Wenger Tree Service v. Royal Truck & Equip., Inc.

• Decision Date: 20 December 2002
• Citation: 853 So.2d 888
• Parties: WENGER TREE SERVICE v. ROYAL TRUCK & EQUIPMENT, INC.
• Court: Alabama Supreme Court

853 So.2d 888

WENGER TREE SERVICE v. ROYAL TRUCK & EQUIPMENT, INC.

1011373.

Supreme Court of Alabama.

December 20, 2002.

Stuart E. Smith, Huntsville, for appellant.

Jackson E. Duncan III, Huntsville, for appellee.

JOHNSTONE, Justice.

Introduction

The only issue presented in this appeal is whether the trial court erred in granting the motion of the defendant Royal Truck & Equipment, Inc., to dismiss the civil action of the plaintiff Wenger Tree Service on the ground of lack of personal jurisdiction over the defendant. We reverse and remand.

State of the case

In the Madison County Circuit Court, Wenger Tree Service, an Alabama sole proprietorship engaged in the business of tree removal, sued the defendant Royal Truck & Equipment, Inc. ("Royal"), a Pennsylvania corporation engaged in the business of acquiring, refurbishing, and selling specialized trucks used by landscapes and arborists. Wenger sought specific performance of Royal's alleged contractual obligation "to deliver properly endorsed legal title to" a specialized truck bought and received by Wenger from Royal. Wenger also sought judgment for title to the truck pursuant to Rule 70, Ala. R. Civ. P. Wenger complained that, although it had fully performed the conditions of the contract, Royal had failed to deliver title to the truck.

Pursuant to Rule 12(b)(2), Ala. R. Civ. P., Royal moved to dismiss Wenger's action for lack of personal jurisdiction. In support of the motion to dismiss, Royal submitted a brief and three affidavits, one by the president of Royal, Robert Roy; a second by the sales manager of Royal, Steven Haman; and a third by an attorney for Royal, John Roberts. In opposition to the motion to dismiss, Wenger submitted a brief and two affidavits, one by the sole owner of Wenger, Marc Wenger, and a second by a Madison County resident who had communicated with Royal through E-mail, one Patricia Huber. The respective parties submitted exhibits as well. After a hearing, the trial court granted Royal's motion to dismiss.

Facts

Wenger's complaint, which is verified under oath, alleges:

"4. Royal has done business by agent in Madison County, Alabama.

"5. Wenger invokes personal jurisdiction over Royal pursuant to Rule 4.2, Ala. R. Civ. P.

"6. Wenger is engaged as a tree surgeon, and uses heavy trucks and other equipment in the course of its business.

"7. Wenger and Royal were parties to a previous sale transaction whereby Wenger purchased a 1984 International knuckle boom truck from Royal, which was delivered by Royal to Wenger in Madison County.

"8. In November of 2001, the parties negotiated a sale of a 1991 International 4900 truck (VIN 1HTSDZ27N9MH321953) with Wenger trading the 1984 International previously bought from Royal back to Royal as partial consideration for the purchase of the new truck. See attached `Sales Invoice.' (Exhibit A) Wenger paid a deposit of $5,000 prior to Royal commencing work to customize the purchase vehicle.

"9. Wenger also paid Royal the additional sum of $14,503.13 to complete the agreed purchase price for the 1991 truck.

"10. Wenger forwarded photographs of the 1984 trade vehicle to depict the condition of the vehicle, which is now 18 years old.

"11. On or about November 14, 2001, Wenger signed both the Sales Invoice and a second, untitled document relating to the trade vehicle. (Exhibit B) "12. On or about November 24, 2001, Royal delivered the 1991 purchase vehicle to Wenger in Madison County. Wenger tendered the trade vehicle to the firm retained by Royal and signed over title to the trade vehicle in favor of Royal. See `Delivery Receipt." (Exhibit C)

"13. As of November 24, 2001, Wenger's performance was complete.

"14. The delivery service took possession of the trade vehicle and shortly thereafter delivered the trade vehicle to Royal in Coopersburg, Pennsylvania. An authorized representative of Royal, Steve Haman, thereafter signed the Sales Invoice and the untitled document attached as Exhibits A and B on behalf of Royal on December 3, 2001."

The exhibits establish further facts. Marc Wenger initiated transactions with Royal by telephone, both in 1998 and in 2001, after Wenger noticed an advertisement for specialized trucks for sale by Royal in Tree Care Industry, a national trade magazine distributed to Wenger in Madison County. In the transaction now at issue, Wenger received through the mail a sales invoice showing that, after a $5,000 down payment, Wenger would owe Royal $14,503.13 for the purchase of the 1991 truck. With the invoice, Wenger also received a letter contract stating the terms and conditions of his trade-in of the 1984 truck and his purchase of the 1991 truck. Wenger signed both documents on November 14, 2001. Wenger alleges under oath that he paid the full purchase price.

