Ex Parte Gregory

• Decision Date: 30 June 2006
• Docket Number: 1050425.
• Parties: Ex parte Mark Wayne GREGORY. (In re Catherine J. Lennartz et al. v. Robert Joiner et al.).
• Court: Alabama Supreme Court

947 So.2d 385

Ex parte Mark Wayne GREGORY (In re Catherine J. Lennartz et al. v. Robert Joiner et al.).

1050425.

Supreme Court of Alabama.

June 30, 2006.

R. Larry Bradford of Bradford & Sears, P.C., Birmingham, for petitioner.

J. Wilson Mitchell of Mitchell, Bernauer, Winborn, Austin & Miles, Florence, for respondents.

HARWOOD, Justice.

Mark Wayne Gregory petitions this Court for a writ of mandamus directing the Colbert Circuit Court to grant his motion for a summary judgment based on an assertion of lack of personal jurisdiction. We grant the petition and issue the writ.

Facts and Procedural History

Fifteen-year-old Erin Lennartz accompanied her friend, Allie Joiner, and Allie's parents, Robert and Kim Joiner, of Florence, Alabama, on a trip to Colorado. During the course of the trip they spent several days as guests of Kim's parents, Mark Wayne Gregory ("Gregory") and Brenda E. Gregory, at their "second home" in Lake City, Colorado. The Gregorys' principal home is in Tennessee where they have lived continuously for at least the last 15 years. During that same 15-year period, Gregory, a 65-year old retired civil engineer, has neither lived nor worked nor done any business in Alabama. On July 5, 2004, Gregory allowed Erin, accompanied by Allie as her passenger, to operate a four-wheel all-terrain motor vehicle owned by Gregory, despite the facts that Erin had never operated the vehicle by herself and that she was not wearing a helmet. Erin lost control of the vehicle and it wrecked, causing Erin to sustain a head injury. She received medical treatment in Colorado and subsequently returned to Alabama where she received additional treatment.

Erin and her parents, Catherine J. Lennartz and Richard Lennartz, all residents of Alabama, sued the Joiners and Gregory in the Colbert Circuit Court alleging negligence or wantonness in entrusting the all-terrain vehicle to Erin, allowing her to operate it, supervising her, and failing to provide her with, or requiring her to wear, a helmet. The parents claim damages for medical expenses incurred and for the loss of Erin's services; the nature of Erin's own claim for damages is not explained by the parties' submissions to this Court. The complaint acknowledged that Gregory was a resident of Tennessee and that the accident had occurred in Colorado.

Gregory timely answered the complaint, asserting, among other things, that the court lacked personal jurisdiction over him. On September 30, 2005, Gregory moved for a summary judgment on the basis that the court did not have personal jurisdiction over him, given that he was a resident of Tennessee and that the accident occurred in Colorado.¹ The motion was supported by an affidavit from Brenda E. Gregory attesting to her husband's 15-year continuous residency in Tennessee and his lack of contact with Alabama (also explaining that at the time she provided the affidavit he was in Venezuela working with a missionary, necessitating that she provide the facts in question).

The Lennartzes filed their opposition to Gregory's summary-judgment motion, asserting (1) that the motion should either be continued or denied pending response by Gregory to interrogatories and document-production requests previously served on him by the Lennartzes and (2) that personal jurisdiction was sustainable as to Gregory because it should have been foreseeable to him that the harm he caused Erin would ultimately have consequences in the State of Alabama. With respect to the unanswered discovery, counsel for the Lennartzes submitted an affidavit, attaching to it as exhibits a copy of the subject interrogatories and production requests filed two months earlier, asserting that the information sought by the discovery was "essential in order to adequately oppose" the summary-judgment motion. With respect to the "foreseeable consequences in Alabama," the Lennartzes identified only the medical expenses ultimately incurred there and the loss of Erin's services. The trial judge denied Gregory's motion for a summary judgment.

Gregory petitioned this Court for a writ of mandamus on January 3, 2006. Thereafter, on February 21 the Lennartzes filed a motion with the trial court to compel Gregory's responses to their pending discovery; that motion was granted on February 24. We ordered answer and briefs in the mandamus proceeding. The Lennartzes filed their "Answer" and separate "Response" on March 27 and Gregory filed his response to their answer on April 6.

Analysis

"[A] petition for a writ of mandamus is the proper device by which to challenge the denial of a motion to dismiss for lack of in personam jurisdiction. See Ex parte McInnis, 820 So.2d 795 (Ala.2001); Ex parte Paul Maclean Land Servs., Inc., 613 So.2d 1284, 1286 (Ala.1993). `"An appellate court considers de novo a trial court's judgment on a party's motion to dismiss for lack of personal jurisdiction."' Ex parte Lagrone, 839 So.2d 620, 623 (Ala.2002) (quoting Elliott v. Van Kleef, 830 So.2d 726, 729 (Ala.2002)). Moreover, `[t]he plaintiff bears the burden of proving the court's personal jurisdiction over the defendant.' Daynard v. Ness, Motley, Loadholt, Richardson & Poole, P.A., 290 F.3d 42, 50 (1st Cir.2002). See also Beasley v. Schuessler, 519 So.2d 551, 553 (Ala.Civ.App.1987); 5 C. Wright & A. Miller, Federal Practice and Procedure § 1351 (2d ed.1990).

