DIVERSIFIED TELECOM SERVICES v. Clevinger

• Decision Date: 16 July 2004
• Docket Number: No. S-03-808.,S-03-808.
• Citation: 268 Neb. 388,683 N.W.2d 338
• Parties: DIVERSIFIED TELECOM SERVICES, INC., a Nebraska corporation, Appellant, v. David L. CLEVINGER, Jr., an individual, et al., Appellees.
• Court: Nebraska Supreme Court

683 N.W.2d 338

268 Neb. 388

DIVERSIFIED TELECOM SERVICES, INC., a Nebraska corporation, Appellant, v.David L. CLEVINGER, Jr., an individual, et al., Appellees.

No. S-03-808.

Supreme Court of Nebraska.

July 16, 2004.

Richard L. Rice, of Crosby, Guenzel, L.L.P., Lincoln, for appellant.

Mark A. Fahleson, Brian S. Kruse, and Troy S. Kirk, of Rembolt, Ludtke & Berger, L.L.P., Lincoln, for appellees.

HENDRY, C.J., and CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

McCORMACK, J.

I.NATURE OF CASE

The primary issue raised by this case is whether personal jurisdiction exists in Nebraska over David L. Clevinger, Jr., and Jerold J. Hawkins, both Michigan residents, and Skyline Services, L.L.C.(Skyline), a Michigan limited liability company(collectively the appellees).The district court concluded that it did not have personal jurisdiction and sustained the appellees' special appearance.We reverse the order of the district court in part, concluding that Nebraska's jurisdiction extends over Clevinger and Hawkins.

II.BACKGROUND

Diversified Telecom Services, Inc.(Diversified), filed this action against the appellees on November 1, 2002.Diversified is a Nebraska corporation engaged in the business of construction and site improvement for cellular telephone transmission towers and other communications equipment throughout the United States.Its principal office is located in Waverly, Nebraska.Clevinger and Hawkins were former employees of Diversified who provided project management services to Diversified during their employment.Clevinger was employed with Diversified from November 2001 to October 2002 and was responsible for a region that included Michigan, Indiana, Ohio, and points to the east.Hawkins was employed by Diversified from November 2001 to June 2002, and was responsible for managing sites in Michigan.In February 2002, Clevinger and Hawkins formed Skyline.Diversified alleged that Skyline was formed to also engage in the business of construction and site improvement of transmission towers and communications equipment; in essence, Skyline was to directly compete with Diversified.The petition articulated four causes of action against the appellees: breach of the duty of loyalty, tortious interference, fraud and/or misrepresentation, and conversion.

The appellees filed a special appearance challenging the district court's personal jurisdiction over them.In support of their special appearance, the appellees offered the affidavits of Clevinger and Hawkins.Both affidavits stated that neither Clevinger nor Hawkins played any role in the operations of Skyline until each was terminated by Diversified.The affidavits also stated, in short, that the appellees have never had any contacts with Nebraska, with one exception.Both men admitted that they were in Nebraska on December 3 and 4, 2001, for the purpose of meeting the staff of Diversified.

Diversified offered the affidavit of Amy Grady, a collections specialist and administrative assistant with Diversified.Grady's affidavit stated that Clevinger and Hawkins were formerly employed by Diversified and, as such, received compensation from Diversified, including rent Clevinger received from Diversified for an office in his Michigan home.The affidavit also contained evidence of the communications that Clevinger and Hawkins had with Diversified's Waverly office.Telephone billing statements included in the record indicate that from November 19, 2001, to July 26, 2002, Clevinger and Hawkins made approximately 326 and 279 telephone calls to Nebraska, respectively.Finally, Grady's affidavit also averred that Clevinger and Hawkins came to Nebraska on December 3 and 4, 2001, to formally accept employment with Diversified, complete paperwork, obtain information regarding their new jobs, and attend meetings with Diversified's personnel.

On May 15, 2003, the district court sustained the appellees' special appearance and dismissed Diversified's petition.On May 22, Diversified filed a motion which stated in full:

COMES NOW the Plaintiff, Diversified Telecom Services, Inc. and moves this Court pursuant to Neb.Rev.Stat. §25-1142, et seq.(Reissue 2000) for an order granting a new trial in this matter.Plaintiff's Motion is directed at a reexamination of this Court's findings and decision in its Order dated May 14, 2003.

Plaintiff contends the Court's decision is not sustained by sufficient evidence, or is contrary to the law (Neb.Rev.Stat. §25-1142[6]).

On June 13, 2003, the district court denied Diversified's motion.Diversified filed its notice of appeal on July 9.We later moved the case to our docket.

