text:
    Clarence Wydell HYNES a/k/a Clarence Hynes, Appellant, v. STATE of Mississippi, Appellee.
    No. 2013-KA-01428-COA.
    Court of Appeals of Mississippi.
    Dec. 2, 2014.

      Edmund J. Phillips Jr., Newton, attorney for appellant.
    Lisa L. Blount, Jackson, attorney for appellee.
    Before IRVING, P.J., FAIR and JAMES, JJ.
   JAMES, J.,

for the Court:

¶ 1. After a jury trial, Clarence Wydell Hynes was convicted of possession of at least .1 gram but less than 2 grams of methamphetamine. Because of a prior conviction of possession of methamphetamine, Hynes was sentenced as a second offender to ten years in the custody of the Mississippi Department of Corrections. Hynes filed a motion for a new trial, and the trial court denied the motion. Hynes raises the following issues: (1) whether the trial court erred in admitting into evidence the search of Hynes’s person, and (2) whether the trial court erred in admitting Hynes’s confession into evidence. Finding no error, we affirm.

FACTS

¶ 2. On November 10, 2011, Hynes was with his friend, Ryan Jackson, at the intersection of VFW Road and a dirt road. Deputy Sheriff Joey Rigby and Jeff Pitts, an agent with the narcotics task force with the Scott County Sheriffs Department, were driving in separate vehicles down VFW Road when they saw Jackson and Hynes. Deputy Rigby testified that he saw Hynes and Jackson duck behind a car. Deputy Rigby turned around and observed a red Ford traveling at a high rate of speed. Agent Pitts stopped his vehicle at the dirt road and stayed with Jackson. Deputy Rigby stopped Hynes’s car and was told by Hynes that his license was suspended. Deputy Rigby conducted a pat down of Hynes and felt a lump in Hynes’s pocket. Deputy Rigby reached inside the pocket and pulled out a pill bottle, which contained what he suspected to be a controlled substance. Hynes was then handcuffed and Deputy Rigby continued to pat Hynes down. After testing, it was determined that the substance found in Hynes’s pocket was methamphetamine.

¶ B. Hynes told Deputy Rigby that he had a problem with drugs and bought the drugs from someone named “Brusha.” Deputy Rigby testified that Hynes volunteered information about where he bought the drugs. Further, Deputy Rigby did not question Hynes. Leonard Harrison, a narcotics investigator with the sheriffs department, testified' that Hynes was read his rights and that Hynes appeared to have understood those rights. Investigator Harrison also testified that while Hynes was in custody, he never asked for an attorney and gave a written, signed statement.

¶ 4. The suppression hearing was held immediately prior to trial. Hynes argued that Deputy Rigby should have obtained a search warrant before searching his person. As a result, the search that produced the contraband was illegal and the evidence should not be admitted. The trial court overruled Hynes’s objection and the evidence was admitted.

¶ 5. At trial, Jackson testified that when Hynes saw the police, he got into his car and left, but was not speeding. Jackson also testified that he did not see Hynes smoke methamphetamine. Hynes declined to testify in his defense. At the close of all the evidence, Hynes made a motion to dismiss and renewed his motion to suppress the evidence from the pill bottle, which the trial court denied.

¶ 6. Hynes filed a motion for a new trial, and the trial court denied the motion. Hynes appeals.

STANDARD OF REVIEW

¶ 7. The Mississippi Supreme Court has held that “[a]dmission or exclusion of evidence will be [re]viewed on an abuse of discretion standard.” Hargett v. State, 62 So.3d 950, 952 (¶ 7) (Miss.2011). Further, “[a] trial judge enjoys a great deal of discretion as to the relevancy and admissibility of evidence. Unless the judge abuses this discretion so as to be prejudicial to the accused, the Court will not reverse this ruling.” Id. at 952-53 (¶7).

¶ 8. The denial of a motion for a new trial will be reversed only when a verdict is so “contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Pritchett v. State, 134 So.3d 857, 859 (¶ 5) (Miss.Ct.App.2014). Also, the evidence is viewed in light most favorable to the verdict. Id.

DISCUSSION

I. Whether the trial court erred in admitting into evidence the search of Hynes’s person.

¶ 9. Hynes argues that the State incorrectly applied the “plain feel” doctrine, and that it was not possible to determine from the pat-down that Hynes’s pocket contained any contraband. Hynes also relies on Anderson v. State, 16 So.3d 756 (Miss.Ct.App.2009), to support his argument. In Anderson, Deputy Truett conducted a pat down search for weapons on Anderson. Id. at 758 (¶ 4). Deputy Truett felt a pill bottle in Anderson’s pocket, and he removed the pill bottle, opened the container, and discovered the methamphetamine. Id. Anderson was arrested and charged with possession of methamphetamine. Id. This Court held that there was no probable cause to suspect that the pill bottle contained a controlled substance. Id. at 762 (¶ 15). The Court also stated “a pill bottle, in and of itself, is not contraband. It is not illegal to have a pill bottle, and there was no evidence presented that pill bottles typically contain contraband.” Id. at (¶ 16).

¶ 10. An individual has the right to be free from unreasonable searches and seizures. Eaddy v. State, 63 So.3d 1209, 1213 (¶ 12) (Miss.2011). This right is granted by the Fourth Amendment of the United States Constitution and Article 3, Section 23 of the Mississippi Constitution. Id. In order to determine the reasonableness of a search and seizure, the Court employs a two-prong test: “(1) whether the officer’s action was justified at its inception, and (2) whether it was reasonably related in scope to the circumstances which justified the interference in the first place.” Id. Both the State and Federal Constitutions forbid warrantless searches unless an exception is applicable. Id. “Unless the State proves that a warrantless search comes within an exception, all evidence seized from the search is inadmissible.” Id.

¶ 11. During the suppression hearing, Deputy Rigby testified that he stopped Hynes because he was speeding. “Police officers may detain a person for a brief investigatory stop consistent with the Fourth Amendment when officers have reasonable suspicion[,] grounded in specific and articulable faets[,] that allows the officers to conclude the suspect is wanted in connection with criminal behavior.” Lawrence v. State, 124 So.3d 91, 95 (¶ 11) (Miss.Ct.App.2013).

¶ 12. Under Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996), the United States Supreme Court held that “[s]ubjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.” Id. at 813, 116 S.Ct. 1769. In other words, the reasoning behind the original traffic stop does not matter as long as the officer objectively believed that a traffic violation occurred. Here, Deputy Rigby thought that Hynes was speeding; therefore, he had probable cause to initiate a traffic stop.

¶ 13. Although individuals are protected from warrantless searches and seizures by the Fourth Amendment, there are several exceptions to the warrant requirement; “including a consensual search, a search incident to arrest, an inventory search, a search under exigent circumstances if probable cause exists, and a search of a vehicle when making a lawful contemporaneous arrest.” Bradley v. State, 934 So.2d 1018, 1022 (¶ 7) (Miss.Ct. App.2005). Further, “[t]he State bears the burden to show that a warrantless search comes within an exception for evidence seized thereupon to be admissible.” Galloway v. State, 122 So.3d 614, 669 (¶ 182) (Miss.2013).

¶ 14. Once stopped, Hynes told Deputy Rigby that he had a suspended license. It was then Deputy Rigby decided to arrest him and conducted a search incident to his arrest. We have previously stated that “it is well settled than an officer has the right to conduct a search of a defendant’s person incident to a lawful arrest.” McKee v. State, 878 So.2d 232, 236 (¶ 13) (Miss.Ct.App.2004). Also, “evidence obtained as a result of the search incident to [the] defendant’s arrest for a particular crime is not related to that charge, but created probable cause for a subsequent arrest on a wholly different charge.” Lee v. State, 100 So.3d 982, 985 (¶ 11) (Miss.Ct.App.2012). Deputy Rigby had probable cause to arrest Hynes once he confessed to having a suspended license.

¶ 15. In Anderson, the defendant was not under arrest when the officer conducted his pat down. Further, the pat down was to check for weapons, and Anderson was arrested only when the officer found contraband on his person. Here, Deputy Rigby formed the intention to arrest Hynes when he learned that Hynes had a suspended license. The circumstances of Anderson’s and Hynes’s arrests are different, and therefore, Anderson does not apply. Therefore, this issue is without merit.

II. Whether the trial court erred in admitting Hynes’s confession into evidence.

¶ 16. Hynes argues that his arrest was illegal, and it led to his confession. The only authority Hynes cites for this assignment of error is Coleman v. State, 592 So.2d 517 (Miss.1991). There, the supreme court stated, however: “This Court is not unmindful that a confession given while in custody following an illegal arrest is not per se inadmissible.” Id. at 521. “Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), and its progeny require further inquiry to determine whether the confession is voluntary, and if so, whether there are any significant intervening events which remove from the confession the primary taint of the illegal arrest.” Coleman, 592 So.2d at 521 (citations omitted).

