” Brown’s brief, at 48. From Clune, Brown quotes:

“The record shows that [the Swedish manufacturer] did not seek to limit the states or regions where their construction hoists would be sold. Rather, it utilized distributors that had sales territories across the United States. A foreign manufacturer that successfully employs a number of regional distributors to cover the United States intends to reap the benefits of sales in every state where the distributors market. Similarly, a foreign manufacturer that successfully employs one or two distributors to cover the United States intends to reap the benefit of sales in every state where those distributors market. The difference is one of form, not function, and the practical effect is the same.
“We are not persuaded by [the manufacturer’s] argument that it was unaware of what happened to its products after they left Swedish port. ‘[S]uch ignorance defies reason and could aptly be described as “willful.” ’ Barone [v. Rich Bros. Interstate Display Fireworks Co.], 25 F.3d [610,] 614 [ (8th Cir.1994) ]. See also id. at 613 n. 4 (explaining how the distinction between what the defendant knew and should have known is immaterial to the personal jurisdiction analysis). If we were to conclude that despite its distribution system, [the manufacturer] did not intend its products to flow into Missouri, we would be bound to the conclusion that the company did not intend its products to flow into any of the United States.”

233 F.3d at 544.

Brown’s reliance on these and similar cases is inapposite, because they are, in fact, stream-of-commerce cases. Ham,-amint involved the distribution of allegedly patent-infringing products in the United States by means of a distribution system authorized by the foreign manufacturers/sellers. 481 F.Supp.2d at 448. The offending product in Clune, a “construction hoist,” was one of many such hoists sold in the United States through a distribution system authorized by the foreign manufacturer. 233 F.3d at 540.

Here, the unequivocal testimony of Vom Stein establishes that the subject hoist was not designed or manufactured for distribution in the United States market and that ABUS never agreed to, or authorized, the sale of the hoist in the United States. The trial court recognized the fundamental distinction between actual stream-of-commerce cases and this case, in which ABUS’s authorized sales in the United States and North America through EMH have nothing to do with the accident at the SRT job site or the subject hoist. Consequently, Brown has failed to demonstrate how further inquiry into those authorized sales would be reasonably calculated to lead to the discovery of evidence relevant to her purported basis of jurisdiction over ABUS in Alabama. The trial court did not, therefore, exceed its discretion in denying Brown’s motion to compel.

III. Conclusion

In summary, Brown’s theory of jurisdiction is unavailable. She has failed to show that ABUS had the requisite minimum contacts for the assertion of in personam jurisdiction, and she has failed to show that the trial court exceeded its jurisdiction in denying her motion to compel ABUS to respond to further discovery. Consequently, the judgment of the trial court is affirmed.

AFFIRMED.

COBB, C.J., and SEE, LYONS, STUART, SMITH, BOLIN, and PARKER, JJ., concur.

MURDOCK, J., dissents.

MURDOCK, Justice

(dissenting).

I disagree with the analysis regarding the motion to compel, as set out in Part II.C. of the main opinion. The holding that Brown was not entitled to complete jurisdictional discovery, particularly the deposition of a representative of ABUS, hinges on the finding that this is not an “actual stream-of-commerce case[].” 11 So.3d at 800. Information relevant to whether this case is, in fact an “actual stream-of-eommerce case,” however, is the type of information into which Brown legitimately was attempting to inquire in her discovery efforts, including her deposition of ABUS’s corporate representative. The only basis we now (post-deposition) have for finding that this is not an actual stream-of-commerce case is a set of statements from the same corporate representative prepared and given in the form of an affidavit after he, with the aid of counsel, refused to have his testimony as to this issue properly elicited and tested by cross-examination in his deposition.

I therefore respectfully dissent.

      . Judge Glenn Thompson is the circuit judge presiding over this case.

      . Brown concedes that ABUS eventually "gave other information that it precluded questioning about during the deposition.” Brown's reply brief, at 14.

      . To be sure, at the time Brown was attempting to depose Vom Stein, the distinction was not apparent. The distinction has been clearly revealed, however, by Vom Stein's affidavit and the Kaverit letter.

      . The main opinion states that it is only based on Vom Stein's affidavit — and not his deposition testimony — that we now know that ABUS-authorized sales of hoists through EMH, Inc., into the United States had nothing to do with the particular hoist by which Brown's husband was injured.
      It is also worth noting that the "stream of commerce” argument made by Brown arguably could allow for in personam jurisdiction over ABUS if, because of the flow of the stream of commerce, a significant number of ABUS's hoists were used in Alabama. See generally Ex parte Phil Owens Used Cars, Inc., 4 So.3d 418, 428 (Ala.2008) (Murdock, L, concurring in the rationale in part and concurring in the result) ("Neither party has argued for a modification of the elements of specific jurisdiction — or for a hybrid of general and specific jurisdiction — to be applied to determine whether the assertion of personal jurisdiction in this case would comport with constitutional standards of fairness. See, e.g., Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 415 n. 10, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984) ('Absent any briefing on the issue, we decline to reach the questions (1) whether the terms "arising out of” and "related to” describe different connec-lions between a cause of action and a defendant's contacts with a forum, and (2) what sort of tie between a cause of action and a defendant's contacts with a forum is necessary to a determination that either connection exists. Nor do we reach the question whether, if the two types of relationship differ, a forum's exercise of personal jurisdiction in a situation where the cause of action "relates to,” but does not "arise out of,” the defendant's contacts with the forum should be analyzed as an assertion of specific jurisdiction.’); Ex parte Kamilewicz, 700 So.2d 340, 345 n. 2 (Ala.1997); Linda Sandstrom Simard, Hybrid Personal Jurisdiction: It’s Not General Jurisdiction, or Specific Jurisdiction, but Is It Constitutional?, 48 Case W. Res. L.Rev. 559, 582 (1998); William M. Richman, Jurisdiction in Civil Actions, 72 Cal. L.Rev. 1328, 1345 (1984); Arthur T. von Mehren & Donald T. Trautman, Jurisdiction to Adjudicate: A Suggested Analysis, 79 Harv. L.Rev. 1121 (1966).”). See Ex parte Duck Boo Int’l Co., Ltd., 985 So.2d 900 (Ala.2007) (declining to revisit previous holdings regarding the nature of contacts necessary to establish in personam jurisdiction on the ground that discovery as to the nature and extent of contacts between the defendant and the forum state had not been completed).