Lowry v. Owens

• Citation: 621 So.2d 1262
• Parties: Rodney LOWRY v. Richard OWENS and Fitzner Pontiac-Buick-Cadillac, Inc. 1920104.
• Decision Date: 28 May 1993
• Court: Supreme Court of Alabama

Page 1262

621 So.2d 1262

Rodney LOWRY v. Richard OWENS and Fitzner Pontiac-Buick-Cadillac, Inc.

1920104.

Supreme Court of Alabama.

May 28, 1993.

J.O. Isom, Hamilton, for appellant.

Franklin Williams of Gholson, Hicks, Nichols & Ward, Columbus, MS, for appellees.

SHORES, Justice.

Rodney Lowry appeals from the judgment of the Marion County Circuit Court dismissing his complaint for lack of personal jurisdiction over the defendants, Richard Owens and Fitzner Pontiac-Buick-Cadillac, Inc. ("Fitzner"). We reverse and remand.

The issue in this case is whether the defendants had sufficient contacts with Alabama to satisfy the due process clause of the Fourteenth Amendment so as to subject them to this civil action in an Alabama court.

The complaint underlying the jurisdictional question alleges fraud in the sale of an automobile. Henry Beasley and Rodney Lowry were stockholders in L & B Auto and Truck Sales ("L & B") in Winfield, Alabama. Beasley had worked for Burleson GMC, an automobile dealership in Winfield, Alabama, before the events giving rise to this action. Fitzner Pontiac-Buick-Cadillac, located in Columbus, Mississippi, is a Mississippi corporation licensed to do business in the state of Mississippi. Beasley testified that he had purchased six or seven used cars from Fitzner in Columbus, Mississippi, for resale in Alabama by Burleson GMC between 1985 and 1991, and that he had also purchased two or three cars in Columbus from Fitzner for resale in Alabama by L & B. Beasley made these purchases through Richard Owens, who was the general sales manager for Fitzner in Columbus.

Beasley, on behalf of Lowry, telephoned Owens in Columbus and told him that Lowry was interested in buying a new Cadillac automobile. Beasley testified that Owens ordered a Cadillac with Lowry's specific options and that Owens later called Beasley in Winfield, Alabama, to tell him that Lowry's car had arrived. Mr. Lowry, his wife, and Beasley went to Columbus, Mississippi, to pick up the car in October 1988. They were shown, and purchased, a white Cadillac that they contend was similar to, but not equipped exactly the same as, the one they had ordered. The bill of sale and odometer mileage statement indicate that the car was a new 1989 Cadillac DeVille sold by Fitzner to Burleson GMC of Winfield, Alabama. The new car order form shows "R. Owen" [sic] as the salesperson and "Rod Lowery" [sic] as the purchaser. Other paperwork in the record related to the purchase of the car displays Lowry's name and his address in Winfield, Alabama.

When Lowry tried to sell the 1989 DeVille two years later, an inspection revealed that the left side of the car had apparently been wrecked and then repaired. Rodney Lowry sued Fitzner and Owens, alleging fraudulent misrepresentation and deceit arising out of his October 1988 purchase of the Cadillac. After a hearing and the admission of affidavits into evidence, the circuit court granted the motion of the defendants--who were nonresidents--to dismiss for lack of jurisdiction. Lowry appeals, contending that jurisdiction over the defendants was proper under Alabama's long-arm jurisdiction rule, A.R.Civ.P. Rule 4.2(a).