¶ 17. During the suppression hearing, there was testimony that Hynes had been read his Miranda rights and that he understood those rights. Also, the waiver-of-rights form was entered into evidence. Also, Hynes did not ask for an attorney before giving his statement to the police. The State bears the burden of proving that the confession is voluntarily given. Johnson v. State, 129 So.3d 148, 151 (¶ 12) (Miss.2013). Further, the “burden is met and a prima facie case is made by testimony of an officer, or other persons having knowledge of the facts, that the confession was voluntarily made without threats, coercion, or offer of reward.” Id.

¶ 18. Here, there is substantial evidence that support the trial court’s admission of Hynes’s confession. Several officers were present when he signed his confession, and the officers also testified that Hynes was aware of his rights and seemed to understand them. Also, Hynes never asked to speak to an attorney or at any time exercised his right to remain silent. Therefore, this issue is without merit. ■

CONCLUSION

¶ 19. The trial court did not abuse its discretion in admitting the evidence of Hynes’s confession and the methamphetamine found on Hynes’s person. First, Deputy Rigby performed a valid traffic stop because Hynes was traveling at a high rate of speed. Second, Deputy Rigby conducted a search incident to the arrest once he learned of Hynes’s suspended license. Also, the trial court did not err when it admitted Hynes’s confession into evidence. As previously discussed, there was testimony from several officers stating that Hynes gave his statement voluntarily and was not coerced in any way. Accordingly, we affirm the decision of the trial court.

¶ 20. THE JUDGMENT OF THE SCOTT COUNTY CIRCUIT COURT OF CONVICTION OF POSSESSION OF MORE THAN .1 GRAM BUT LESS THAN 2 GRAMS OF METHAMPHETAMINE, AS A SUBSEQUENT DRUG OFFENDER, AND SENTENCE OF TEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO SCOTT COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL AND FAIR, JJ., CONCUR.


source: Caselaw Access Project

author: MOORE, Chief Justice.

license: Public Domain

text:
    John MEEKS and Oretha Meeks v. Roderick MORROW and Merchants & Farmers Bank.
    1120688.
    Supreme Court of Alabama.
    March 14, 2014.
    Guy V. Martin, Jr., of Martin, Rawson & Woosley, P.C., Birmingham, for appellants.
    John A. Russell III of Russell & Russell, P.C., Aliceville, for appellee Roderick Morrow.
    I. Drayton Pruitt, Jr., of Pruitt & Pruitt, Livingston; and Wilbor J. Hust, Jr., of Zeanah, Hust, Summerford & Williamson, Tuscaloosa, for appellee Merchants & Farmers Bank.
   MOORE, Chief Justice.

The opinion of December 20, 2013, is withdrawn, and the following is substituted therefor.

John Meeks' and Oretha Meeks appealed from a partial summary judgment in favor of Roderick Morrow and Merchants & Farmers Bank (“the Bank”). Because it appeared that the judgment from which the Meekses purported to appeal was not a final judgment, this Court’s clerk’s office remanded the cause to the trial court, which then certified its order as final pursuant to Rule 54(b), Ala. R. Civ. P. Having examined the case, this Court now concludes that the trial court’s certification was not proper and that the judgment was not made final. Therefore, we dismiss the appeal.

I. Facts and Procedural History

In 1993, the Freedlander Bankruptcy Trust (“Freedlander”) deeded certain property in Greene County (“the property”) to Henry Lewis, who did not record his deed until January 2006. In 1995, Lewis deeded the property to his grandmother, Bessie Lard, whose deed also was not recorded until January 2006.

In 1998, Mrs. Meeks noticed a house on the property that appeared to be empty. The house was “only a shell” at the time and was “far from being in ‘move in’ condition.” Meekses’ brief, at 15. At that time, the Meekses were unable to obtain the financing they needed to buy the house and renovate it. Consequently, the Meekses and Lard “worked out” an agreement by which the Meekses would take possession of the house and spend the money necessary to complete it, although they had not purchased it. The agreement provided that when the house was complete and the Meekses could obtain financing, they would pay the purchase price of $58,000 and obtain a deed to the property.

In 1999, the Meekses and Lard signed a document styled as a “work-out agreement,” in which the parties agreed to sell the house and the property to Mrs. Meeks on the condition that “this Work-Out Agreement must be ended by January 31, 2006.” The work-out agreement also provided that in the event Lard died before the end of the agreement, Lewis had the right to sign or print her name, apparently for the purpose of finalizing the sale. Lard told Mrs. Meeks to make the payments for the purchase price to Lewis.

Immediately after signing the work-out agreement, the Meekses began working on the property. They bought the supplies they needed to fix the house and did the work themselves. The work necessary to renovate the house included “plumbing, electrical, extension of gas lines, installation of flooring, roof repair, installation of sinks, toilets, and cabinets.” Meekses’ brief, at 17. The Meekses planted grass, trees, and flowers around the house, paved the driveway, and sloped the yard using a bulldozer. Lewis helped with the renovation and was paid by the Meekses in cash. The Meekses contend that, following their work on the house, the property was appraised at $240,000 and later at $250,000. The house was complete enough by October 2004 that the Meekses could officially move in. The Meekses contend that “[sjince early fall of 2004, anyone passing by our home would have been able to see that we lived there.” Meekses’ brief, at 18.

In 2004, the Bank recorded a judgment against Lewis. One of the Bank’s directors, Ralph Liverman, performed a title search. He advised the Bank that Freed-lander held record title to the property.

In 2006, the Meekses felt that the house was complete and obtained a mortgage to finance their purchase of the house. Lard had died in 2003, so Lewis signed her name to the deed purporting to convey the property from Lard to the Meekses. In 2006, Lewis recorded the deed conveying the property from Freedlander to him, as well as the deed conveying the property from him to Lard. The Meekses thereafter recorded their deed. Thus, all the deeds were recorded by the end of 2006. The Meekses also obtained a title-insurance policy insuring their title as free of any liens.

On December 13, 2006, the Bank initiated proceedings to conduct a sheriffs sale on the property. The Meekses learned of the sale on Friday, January 9, 2009. The sheriff held the sale on Monday, January 12, 2009, after which the sheriff deeded the property to Roderick Morrow as the highest bidder. Morrow’s bid was $48,000.

On January 29, 2009, the Meekses sued Morrow, seeking to redeem the property and a temporary restraining order preserving their possession of the house. On June 2, 2009, Morrow answered and filed a counterclaim, asking the trial court to order the Meekses to vacate the premises, to declare the deed conveying the property from Lard to the Meekses to be a nullity, to declare that the Meekses had no right of redemption, and to award Morrow damages for the Meekses’ refusal to vacate the property and for any damage resulting from the Meekses’ failure to vacate.

On July 10, 2009, the Meekses amended their complaint, adding as defendants the Bank and Lewis, alleging claims of slander of title against the Bank and Morrow and wrongful execution, negligence, “gross negligence,” and wantonness against the Bank. The Meekses also requested, in the alternative, that an equitable lien be placed on the property. Morrow filed a cross-claim against the Bank, alleging misrepresentation and suppression and requesting compensatory damages, punitive damages, prejudgment and postjudgment interest, attorney fees, and costs in the event that the trial court found the Meekses’ title to be superior to Morrow’s.

Morrow moved for a summary judgment in 2009. The Meekses opposed the motion and filed a cross-motion for a summary judgment. The trial court held a hearing on the motions on September 30, 2009, and gave Morrow more time to respond to the Meekses’ cross-motion for a summary judgment. The trial court never ruled on either summary-judgment motion.

The Meekses filed their, second amended complaint on May 4,' 2010, adding a count of breach of fiduciary duty against the Bank. The Meekses filed a third amended complaint on August 19, 2011, requesting a judgment declaring that the Meekses were bona fide purchasers of the property and seeking damages for mental anguish against the Bank and Morrow and requesting, in the alternative, that the sheriffs sale be set aside or that they be granted damages for breach of warranty of title by Lewis. The Meekses filed a fourth amended complaint on August 28, 2012, requesting, in the alternative, that the trial court declare the amount needed to redeem the property and also, in the alternative, if the deed conveying the property to the Meekses was invalid, requesting specific performance from Lewis to convey the property to the Meekses. Morrow and the Bank moved to strike the third and fourth amended complaints. The parties have not briefed this Court on whether the trial court ruled on those motions to strike, but it appears from the trial court’s order of February 26, 2013 (see infra), that it has not ruled on those motions.

The Meekses moved for a summary judgment again on July 6, 2012, before they filed their fourth amended complaint. On December 6, 2012, the Bank moved for a summary judgment as to the Meekses’ claims against the Bank. Likewise, Morrow moved for a summary judgment as to the Meekses’ claims against him. The trial court held a hearing on those motions on January 28, 2013.

