Williams v. Skysite Communications Corp.

• Decision Date: 06 October 2000
• Citation: 781 So.2d 241
• Parties: Thomas G. WILLIAMS v. SKYSITE COMMUNICATIONS CORPORATION et al.
• Court: Alabama Court of Civil Appeals

781 So.2d 241

Thomas G. WILLIAMS v. SKYSITE COMMUNICATIONS CORPORATION et al.

2991121.

Court of Civil Appeals of Alabama.

October 6, 2000.

James A. Hoover and Brian D. Turner, Jr., of Hoover, Evans & Turner, P.C., Birmingham, for appellant.

Jonathan H. Waller and R. Brent Irby of Campbell, Waller & McCallum, L.L.C., Birmingham, for appellees.

THOMPSON, Judge.

Thomas G. Williams filed a complaint in the Circuit Court of Shelby County, on October 20, 1999, against Skysite Communications Corporation; U.S. Digital Satellite, Inc., a/k/a U.S. Digital Satellite Group d/b/a International Satellite Group, Inc.; and some fictitiously named defendants. Williams amended his complaint to substitute U.S. Digital Communications, Inc., for one of the fictitiously named defendants. It is undisputed that Skysite Communications Corporation and International Satellite Group, Inc., were subsidiaries of U.S. Digital Communications, Inc. (hereinafter referred to collectively as "Skysite"), until the subsidiaries ceased operations on June 8, 1999. Further, Skysite was in the business of providing remote and mobile communication applications, such as satellite telephone services and other means of global communication to commercial markets. The parent corporation, U.S. Digital Communications, Inc., continues to provide remote and mobile communication applications. In his complaint, Williams seeks damages based on the breach of an employment contract he entered into with Skysite.

On December 10, 1999, Williams filed an application for default judgment; the trial court entered a default judgment on December 16, 1999. Skysite answered Williams's complaint on January 7, 2000, preserving the Rule 12(b), Ala.R.Civ.P., defenses in his answer, and filed a motion to set aside the default judgment. After conducting a hearing on the motion, the trial court granted Skysite's motion to set aside the default judgment.

Skysite filed a motion to dismiss, pursuant to Rule 12(b), on January 27, 2000. This motion claimed lack of jurisdiction and improper venue, asserting that Skysite had insufficient contacts with the State of Alabama to make it subject to the jurisdiction of Alabama courts. In support of its motion to dismiss for lack of personal jurisdiction, Skysite submitted the affidavit of Robert Wussler, the chairman and chief executive officer of U.S. Digital Communications, Inc., the parent corporation of Skysite. The affidavit states that Skysite is not an Alabama corporation; that it does not maintain a principal place of business or office in the State of Alabama; that it has never qualified to do business as a foreign corporation in the State of Alabama; that it does not solicit or transact business, by agent or otherwise, in the State of Alabama; that it never entered into any contract to conduct business with any other company within the State of Alabama; that it has not initiated any contract to supply goods or services within the State of Alabama; that it has not deliberately targeted Alabama as a market; that it does not lease any building or own any property in the State of Alabama; and, that it does not engage in any type of persistent course of conduct in the State of Alabama.

In response to Skysite's motion to dismiss, Williams filed a motion to strike the affidavit of Wussler and a motion in opposition to Skysite's motion to dismiss.

In support of his position that Skysite has sufficient contacts to subject it to the jurisdiction of an Alabama court, Williams filed three affidavits in support of his opposition to Skysite's motion to dismiss. In his own affidavit, Williams states that he currently resides in Shelby County, Alabama, and that he resided there throughout his contract negotiations with Skysite; that the principals of Skysite, namely Charles C. Maynard, former CEO of Skysite, and Phillip A. Kernan, Jr., former president of Skysite, contacted him concerning his employment with Skysite; that he had numerous telephone conversations with Kernan regarding his possible employment with Skysite, the majority of those calls being made to him at his Shelby County, Alabama, residence; that on or about August 21, 1998, he left his employment with BellSouth Telecommunications, Inc., and entered into an employment contract with Skysite Communications Corporation to serve as national managing director of the corporation; that the contract was sent to him at his Shelby County, Alabama, home where he reviewed and executed it and returned it to Kernan via U.S. Mail; that he had numerous conversations with Mr. Remington Dean at SONAT, Inc., an Alabama corporation, concerning SONAT's satellite communication needs and the possibility of Skysite providing for those needs; that he solicited business from SONAT on behalf of Skysite; that he supported Jim Travis, Skysite's regional vice president of sales for the southeastern region, and the southeastern regional sales office by providing them with information about his negotiations with SONAT; and that Skysite encouraged solicitation of business in all 50 states, including Alabama.

