Branded Trailer Sales, Inc. v. Universal Truckload Servs., Inc.

• Decision Date: 24 June 2011
• Docket Number: 1090356.
• Citation: 74 So.3d 404
• Parties: BRANDED TRAILER SALES, INC. v. UNIVERSAL TRUCKLOAD SERVICES, INC.
• Court: Alabama Supreme Court

74 So.3d 404

BRANDED TRAILER SALES, INC.

v.UNIVERSAL TRUCKLOAD SERVICES, INC.

1090356.

Supreme Court of Alabama.

June 24, 2011.

Charles A. Hardin of Hardin & Hughes, LLP, Tuscaloosa, for appellant.

R. Bernard Harwood, Jr., and Chad L. Hobbs of Rosen Harwood, P.A., Tuscaloosa, for appellee.

WISE, Justice.¹

The plaintiff, Branded Trailer Sales, Inc. (“Branded”), appeals from a judgment of the Tuscaloosa Circuit Court, granting a motion to dismiss asserting lack of personal jurisdiction filed by one of the defendants, Universal Truckload Services, Inc. (“Universal”). We reverse and remand.

Facts and Procedural History

In its complaint instituting the underlying action, Branded alleged that, in late March or early April 2008, a customer ² contacted Branded about having flatbed trailers designed and manufactured to haul wind towers; that Universal was a trucking company that was in the business of hauling wind towers for that customer; that Universal needed to purchase trailers that were specially manufactured to haul wind towers; and that Branded subsequently contacted Universal.³ Branded is a Louisiana corporation; Universal is a Michigan corporation. Branded further alleged that it subsequently contacted Liddell Trailers, LLC (“Liddell”), which is an Alabama corporation, and several other manufacturers of trailers about the cost of designing and manufacturing such specialized trailers; that it presented Universal with several different options; that Universal chose Liddell to design and manufacture the trailers; and that Branded entered into a contract with Liddell that provided that Liddell would design and manufacture the trailers at a cost to Branded of $168,680 each. Branded further alleged that it entered into a contract with Universal that provided that Universal would purchase two trailers from it at a price of $244,465.84 each; that Universal had the option to order up to eight more trailers; and that the first two trailers were to be delivered to Universal by the first week of August 2008.

Branded alleged that, “[s]oon thereafter,” Liddell notified Branded that the cost of the trailers would be increased, that the completion date for the trailers would be extended, and that it would not build the trailers in accordance with the previously agreed upon design. Branded also alleged that Universal subsequently terminated the agreement to purchase the trailers from Branded. Branded further alleged that it subsequently learned that Universal and Liddell entered into an agreement pursuant to which Universal would purchase directly from Liddell the trailers it had agreed to design and manufacture; that Universal and Liddell excluded Branded from the agreement; that Liddell delivered the first two trailers to Universal in late December 2008 or early January 2009; and that Branded did not receive a sales commission based on the transaction.

On February 2, 2009, Branded filed a complaint in the Tuscaloosa Circuit Court, alleging that Universal and Liddell had each “intentionally interfered with contract and the business relationship between [Branded] and the other Defendant, without justification, to make the transaction relating to the trailers more financially rewarding”; that Liddell had violated the Alabama Sales Representatives Commission Act; that Universal had engaged in fraud because it “innocently, recklessly or intentionally misrepresented that it would purchase the two (2) trailers to be manufactured by Liddell through [Branded]”; that Liddell had engaged in fraud because it “innocently, recklessly or intentionally misrepresented that it would manufacture the two (2) trailers to be purchased by Universal through [Branded]”; that Liddell breached its contract with Branded when it did not deliver the trailers; and that Universal breached its contract with Branded when it refused to purchase the trailers from Branded.

On March 23, 2009, Universal filed a Rule 12(b)(2), Ala. R. Civ. P., motion to dismiss for lack of personal jurisdiction. On May 28, 2009, Universal filed a brief in support of its motion to dismiss and a supporting affidavit from Mike Peterson, the director of Risk Management for Universal. In that affidavit, Peterson stated:

“3. [Universal] is a primarily non-asset based provider of transportation services to shippers in the United States and in the Canadian provinces of Ontario and Quebec. [Universal]'s headquarters and corporate and administrative functions are located in Warren, Michigan.

“4. [Universal] is a business corporation organized, incorporated, and existing pursuant to the laws of the State of Michigan. [Universal] is not registered or qualified to do business in Alabama as a foreign corporation, does not have any registered agent in Alabama, and does not maintain any offices in Alabama.

