Reveley v. Roth

Cite as 2016 Ark. App. 248

ARKANSAS COURT OF APPEALS
DIVISION II
No. CV-15-994

BRYCE REVELEY Opinion Delivered May 4, 2016
APPELLANT
APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT,
V. TWELFTH DIVISION
[NO. 60CV-15-265]

HONORABLE CATHLEEN V.
CINDY LIVAUDAIS ROTH COMPTON, JUDGE
APPELLEE
AFFIRMED

PHILLIP T. WHITEAKER, Judge

The Pulaski County Circuit Court dismissed a complaint filed by appellant Bryce

Reveley against appellee Cindy Roth, finding that the Arkansas court lacked personal

jurisdiction over Roth. On appeal, Reveley argues that the circuit court erred in two

respects: (1) in considering matters outside of the complaint in deciding Roth’s motion to

dismiss, and (2) in concluding that the court lacked personal jurisdiction. We find no error

and affirm.

A review of the procedural history of this case is necessary to our determination.

Reveley filed a complaint against Roth alleging counts of negligence and malpractice, breach

of contract, and breach of fiduciary duty. According to the complaint, Reveley and Roth are

both residents of Louisiana. Reveley receives royalty income from real property owned in

Arkansas; that income is subject to taxation in Arkansas. Roth is a CPA who has prepared
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Reveley’s income tax returns. For the years 2008, 2009, 2010, 2011, and 2012, Reveley

contracted with Roth for accounting services, which included preparing Reveley’s federal

and state income taxes. Roth failed to file tax returns for Reveley’s Arkansas income, instead

erroneously filing the Arkansas income taxes as Louisiana income taxes for the years 2008

through 2011.

In 2013, the Arkansas Department of Finance and Administration (DF&A) contacted

Reveley and informed her that she owed unpaid taxes on her Arkansas royalty income for

the years 2008 through 2011. Reveley then contacted Roth and asked Roth to file her

Arkansas income tax returns for those years, as well as amended Louisiana returns in order

to recoup the taxes that had been erroneously paid to Louisiana. Roth never filed the

amended Louisiana returns, but she did file a correct 2012 Arkansas income tax return.

DF&A subsequently sent Reveley notice that she owed unpaid taxes, penalties, and interest

on the unpaid Arkansas royalty income.

In response to Reveley’s complaint, Roth filed a motion to dismiss for lack of personal

jurisdiction pursuant to Arkansas Rule of Civil Procedure 12(b)(2). Attached to Roth’s

motion was her affidavit in which she averred that she was a resident of New Orleans,

Louisiana; she was not and had never been licensed to practice as a CPA in Arkansas; she did

not own and had never owned property in Arkansas; she had never had an office location

in Arkansas; she had no employees working in Arkansas; she had never engaged in

advertising activities in Arkansas; and she had never traveled to Arkansas or personally

conducted any business activities in Arkansas in connection with any of the facts alleged in

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Reveley’s complaint. Roth further added that any documents that she had prepared for

Reveley had been prepared in Louisiana; any CPA services she had rendered to Reveley had

been rendered in Louisiana; any communications she had with Reveley, either in person or

over the phone, had taken place in Louisiana; any payments made to her for her CPA

services had been paid and received in Louisiana; the 2012 federal and Louisiana tax returns

were electronically filed from Louisiana; and the 2012 Arkansas return was a paper document

that was prepared in Louisiana and then physically handed to Reveley for her to file.

Following a hearing, the circuit court entered an order granting Roth’s motion to

dismiss. In short, the circuit court found that Roth’s contacts with Arkansas were insufficient

to establish personal jurisdiction over Roth. Reveley now appeals.

In her first point on appeal, Reveley argues that the circuit court erred in considering

matters outside the complaint in assessing Roth’s motion to dismiss for lack of personal

jurisdiction. The issue raised on appeal is intertwined with our standard of review; therefore,

we discuss them together at this point.

Reveley argues that in considering a motion to dismiss for lack of personal

jurisdiction, the courts should look to the complaint for the relevant facts alleging

jurisdiction, which are taken as true. Davis v. St. Johns Health Servs., 348 Ark. 17, 71 S.W.3d

55 (2002). In Davis, the supreme court stated that “[i]f the complaint does not allege

sufficient facts on which personal jurisdiction can rest, then the complaint is factually

deficient.” 348 Ark. at 22, 71 S.W.3d at 57 (citing Howard v. Cty. Court of Craighead Cty.,

278 Ark. 117, 644 S.W.2d 256 (1983)). Reveley argues that Davis requires, under the

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appropriate standard of review, that the court look only to the complaint for the relevant

facts establishing jurisdiction. We disagree.