On February 26, 2013, the trial court denied the Meekses’ summary-judgment motion and granted Morrow’s and the Banks’ summary-judgment motions. The trial court found that the unrecorded deed conveying the property from Lewis to Lard was void as to the judgment the Bank recorded against Lewis. The trial court also found that the deed conveying the property from Lard to the Meekses was void on its face and that the work-out agreement had not been properly executed. The trial court concluded:

“Because of these reasons, the Meekses are without title and cannot redeem the property, attack the Sheriffs sale or make their claims in this case against either the Bank or Mr. Morrow. It is FURTHER ORDERED that the Motion for Summary Judgment filed on behalf of Merchants & Farmers Bank is GRANTED.
“The Court further finds that at the request of the Meekses, the Court had entered a temporary restraining order and the same is due to be dissolved. “IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED by the Court that the temporary restraining order is hereby dissolved.
“IT IS FURTHER ORDERED, ADJUDGED AND DECREED by the Court that the Motion for Summary Judgment filed on behalf of Roderick Morrow is hereby granted and, finally,
“IT IS FURTHER ORDERED that Roderick Morrow is entitled to immediate possession of the property.”

Meekses’ brief, Appendix B (capitalization in original).

The Meekses appealed. On July 22, 2013, this Court’s clerk’s office sent an order to the trial court stating, in relevant part:

“It appearing to the Court that the order appealed from is not a final, appeal-able order in that there remain unadju-dicated claims,
“This cause is remanded to you to determine, within fourteen (14) days from the date of this order, whether to 1) make the order of February 26, 2013, a final judgment pursuant to the provisions of Rule 54(b), Alabama Rules of Civil Procedure; or 2) adjudicate the remaining claims and issue a final judgment as to all claims; or 3) do nothing, in which case this appeal will be dismissed as from a non-final order.”

The trial court replied, in relevant part, as follows:

“The Order granting partial summary judgment in this case disposed of all the claims of the plaintiffs against the defendant, Roderick Morrow, and against the defendant, Merchants & Farmers Bank, and has left pending the Counterclaim of Roderick Morrow against the plaintiffs and the Crossclaims of Roderick Morrow against Merchants & Farmers Bank and the mortgage company.[] Furthermore, there may be remaining a claim by the plaintiffs against the estate of Henry Lewis and/or the Estate of Bessie Lard based upon the allegations in some of the Amended Complaints (the Court does not, at this point, decide whether the plaintiffs can amend to add those estates or not).
“The Court finds that there is no prejudice or risk of inconsistent results in granting a partial final judgment on the Order granting partial summary judgment and this is true especially considering the posture of the case and the fact that the plaintiffs have requested appellate review of the summary judgment order. In fact, the Court believes that making the partial summary judgment order a final judgment will expedite the remaining issues in this case.
“Accordingly, the Court directs the entry of final judgment on all claims of the plaintiffs against the defendant, Roderick Morrow, and against the defendant, Merchants & Farmers Bank, as set forth in the Order granting summary judgment. The Court further finds that there is no just reason for delay and makes this express direction for the entry of said partial final judgment.”

The parties subsequently filed motions stating that they believed the trial court properly certified its February 26, 2013, order as a final judgment under Rule 54(b), Ala. R. Civ. P.

II. Analysis

Although the parties do not dispute the validity of the trial court’s Rule 54(b) certification, this Court takes note of jurisdictional matters ex mero motu. Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987). An appeal will be dismissed ex mero motu if the order appealed is not a final judgment. Dzwonkowski v. Sonitrol of Mobile, Inc., 892 So.2d 354, 362 (Ala.2004).

Rule 54(b), Ala. R. Civ. P., provides:

“When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.”

In Schlarb v. Lee, 955 So.2d 418, 419-20 (Ala.2006), this Court stated the following concerning certifications under Rule 54(b):

“This Court looks with some disfavor upon certifications under Rule 54(b).
“ ‘It bears repeating, here, that “ ‘certifications under Rule 54(b) should be entered only in exceptional cases and should not be entered routinely.’ ” State v. Lawhorn, 830 So.2d 720, 725 (Ala.2002) (quoting Baker v. Bennett, 644 So.2d 901, 903 (Ala.1994), citing in turn Branch v. SouthTrust Bank of Dothan, N.A., 514 So.2d 1373 (Ala.1987)). “ ‘ “Appellate review in a piecemeal fashion is not favored.” ’ ” Goldome Credit Corp. v. Player, 869 So.2d 1146, 1148 (Ala.Civ.App.2003) (quoting Harper Sales Co. v. Brown, Stagner, Richardson, Inc., 742 So.2d 190, 192 (Ala.Civ.App.1999), quoting in turn Brown v. Whitaker Contracting Corp., 681 So.2d 226, 229 (Ala.Civ.App.1996)) (emphasis added).’ “Dzwonkowski v. Sonitrol of Mobile, Inc., 892 So.2d 354, 363 (Ala.2004). Also, a Rule 54(b) certification should not be entered if the issues in the claim being certified and a claim that will remain pending in the trial court ‘ “are so closely intertwined that separate adjudication would pose an unreasonable risk of inconsistent results.” ’ Clarke-Mobile Counties Gas Dist. v. Prior Energy Corp., 834 So.2d 88, 95 (Ala.2002) (quoting Branch v. SouthTrust Bank of Dothan, N.A., 514 So.2d 1373, 1374 (Ala.1987)).”

In determining whether the trial court exceeded its discretion in determining in a Rule 54(b) certification that there was no just reason for delay, the following five factors, or those of them that are applicable, should be considered:

“ ‘ “(1) the relationship between the adjudicated and unadjudicated claims; (2) the possibility that the need for review might or might not be mooted by future developments in the [trial] court; (3) the possibility that the reviewing court might be 'obliged to consider the same issue a second time; (4) the presence or absence of a claim or counterclaim which could result in a set-off against the judgment sought to be made final; (5) miscellaneous factors such as delay, economic and solvency considerations, shortening the time of trial, frivolity of competing claims, expense, and the like.” ’ ”

Lighting Fair, Inc. v. Rosenberg, 63 So.3d 1256, 1264 (Ala.2010) (quoting MCI Constructors, LLC v. City of Greensboro, 610 F.3d 849, 855 (4th Cir.2010)) (emphasis and footnote omitted).

The most critical factor in this case is the relationship between the adjudicated claims and the unadjudicated claims. The trial court’s February 26, 2013, order decided the Meekses’ claims against Morrow and the Bank, but left several claims pending: Morrow’s counterclaim against the Meekses, and Morrow’s cross-claims against the Bank and Option One Mortgage Corporation (see supra note 3). All of those claims; with the possible exception of the claim against Option One, are completely dependent upon our affirmance or reversal of the trial court’s February 26, 2013, order. Morrow’s request for damages is dependent upon this Court’s affir-mance of the February 26, 2013, order. Likewise, Morrow’s cross-claim against the Bank seeking damages for fraud and suppression is dependent upon this Court’s reversing the trial court’s order. In this case, therefore, “ ‘the parties’ ... claims are dependent on each other and a resolution of one claim would impact the determination of the other.’ ” Gregory v. Ferguson, 10 So.3d 596, 598 (Ala.Civ.App.2008) (quoting BB & S Gen. Contractors, Inc. v. Thornton & Assocs., Inc., 979 So.2d 121, 125 (Ala.Civ.App.2007)). Thus, the claims remaining before the trial court and the claims before us on appeal are so intertwined that they cannot be adjudicated without the “unreasonable risk of inconsistent results.” Schlarb, 955 So.2d at 419-20.

III. Conclusion

We hold that the trial court exceeded its discretion in certifying its order of February 26, 2013, as a final judgment pursuant to Rule 54(b). “ ‘ “When it is determined that an order appealed from is not a final judgment, it is the duty of the Court to dismiss the appeal ex mero motu.” ’ ” Dzwonkowski, 892 So.2d at 362 (quoting Tatum v. Freeman, 858 So.2d 979, 980 (Ala.Civ.App.2003), quoting in turn Powell v. Republic Nat’l Life Ins. Co., 293 Ala. 101, 102, 300 So.2d 359, 360 (1974)). Consequently, the appeal is dismissed as being from a nonfinal judgment.

APPLICATION OVERRULED; OPINION OF DECEMBER 20, 2013, WITHDRAWN; OPINION SUBSTITUTED; APPEAL DISMISSED.

BOLIN, MURDOCK, MAIN, and BRYAN, JJ., concur.

      . The value of the property is contested by the parties. The Meekses argue that the Bank conceded that the renovated property has a "replacement cost of over $600,000," Meeks-es’ brief, at 25, whereas the Bank argues that the Meekses’ total investment was "around $78,000 — or more, but less than $158,000.00.” Bank's brief, at 21-22.

      . Apparently Lewis died at some point during this litigation.

