Court of Appeals of Arkansas, Divisions II, III and IV
APPEAL FROM THE POLK COUNTY CIRCUIT COURT. NO. DR-2013-0211. HONORABLE J.W. LOONEY, JUDGE.
Kris M. Boyd and J.P. Longacre, for appellant.
Maddox & Maddox, by: John D. Maddox II, for appellee.
CLIFF HOOFMAN, Judge. GLADWIN, C.J., and VIRDEN, KINARD, WHITEAKER, and HIXSON, JJ., agree.
CLIFF HOOFMAN, Judge.
Appellant Clint Beason appeals from the circuit court's order granting appellee Mona Parks's petition for an order of protection. Beason argues on appeal that the circuit court erred by denying his motion to dismiss the petition based on (1) a lack of personal jurisdiction and (2) the failure to file a verified petition as required by statute. We reverse and dismiss based on Beason's second point on appeal.
On November 14, 2013, Parks filed a petition for an order of protection in Polk County, Arkansas, against Beason, who was her boyfriend, alleging that he had thrown her down, kicked her, pulled her around by her hair, and choked her. She listed the date of the offense as November 10, 2013. Parks further alleged that Beason had threatened to kill her, her family, and her pets if she told anyone what he had done. She indicated in her petition that she lived in Wickes, Arkansas, and that Beason lived in Idabel, Oklahoma. Parks also attached an affidavit to her petition, specifically describing the incident on November 10 at his home when he physically assaulted her.
The circuit court granted an ex-parte temporary order of protection that was to remain in effect until the date of the hearing on Parks's petition, set for December 4, 2013. On December 4, Beason filed a special entry of appearance and a motion to dismiss the petition, alleging that venue was proper in Oklahoma and that the court lacked personal jurisdiction over him. At the December 4 hearing, Parks testified that she was a resident of Polk County, Arkansas, and that Beason was a resident of Oklahoma. She stated that some, but not all, of the acts alleged in her petition had occurred in Oklahoma. Parks argued that the order-of-protection statute authorized her to file her petition either where she resided or where the respondent resided, and Beason asserted that this statute related only to venue, not jurisdiction. The circuit court asked the parties to submit authority on the issue of jurisdiction and scheduled another hearing for February 5, 2014. On December 17, 2013, the court extended the ex-parte order of protection until February 5.
At the beginning of the February 5 hearing, Beason argued that it was an inconvenience and a burden on him to drive an hour and a half to Arkansas to defend the petition, when all of the acts had occurred in Oklahoma and the witnesses resided there. He therefore requested
that the circuit court grant his motion to dismiss based on a lack of personal jurisdiction. The court denied the motion, finding that the clear language of Arkansas Code Annotated section 9-15-201(b) allowed the petition to be filed in the county where the petitioner resides, where the incident occurred, or where the respondent may be served. However, the court noted that if the evidence presented at the hearing revealed that all of the acts occurred in Oklahoma, it might reconsider its decision.
Parks testified that, in addition to the November 10, 2013 incident that occurred when she was visiting Beason in Oklahoma, he had phoned her residence in Arkansas in June 2013 and had threatened to kill her family and her pets. She further testified that Beason had called her on December 14, 2013, asking her to come visit and threatening to injure himself if she did not. Parks heard a gunshot over the phone and called for medical assistance. Beason was taken to the hospital with a self-inflicted gunshot wound, and he was then released to a behavioral hospital. Parks stated that Beason had continued to contact her son, and she testified that she was scared of Beason and wished to have the order of protection extended.
At the conclusion of Parks's direct examination, Beason renewed his motion to dismiss on the basis that Parks's petition was not accompanied by an affidavit made under oath as is required under Arkansas Code Annotated section 9-15-201(e)(2). The circuit court denied the motion, finding that Parks's petition itself was verified under oath and that this was sufficient to comply with the statute.
On cross-examination, Parks testified that she had visited Beason in Oklahoma on multiple occasions between June and November 2013. She stated that she had gone to the McCurtain County Police Department and had filed a report regarding the November 2013 incident. However, she did not file for a protective order in Oklahoma because she was informed that she needed to file that in the county where she resided.
Based on the evidence presented at the hearing, the circuit court found that there were grounds for entering an order of protection and that the order would remain in effect for a period of three years. The circuit court filed the protective order on February 12, 2014, and Beason filed a timely notice of appeal.
In Beason's first point on appeal, he argues that the circuit court erred by denying his motion to dismiss the petition because the court lacked personal jurisdiction over him. When reviewing a trial court's decision on a motion to dismiss due to lack of jurisdiction, we treat the facts alleged in the complaint as true and view them in the light most favorable to the plaintiff. CDI Contractors, Inc. v. Goff Steel Erectors, Inc., 301 Ark. 311, 783 S.W.2d 846 (1990).
Under our long-arm statute, Arkansas courts may assert in personam jurisdiction over a nonresident party to the maximum extent permitted by the Due Process Clause of the Fourteenth Amendment of the United States Constitution. Ark. Code Ann. § 16-4-101(B) (Repl. 2010); Yanmar Co., Ltd. v. Slater, 2012 Ark. 36, 386 S.W.3d 439. Thus, the exercise of personal jurisdiction is limited only by federal constitutional law. Gibbs v. PrimeLending, 2011 Ark. 255, 381 S.W.3d 829.
The Supreme Court has held that in order for in personam jurisdiction to apply to a defendant not physically present in the state, due process requires certain minimum contacts with the forum state such that the state court's exercise of
jurisdiction would not offend traditional notions of fair play and substantial justice. Int'l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945); Yanmar, supra. We have used a five-factor test to determine the sufficiency of a defendant's contacts with this state: (1) the nature and quality of contacts with the forum state; (2) the quantity of such contacts; (3) the relation of the cause of action to the contacts; (4) the interest of the forum state in providing a forum ...