In Ganey v. Kawasaki Motors Corp., U.S.A., 366 Ark. 238, 234 S.W.3d 838 (2006), the

supreme court reexamined the standard of review. In Ganey, as in the instant case, the

defendants successfully moved to dismiss on the basis of lack of personal jurisdiction. The

supreme court affirmed the dismissal, and in doing so, it explained as follows:

We begin our analysis by determining the appropriate standard of review. The
Ganeys urge this court to treat the motion to dismiss as a motion for summary
judgment, as matters outside the pleadings were considered by the trial court.
Lakeside, however, raises an argument that where the court’s order of dismissal hinged
on a finding of lack of personal jurisdiction, it is appropriate for this court to simply
review whether the exercise of personal jurisdiction comports with the Due Process
Clause of the Fourteenth Amendment. While Lakeside raises an interesting point in
this regard, we cannot ignore the fact that the trial court, in reaching the conclusion
that it lacked personal jurisdiction over Mike’s Cycle and Lakeside, specifically relied
on matters raised in affidavits and depositions. Accordingly, we will treat the instant
motion to dismiss as one for summary judgment. See Kyzar v. City of West Memphis,
360 Ark. 454, 201 S.W.3d 923 (2005) (holding that a motion to dismiss will be
treated as one for summary judgment when a trial court considers matters outside the
pleadings).

Ganey, 366 Ark. at 244–45, 234 S.W.3d at 842.

Similarly, in Hotfoot Logistics, LLC v. Shipping Point Marketing, Inc., 2013 Ark. 130, 426

S.W.3d 448, our supreme court held that, although the parties appealed from an order

granting a motion to dismiss, the circuit court considered affidavits and exhibits attached to

the motion; accordingly, the motion was treated as one for summary judgment. In a

concurring opinion on denial of a petition for rehearing in Hotfoot, Justice Corbin clarified

that the Ganey court had established the standard of review for cases in which matters outside

the pleadings are considered in motions to dismiss for lack of personal jurisdiction. “Once

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this court has interpreted its rules, that interpretation subsequently becomes a part of the rule

itself.” Hotfoot Logistics, LLC v. Shipping Point Marketing, Inc., 2013 Ark. 266, at 2 (Corbin,

J., concurring on denial of reh’g) (citing Arkco Corp. v. Askew, 360 Ark. 222, 200 S.W.3d 444

(2004)). See also Pritchett v. Evans, 2013 Ark. App. 679, 430 S.W.3d 223 (treating motion to

dismiss for lack of personal jurisdiction as one for summary judgment where affidavits were

attached to the motion); Morris v. Christopher, 2013 Ark. App. 312 (same). We are therefore

unable to agree with Reveley that the circuit court erred in considering matters outside the

pleadings in reaching its conclusions regarding personal jurisdiction.

Reveley also argues, however, that the court’s reliance on Roth’s affidavit “violate[s]

[Reveley’s] absolute right to cross-examine a witness attempting to testify against her.”

Before the circuit court, Reveley argued that the affidavit was “nothing more than an

attempt to introduce self-serving testimony without being subject to cross-examination or

before [Reveley] is given the opportunity to conduct any discovery in this matter.” She cites

Arkansas State Game & Fish Commission v. Kizer, 221 Ark. 347, 351, 253 S.W.2d 215, 218

(1952), in support of her argument that “the right of cross-examination is absolute” and that

“a party has the right to cross examine witnesses against him whether the evidence is given

ore tenus or by deposition.” That case, however, is inapposite. It involved the introduction

of an unsworn document by a nonparty to the case after the trial of the matter had

concluded. The chancery court denied the parties the opportunity to cross-examine the

authors of the document, and the supreme court reversed, holding that the refusal to allow

cross-examination was error.

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This case is entirely different. As discussed above, the circuit court treated Roth’s

motion to dismiss as a motion for summary judgment. Affidavits, depositions, and other

matters are routinely considered in deciding the merits of summary-judgment motions.

Reveley cites no apposite authority holding that it was inappropriate for the circuit court to

have done so in this case. Accordingly, we affirm on this point.

