Elliott v. Van Kleef

• Citation: 830 So.2d 726
• Parties: Cary C. ELLIOTT v. John D. VAN KLEEF and Bullock & Van Kleef.
• Decision Date: 12 April 2002
• Court: Supreme Court of Alabama

830 So.2d 726

Cary C. ELLIOTT v. John D. VAN KLEEF and Bullock & Van Kleef.

1001395.

Supreme Court of Alabama.

April 12, 2002.

Edward B. Parker II, Montgomery, for appellant.

Robert P. MacKenzie III and J. Matt Stephens of Starnes & Atchison, L.L.P., Birmingham, for appellees.

On Application for Rehearing

LYONS, Justice.

The opinion of January 11, 2002, is withdrawn, and the following is substituted therefor.

Cary C. Elliott filed an action under the Alabama Legal Services Liability Act, § 6-5-570 et seq., Ala.Code 1975, in the Jefferson Circuit Court against John F. Kizer, Jr.; John F. Kizer, L.L.C.; and John D. Van Kleef and the law firm of Bullock & Van Kleef (hereinafter collectively referred to as "the Van Kleef defendants"). Elliott alleged that the defendants, all lawyers and law firms, failed to properly represent him in a personal-injury action filed in Arkansas, resulting in that action's being dismissed with prejudice. The trial court granted the Van Kleef defendants' motion to dismiss for lack of personal jurisdiction. The trial court certified this order as final pursuant to Rule 54(b), Ala. R. Civ. P. Elliott appeals. We affirm.

Background

Elliott claims that he was injured in 1991 when he was exposed to hazardous chemicals while he was working in Arkansas. The defendants filed a personal-injury action on Elliott's behalf in the Circuit Court of Mississippi County, Arkansas, in 1993. This action was voluntarily dismissed, without prejudice, pursuant to a motion for nonsuit filed by the defendants in 1997. The defendants then filed a second action, arising from the same injury, on March 10, 1998. This second action was involuntarily dismissed with prejudice, on November 30, 1998, because the Van Kleef defendants allegedly failed to serve a defendant in that action within the time allowed by the Arkansas Rules of Civil Procedure.

After Elliott brought this action against Kizer, John Kizer, L.L.C., and the Van Kleef defendants, the Van Kleef defendants moved to dismiss pursuant to Rule 12(b)(2), Ala. R. Civ. P., for lack of in personam jurisdiction. The trial court permitted discovery, but limited discovery to the issue whether the court had in personam jurisdiction over the Van Kleef defendants. After this discovery was completed, the trial court accepted evidence and briefs and held a hearing regarding its in personam jurisdiction over the Van Kleef defendants. The trial court then granted the Van Kleef defendants' motion to dismiss for lack of in personam jurisdiction.

Facts

Van Kleef is an attorney licensed to practice law in Arkansas and Texas. Van Kleef is not licensed to practice law in Alabama and has never applied for a license to practice law in this state. Van Kleef resides in Arkansas and has never traveled to Alabama. Van Kleef owns no property in Alabama and owns no interest in any business that operates in Alabama.

The law firm of Bullock & Van Kleef is a partnership formed in Arkansas for the purpose of practicing law. Bullock & Van Kleef's principal place of business is Russellville, Arkansas. Bullock & Van Kleef owns no property in Alabama, and it owns no interest in any business that operates in Alabama. Bullock & Van Kleef maintains a listing in the Martindale-Hubbell Law Directory.

Elliott, a resident of Alabama, retained Kizer, an attorney licensed to practice law in Alabama and residing in Jefferson County, to represent him in a personalinjury action brought in Arkansas. Kizer, who was not licensed to practice law in Arkansas, contacted Bullock & Van Kleef by telephone and requested that that firm serve as local counsel in Arkansas regarding the personal-injury action. Kizer had learned of Van Kleef and the law firm of Bullock & Van Kleef through the firm's listing in the Martindale-Hubbell Law Directory. Bunny Bullock, Van Kleef's law partner, chose not to be involved in Elliott's case. Both Kizer and Van Kleef understood that Van Kleef would serve only as local counsel in Arkansas, and neither Kizer nor Van Kleef expected that Van Kleef would travel to Alabama in conjunction with Elliott's case. Van Kleef sent Kizer a letter in 1993, following their telephone conversation, stating that he would serve as local counsel.

