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Ex parte Puccio9/9/2005
ego to avoid personal liability and to gain personal profits. "'Although the limitation of personal liability is a valid corporate attribute, the corporate entity will be disregarded when it is used solely to avoid personal liability of the owner while reserving to the owner the benefits gained through the use of the corporate name.'" Culp v. Economy Mobile Homes, Inc., 895 So. 2d 857, 860 (Ala. 2004) (quoting Messick v. Moring, 514 So. 2d 892, 894 (Ala. 1987)).
At the hearing on the motion to dismiss, the trial court indicated that dismissal would be premature because the Grants had not had ample opportunity to fully investigate their claims. Puccio argues that the trial court's characterization of a Rule 12(b)(2), Ala. R. Civ. P., motion as premature eviscerates the intent of Rule 12(b), which, he says, requires a motion to dismiss for lack of personal jurisdiction to be filed at this stage of the proceedings. He argues that requiring a defendant to raise the threshold defense of lack of personal jurisdiction early in the proceedings ensures that the trial court has personal jurisdiction over the defendant before it addresses the merits of the case. However, even though a defendant timely files a motion to dismiss, a plaintiff may be entitled to discovery solely on the issue of personal jurisdiction raised in the motion to dismiss. See generally Ex parte Covington Pike Dodge, Inc., supra; Ex parte Troncalli Chrysler Plymouth Dodge, Inc., 876 So. 2d 459 (Ala. 2003). Thus, we cannot say that the trial court erred in concluding that it would be premature to grant the motion to dismiss at this stage in the proceedings.
Puccio has not shown that he has a clear and undisputable right to a dismissal of the Grants' claims against him for lack of personal jurisdiction. Therefore, the petition for the writ of mandamus is denied. However, we note:
"A denial of a Rule 12(b)(2)[, Ala.R.Civ.P.,] motion to dismiss for lack of personal jurisdiction is interlocutory and preliminary only. After such a denial, the continuation of personal jurisdiction over a defendant who appropriately persists in challenging it in the defendant's answer to the complaint and by motion for summary judgment or at trial depends on the introduction of substantial evidence to prove the plaintiff's jurisdictional allegations in the plaintiff's complaint."
Ex parte McInnis, supra, 820 So. 2d at 798.
PETITION DENIED.
Nabers, C.J., and See, Lyons, Harwood, Stuart, Smith, and Parker, JJ., concur.
Woodall, J., concurs in the result.
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