      . The mortgage company to which the order refers appears to be Option One Mortgage Corporation ("Option One”). The Meekses contend that "Morrow filed a motion to add Option One ... as [a] necessary party defendant]” but that "such motion was not ruled on.” Meekses’ brief, at vii. The Meekses also claim that "Morrow later filed a pleading indicating he no longer intended to add Option One as a patty defendant.” Meekses’ brief, at vii-viii. These motions do not appear in the record. Meekses’ brief, at vii-viii. However, the Meekses state that "Option One is not a proper party to this appeal and is omitted as an appellant.” Meekses’ brief, at viii.


author: BRYAN, Justice. MURDOCK, Justice

text:
    Ex parte Clay MERCHES. (In re Cora Brantley et al. v. Dwight Bassett et al.).
    1120965.
    Supreme Court of Alabama.
    March 14, 2014.

      C. Winston Sheehan, Jr., and D. Kirby Howard, Jr., of Ball, Ball, Matthews & Novak, P.A., Montgomery; and Prince D. Chestnut, Selma, for petitioner.
    Christopher A. Thigpen, Tuscaloosa, for respondents.
   BRYAN, Justice.

Clay Merches petitions this Court for a writ of mandamus directing the trial court to dismiss, for lack of personal jurisdiction, the claims against him. We grant the petition and issue the writ.

Procedural History and Factual Baclcground

In September 2011, Cora Brantley, Emanuel Brantley, and Sharon Brantley (collectively “the plaintiffs”) sued Builders Transportation Company, LLC (“Builders Transportation”), and Dwight Bassett, an employee of Builders Transportation, in the Hale Circuit Court. The case concerns a missing flatbed trailer owned by Builders Transportation, a Tennessee company. The plaintiffs are Alabama residents. The complaint alleged that the parties had entered into a contract in which Builders Transportation and Bassett had agreed to pay the plaintiffs $10,000 in return for information about the location of the missing trailer. The plaintiffs further alleged that Builders Transportation and Bassett had breached that contract by failing to pay the plaintiffs $10,000 for the information given about the trailer, which was located in a field in Hale County. Instead of receiving $10,000, the plaintiffs were arrested in Hale County and charged with receiving stolen property and conspiracy to commit theft of property. Those charges were later dismissed. Regarding the dismissed charges, the complaint also alleged claims of malicious prosecution and abuse of process.

In July 2012, the plaintiffs amended their complaint to add Merches, an employee of Builders Transportation, as a defendant. The claims and factual allegations made against Merches in the amended complaint are the same as those made against Builders Transportation and Bas-sett. Merches filed a Rule 12(b)(2), Ala. R. Civ. P., motion to dismiss the claims against him for lack of personal jurisdiction. In his motion to dismiss, Merches argued that he lacked the required minimum contacts with Alabama sufficient to give the trial court personal jurisdiction over him. In support of his motion, Merches attached his own affidavit, in which he stated, in pertinent part:

“2. On October 20, 2009, I was an employee for Builders Transportation ... and was a resident of Memphis, Tennessee at that time.
“3. On the same day, Plaintiffs placed a telephone call to Builders Transportation which I answered. The telephone call was regarding the whereabouts of a trailer belonging to Builders Transportation. Specifically, Plaintiffs stated that they had knowledge of the location of the trailer and if the company would pay $10,000.00 they would agree to divulge the location of the trailer.
“4. After the telephone conversation ended, I called one of my supervisors, Dwight Bassett, and relayed the information to him. I also spoke with officers of the Tuscaloosa Police Department and Deputy Sheriff Robert Clayton of the Hale County Sheriffs Office regarding the situation. After speaking with Mr. Bassett, the police, and Deputy Clayton, I again spoke with Plaintiffs regarding the subject trailer. All of the mentioned telephone conversations were conducted from Memphis, Tennessee.
“5. During my two telephone conversations with [the] Plaintiff[s], I never knowingly or willingly entered into a valid contract with regard to the recovery of the subject trailer.
“6. I have never lived or worked in the state of Alabama and I never initiated any communication with Plaintiffs prior to the subject telephone conversation. The only connection I have with this case or the state of Alabama is answering the subject telephone call and discussing the situation via telephone with the Tuscaloosa Police Department, Deputy Robert Clayton of the Hale County Sheriffs Office, and a subsequent telephone call to Plaintiffs.
“7. Since October 20, 2009, I have obtained new employment and now reside in the state of Minnesota.”

The plaintiffs filed a response to the motion to dismiss, arguing that the trial court has personal jurisdiction over Merch-es. The plaintiffs attached to their response an incident report, prepared by the Hale County Sheriffs Office, documenting the recovery in Hale County of the trailer belonging to Builders Transportation. According to the incident report, the incident was reported by Bassett, Merches’s supervisor. The incident report lists Builders Transportation as the “victim” and lists Cora Brantley and Sharon Brantley, two of the plaintiffs in this case, as “suspects.” In pertinent part, the incident report contains the following description regarding the recovery of the trailer:

“Victim states that on 10-23-09 ... Merches received a phone call from Cora Brantley asking if there was a reward for the stolen trailer[. Merches] said he would give her $1,000 if she would tell him where the trailer was[, but] Cora told him no. She said she would tell him [the location of the trailer] if he gave her $10,000. [Merches] agreed to give her the $10,000 so that Deputy Robert Clayton could catch Cora. [Later that day,] Sharon Brantley met Deputy Clayton at the Sawyerville Convenience Store. [Builders Transportation] sent a ... driver down[. The driver] followed Sharon, and Deputy Clayton followed the ... driver to an abandoned field where the trailer was found[, but] a quarter of the load was missing. Cora Brantley showed up shortly after Sharon told her she was going to be arrested. Both Sharon and Cora Brantley where then placed under arrest and taken to the Hale County Jail.”

On April 9, 2013, the trial court denied Merches’s motion to dismiss. Merches subsequently filed another motion, again asking the trial court to dismiss the claims against him for lack of personal jurisdiction. Although Merches called that motion a Rule 59, Ala. R. Civ. P., motion to alter, amend, or vacate the denial of his Rule 12(b)(2) motion, a Rule 59 motion may be made only in reference to a final judgment. See Ex parte Troutman Sanders, LLP, 866 So.2d 547, 549-50 (Ala.2003). Because the denial of the Rule 12(b)(2) motion was not a final judgment, Merches’s purported Rule 59 motion in reference to that denial was simply a second motion seeking dismissal. The trial court denied the second motion seeking dismissal also. On May 21, 2013, Merches filed a petition for a writ of mandamus to this Court.

Standard of Review

A petition for a writ of mandamus is the proper vehicle by which to challenge the denial of a motion to dismiss for lack of personal jurisdiction. Ex parte Dill, Dill, Carr, Stonbraker & Hutchings, P.C., 866 So.2d 519, 525 (Ala.2003). “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). However, “an appellate court must give deferential consideration to any findings of fact made by a trial court based on evidence received ore tenus in connection with a determination as to the nature and extent of a foreign defendant’s contacts with the forum state.” Ex parte American Timber & Steel Co., 102 So.3d 347, 353 n. 7 (Ala.2011).

“A writ of mandamus is an extraordinary remedy, and it will be ‘issued only when there is: 1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court.’ Ex parte United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala.1993).”

Ex parte Empire Fire & Marine Ins. Co., 720 So.2d 893, 894 (Ala.1998).

Discussion

The extent of an Alabama court’s personal jurisdiction over an out-of-state defendant is governed by Rule 4.2(b), Ala. R. Civ. P. Rule 4.2(b), as amended in 2004, provides:

“(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 Hiller Investments, Inc. v. Insultech Group, Inc., 957 So.2d 1111, 1115 (Ala.2006), this Court explained:

“[Rule 4.2(b) ] extends the personal jurisdiction of Alabama courts to the limit of due process under the United States and Alabama Constitutions. When applying Rule 4.2(b), this Court has interpreted the due process guaranteed under the Alabama Constitution as coextensive with that guaranteed under the United States Constitution.”

“The plaintiff has the burden of proving that the trial court has personal jurisdiction over the defendant.” J.C. Duke & Assocs. Gen. Contractors, Inc. v. West, 991 So.2d 194, 196 (Ala.2008).