"....

"`A physical presence in Alabama is not a prerequisite to personal jurisdiction over a nonresident.' Sieber v. Campbell, 810 So.2d 641, 644 (Ala.2001). What is required, however, is that the defendant have such contacts with Alabama that it `"should reasonably anticipate being haled into court [here]."' Dillon Equities v. Palmer & Cay, Inc., 501 So.2d 459, 462 (Ala.1986) (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980)).

"Depending on the quality and quantity of the contacts, jurisdiction may be either general or specific. Leventhal v. Harrelson, 723 So.2d 566, 569 (Ala.1998). `General jurisdiction applies where a defendant's activities in the forum state are "substantial" or "continuous and systematic," regardless of whether those activities gave rise to the lawsuit.... A court has specific jurisdiction when a defendant has had few contacts with the forum state, but those contacts gave rise to the lawsuit.' Id.

"But regardless of whether jurisdiction is alleged to be general or specific, the nexus between the defendant and the forum state must arise out of `"an action of the defendant [that was] purposefully directed toward the forum State."' Elliott, supra, 830 So.2d at 731 (quoting Asahi Metal Indus. Co. v. Superior Court of California, 480 U.S. 102, 112, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987))."

Ex parte Dill, Dill, Carr, Stonbraker & Hutchings, P.C., 866 So.2d 519, 525 (Ala. 2003).

Other cases emphasizing the requirement that the conduct of the defendant giving rise to the action be purposefully directed at the forum state include Ex parte United Ins. Cos., 936 So.2d 1049 (Ala.2006); Ex parte Covington Pike Dodge, Inc., 904 So.2d 226 (Ala.2004); Ex parte Georgia Farm Bureau Mut. Auto. Ins. Co., 889 So.2d 545 (Ala.2004); Ex parte Alloy Wheels Int'l, Ltd., 882 So.2d 819 (Ala.2003); Ex parte Troncalli Chrysler Plymouth Dodge, Inc., 876 So.2d 459 (Ala.2003); Elliott v. Van Kleef, 830 So.2d 726 (Ala.2002); and Sudduth v. Howard, 646 So.2d 664 (Ala.1994).

Although the Lennartzes undertake to defend on the merits the trial court's ruling rejecting Gregory's jurisdictional challenge, they also contend that the ruling should be upheld based on the following three procedural considerations.

The Lennartzes argue that Gregory's motion for a summary judgment did not contain "a narrative summary of what the movant contends to be the undisputed material facts" as required by Rule 56(c)(1), Ala. R. Civ. P., which omission, they say, warranted denial of the motion. Gregory's motion relied on the facts stated by the complaint — that he was a resident of Tennessee and that the accident occurred in Colorado — and on his wife's affidavit stating that the couple had lived continuously in Tennessee for at least the last 15 years and that Gregory had not lived, worked, or done any business in the State of Alabama during that period. Her affidavit reaffirmed that the accident occurred in Colorado. In George v. Raine, 895 So.2d 258, 261-62 (Ala.2004), this Court held that an affidavit attached as an exhibit to a motion for a summary judgment could satisfy the Rule 56(c)(1) requirement for a narrative summary of what the movant contends to be the undisputed facts. In this case, the salient facts put forth by Gregory constituted a sufficient prima facie evidentiary showing that the court had no personal jurisdiction as to him. This Court has explained on several occasions that once a defendant makes a prima facie evidentiary showing that the court lacks personal jurisdiction over him, the plaintiff is then required to substantiate the jurisdictional allegations in the complaint by affidavits or other competent proof. Ex parte Covington Pike Dodge, Inc., 904 So.2d at 230; Ex parte Unitrin, Inc., 920 So.2d 557 (Ala.2005); Ex parte United Ins. Cos., supra, 936 So.2d at 1053. Given the narrow and specific focus of Gregory's summary-judgment motion, his wife's affidavit suffices as a narrative summary of what he considers to be the undisputed material facts sufficient to satisfy Rule 56(c)(1).

The Lennartzes next argue that by seeking discovery from them through interrogatories and requests for production, Gregory invoked the judicial system of the State of Alabama sufficient to waive his jurisdictional challenge to their action. In support of this contention they cite only Martin v. Drummond Co., 663 So.2d 937 (Ala.1995). That case, however, is factually and procedurally inapposite, involving only a waiver by certain absent class members of any objections they might have had to the jurisdiction...