ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
WENDELL L. GRIFFEN, JUDGE
DIVISION II
CA00-916
April 25, 2001
VECTOR TECHNOLOGIES, LTD. AN APPEAL FROM CRAWFORD
APPELLANT COUNTY CIRCUIT COURT
[CIV00-28]
V. HON. FLOYD G. ROGERS, JUDGE
ASHLOCK ROOFING, INC.
APPELLEE AFFIRMED
The record indicates that appellant Vector Technologies, Ltd., an Illinois corporation doing business in Wisconsin, obtained a default judgment against appellee Ashlock Roofing, Inc., an Arkansas corporation, on August 31, 1999, in the Circuit Court of Milwaukee County, Wisconsin, in the amount of $43,789. Appellant filed a petition for Application
for Registration of a Foreign Judgment in Arkansas, which was dismissed with prejudice, and a motion for summary judgment, which was denied. For reversal, appellant contends the trial court erred in finding that the foreign judgment was not entitled to full faith and credit and that the rendering court did not have personal jurisdiction over appellee. A review of the record and applicable law supports the trial court's decision that appellee's contactswith Wisconsin were not sufficient to satisfy the requirements of due process. Accordingly, we affirm.
In February 1999, appellant offered to sell an industrial vacuum cleaner, known as the VecLoader 624, and related accessories to appellee for $77,601.69. The cleaner was manufactured in Wisconsin. The parties agree that the equipment was delivered to Oklahoma on February 17, 1999, rejected by appellee, and transported back to Wisconsin on that same date.
On May 4, 1999, appellant brought suit against appellee in the circuit court of Milwaukee County, Wisconsin, alleging breach of contract and promissory estoppel. The suit alleged damages of $43,500 plus costs, and attorney's fees. Appellee was served a copy of the summons and complaint, yet failed to file an answer or enter an appearance. As a result, appellant obtained a default judgment for the sum of $43,739.
Appellant subsequently filed an application for registration of foreign judgment with the circuit court of Crawford County, Arkansas. After appellee was served, it filed a motion to dismiss and response to the petition, arguing that it did not have sufficient minimum contacts with the state of Wisconsin to establish subject matter or personal jurisdiction and that it was denied due process.
On February 17, 2000, appellant moved for summary judgment requesting that the court issue an order that the registered judgment was a final and personal judgment of the Crawford County circuit court against appellee. In support of its motion appellant presented a copy of the summons and complaint along with Exhibit B, which appellant alleged represented the contract between the parties. A portion of paragraph 11, entitled "Entire Agreement and Applicable Law," read as follows:
Buyer and Seller irrevocably agree that all actions or proceedings in any manner or respect, arising out of or from or related to Buyer's purchase Order shall be litigated in state or federal courts having situs in either Milwaukee County, Wisconsin, or Cook County, Illinois. Buyer and Seller hereby consent to jurisdiction and venue of any local, state or federal court situated in such counties. Buyer irrevocably waives the right to trial by jury with respect to any action in which Buyer and Seller are parties.
In addition, appellant provided a note addressed to the attention of "Jess-Dale," and signed by Brent Alexander, Regional Sales Manager, that stated "if you consent to these terms, please evidence agreement below." A signature by Dale Ashlock, dated February 16, 1999, followed a line that read "I consent to the terms specified above and evidence approval below."
Appellant also presented an affidavit from Stephen Schoenberger, president of Vector, who stated that the complaint against appellees was true and correct, and that the facts stated in the application for registration of foreign judgment were true and correct. Schoenberger also stated that he was familiar with the contract entered into between the parties and that Exhibit B represented a true and correct copy of the contract.
Appellee responded that it never received documents from appellant that addressed consent to jurisdiction of the Wisconsin courts or agreed to any contract provision that included a forum selection clause. In support of its response, appellee presented affidavits from Dale Ashlock, president of Ashlock Roofing, Inc., and Jess Ashlock. Dale Ashlock stated that as president, he was responsible for making all final purchase decisions. Ashlock relayed that Brent Alexander, a representative of appellant, telephoned and asked him if he was interested in purchasing a vacuum system for roofing that appellant guaranteed couldclean approximately 300 squares of roof per day using two people. Ashlock stated that Alexander sent him a five-page facsimile that consisted of a cover page, two quotation pages, a picture of the equipment, and a technical specification page. He further stated that after the equipment was delivered to Pateau, Oklahoma, it broke down approximately five minutes after it started and that he refused to accept the machine. As a result, appellant's representative took the machine back to Wisconsin. Ashlock stated that neither he nor any employee of his company had any contact with the State of Wisconsin other than receiving a telephone call and fax proposal from appellant's office in Wisconsin.
Jess Ashlock corroborated the affidavit of Dale Ashlock, and stated that appellee was contacted by appellant regarding an industrial vacuum system for roofing. He stated that the machine was delivered to a work site in Oklahoma for demonstration purposes and broke down within fifteen minutes after the demonstration began. Consequently, the equipment was rejected and returned to appellant.