Lowry filed affidavits of the tax collectors of Marion County and Lamar County, Alabama, in opposition to the defendants' motion to dismiss. Billy Moore, the tax collector of Lamar County, stated, based on his personal knowledge as the custodian of Lamar County tax records, that 10 Lamar County, Alabama, residents had purchased automobiles from Fitzner Pontiac-Buick-Cadillac, Inc., of Columbus, Mississippi, over a four-month period October 1, 1991, through February 12, 1992, and had paid to him county and state taxes on those vehicles. Susie Post, the tax collector of Marion County, stated, based on her personal knowledge as the custodian of Marion County tax records, that six Marion County, Alabama, residents had purchased automobiles from Fitzner Pontiac-Buick-Cadillac, Inc., of Columbus, Mississippi, during the period February 16, 1989, through February 18, 1992, and had paid to her county and state taxes on those vehicles. Henry Beasley testified that he had purchased several used cars from Fitzner in Columbus, Mississippi, for resale by automobile dealerships in Winfield, Alabama, both before and after he purchased the 1989 DeVille for Lowry. Beasley also testified that Danny Little was a Fitzner employee who had lived in Winfield and later moved to Columbus, and that Little had solicited business from him in Alabama while employed by Fitzner, although he did not know if Little had been directed to do so by Fitzner. Ray Thompson, a Hamilton, Alabama, resident, testified that he had bought a car from Fitzner in Columbus, and ownership papers bearing his Alabama address were admitted into evidence. Thompson swore that in Alabama he had seen and heard Fitzner's television and radio advertisements that had been broadcast from Columbus, and that Fitzner had advertised on a radio station in Fayette, Alabama, in 1989. George Fitzner, president of Fitzner Pontiac-Buick-Cadillac, swore, by affidavit admitted into evidence, that Fitzner Pontiac-Buick-Cadillac did not actively advertise by radio, television, or newspaper in Marion County, Alabama, and that it paid no Alabama use or sales tax. His supplemental affidavit, stating that Danny Little was not authorized to make wholesale car sales, or to solicit sales in Alabama, was stricken from the record.

The reach of personal jurisdiction of an Alabama court over nonresident defendants under Rule 4.2(a)(2), A.R.Civ.P., extends to the permissible limits of due process. Alabama Waterproofing Co. v. Hanby, 431 So.2d 141, 145 (Ala.1983). A key issue in this case is whether each nonresident defendant has sufficient contacts with Alabama for its courts to acquire personal jurisdiction over that defendant. Rule 4.2(a)(2) provides, in relevant part:

"(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:

"....

"(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 the 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."

To determine whether a nonresident defendant has "sufficient contacts with this state for the trial court to obtain in personam jurisdiction, we must necessarily examine all the relevant facts and attendant circumstances of the case. J. Moore, 2 Moore's Federal Practice § 4.41-1 at 4-449." Hanby, supra, at 145; Shrout v. Thorsen, 470 So.2d 1222, 1224 (Ala.1985). The question of jurisdiction is always a fundamental one, and we will review the entire record in answering that question. Mobile & Gulf R.R. v. Crocker, 455 So.2d 829, 831-32 (Ala.1984).

A nonresident defendant must have a certain level of contacts with a forum state in order for that state's courts to acquire personal jurisdiction over that defendant. Millette v. O'Neal Steel, Inc., 613 So.2d 1225 (Ala.1992); Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958). Jurisdiction is proper when the defendant has such contacts "that maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.' " Hanby, supra, at 144, quoting International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945).

"The focal point of the analysis is the alleged 'contacts' which a defendant has with the forum state. Courts look to 'the relationship among the defendant, the forum, and the litigation.' Shaffer v. Heitner, 433 U.S. 186, 204, 97 S.Ct. 2569, 2579, 53 L.Ed.2d 683 (1977).... [The nonresident defendant's physical] presence or absence from the forum state is not the foundation upon which a determination is made. Physical presence merely provides strong, objective evidence of sufficient contacts. The fundamental question is, did the defendant act in such a manner that he reasonably ought to anticipate the direct consequences of his actions to be felt by another person residing in another state?

"....

"Crucial to the analysis is the element of foreseeability of the consequences of the defendant's activities. There must be a clear, firm nexus between the acts of the defendant and the consequences complained of in order to establish the necessary contacts."

Duke v. Young, 496 So.2d 37, 39 (Ala.1986).

In Keelean v. Central Bank of the South, 544 So.2d 153, 156 (Ala.1989), we set forth a two-part analysis for determining whether an Alabama court can exercise personal jurisdiction over a nonresident defendant:

"1) the determination of whether it is foreseeable to that nonresident defendant that he will be sued in this state; and

"2) the determination of the degree of contact that the nonresident defendant has with the state."

Id. This analysis arose from a synthesis of the constitutional principles discussed earlier in this opinion.

The United States Supreme Court held in World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980), that a New York automobile retailer could not be subjected to a negligence action in Oklahoma based on a collision there involving a car sold by the New York retailer to New York residents. Crucial to the Court's analysis was that the retailer carried on "no activity whatsoever in Oklahoma." Id. at 295, 100 S.Ct. at 566. The retailer did not solicit business in Oklahoma "through salespersons or through advertising reasonably calculated to reach the State"; neither did it regularly sell cars to Oklahoma...