Neither Kizer nor Van Kleef ever explained to Elliott that Van Kleef was serving only as local counsel in Arkansas and that in that role he would not be expected to travel to Alabama. From 1993 to 1998, while Elliott's underlying personal-injury actions were pending, Elliott and Van Kleef communicated on two occasions. On August 31, 1993, Van Kleef and Kizer met with Elliott in West Memphis, Arkansas, before Elliott's deposition was taken. This was the only time Elliott and Van Kleef met. When Elliott met Van Kleef in Arkansas, Kizer told Elliott, in Van Kleef's presence, that he had employed Van Kleef to represent Elliott along with Kizer. Kizer explained that employing Van Kleef was necessary because Kizer was not licensed to practice law in Arkansas. Kizer also stated that Elliott was Kizer's client as well as the Van Kleef defendants' client. Van Kleef did not disagree with or explain any of the statements Kizer made at the meeting. Elliott testified that he believed that Van Kleef would travel to Alabama to meet witnesses, to conduct discovery, and to prepare for trial.

The second communication between Elliott and Van Kleef occurred in 1998. Before Elliott's Arkansas personal-injury action was refiled in 1998, Kizer informed Elliott that he would no longer represent him. Elliott telephoned Van Kleef in Arkansas to tell Van Kleef that he expected to clear up the misunderstanding with Kizer and that he still considered the Van Kleef defendants to be his legal counsel in Arkansas. Van Kleef did not explain that he and his firm were no longer representing Elliott in Arkansas or that their role was merely as local counsel. Kizer later resumed representing Elliott in the personal-injury action.

Van Kleef never telephoned Elliott or sent him any correspondence. Van Kleef sent six letters to Kizer during the period from 1993 to 1998. Van Kleef and Kizer also exchanged some fax transmissions and telephone calls during that same period related to Elliott's personal-injury action. Van Kleef also made telephone calls and sent fax transmissions to Alabama between 1993 and 1998 that were unrelated to Elliott's lawsuit.¹ Kizer sent Van Kleef several motions, pleadings, and other documents relating to Elliott's personal-injury action. Van Kleef signed a petition to admit Kizer pro hac vice in Arkansas. Van Kleef also performed some legal research for Kizer related to Elliott's case and mailed the results of this research to Kizer in Alabama.

Standard of Review

An appellate court considers de novo a trial court's judgment on a party's motion to dismiss for lack of personal jurisdiction. Greene v. Connelly, 628 So.2d 346, 351-52 (Ala.1993); Williams v. Skysite Communications Co., 781 So.2d 241, 245 (Ala.Civ.App.2000). Thus, even if, as Elliott claims, the trial court applied an incorrect standard when it ruled on the Van Kleef defendants' motion to dismiss, that error would not be a basis for reversing the trial court's order of dismissal if we determine that the dismissal was proper.

Discussion

Rule 4.2, Ala. R. Civ. P., extends the personal jurisdiction of Alabama courts to the limits of due process under the federal and state constitutions. Sieber v. Campbell, 810 So.2d 641 (Ala.2001). Rule 4.2(a)(2), Ala. R. Civ. P., Alabama's longarm rule, sets out situations in which a nonresident defendant's contacts with this State are considered sufficient to subject the nonresident defendant to personal jurisdiction in an Alabama court. Subsection (I) of Rule 4.2(a)(2) contains a "catch-all" provision, which permits jurisdiction over a nonresident defendant whose contacts with this State do not fall into one of the situations listed in Rule 4.2(a)(2)(A)-(H). The parts of Rule 4.2(a)(2) that Elliott contends subject the Van Kleef defendants to in personam jurisdiction in Alabama read as follows:

"(2) Sufficient Contacts. A person has sufficient contacts with the state when that person, acting directly or by agent, is or may be legally responsible as a consequence of that person's

"(A) transacting any business in this state;

"....

"(D) causing tortious injury or damage in this state by an act or omission outside this state if the person regularly does or solicits business, or engages in any other persistent course of conduct or derives substantial revenue from goods used or consumed or services rendered in this state;

"....

"(I) otherwise having some minimum contacts with this state and, under the circumstances, it is fair and reasonable to require the person to come to this state to defend an action. The minimum contacts referred to in this subdivision (I) shall be deemed sufficient, notwithstanding a failure to satisfy the requirement of subdivisions (A)-(H) of this subsection (2), so long as the prosecution of the action against a person in this state is not inconsistent with the constitution of this state or the Constitution of the United States."

Because we find that subjecting the Van Kleef defendants to in personam jurisdiction in an Alabama court would offend due process, as shown below, we pretermit consideration of whether in personam jurisdiction is appropriate under Rule 4.2(a)(2)(A) and (D).

This Court has interpreted the due process guaranteed under the Alabama Constitution to be coextensive with the due process guaranteed under the United States Constitution. See Alabama Waterproofing Co. v. Hanby, 431 So.2d 141, 145 (Ala.1983), and DeSotacho, Inc. v. Valnit Indus., Inc., 350 So.2d 447, 449 (Ala.1977). See also Rule 4.2, Ala. R. Civ. P., Committee Comments on 1977 Complete Revision following Rule 4.4, under the heading "ARCP 4.2." ("Subparagraph (I) was included by the Committee to insure that a basis of jurisdiction was included in...