III.ASSIGNMENT OF ERROR

Diversified's four assignments of error can be more succinctly restated as one: The district court erred in finding that it had no personal jurisdiction over the appellees and sustaining the appellees' special appearance.

IV.STANDARD OF REVIEW

When a jurisdictional question does not involve a factual dispute, determination of a jurisdictional issue is a matter of law which requires an appellate court to reach a conclusion independent from the trial court's.Quality Pork Internat. v. Rupari Food Servs.,267 Neb. 474, 675 N.W.2d 642(2004).When reviewing questions of law, an appellate court has an obligation to resolve the questions independently of the conclusion reached by the trial court.Id.

V.ANALYSIS

1.APPELLATE JURISDICTION

We begin by addressing the appellees' argument that this court does not have jurisdiction over Diversified's appeal.Before reaching the legal issues presented for review, it is the duty of an appellate court to determine whether it has jurisdiction over the matter before it.Central Neb. Pub. Power v. Jeffrey Lake Dev.,267 Neb. 997, 679 N.W.2d 235(2004).The appellees characterize Diversified's May 22, 2003, motion as a motion for new trial, as it was titled, and then argue that the hearing on the appellees' special appearance was not a "trial" from which a motion for new trial could be filed.SeeNeb.Rev.Stat. §25-1142(Cum.Supp.2002)(providing in part that "[a] new trial is a reexamination in the same court of an issue of fact after a verdict by a jury, report of a referee, or a trial and decision by the court").Thus, the appellees conclude that Diversified's notice of appeal was not timely filed because the May 22 motion did not terminate the 30-day appeal period after the district court sustained the appellees' special appearance.

Whether a motion for new trial is a proper motion to file after a defendant's special appearance is sustained is an issue we need not address because the appellees' initial premise — that the May 22, 2003, motion is a motion for new trial — is one we need not accept.A postjudgment motion must be reviewed based on the relief sought by the motion, not based on the title of the motion.Central Neb. Pub. Power v. Jeffrey Lake Dev., supra.The running of the time for filing a notice of appeal is not only terminated by a motion for new trial, but also by a motion to alter or amend a judgment under Neb.Rev.Stat. §25-1329(Cum.Supp.2002).Central Neb. Pub. Power v. Jeffrey Lake Dev., supra.To qualify for treatment as a motion to alter or amend a judgment, a motion must be filed no later than 10 days after the entry of judgment, as required under §25-1329, and must seek substantive alteration of the judgment.Central Neb. Pub. Power v. Jeffrey Lake Dev., supra;State v. Bellamy, 264 Neb. 784, 652 N.W.2d 86(2002).Diversified's May 22 motion, remarkably similar to the motion at issue in Central Neb. Pub. Power v. Jeffrey Lake Dev., requested a "reexamination" of the district court's May 15 decision on the basis that it was contrary to law.Therefore, the motion sought substantive alteration of the judgment and can be characterized as a motion to alter or amend a judgment, which terminated the 30-day appeal period.Seeid.Diversified's notice of appeal was filed within 30 days of the overruling of its motion to alter or amend a judgment; thus, its notice of appeal was timely and we have jurisdiction over this matter.

2.PERSONAL JURISDICTION

Personal jurisdiction is the power of a tribunal to subject and bind a particular entity to its decisions.Quality Pork Internat. v. Rupari Food Servs.,267 Neb. 474, 675 N.W.2d 642(2004).Under the statutory pleading rules in effect when this action was filed, before filing any other pleading or motion, one may file a special appearance for the sole purpose of objecting to a court's assertion or exercise of personal jurisdiction over the objector.Id.Confronted with a special appearance, a plaintiff has the burden to establish facts which demonstrate the court's personal jurisdiction over the defendant.Id.In a hearing on a special appearance, an affidavit may be used to prove or disprove the factual basis for a court's assertion or exercise of personal jurisdiction over a defendant.Id.When a jurisdictional question does not involve a factual dispute, determination of a jurisdictional issue is a matter of law which requires an appellate court to reach a conclusion independent from the trial court's.Id.

We digress for a moment to note that during oral arguments before this court, Diversified conceded that the district court correctly concluded that no personal jurisdiction exists over Skyline.Thus, our analysis below deals only with the issue of whether Nebraska's assertion of jurisdiction extends over Clevinger and Hawkins.

Addressing that issue first requires us to determine what evidence we may consider.As noted, Diversified had the burden to establish facts demonstrating the court's personal jurisdiction over the appellees.To satisfy that burden, Diversified offered into evidence the affidavit of Grady.The appellees objected to the offer.The district court stated that it would reserve ruling on the objection, and the hearing on the appellees' special appearance promptly concluded.Thus, the...