J.C. Duke & Associates v. West
Decision Date | 14 March 2008 |
Docket Number | 1051732. |
Parties | J.C. DUKE & ASSOCIATES GENERAL CONTRACTORS, INC. v. Myrita WEST. |
Court | Alabama Supreme Court |
John P. Browning of Bowron, Latta & Wasden, P.C., Mobile, for appellant.
Submitted on appellant's brief only.
The plaintiff, J.C. Duke & Associates General Contractors, Inc., appeals from the trial court's dismissal of one of the defendants, Myrita West, on the grounds of lack of personal jurisdiction. We reverse and remand.
On November 18, 2003, J.C. Duke sued Clements-West Construction, Inc., and Terry Clements, the president of Clements-West. J.C. Duke alleged that in operating as the general contractor renovating a high school in Mobile County, it had entered into a contract with Clements-West to lay the concrete block and brick for the project. J.C. Duke claimed that it had overpaid Clements-West. The defendants filed an answer and a counterclaim. On July 19, 2004, J.C. Duke amended its complaint to add Myrita West, an officer and co-owner of Clements-West, as a defendant. J.C. Duke alleged that Terry Clements and Myrita West were brother and sister and that they had used Clements-West "as their alter ego, having set the corporation up as a subterfuge, failing to observe the corporate form, failing to comply with corporate law, failing to maintain corporate records and/or corporate bank accounts, intermingling personal and corporate funds and using them for personal purposes, and/or draining funds from the corporation." J.C. Duke alleged that Clements-West was used as a mere instrumentality or alter ego of Myrita West to gain personal profits. On December 9, 2004, Clements-West filed in the trial court a suggestion of Chapter 7 bankruptcy, notifying the trial court that it had filed a petition in bankruptcy on October 15, 2004, and that it was requesting a stay of the trial court's proceedings. The trial court granted the stay and set the stay for review in six months. On December 9, 2004, Terry Clements also filed a suggestion of Chapter 13 bankruptcy, notifying the trial court that he had filed a petition in bankruptcy on October 15, 2004, and that he was requesting a stay. The trial court granted the stay and set the stay for review in 60 months.
Myrita was served with notice and, in response, filed a motion entitled "Special Appearance Pro Se and Motion to Dismiss for Lack of Jurisdiction." The motion has an Orlando, Florida, address for Myrita. In the motion she asserted that she was not a resident of Alabama, that she had no contacts with the State of Alabama, and that she had never traveled to Alabama for any purposes related to the allegations of the complaint. Myrita stated that she was an officer of Clements-West, but that "that is insufficient for [J.C. Duke] to obtain personal jurisdiction over her, individually, in the State of Alabama." Myrita did not file any affidavits in support of her motion to dismiss.
J.C. Duke filed a response to the motion to dismiss. Attached to its response were portions of Terry Clements's deposition testimony in which Terry stated that Myrita was an officer in Clements-West. J.C. Duke also presented records from Clements-West's bankruptcy proceedings that indicated that Myrita had loaned Clements-West over $400,000 and that Clements-West sought to discharge those debts in bankruptcy. On August 16, 2006, the trial court entered an order granting Myrita's motion to dismiss and, at J.C. Duke's request, the trial court certified the order as a final judgment pursuant to Rule 54(b), Ala. R. Civ. P. J.C. Duke appeals.
A de novo standard of review applies when an appellate court reviews a trial court's judgment on a motion to dismiss for lack of in personam jurisdiction. Hiller Invs. Inc. v. Insultech Group, Inc., 957 So.2d 1111 (Ala.2006); Elliott v. Van Kleef, 830 So.2d 726 (Ala.2002). The plaintiff has the burden of proving that the trial court has personal jurisdiction over the defendant. Ex parte Covington Pike Dodge, Inc., 904 So.2d 226 (Ala.2004).
Ex parte Puccio, 923 So.2d 1069, 1072 (Ala.2005). When a defendant files a motion to dismiss for lack of personal jurisdiction and supports that motion with an affidavit, the plaintiff is then required to controvert that affidavit with his or her own affidavit or other competent evidence to survive the motion to dismiss. Ex parte Duck Boo Int'l Co., 985 So.2d 900 (Ala. 2007). Even though Myrita filed no affidavit with her motion to dismiss, J.C. Duke responded to her motion with an affidavit.
With regard to personal jurisdiction, this Court has stated:
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