“ ‘ “ ‘In considering a Rule 12(b)(2), Ala. R. Civ. P., motion to dismiss for want of personal jurisdiction, a court must consider as true the allegations of the plaintiff’s complaint not controverted by the defendant’s affidavits, Robinson v. Giarmarco & Bill, P.C., 74 F.3d 253 (11th Cir.1996), and Cable/Home Communication Coyp. v. Network Productions, Inc., 902 F.2d 829 (11th Cir.1990), and “where the plaintiffs complaint and the defendant’s affidavits conflict, the ... court must construe all reasonable inferences in favor of the plaintiff.” Robinson, 74 F.3d at 255 (quoting Madara v. Hall, 916 F.2d 1510, 1514 (11th Cir.1990)).’ ”
“‘Wenger Tree Serv. v. Royal Truck & Equip., Inc., 853 So.2d 888, 894 (Ala.2002) (quoting Ex parte McInnis, 820 So.2d 795, 798 (Ala.2001)). However, if 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, and he may not merely reiterate the factual allegations in the complaint.” Mercantile Capital, LP v. Federal Transtel, Inc., 193 F.Supp.2d 1243, 1247 (N.D.Ala.2002) (citing Future Tech. Today, Inc. v. OSF Healthcare Sys., 218 F.3d 1247, 1249 (11th Cir.2000)). See also Hansen v. Neumueller GmbH, 163 F.R.D. 471, 474-75 (D.Del.1995) (“When a defendant files a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(2), and supports that motion with affidavits, plaintiff is required to controvert those affidavits with his own affidavits or other competent evidence in order to survive the motion.”) (citing Time Share Vacation Club v. Atlantic Resorts, Ltd., 735 F.2d 61, 63 (3d Cir.1984)).’

“Ex parte Covington Pike Dodge, Inc., 904 So.2d 226, 229-30 (Ala.2004).”

Ex parte Bufkin, 936 So.2d 1042, 1045 (Ala.2006).

“ ‘Two types of contacts can form a basis for personal jurisdiction: general contacts and specific contacts. General contacts, which give rise to general personal jurisdiction, consist of the defendant’s contacts with the forum state that are unrelated to the cause of action and that are both “continuous and systematic.” Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 n. 9, 415, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984); [citations omitted]. Specific contacts, which give rise to specific jurisdiction, consist of the defendant’s contacts with the forum state that are related to the cause of action. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472-75, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). Although the related contacts need not be continuous and systematic, they must rise to such a level as to cause the defendant to anticipate being haled into court in the forum state. Id.’
“Ex parte Phase III Constr., Inc., 723 So.2d 1263, 1266 (Ala.1998) (Lyons, J., concurring in the result). Furthermore, this Court has held that, for specific in personam jurisdiction, there must exist ‘a clear, firm nexus between the acts of the defendant and the consequences complained of.’ Duke v. Young, 496 So.2d 37, 39 (Ala.1986). See also Ex parte Kamilewicz, 700 So.2d 340, 345 n. 2 (Ala.1997).”

Elliott, 830 So.2d at 730.

In this case, the plaintiffs concede that the trial court does not have general personal jurisdiction over Merches. The issue is whether Merches has sufficient minimum contacts with Alabama to allow the trial court to exercise specific personal jurisdiction over him. Regarding specific jurisdiction, the United States Supreme Court has explained:

“[T]he constitutional touchstone remains whether the defendant purposefully established ‘minimum contacts’ in the forum State. Although it has been argued that foreseeability of causing injury in another State should be sufficient to establish such contacts there when policy considerations so require, the Court has consistently held that this kind of foreseeability is not a ‘sufficient benchmark’ for exercising personal jurisdiction. Instead, ‘the foreseeability that is critical to due process analysis ... is that the defendant’s , conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.’ In defining when it is that a potential defendant should ‘reasonably anticipate’ out-of-state litigation, the Court frequently has drawn from the reasoning of Hanson v. Denckla, 357 U.S. 235, 253 (1958):
“ ‘The unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum State. The application of that rule will vary with the quality and nature of the defendant’s activity, but it is essential in each ease that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.’
“This ‘purposeful availment’ requirement ensures that a defendant will not be haled into a jurisdiction solely as a result of ‘random,’- ‘fortuitous,’ or ‘attenuated’ contacts, or of the ‘unilateral activity of another party or a third person.’ Jurisdiction is proper, however, where the contacts proximately result from actions by the defendant himself that create a ‘substantial connection’ with the forum State. 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, and because his activities are shielded by ‘the benefits and protections’ of the forum’s laws it is presumptively not unreasonable to require him to submit to the burdens of litigation in that forum as well.
“Once it has been decided that a defendant purposefully established minimum contacts within the forum State, these contacts may be considered in light of other factors to determine whether the assertion of personal jurisdiction would comport with ‘fair play and substantial justice.’ Thus courts in ‘appropriate case[s]’ may evaluate ‘the burden on the defendant,’ ‘the forum State’s interest in adjudicating the dispute,’ ‘the plaintiffs interest in obtaining convenient and effective relief,’ ‘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.’ ”

Burger King Corp. v. Rudzewicz, 471 U.S. 462, 473-77, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) (citations and footnotes omitted).

This Court has summarized the test for minimum contacts explained in Burger King as follows:

“(1) The nonresident defendant’s contacts must be related to the plaintiffs cause of action or have given rise to it. (2) By its contacts the nonresident defendant must have purposefully availed itself of the privilege of conducting business in the forum state. (3) The nonresident defendant’s contacts with the forum must be ‘such that the nonresident defendant “ ‘should reasonably anticipate being haled into court’ ” in the forum state.’ ”

Ex parte Alamo Title Co., 128 So.3d 700, 711 (Ala.2013) (quoting Ex parte Excelsior Fin., Inc., 42 So.3d 96, 101 (Ala.2010), quoting in turn Burger King, 471 U.S. at 473) (citations and footnote omitted). “The issue of personal jurisdiction “‘stands or falls on the unique facts of [each] case.” ’ ” Ex parte Citizens Prop. Ins. Corp., 15 So.3d 511, 515 (Ala.2009) (quoting Ex parte I.M.C., Inc., 485 So.2d 724, 725 (Ala.1986)).

The evidence in this case indicates that Merches’s contacts with Alabama were limited. According to his affidavit, Merch-es, while working for Builders Transportation in Tennessee, answered a telephone call placed to Builders Transportation by “the plaintiffs,” who are residents of Alabama. The incident report notes that Merches actually spoke with plaintiff Cora Brantley during that telephone call. Cora told Merches that she had information about the location of Builders Transportation’s missing flatbed trailer and that she would reveal that information if Builders Transportation- would pay her $10,000. After that first conversation ended, Merch-es contacted his supervisor Bassett, and Merches also contacted law-enforcement authorities in Alabama. Merches then telephoned Cora and, according to the incident report, “agreed to give her the $10,000 so that Deputy Robert Clayton could catch Cora.” Sharon Brantley subsequently led Deputy Sheriff Clayton and a driver for Builders Transportation to the trailer in Alabama.

It is undisputed that Merches’s contacts with Alabama relate to the cause of action. However, considering “‘the quality and nature of [Merches’s] activity,’ ” Burger King, 471 U.S. at 475 (quoting Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958)), we cannot say that Merches purposefully availed himself of the privilege of conducting activities in Alabama or that he could have reasonably anticipated being haled into court in Alabama. For one thing, Merches did not initiate contact with the plaintiffs in Alabama. Given the limited contacts in this case, the fact that Merches did not initiate contact with Alabama is particularly significant. See Hiller, 957 So.2d at 1118-19 (finding the first-contact factor to be “highly significant” in evaluating whether minimum contacts exist); and Ex parte Troncalli Chrysler Plymouth Dodge, Inc., 876 So.2d 459, 465 (Ala.2003) (“Of particular relevance is whether the plaintiff initiated the sale or contact.”), and cases cited therein.

More importantly, Merches’s contacts with Alabama were “ ‘random,’ ‘fortuitous,’ [i.e., occurring by chance, and] ‘attenuated.’ ” Burger King, 471 U.S. at 475. Through no action by Merches, the missing trailer owned by his employer happened to turn up in an abandoned field in Alabama. Through no action by Merches, the plaintiffs obtained information about the location of the trailer in Alabama; Merches happened to answer the telephone for his employer when Cora telephoned his employer’s Tennessee office seeking to trade that information for $10,000. Although Merches then contacted the authorities in Alabama to discuss the situation, he did so only because he had been drawn into the situation by the plaintiffs in Alabama. The evidence indicates that Merches, acting on his employ er’s behalf, “agreed” to pay Cora $10,000 only “so that Deputy ... Clayton could catch Cora.” Considering that fact, we may safely conclude that Merches’s so-called “agreement” with Cora was made pursuant to the advice of the Hale County Sheriffs Office'. These activities do not demonstrate purposeful availment.

The evidence indicates that, after Merches’s second telephone conversation with Cora, his contacts with Alabama ceased. He was not present when Cora and Sharon were arrested in Alabama, nor was he ever present in Alabama. Although Merches, through telephone calls made on behalf of his employer, was involved in the recovery of his employer’s trailer, his involvement ended with the second telephone call. The incident report, completed after the recovery of the trailer, indicates that Merches’s supervisor, Bassett, reported the incident and lists Merches’s employer as the victim. An examination of the “nature and quality” of Merches’s contacts with Alabama reveals that his initial contact was random and uninitiated and that subsequent limited contacts naturally stemmed from the initial contact. In short, Merches’s contacts with Alabama were random, fortuitous, and attenuated, i.e., they were not “actions by [Merches] himself that create[d] a ‘substantial connection’ with [Alabama].” Burger King, 471 U.S. at 475 (emphasis omitted).