In her second point on appeal, Reveley contends that the circuit court erred in

finding that it did not have personal jurisdiction over Roth. Personal jurisdiction within the

state of Arkansas is limited only by federal constitutional law. Ark. Code Ann. § 16-4-101(B)

(Repl. 2010). Under federal constitutional law, two types of personal jurisdiction exist:

specific and general. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408 (1984).

When a cause of action arises out of or is related to a defendant’s specific contacts with the

forum state, the exercise of personal jurisdiction is specific in nature. Id. However, if the

exercise of jurisdiction arises in a case not stemming from the defendant’s specific contacts

with the forum state, the exercise of personal jurisdiction is general in nature. Id.

In the instant case, there is no dispute that Roth had no specific contacts with the state

of Arkansas and that the type of jurisdiction at issue is general. When general jurisdiction is

in question, a defendant may be subject to the forum state’s exercise of personal jurisdiction

if, generally, its contacts with the state are continuous, systematic, and substantial. Id. Thus,

the question for this court is whether the circuit court correctly found that Roth’s contacts

with the state of Arkansas were insufficient to establish general personal jurisdiction.

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General personal jurisdiction requires “certain minimum contacts with [the forum

state] such that the maintenance of the suit does not offend ‘traditional notions of fair play

and substantial justice.’” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (quoting

Milliken v. Meyer, 311 U.S. 457, 463 (1940)). There is not a bright-line litmus test for what

constitutes “minimum contacts.” However, the United States Supreme Court has held that

a nonresident defendant’s contacts with a forum state must be sufficient to cause the

defendant to “reasonably anticipate being haled into court there.” World-Wide Volkswagen

Corp. v. Woodson, 444 U.S. 286, 297 (1980). In John Norrell Arms, Inc. v. Higgins, 332 Ark.

24, 962 S.W.2d 801 (1998), our supreme court established a five-factor test to determine the

sufficiency of those contacts: (1) the nature and quality of the contacts, (2) the quantity of the

contacts, (3) the relation of the cause of action to the contacts, (4) the interest of the forum

state in providing a forum for its residents, and (5) the convenience of the parties. See also

Morris v. Christopher, 2013 Ark. App. 312, at 4–5.

On appeal, Reveley argues that the circuit court erred in finding that Roth did not

have sufficient minimum contacts with the state of Arkansas because Roth signed Reveley’s

2012 Arkansas tax return, which contained the following statement:

Under the penalties of perjury, I declare that I have examined this return and
accompanying schedules and statements, and to the best of my knowledge and belief,
they are true, correct and complete. Declaration of preparer (other than taxpayer) is
based on all information of which preparer has any knowledge.

Because Roth signed this return under penalty of perjury, Reveley insists that Roth “clearly

acknowledged that she is subject to the jurisdiction of Arkansas courts related to such tax

returns and tax issues to which she has been involved.”

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We disagree. While Roth did sign the return under penalty of perjury, Roth’s

signature on a single document does not settle the matter of personal jurisdiction. Rather,

we must consider each of the five factors set out in John Norrell Arms, supra. Having done so,

we conclude that the circuit court did not err in determining that it lacked personal

jurisdiction over Roth. As to the nature and quality of contacts with the forum state, Roth

signed a 2012 Arkansas tax form; however, she signed the form and gave it to Reveley in

Louisiana to file in Arkansas. The quantity of the contacts were equally negligible: Roth

prepared only one Arkansas return for Reveley. The relation of the cause of action to the

contacts is marginal, because Reveley does not contend that the 2012 form was improperly

prepared or filed. Because neither Reveley nor Roth is an Arkansas resident, there is no

interest of the forum state in providing a forum for its residents. Finally, the convenience of

the parties is nonexistent, as both Reveley and Roth live in New Orleans. In summary, Roth

simply lacked any significant contact with the state of Arkansas, much less any “continuous,

systematic, and substantial” contacts that would support a finding of general personal

jurisdiction. There is nothing about the sole act of preparing and signing one tax return in

another state that would cause Roth to reasonably anticipate being haled into an Arkansas

court. We therefore affirm the decision of the circuit court to dismiss Reveley’s complaint.

Affirmed.

ABRAMSON and HOOFMAN, JJ., agree.

Danielson Law Firm, PLLC, by: Erik P. Danielson, for appellant.

Barber Law Firm PLLC, by: Robert L. Henry III, for appellee.

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