On November 24, 2001, J.T.G. Trucking, a Pennsylvania shipping company, delivered the refurbished 1991 truck to Wenger in Madison County. The delivery receipt shows "Royal Truck, Rt. 309, Coopersburg, PA," as the "shipper" of one "Truck Dumpbox Ser# 1HTSDZ27N9MH321953" and shows "Marc Wenger Tree Service, 105 Carot [sic] Drive, Harvest, AL 35749," as the consignee. The delivery receipt, which shows the shipment as prepaid, is signed by Marc Wenger. After delivering the 1991 truck to Wenger, J.T.G. Trucking then transported the 1984 trade-in truck back to Royal in Pennsylvania.

The affidavit of Royal President Roy reads:

"1. I am the President and sole owner of Royal Truck & Equipment, Inc., a closely held business corporation organized and existing under the Business Corporation Law of the Commonwealth of Pennsylvania, with a mailing address of 6910 Rt. 309, Coopersburg, Pennsylvania.

"2. The nature of the business of Royal Truck & Equipment, Inc., is the acquisition, refurbishing and conversion of used trucks for special application uses (not serviced by Original Equipment Manufacturers) such as specialized vehicles for landscaping and lawn care, and arborists.

"3. All refurbishing and conversion work is done at our business facility located in Coopersburg, Pennsylvania except for some specialty work, such as painting, which is outsourced to nearby specialty facilities.

"4. The Corporation [Royal] is not registered to do business in the State of Alabama and pays no taxes in the State of Alabama.

"5. To the best of my recollection, the Corporation has not sold any of its products to any other resident of Alabama other than the Plaintiff. "6. The Corporation has never purchased or sold any trucks or supplies or equipment to or from any state or local government agency in the State of Alabama.

"7. To the best of my knowledge, the Corporation does not purchase any supplies or products directly from Alabama manufacturers and if any product or equipment that we routinely use is manufactured in the State of Alabama I am unaware of it.

"8. The Corporation advertises in some publications in the local market (the Allentown/Bethlehem/Easton standard statistical metropolitan area) and in some regional and national trade publications but has never placed any advertising in the State of Alabama or any publication originating in or (to our knowledge) published in the State of Alabama.

"9. The vast majority of the Corporation's business is conducted with customers from the tri-state area (Pennsylvania, New Jersey and New York) with substantially fewer customers coming from other states in the northeast region of the United States.

"10. The Corporation does advertise its products in national trade publications and it is my understanding from conversations with the Corporation's Sales Manager, Mr. Stephen Haman, that an advertisement in a national trade publication is how the Plaintiff first became aware of our products and location in 1998.

"11. The Corporation does not advertise in any newspapers other than those published in the LeHigh Valley in Pennsylvania and the Corporation does not solicit business via telephone calls or any kind of telephone bank nor does the Corporation do direct mail advertising. Accordingly, the Corporation does not and has not solicited business customers in the State of Alabama, directly or indirectly, except as might be incidental to advertisements in nationally circulated trade publications.

"12. It is my recollection that the first and only other time that the Plaintiff had dealings with the Corporation was in 1998 in response to one of our ads in a national trade publication when he contacted Mr. Haman by telephone and, after much discussion/negotiation, ordered from us a specialty truck which we manufactured for him. On that occasion, he arranged for payment for the vehicle in advance and, furthermore, he made his own arrangements with a local independent transport company, J.T.G. Transport (whose name we gave him), to transport the completed vehicle along with another vehicle he purchased from other entity in Connecticut from Pennsylvania to Alabama. That is, he placed a telephone call to our facilities in Coopersburg, Pennsylvania and ordered the specialty truck. The truck was manufactured entirely at our corporate facility in Coopersburg, Pennsylvania. The purchase price was paid in Pennsylvania in full before the vehicle left our premises and was delivered by us to a third party in Pennsylvania with whom the plaintiff had made pick-up and transportation arrangements so as to get the vehicles he purchased from us as well as the other vehicles he purchased from some other entity from Pennsylvania to Alabama.

"13. Having once satisfactorily done business with us several years ago, the Plaintiff again called our offices in November of 2001 to purchase a newer and different specialty truck for his business. The pertinent details of that transaction are outlined in my three page letter to the Plaintiff dated December 3, 2001 and the attachments thereto which are appended to this affidavit at the end hereof."

The December 3, 2001, letter states that Roy had...