Twin Springs Group, Inc. v. Karibuni, Ltd.

JOHN MAUZY PITTMAN, Judge. |, This is an appeal from an order dismissing an action for lack of personal jurisdiction. Appellant is an Arkansas corporation; appellees are a Bermuda corporation and its principal. Appellant sued appel-lees alleging default on a contract under which appellant was to ship a twenty-foot container of chicken to appellees in Bermuda. Appellees moved to dismiss pursuant to Ark. R. Civ. P. 12 for lack of jurisdiction. A hearing was held on the Rule 12 dismissal motion; during the course of the hearing, it became apparent that the trial judge was considering affidavits as well as the pleadings, so that the hearing became one for summary judgment. At the conclusion of the hearing, the trial court found, on disputed evidence, that the contract had not been signed in Arkansas, and on that basis held that there were insufficient contacts to permit Arkansas courts to exert personal jurisdiction over appellees. Realizing that the trial court was ruling on the merits of the jurisdictional question rather than |2simply deciding whether appellees were entitled to summary judgment based on the pleadings and affidavits on file, appellant’s attorney attempted to call appellant to testify that the contract had in fact been executed in Arkansas. The trial court refused to allow appellant to testify and entered an order dismissing appellant’s complaint. This appeal followed. We reverse and remand. Appellant argues that the trial court erred in ruling that, as a matter of law, it lacked personal jurisdiction over appellees, the nonresident defendants below. A motion to dismiss will be treated as one for summary judgment when a trial court considers matters outside the pleadings. Ganey v. Kawasaki Motors Corp., U.S.A., 366 Ark. 238, 234 S.W.3d 838 (2006). Summary judgment should only be granted when it is clear that there are no genuine issues of material fact to be litigated and the moving party is entitled to judgment as a matter of law. Id. In appeals from the granting of summary judgment, all proof submitted must be viewed in the light most favorable to the party resisting the motion, and any doubts and inferences must be resolved against the moving party. Harvison v. Charles E. Davis & Associates, 310 Ark. 104, 835 S.W.2d 284 (1992). The reviewing court decides if the granting of summary judgment was appropriate by determining whether the evidence presented by the moving party in support of the motion left a material question of fact unanswered. Id. Arkansas courts have personal jurisdiction of all persons and corporations, and of all causes of action or claims for relief, to the maximum extent permitted by the due process of law clause of the Fourteenth Amendment to the United States Constitution. Ark.Code Ann. |s § 16-4-101(A) and (B) (Repl.1999). To satisfy due process, assumption of personal jurisdiction over a nonresident defendant must be based on “minimum contacts” by the nonresident defendant in the forum state so as to not offend “traditional notions of fair play and substantial justice.” Davis v. St. John’s Health System, 348 Ark. 17, 71 S.W.3d 55 (2002) (citing International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945)). The contacts between the nonresident defendant and the forum state must be such that a defendant would have a reasonable anticipation that he or she would be haled into court in that state. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980). A finding of personal jurisdiction requires that there be some act by which the defendant purposefully avails himself or herself of the privilege of conducting business in the forum state. Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1957). A single contract can provide the basis for the exercise of jurisdiction over a nonresident defendant if there is a substantial connection between the contract and the forum state. See McGee v. International Life Insurance Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957). A promise to pay for services to be performed in the forum state may provide such a substantial connection. Williams Machine & Fabrication, Inc. v. McKnight Plywood, 64 Ark. App. 287, 983 S.W.2d 453 (1998). In Williams Machine & Fabrication, Inc., we held that a nonresident defendant corporation purposely availed itself of doing business in a forum state where the parties were in a business relationship lasting almost one year, where the nonresident defendant’s corporate president himself went to the forum state to engage the plaintiffs to perform manufacturing services in the forum state, and where the suit arose directly out of the defendant’s actions in the forum |4state. Id. Viewing the evidence in the light most favorable to the party resisting the motion, it is clear that the trial court erred in granting summary judgment in this case. There was evidence to show that the contract in this case was initiated by appel-lees; that it was negotiated and executed on behalf of Karibuni, Ltd., by appellee Mellow while he was in Arkansas;, and that the contract provided for an Arkansas corporation to ship Arkansas poultry to appellees in Bermuda.1 We hold that, should this evidence be believed, the Arkansas court’s exercise of jurisdiction over appellees would not violate due process, and that the trial court therefore erred in granting summary judgment. Appellant also argues that, when the actual facts pertaining to jurisdiction are found, those factual questions regarding jurisdiction should be decided by the jury rather than by the trial judge. This argument lacks convincing argument or authority, and we therefore decline to address it at this time. See Pilcher v. Suttle Equipment Co., 365 Ark. 1, 223 S.W.3d 789 (2006). Reversed and remanded. HENRY AND BAKER, JJ., agree. KINARD, J., concurs. hVAUGHT, C.J., and GLADWIN, J., dissent.2 Footnotes [1] This evidence was contained in an affidavit that was attached to appellant's response to the motion to dismiss the complaint. It was before the trial court at the hearing on the motion to dismiss. It should not be confused with the further testimony appellant attempted to submit at the conclusion of the hearing, which is essentially duplicative.