Our conclusion is in accord with our recent decision in Ex parte Alamo Title Co., supra, and the cases cited therein. In Alamo, we concluded that Alamo, an escrow agent, lacked minimum contacts with Alabama. This Court noted that “Alamo had virtually no contact with Alabama other than telephone and electronic-mail communications [with other parties] and the wiring of funds from [a] Texas bank account to [an] Alabama bank account in relation to the real-estate transaction” underlying the action. 128 So.3d at 712. We concluded that there was no evidence that Alamo “ ‘purposefully availed’ itself of the protection of the laws of Alabama or that it should reasonably have expected to be haled into court here.” 128 So.3d at 712. The Court in Alamo then noted other similar cases in which this Court has found a lack of minimum contacts, including Ex parte No. 1 Steel Products, Inc., 76 So.3d 805 (Ala.2011) (finding a lack of personal jurisdiction when a nonresident defendant entered into a one-time contract for the purchase of goods from an Alabama plaintiff), and Vista Land & Equipment, L.L.C. v. Computer Programs & Systems, Inc., 953 So.2d 1170, 1177 (Ala.2006) (“[O]ur 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.”).

We conclude that Merches lacked sufficient minimum contacts with Alabama to support the trial count’s exercise of personal jurisdiction over him. Merches has a clear legal right to have the plaintiffs’ claims against him dismissed for lack of personal jurisdiction. Accordingly, we grant Merches’s petition for a writ of mandamus and issue the writ directing the trial court to vacate its order denying Merches’s motion to dismiss and to enter an order dismissing the claims against Merches. Our holding pretermits discussion of the other arguments made by Merches.

PETITION GRANTED; WRIT ISSUED.

STUART, BOLIN, PARKER, and WISE, JJ., concur.

MURDOCK and SHAW, JJ., concur in the result.

MURDOCK, Justice

(concurring in the result).

The main opinion bases its holding, in part, on the contacts' at issue here being “random,” “fortuitous,” and “attenuated.” 151 So.3d at 1080 (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985)). Because I do not find the contacts at issue here to be “random, fortuitous, and attenuated,” in the sense contemplated in Burger King and the cases it cites as examples (e.g., World-Wide Volkswagen Corp. v. Wood- son, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980) (involving an accident that just happened to occur in Oklahoma resulting from alleged defects in a car purchased by the plaintiffs in New York and unilaterally driven by the plaintiffs into Oklahoma)), I concur in the result reached by the main opinion, but not in the entirety of its analysis. Granted, the flatbed trailer at issue in this case did end up in Alabama through no fault of Builders Transportation Company, LLC (“Builders”). Once it did, however, and Builders received a telephone call from an Alabama resident, Builders then voluntarily, knowingly, and deliberately proceeded to enter into a contract (or what is alleged to be a contract) with an Alabama resident for the payment of money to be received in Alabama for actions to be performed in Alabama.

In place of the alleged “randomness” of the contacts with the State of Alabama, I would place emphasis on the fact that the claims in this case are based on a contract between an out-of-state entity and an Alabama resident and that the out-of-state entity that is a party to that contract is not Merches. Merches may have been the employee or agent of the out-of-state corporation through which that corporation acted to enter into the alleged contract, but he did so only on behalf of that corporation. That corporation, Builders, may or may not have sufficient contact with Alabama to be amenable to suit here, but that is not the question before us. No contacts exist between Merches individually and Alabama that would subject him personally to the jurisdiction of our courts as to the claims at issue here. See, e.g., Ex parte Kohlberg Kravis Roberts & Co., L.P., 78 So.3d 959, 974 (Ala.2011), distinguishing between contract-based actions and certain tort actions and quoting with approval from Thames v. Gunter-Dunn, Inc., 373 So.2d 640, 641-42 (Ala.1979), quoting in turn Idaho Potato Comm’n v. Washington Potato Comm’n, 410 F.Supp. 171, 181 (D.Idaho 1975), as follows:

“ ‘[Ujnless there is evidence that the act by the corporate officer was other than as an agent for the corporation, then personal jurisdiction over the corporate officer will not lie. Fashion Two Twenty, Inc. v. Steinberg, 339 F.Supp. 836, 842 (E.D.N.Y.1971).’ ”

As to the claims of abuse of process and malicious prosecution, I also see no actions by Merches other than as agent for Builders, the owner of the stolen property.

      . Although the complaint named "Builder Transportation Company, LLC,” as a defendant, the actual name of that company is “Builders Transportation Company, LLC.”


author:
MURDOCK, Justice.
      MAIN, Justice

text:
    Kenneth JAKEMAN v. LAWRENCE GROUP MANAGEMENT COMPANY, LLC, et al.
    1111018.
    Supreme Court of Alabama.
    March 21, 2014.

      Abbey Herrin, Birmingham, for appellant.
    Michael H. Johnson of Johnston Barton Proctor & Rose LLP, Birmingham, for appellees Lawrence Group Management Co. and Montgomery Memorial Cemetery.
   MURDOCK, Justice.

Kenneth Jakeman (“Kenneth”) appeals from-the trial court’s judgment dismissing his claims against defendants Lawrence Group Management Company, LLC (“Lawrence”), Montgomery Memorial Cemetery (“MMC”), and Judy A. Jones (“Judy”). We affirm in part, reverse in part, and remand.

I. Facts and Procedural History

This is the second time this case has come before this Court. In Jakeman v. Lawrence Group Management Co., 82 So.3d 655 (Ala.2011) (“Jakeman I”), the Court succinctly summarized most of the facts and much of the key procedural history:

“Lawrence owns and operates Montgomery Memorial Cemetery, a cemetery in Montgomery (‘the cemetery’). Lawrence purchased the cemetery from Ald-erwoods[, Inc. (‘Alderwoods’),] in or around 2002. In 1967, Kenneth’s father, Ben Jakeman, purchased from MMC a ‘family plot’ in the cemetery containing 10 separate burial spaces. The plot Ben selected was specifically chosen because of its location adjacent to plots owned by Ben’s mother, Frances O’Neal. Pursuant to the terms of the purchase agreement for the family plot, burial within Ben’s plot was limited to members of either the Jakeman family or the O’Neal family.
“In August 2002, MMC allegedly mistakenly conveyed two spaces in Ben’s family plot to James A. Jones and his wife, Judy A. Jones. Following James’s death, on August 28, 2002, James was interred in one of those two spaces.
“In 2006, Kenneth learned that James had been buried in Ben’s family plot, at which time, Kenneth says, he immediately notified MMC and Ben. In response to demands by Kenneth and Ben, MMC disinterred James and moved both his body and his marker; however, James was reinterred in another space on Ben’s family plot. Ben died in 2008. At the time of Ben’s death, James’s body remained buried in one of the spaces in Ben’s plot.
“Despite the offer of an exchange of burial spaces, and based upon their purported refusal to again exhume and move James’s body and marker, in May 2010 Kenneth filed suit against Aider-woods, Lawrence, MMC, and Judy A. Jones, alleging breach of contract; trespass; negligence, ■ willfulness, and/or wantonness; the tort of outrage; and conversion. In her answer to Kenneth’s complaint, Judy asserted her own cross-claim against Alderwoods, Lawrence, and MMC, based on their alleged error in conveying to her spaces already owned by Ben and the initial erroneous burial of James, his disinterment, and his subsequent erroneous reburial in another of Ben’s spaces.
“Alderwoods subsequently filed a motion to dismiss Kenneth’s complaint based on its contentions that Kenneth lacked the requisite ‘standing’ to pursue the stated claims, that the asserted tort claims did not survive Ben’s death, and that some of the claims were barred by the expiration of the applicable limitations periods. Lawrence and MMC later joined Alderwoods’s dismissal motion.
“The trial court conducted a hearing on the motion to dismiss on July 28, 2010, at the conclusion of which the trial court announced on the record its intention to dismiss the action but to provide Kenneth 30 days to refile any viable claims. Also at the conclusion of the hearing, the trial court requested a proposed order reflecting its stated decision, which counsel for Alderwoods volunteered to provide. The record reflects that, on August 1, 2010, the trial court signed the order prepared by Alderwoods granting the joint dismissal motion, dismissing ‘all claims brought by the plaintiff against all defendants.’ The order further provided that ‘all cross claims [were] also dismissed.’
“On August 2, 2010, Judy, who was presumably aware of the contents of the trial court’s dismissal order at the time it was signed, filed a postjudgment motion pursuant to Rule 59(e), Ala. R. Civ. P., seeking to alter, amend, or vacate the order on the ground that it dismissed her cross-claim, which, she contended, was not addressed by the dismissal motion and was, therefore, not properly before the trial, court on the motion to dismiss. The clerk of the trial court subsequently entered the trial court’s previously signed dismissal order on September 17, 2010.”

