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Reveley v. Roth

Court of Appeals of Arkansas, Division II

May 4, 2016

BRYCE REVELEY APPELLANT
v.
CINDY LIVAUDAIS ROTH APPELLEE

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, TWELFTH DIVISION [NO. 60CV-15-265] HONORABLE CATHLEEN V. COMPTON, JUDGE

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

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

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 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 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 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 ...

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