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CAG MLG, L.L.C. v. Smelley

Supreme Court of Alabama

September 19, 2014

CAG MLG, L.L.C.
v.
Bart Smelley and Smelley Family Investments, L.L.C

As Corrected August 6, 2015.

Released for Publication May 15, 2015.

Appeal from Tuscaloosa Circuit Court. (CV-13-900565). James H. Roberts, Jr., Trial Judge.

For Appellant: Mark D. Morrow, Tuscaloosa.

For Appellees: Alyce M. Spruell, Rosen Harwood, P.A., Tuscaloosa.

PARKER, Justice. Moore, C.J., and Stuart, Shaw, and Wise, JJ., concur.

OPINION

PARKER, Justice.

CAG MLG, L.L.C. (" CAG" ), appeals the Tuscaloosa Circuit Court's dismissal of its action against Bart Smelley and Smelley Family Investments, L.L.C. (hereinafter collectively referred to as " Smelley" ). We reverse and remand.

Facts and Procedural History

On May 10, 2013, CAG sued Smelley, alleging six counts of misrepresentation and/or fraud and a single count of unjust enrichment. On June 18, 2013, Smelley filed a motion to dismiss. In the motion to dismiss, Smelley alleged that CAG was a foreign limited-liability company formed and organized in the State of Florida in 2010 and that it was " not registered or qualified to do business in the State of Alabama." Smelley also alleged that CAG had domesticated in Wyoming as Oceans, LLC, in March 2011 and that CAG was subsequently dissolved as a Florida entity in April 2011. Smelley argued that CAG " failed to state the jurisdictional element establishing its ability to maintain an action in its initial pleading." Accordingly, Smelley argued, the circuit court lacked " subject matter jurisdiction and/or personal jurisdiction over the matters contained in the [c]omplaint." Additionally, Smelley argued that " [t]his lack of standing requires

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immediate dismissal of this action until [CAG] can demonstrate the legal capacity to pursue the same." In support of the motion to dismiss, Smelley attached a printout from the Alabama Secretary of State's Web site showing that CAG is not listed as being registered with the State of Alabama and a printout from the Wyoming Secretary of State's Web site indicating that CAG was organized in Florida in 2010 and had domesticated in Wyoming as Oceans, LLC, in 2011.

On July 24, 2013, CAG amended its complaint to add an eighth count requesting that the circuit court issue an injunction preventing Smelley from selling a piece of real property. On August 16, 2013, Smelley amended the motion to dismiss to include the additional claim. On August 19, 2013, CAG filed a motion to strike the paragraphs of Smelley's motion to dismiss that alleged that CAG was a foreign entity that was not registered to transact business in Alabama and the exhibits attached in support thereof.

Also on August 19, 2013, the circuit court held a hearing on the motions. On the following day, the circuit court issued an order granting CAG's motion to strike the objected-to paragraphs of Smelley's motion to dismiss and the supporting exhibits, dismissing the request for an injunction as moot, and instructing the parties to file briefs regarding the remainder of Smelley's motion to dismiss, which included an allegation that CAG could not maintain an action in Alabama because it was not registered to transact business in Alabama.

On August 26, 2013, Smelley filed a brief in support of the motion to dismiss and argued that CAG's complaint was due to be dismissed pursuant to former § § 10A-2-15.01 and 10A-2-15.02, Ala. Code 1975.[1] Former § 10A-2-15.01 stated, in relevant part:

" (a) A foreign corporation may not transact business in this state until it registers with the Secretary of State as required ...

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