82 So.3d at 656-57 (footnotes omitted).

On August 24, 2010, Kenneth filed a “Memorandum of Law” in which he sought to explain to the trial court why he believed he had standing to pursue his claims. On October- 14, 2010, Kenneth filed a Rule 59(e), Ala. R. Civ. P., motion seeking to alter, amend, or vacate the trial court’s dismissal order. Simultaneously, Kenneth filed a third amended complaint in his individual capacity and on behalf of the estate of Frances O’Neal. The complaint reiterated Kenneth’s individual claim of breach of contract, it asserted a breach-of-contract claim on behalf of the estate of Frances O’Neal, and it stated a claim for declaratory and injunctive relief; the complaint did not allege any tort claims.

On September 9, 2010, Robert Jakeman, Kenneth’s brother and the personal representative of Ben Jakeman’s estate, purported to sell the rights to the Jakeman burial plot back to MMC for $4,000. He also purported to relinquish all rights thereto and waived any claims the estate of Ben Jakeman had or could have against MMC or against Lawrence.

On October 29, 2010, the trial court entered an order specifically denying only Kenneth’s motion to alter, amend, or vacate. On November 29, 2010, the trial court entered an “Amended Order” reiterating its dismissal of all of Kenneth’s claims but ordering that “all cross-claims filed by Judy ... are NOT DISMISSED and shall remain pending.” Kenneth filed a notice of appeal on that same date.

On October 7, 2011, this Court released its decision in Jakeman I. In Jakeman I, this Court noted that the trial court’s order dismissing all claims asserted by both Kenneth and Judy did not become effective until it was entered by the clerk on September 17, 2010. At that time, Judy’s previously premature motion to alter, amend, or vacate the judgment was deemed to be filed, giving the trial court 90 days to rule on her motion. The trial court ruled on her motion through its November 29, 2010, “Amended Order” which stated that Judy’s cross-claims remained pending against the other defendants. The Jakeman I Court concluded that because undisposed claims remained in the action and the trial court had not entered a Rule 54(b), Ala. R. Civ. P., order, Kenneth had appealed from a nonfinal judgment. Accordingly, this Court dismissed Kenneth’s appeal.

On February 27, 2012, Kenneth filed in the trial court a motion seeking to have the judgment against him certified as a final judgment under Rule 54(b), which the trial court granted on April 9, 2012. Kenneth again appeals.

II. Standard of Review

“Unless it appears beyond a reasonable doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief under some cognizable theory of law, the court should not grant a motion to dismiss a complaint. Rice v. United Ins. Co., 465 So.2d 1100 (Ala.1984). This Court, when reviewing a motion to dismiss for failure to state a claim, must resolve all doubts in favor of the plaintiff. Whitehead v. Hester, 512 So.2d 1297 (Ala.1987). In our review, we need not determine whether the plaintiff will ultimately prevail, only whether he has stated a claim on which he may possibly prevail. Fontenot v. Bramlett, 470 So.2d 669 (Ala.1985).”

American Auto. Ins. Co. v. McDonald, 812 So.2d 309, 311 (Ala.2001).

III. Analysis

The defendants grounded their motion to dismiss on three bases: (1) Kenneth’s alleged lack of “standing”; (2) the abatement of Kenneth’s tort claims; and (3) the time-bar created by the applicable statutes of limitations. As we noted in the rendition of the facts from Jakeman I, the trial court based its dismissal on a purported lack of standing. On appeal, Kenneth makes no argument in an effort to redeem the tort claims asserted by him in his original and first amended complaint. He appears to have relinquished those claims; therefore, we need not address the abatement issue. We thus turn to the other two issues listed above.

A. “Standing”

Although both sides label the first issue before us as one of “standing,” in reality it is merely one of whether Kenneth has-stated a cause of action, i.e., whether he has alleged a set of facts that, if true, will entitle him to relief under Alabama law. See Rule 12(b)(6), Ala. R. Civ P. “[O]ur courts too often have fallen into the trap of treating as an issue of ‘standing’ that which is merely a failure to state a cognizable cause of action or legal theory, or a failure to satisfy [an] element of a cause of action.” Wyeth, Inc. v. Blue Cross & Blue Shield of Alabama, 42 So.3d 1216, 1219 (Ala.2010). Compare, e.g., Steele v. Federal Nat’l Mortg. Ass’n, 69 So.3d 89, 91 n. 2 (Ala.2010) (citing Wyeth as authority for rejecting the appellant’s suggestion that a plaintiffs failure to have made a demand for possession before bringing an ejectment action presented an issue of standing). In Ex parte BAC Home Loans Servicing, LB, [Ms. 1110373, Sept. 13, 2013] — So.3d - (Ala.2013), this Court recently noted that the concept of standing was developed by the federal courts for use in public-law actions involving challenges to the actions of public officials and agencies. We quoted 13A Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3531 (3d ed.2008), for the explanation that in private-law cases such questions as whether “ ‘the present plaintiff is ... entitled to a remedy’ ” is “ ‘better addressed through private-law concepts’ ” such as “ ‘cause-of-action, real-party-in-interest, capacity, intervention, and like concepts.’ ” -So.3d at - (some emphasis omitted).

The question in the present case is whether “the present plaintiff,” i.e., Kenneth, could be “entitled to a remedy” under Alabama law. As discussed below, the question as presented in this private-law action is no more than whether the law recognizes in an heir such as Kenneth a right in the burial plots at issue so as to enable him to prove the first element in his claim of breach of contract and his claim for injunctive relief. Kenneth contends that rights in the Jakeman burial plot passed to Ben Jakeman’s heirs at law, including him, upon Ben’s death. The defendants contend that any rights in the Jakeman burial plot belong to Ben Jake-man’s estate and were therefore controlled by Robert Jakeman, the personal representative of Ben Jakeman’s estate. We agree with Kenneth.

As early as 1880, the Alabama Supreme Court recognized that “[t]he part of the burial-ground owned by [the purchaser], on his death, descended to his heirs, impressed with and subject to the uses, to which he had devoted it in his life-time.” Kingsbury v. Flowers, 65 Ala. 479, 484 (1880). In Kerlin v. Ramage, 200 Ala. 428, 429, 76 So. 360, 361 (1917), this Court recognized that “the purchaser or licensee takes a property right, which the law will recognize and protect against invasion as long as the place continues a burying ground” and that that property right “will descend to [the purchaser’s] heirs, impressed with and subject to the use to which he has devoted it in his lifetime.”

“The rule followed in Alabama is stated at 14 C.J.S. Cemeteries § 25, as follows:
“ ‘... ordinarily, the purchaser of a lot in a cemetery, although under a deed absolute in form and containing words of inheritance, is regarded as acquiring only a privilege, easement, or license to make interments in the lot purchased, exclusively of others, so long as the lot remains a cemetery,, and the fee remains in the grantor subject to the grantee’s right to the exclusive use of the lot for burial purposes. The lot owner’s title to the lot is a legal estate, and his interest is a property right entitled to protection from invasion, but only in a restricted sense does it constitute an interest in real property ....’”

Whitesell v. City of Montgomery, 355 So.2d 701, 702 (Ala.1978) (emphasis added). See also 14 Am.Jur.2d Cemeteries § 31 (2009) (stating that, “[i]n the absence of statute, a burial lot not specifically devised does not pass under a general or residuary devise but instead passes to the heirs at law of the testator as if the testator had died intestate”).

It is undisputed that Ben Jakeman’s will did not specifically devise his property interest in the Jakeman burial plot. It is also undisputed that Kenneth is an heir at law of Ben Jakeman. Therefore, under the foregoing authorities, rights in the Jakeman burial plot owned by Ben Jake-man passed to Kenneth and to any other heirs at law upon Ben Jakeman’s death.

The defendants contend that the above-quoted authorities do not apply for two reasons. First, they contend that the rule is stated only in cases involving private cemeteries, not public cemeteries such as MMC. This is incorrect; Kerlin involved a public cemetery. Moreover, none of our cases espousing the rule in the context of a private cemetery have stated that the rule applies only in such a context.

Second, the defendants cite Daniell v. Hopkins, 257 N.Y. 112, 177 N.E. 390 (1981), for the proposition that a burial plot only assumes the sacred character of a family burial ground once a family member has been interred in the plot and that, before such an interment, rights in a burial plot are devisable in the same manner as other real-property rights. The defendants contend that Kenneth did not allege that a Jakeman is buried in the Jakeman burial plot and so “it never assumed the sacred character of a family burial ground.” Defendants’ brief, p. 34. Consequently, the defendants argue that “the personal representative of Ben Jakeman’s estate has the same authority to convey or alienate the Jakeman Lot, as well as to bring any claims on behalf of the estate which Ben Jakeman had at the time of his death.” Id.

