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Ex parte Puccio9/9/2005
prise is to assert the non-profit and tax- exempt status of Cambridge Credit to allow for unregulated and unscrupulous business practices.
"39. On information and belief, avoidance of federal regulation has allowed enormous business asset growth for Cambridge Credit; John Puccio, the ultimate intended beneficiary of that growth, has directly or indirectly profited by the siphoning of Cambridge Credit's assets achieved through the organization's non-profit status." Puccio correctly argues that, as a corporate officer of Cambridge Credit, he lacks sufficient minimum contacts with Alabama to satisfy the requirements of personal jurisdiction. Personal jurisdiction over an individual corporate officer or employee "may not be predicated upon jurisdiction over the corporation itself." Thames, supra, 373 So. 2d at 641. However, the Grants argue that Puccio used Cambridge Credit as his alter ego. If a corporation is the alter ego of an individual, then the court may disregard the corporate form and exercise personal jurisdiction over the individual. " ttribution of contacts to the individual defendant merely reflects the reality that, although the contacts were ostensibly those of the corporation, the true actor was the individual." Home-Stake Prod. Co. v. Talon Petroleum, C.A., 907 F.2d 1012, 1021 (10th Cir. 1990).
It is undisputed that Cambridge Credit is subject to personal jurisdiction in Alabama. Cambridge Credit has made appearances in court without objection. An objection based on lack of personal jurisdiction is waived if it is not timely asserted. Rule 12(h)(1), Ala. R. Civ. P.; see also Pardazi v. Cullman Med. Ctr., 896 F.2d 1313 (11th Cir. 1990)(party's failure to timely raise defense of lack of personal jurisdiction was deemed to have conferred personal jurisdiction on the court by consent). Furthermore, we note that Cambridge Credit has transacted business in Alabama by agreeing to provide services to the Grants and, therefore, that it has had minimum contacts with the State. Rule 4.2(a)(2)(A), Ala. R. Civ. P.; see also Wenger Tree Serv. v. Royal Truck & Equip., Inc., 853 So. 2d 888 (Ala. 2002)(nonresident corporation's contacts with the State were sufficient to support specific personal jurisdiction in a contract action by the plaintiff in the tree-removal business where the plaintiff sought to enforce a contract to obtain title to a specialized truck corporation had sold to the plaintiff).
We note that Puccio's second motion to dismiss does not specifically address the factual allegations raised in the Grants' amended complaint that Cambridge Credit is Puccio's alter ego, i.e., that Puccio established Cambridge Credit as a 501(c)(3) entity to use the tax-exempt status and exemption from certain federal regulations to operate Cambridge Credit as his own for-profit business. Rather, Puccio simply argued that he was not an Alabama resident and that he had insufficient contacts with Alabama to subject him to jurisdiction of its courts and "the addition of the alter ego allegation ... still does not vest this Court with personal jurisdiction." In construing the allegations in the Grants' complaint not controverted by Puccio as true, as we are required to do for the purposes of Puccio's motion to dismiss, Ex parte Covington Pike Dodge, supra, we cannot say that the trial court erred in denying the motion.
Puccio contends that the Grants failed to allege that Cambridge Credit was a sham or a facade corporation in order to support their alter-ego theory. Although the Grants do not specifically use the words "sham" or "facade," it is abundantly clear from their amended complaint that they are alleging that Puccio used the corporate status of Cambridge Credit as his alter
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