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

M. MICHAEL KINARD, Judge, concurring.

|i4I write in concurrence with the majority opinion reversing the trial court’s grant of summary judgment. I embrace the majority’s R66 | ^analysis of the standard of review for motions for summary judgment, and I agree that applying the facts— viewed in the light most favorable to appellant — to the Arkansas long-arm statute, Ark.Code Ann. § 16-4-101(A) and (B) (Repl.1999), supports a finding of personal jurisdiction.

I would point out that I believe the trial court erred in determining in its order granting the motion to dismiss that appel-lees’ connection to Arkansas was premised solely on the use of interstate communication systems, thereby denying the Arkansas court personal jurisdiction. That erroneous finding alone supports reversal. As stated by the majority, the motion to dismiss with affidavits attached was taken as a motion for summary judgment under Ark. R. Civ. P. 12 for lack of jurisdiction, and the trial court disposed of the appel-lees’ argument by summarily determining that the contract had not been signed in Arkansas. Therefore, the court found that appellees had insufficient contacts to permit Arkansas courts to exert personal jurisdiction.

The verified complaint raised a factual question by its own language: “The ‘Private Label Bag’ was approved June 16, 2008,” with the appellant further claiming that all events leading up to and including the bag-label approval occurred in “Washington County, Arkansas.” The proof appellant presented with its response to the motion to dismiss supports this.

The evidence before the trial court included a purchase order dated June 11, 2008, which clearly stated that the “DRUMSTICKS THIGHS” that were the subject of the | ^negotiations between the parties were subject to “price quote CIF Bermuda $1.25 lb to be confirmed with approval of Private Label Bag.” This purchase-order language constituted a condition precedent to the formation of a contract between the parties. The affidavit of Luis Martinez of Twin Springs, which was filed with the response to motion to dismiss (motion for summary judgment), states that the contract was negotiated while the representative of appellee was in Arkansas and that the “Private Label Bag,” which was the condition precedent in the purchase order, was approved on June 16, 2008, in Arkansas and then hand delivered to the Arkansas poultry producer. At no time did appellees meet proof with proof on the contract issue, leaving jurisdiction as a question of fact to be decided. Thus, while many of the relevant facts were disputed, the fact that appellee Gary Mello made a trip to Arkansas, during which time the “Private Label Bag” was approved, was uncontroverted.

By its construction of the disputed evidence, the court left questions of fact unresolved. If this had been a hearing on the merits, the trial court could properly have made findings of fact on disputed evidence. Not so in a hearing on motion for summary judgment. Summary judgment should only be granted when it is clear that there are no genuine issues of fact to be litigated and the moving party is entitled to judgment as a matter of law. Hi-fi aw v. State Farm, Mut. Auto. Ins. Co., 353 Ark. 668, 122 S.W.3d 1 (2003). In the instant case, the trial court prematurely granted the dismissal based on an error in construing the evidence before it.