The defendants overlook the fact that the emphasis in Daniell on interment being the key to whether the executors of the estate in that case had the right to sell a burial plot following the purchaser’s death was based squarely on New York statutory law. The defendants do not cite any Alabama law that makes such a distinction. Our cases do not depend on interment as the basis for the principles cited above.

The defendants claim that Ebenezer Baptist Church, Inc. v. White, 513 So.2d 1011 (Ala.1987), makes such a distinction, but, in fact, the White Court repeated the same rules recited above concerning property rights in burial plots.

“This Court has recognized many times the sacredness of burial grounds. Hogan v. Woodward Iron Co., 263 Ala. 513, 83 So.2d 248 (1955); Kerlin v. Ramage, 200 Ala. 428, 76 So. 360 (1917). The rule in Alabama regarding a cemetery lot is that the purchaser acquires ‘only a privilege, easement, or license to make interments in the lot purchased, exclusively of others, so long as the lot remains a cemetery, and the fee remains in the grantee subject to the grantee’s right to the exclusive use of the lot for burial purposes.’ Whitesell v. City of Montgomery, 355 So.2d 701, 702 (Ala.1978). This easement or privilege, however, entitles the next of kin of the deceased to maintain an action against the owners of the fee (in this case the church or its trustees) or strangers who, without right, desecrate or invade the burial lot of another. Smith & Gaston Funeral Directors, Inc. v. Dean, 262 Ala. 600, 80 So.2d 227 (1955).”

513 So.2d at 1013.

Some of the plaintiffs in White whose relatives were buried in the church cemetery sued to prevent the church from disturbing or altering mounds, monuments, or footstones on any grave site for maintenance purposes. This Court held that those plaintiffs were entitled to “an injunction against the church and its trustees to prevent them from disturbing the grave sites.” 513 So.2d at 1014. Other plaintiffs sought an easement by prescription in their family plots by virtue of boundary markers surrounding some of the family plots, maintenance of the unused grave sites, and the erection of a tombstone with the name of the person to be buried in the future at some of the grave sites. Those plaintiffs sought an easement to prevent the church from removing the boundaries and borders around the family plots to facilitate maintenance of the cemetery and to prevent the church from selling unused sites in family plots. This Court concluded that those plaintiffs “have established an easement by prescription and that the church is not entitled to destroy boundaries or to sell unused grave sites in the family plots.” Id.

To the extent that interment of family members was a basis for the claim of the first group of plaintiffs in White and as well as for the claims of those plaintiffs seeking to establish adverse possession in White, this was so because no purchase agreements for burial plots existed between the plaintiffs and the ' church in White. If the plaintiffs had rights in the burial plots, such rights had to be established by a means other than by an agreement. Kenneth does not need to establish property rights in his father’s burial plot through other means because of Ben Jake-man’s burial-plot purchase agreement.

Based on the foregoing, we conclude that Kenneth is entitled to bring a cause of action alleging breach of contract and his related claim for injunctive relief. Therefore, the trial court erred in dismissing the claim asserted by Kenneth in his individual capacity.

B. Statute of Limitations

Before the trial court, the defendants contended that any breach-of-contract claim brought by Kenneth was barred by the six-year statute of limitations for such claims. See § 6-2-34(9), Ala.Code 1975. The defendants noted that Kenneth alleged that James Jones was first interred in the Jakeman burial plot on August 28, 2002, but that Kenneth did not file his action until May 25, 2010. Therefore, the defendants contended, Kenneth’s claims were time-barred.

“It is well settled that a cause of action for breach of contract accrues when the contract is breached.” Wheeler v. George, 39 So.3d 1061, 1084 (Ala.2009). Kenneth alleged that, on or around August 28, 2002, James Jones was buried in one of the burial plots purchased by Ben Jake-man. Kenneth alleged that on November 14, 2006, the cemetery disinterred Jones and then buried his remains in another burial plot also purchased by Ben Jake-man. Any alleged breaches of Ben Jake-man’s burial-plot purchase agreement occurred at the time of these burials because the purchase agreement stated that only members of the Jakeman and O’Neal families were to be buried in the burial plots purchased by Ben Jakeman. Therefore, the alleged first breach of the contract is barred by the six-year statute of limitations because it occurred on August 28, 2002, and Kenneth did not file this action until May 25, 2010, almost eight years later. The alleged second breach of the contract, however, is not barred by the statute of limitations because it occurred on November 14, 2006, approximately four years before Kenneth filed this action. Thus, the trial court’s dismissal of Kenneth’s breach-of-contract claim cannot be affirmed on the basis of the applicable statute of limitations.

C. Joinder of Necessary Parties

The defendants argue for the first time on appeal that even if Kenneth has standing to bring a breach-of-contract claim by virtue of his being an heir at law of Ben Jakeman, and even if the statute of limitations does not bar such a claim, the rights are held by all the heirs at law. Therefore, the defendants contend, the other heirs at law are indispensable parties to Kenneth’s action. The defendants contend that Kenneth’s failure to join his fellow heirs at law constitutes a separate ground for dismissal of his complaint.

“[T]he failure to join an indispensable party may be raised for the,first time on appeal.” Prattville Mem’l Chapel v. Parker, 10 So.3d 546, 560 (Ala.2008). Under Rule 19, Ala. R. Civ. P., “[i]t is the plaintiff’s duty ... to join as a party anyone required to be joined.” Holland v. City of Alabaster, 566 So.2d 224, 226 (Ala.1990). Rule 19(a) provides, in part, that

“[a] person who is subject to jurisdiction of the court shall be joined as a party in the action if ... the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person’s absence may ... leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest.”

The parties appear to agree that Ben Jakeman. has at least three surviving heirs at law: Kenneth, Kenneth’s brother Robert Jakeman, and Kenneth’s mother Velma Jakeman. If this is the case, it would appear that not joining the other heirs at law in this action could subject the defendants to multiple obligations of liability. We decline, however, to decide in the first instance whether there are other indispensable parties to this litigation and whether those parties are subject to the jurisdiction of the court, given the dearth of information provided in this record on a motion to dismiss. We simply instruct the trial court to consider as a threshold issue on remand whether other parties need to be joined in this action in accordance with Rule 19.

TV. Conclusion

Based on the foregoing, we conclude that Kenneth is entitled to pursue his individual breach-of-contract claim concerning MMC’s reinterment of James Jones in one of the burial plots purchased by Ben Jake-man and that he is entitled to pursue his claim for injunctive relief. We reverse the trial court’s judgment on that basis and remand the case. On remand, we also instruct the trial court to consider whether Kenneth’s claims require the joinder of other parties pursuant to Rule 19, Ala. R. Civ. P. To the extent the trial court’s judgment dismissed other claims asserted by Kenneth on behalf of Ben Jakeman’s estate, the judgment is affirmed.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH DIRECTIONS.

MOORE, C.J., and BOLIN and BRYAN, JJ., concur.

MAIN, J., concurs in the result.

MAIN, Justice

(concurring in the result).

I concur in the result reached in this case for the same reason I stated in my writing concurring in the result in Ex parte BAC Home Loans Servicing, LP, [Ms. 1110373, Sept. 13, 2013] — So.3d -, - (Ala.2013).

      . Kenneth also originally named as a defendant Alderwoods, Inc. ("Alderwoods”), but Kenneth subsequently dismissed Alderwoods from this action because it had sold MMC to Lawrence in 2002 before the events, giving rise to the action occurred. Also, Judy is not a party to this appeal. See note 3, infra.

      . In his complaint, Kenneth alleged that he is the personal representative of the estate of Frances O'Neal.

      . Our references to "the defendants” in relation to the motion to dismiss do not include Judy, who is not a party to that motion and is not before us in this appeal.

      . Even if an interment was necessary for the Jakeman burial plot to assume the “sacred character of a family burial ground,” as the defendants put it, we must consider whether there is any set of facts under which Kenneth might possibly prevail. It is possible a family member is buried in the Jakeman burial plot, in which case the distinction drawn by the defendants is likewise immaterial.

      . In addition to his individual claim, Kenneth contends that Frances O’Neal was a third-party beneficiary of the contract at issue and that, as the personal representative of her estate, he has asserted a viable claim. We note, however, that, unlike his individual claim for relief, Kenneth did not purport to file the third amended complaint (in which this third-party-beneficiary claim is asserted for the first time) until after the trial court had entered its order of dismissal of this action, a judgment that the trial court never vacated. Although on remand Kenneth may attempt to amend his complaint to include this third-party-beneficiary claim, we see no basis on which to conclude that this claim is properly before us in this appeal.

      . Of course, at this stage of the litigation, any dismissal for failure to join an indispensable party would be without prejudice as opposed to the dismissal with prejudice entered by the trial court below.