The affidavit of Charles C. Maynard, the former chief executive officer of Skysite, states that Williams was hired as the national managing director of Skysite and that, even though Skysite's principal place of business was California, Williams was not hired to merely run the California office. Further, the affidavit states that as part of Williams's employment, Skysite agreed to allow him to work from his Shelby County, Alabama, home one week per month. As part of that arrangement, Skysite paid for Williams's home-office equipment and expenses, provided him with an apartment in California, and paid all of his travel expenses to and from Alabama. Williams also testified that Skysite paid for these expenses and attached documentation of these expenses to his affidavit. Maynard testified that because the company focused on selling satellite communications to companies on a national scope, it had several regional offices, including one in Atlanta, Georgia, that covered the southeastern region. This office serviced Alabama.

Jim Travis further summarized Skysite's contacts with Alabama in his affidavit. Travis's affidavit indicated that he supervised five sales representatives whose sales territory included Alabama; that his duties included direct sales to businesses located within Alabama; that his sales representatives solicited business from companies in Alabama; that one of his sales representatives, Blake Dexter, called on two Alabama customers on several occasions, with one of those customers being SONAT, Inc.; and that even though his sales representatives solicited business in Alabama, no contracts were procured because Skysite ceased doing business early in negotiations.

After conducting a hearing on the motion to dismiss, the trial court, on February 14, 2000, entered an order dismissing Skysite on the grounds of lack of personal jurisdiction. The trial court found that, even without the affidavit of Wussler, sufficient information existed to conclude that Alabama lacked jurisdiction over Skysite.

Williams filed a motion to alter, amend, or vacate the judgment on February 24, 2000; the trial court denied that motion on April 4, 2000. Williams appealed to the Supreme Court of Alabama, which transferred the appeal to this court, pursuant to § 12-2-7(6), Ala.Code 1975.

We must first consider the proper standard of review with respect to the trial court's judgment. Williams raises this issue and claims that the underlying motion to dismiss should be converted into a motion for summary judgment because of Skysite's inclusion of an affidavit with its motion.

We are not persuaded by Williams's argument that the fact that Skysite's motion to dismiss was supported by an affidavit converts that motion into a summary-judgment motion. Evidentiary matters may be freely submitted on a motion to dismiss that attacks jurisdiction. Committee Comments, Rule 12, Ala. R.Civ.P. (citing Williams v. Minnesota Mining & Mfg. Co., 14 F.R.D. 1 (S.D.Cal. 1953)). Furthermore, this court has held

"[T]he submission and consideration of affidavits or other evidence in connection with a motion to dismiss that states grounds other than a failure of a pleading to state a claim does not result in automatic conversion:

"`Most courts now ... permit "speaking" motions under Rule 12(b). There is little difficulty in allowing these motions in conjunction with the defenses enumerated in Rules 12(b)(1) to 12(b)(5). The validity of these defenses rarely is apparent on the face of the pleading and motions raising them generally require reference to matters outside the pleadings. The practice of allowing "speaking motions" in connection with the Rule 12(b)(1) through Rule 12(b)(5) defenses has not been compromised by the fact that the 1948 amendment to Rule 12(b) only expressly permits the use of extraneous matter on a Rule 12(b)(6) motion. Finally, the defense described in Rule 12(b)(7), failure to join a party under Rule 19, ... is analogous to the defenses in Rules 12(b)(1) through Rule 12(b)(5) and also may be supported by affidavits or other evidence.'

Crowe v. City of Athens, 733 So.2d 447, 449 n. 1 (Ala.Civ.App.1999) (quoting 5A Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure, § 1364 pp. 468-70 (2d. ed.1990)).

Skysite challenged personal jurisdiction, venue, and sufficiency of process in its motion to dismiss. Skysite did not, under subdivision (b)(6) of Rule 12, Ala, Civ. P., allege that Williams had failed to state a claim upon which relief could be granted Therefore, its motion to dismiss is not to be treated as one for summary judgment and disposed of as provided in Rule 56, Ala. R. Civ. P.

We review the trial court's judgment de novo. Our review in this case is to determine whether the trial court correctly applied the law to the facts of this case. Sims v. Leland Roberts Constr., Inc., 671 So.2d...