“5. [Universal] does not have any officers, employees, or directors living in Alabama.

“6. [Universal] does not have any agents that do business in Tuscaloosa County or in the state of Alabama, and does not have any agents that regularly solicit business in Tuscaloosa County or in the state of Alabama.

“7. [Universal] does not conduct any business in Tuscaloosa County or in the state of Alabama on a regular basis, does not have any customers in Alabama for whom it regularly performs any work or services, and does not regularly transport or deliver any goods, products, or equipment into Alabama for any of its customer.

“8. [Universal] does not own, rent, or lease any real or personal property in Alabama.

“9. [Universal] does not maintain any offices or places of business in Alabama, and does not have or maintain any assets in Alabama.

“10. [Universal] does not maintain any telephone numbers in Alabama, and does not maintain any facsimile numbers in Alabama.

“11. [Universal] does not maintain any bank accounts or business records in Alabama.

“12. I have reviewed information regarding the allegations of the complaint filed by Branded Trailer Sales and the business records related to those allegations. Based on my review of that information, I can make the following statements on behalf of [Universal].

“13. No meetings occurred between representatives of [Universal] and representatives of Branded Trailer Sales in Alabama.

“14. No representatives of [Universal] placed any telephone calls to Branded Trailer Sales or its representatives in Alabama, or made any such calls from Alabama.

“15. No representatives of [Universal] sent any facsimile correspondence to Branded Trailer Sales or its representatives in Alabama, or sent any such correspondence from Alabama.

“16. No representatives of [Universal] sent any email correspondence to Branded Trailer Sales or its representatives in Alabama, or sent any such correspondence from Alabama.

“17. No representative of [Universal] had any dealings with Branded Trailer Sales or its representatives that took place in Alabama, or were otherwise directed at Alabama.

“18. [Universal] did not enter into contracts with Branded Trailer Sales, Inc., in Alabama, or any contracts that were to be performed in Alabama.

“Therefore, Branded has not shown that Universal itself has sufficient general contacts with Alabama to establish personal jurisdiction.”

On May 29, 2009, Branded filed a response to Universal's motion to dismiss, as well as a motion to strike its brief and Peterson's affidavit; it also filed a motion pursuant to Rule 56(f), Ala. R. Civ. P., asking the court to treat Universal's motion to dismiss as one for a summary judgment and to allow it to conduct additional discovery. In support of its May 29, 2009, response, Branded attached an affidavit from Wayne Ostrander. In his affidavit, Ostrander stated:

“1. My name is Wayne Ostrander and I am over 19 years of age. I work for Branded Trailer Sales and I have personal knowledge of the facts stated herein.

“2. [Universal] contacted [Branded] and requested that [Branded] find a company to manufacture a trailer to certain specifications. After [Branded] presented [Universal] with several options, [Universal] chose Liddell Trailers, LLC (‘Liddell’) to build the trailers.

“3. Liddell is a company registered in Alabama with its principle [sic] place of business in Springville, AL.

“4. Pursuant to the agreement between Liddell, [Branded], and [Universal], Liddell would build the trailers in Alabama.

“5. Liddell and [Universal] both informed [Branded] that they would not uphold their existing agreements. [Branded] later learned that [Universal] agreed to purchase and Liddell agreed to manufacture the trailers, thereby excluding [Branded].

“6. In order to facilitate this later deal, [Universal] had to make contact with Alabama numerous times. The wrongdoing made the basis of this complaint was therefore projected toward Alabama.

“7. At the completion of the deal between [Universal] and Liddell, [Universal] took possession of the trailers in Alabama.”

In Branded's Rule 56(f) motion, Branded stated that it had filed a motion to strike Universal's brief in support of the motion to dismiss and to strike Peterson's affidavit. It then stated:

“In the event that this Court denied [Branded]'s motion to strike [Universal]'s brief and affidavit, filed contemporaneously hereto, and treats [Universal]'s motion to dismiss as a motion for summary judgment, [Branded] will require additional time to, among other things conduct discovery and oppose [Universal]'s motion for summary judgment. Particularly, [Branded] would require time to depose the affiant whose affidavit is attached to the brief titled Defendant Universal Truckload Services, Inc.'s Brief in Support of its Rule 12(b)(2) Motion to Dismiss for Lack of Personal Jurisdiction.”

On June 2, 2009, the trial court conducted a hearing on Universal's motion to dismiss. However, the record does not include a transcript of that hearing. On June 17, 2009, Universal filed a supplemental brief in support of its motion to dismiss and a second affidavit from Peterson....