Appellee also presented the court with copies of a five-page facsimile, which was introduced as Defendant's Exhibits C-G. Exhibit C, which represented the first page of the facsimile, stated "we submit for your perusal quotation #5027 for the VecLoader 624 along with picture and technical specification. If you agree with the terms specified on the subject quotation, kindly sign and return by fax to 414-247-7110." Exhibit C listed as enclosures Quotation 5027, VecLoader 624 Picture, and VecLoader 624 Technical Specifications. Quotation 5027, identified as Exhibits D and E, consisted of two pages that included notations at the top of the pages as facsimile pages two and three. The VecLoader Picture,identified as Exhibit F, included a notation on the top as facsimile page four; and the VecLoader Technical Specifications, identified as Exhibit G, included a notation of facsimile page 5. The facsimile notation on the top of each of the five exhibits identified the location that the facsimile was sent from, the date the facsimile was sent, and the number of pages that were sent. Appellee asserted that none of the five pages sent to it via facsimile referenced or incorporated a terms and conditions page that contained a jurisdiction selection clause.
The court held a hearing on May 3, 2000. In an order dated May 22, 2000, the court noted that it would decide appellant's motion for summary judgment and the original cause of action, which included appellant's motion to register the foreign judgment and appellee's motion to dismiss and response to the motion to register. The order stated that in making its determinations, the court considered statements of counsel, a complete review of the file, and affidavits filed by the parties. The order then noted that the court found that a genuine issue of material fact existed as to whether appellees had sufficient minimum contacts with Wisconsin to satisfy due process or personal jurisdiction considerations. Consequently, the court denied appellant's motion for summary judgment.
Next, the court ruled that it was denying appellant's application for registration of foreign judgment with prejudice. The court specifically found that appellee did not have minimum contacts with Wisconsin such that it would reasonably have anticipated being hauled into court in Wisconsin. The court also found that due process required appellee's contact with Wisconsin to be such that maintenance of the suit did not offend traditionalnotions of fair play and substantial justice. From this order comes the instant appeal.
Arguments
Appellant initially argues that the trial court erroneously denied its motion for summary judgment because no genuine issue of material facts existed that 1) appellee fell within the Wisconsin long-arm statute, 2) the parties agreed to a consent to jurisdiction clause in their contract, and 3) appellee had sufficient minimum contact with Wisconsin to support that state's jurisdiction. Next, it asserts that we should reverse the trial court's award of judgment on the merits in favor of appellee because 1) the trial court dismissed the matter sua sponte without affording appellant an opportunity to address the issue of jurisdiction, and 2) if appellee had a motion to dismiss properly before the court, the motion was converted into a motion for summary judgment and the award was only appropriate if there were no genuine issues of material fact regarding jurisdiction. Appellant urges this court to hold that the trial court's denial of appellant's motion for summary judgment based on its finding of a genuine issue of material fact is inconsistent with its award of judgment on the merits in favor of appellee. In response, appellee asserts that the trial court's denial of appellant's motion for summary judgment is not an appealable order and that the trial court's decision to deny registration of the Wisconsin judgment on the merits must be affirmed if supported by any substantial evidence.
Before we begin our analysis of the merits of appellant's arguments, we address two preliminary matters that relate to the proper standard of review we should apply.
Consideration of Denial of Summary Judgment
Generally, we do not review denials of summary judgment as these motions are typically not appealable. See Shelter Mut. Ins. Co. v. Williams, 69 Ark. App. 35, 9 S.W.3d 545 (2000). However, if a trial court combines an order denying a motion for summary judgment with a dismissal on the merits of the case, the action below is effectively terminated and an exception to the general rule exists. See id., 9 S.W.3d 545. When this occurs, the order denying the motion for summary judgment is appealable. See id., 9 S.W.3d 545.
In this case, the trial court denied appellant's motion for summary judgment and dismissed appellant's application for registration of foreign judgment with prejudice. Because the order effectively terminated the proceedings below, we may review it on appeal.
Motion to Dismiss
A trial court faced with deciding a motion to dismiss must limit its review to the allegations in the complaint. See Deitsch v. Tillery, 309 Ark. 401, 833 S.W.2d 760 (1992). It is not proper for a trial court to look beyond the complaint when deciding a motion to dismiss, unless the trial court has elected to treat the motion to dismiss as a motion for summary judgment. See Deitsch, supra. When a court considers affidavits, depositions, admissions or answers to interrogatories in making its decision regarding dismissal, the court has considered matters outside the pleadings, and the motion to dismiss is treated as one for summary judgment. See Clark v. Ridgeway, 323 Ark. 378, 914 S.W.2d 745 (1996).
Here, the trial court stated at the onset of the hearing that it would decide appellant's motion for summary judgment along with the original cause of action, which included appellant's motion to register the foreign judgment and appellee's motion to dismiss and response to the motion to register. The court's order noted that the court based its decision "from the statement of counsel, a complete review of the file, and other facts and matters before the [c]ourt, specifically including the affidavits filed by various parties." Because the trial court acknowledged that it considered affidavits, this court must treat appellee's motion to dismiss appellant's application for registration of foreign judgment as one for summary judgment.
The record disposes of appellant's argument that the trial court dismissed the matter on the merits sua sponte without affording appellant an opportunity to be heard on appellee's allegations regarding the Wisconsin court's lack of jurisdiction. Appellant stresses that at the time the trial court entered its order, the only matter before the court was appellant's motion for summary judgment, not a hearing on the final determination of the merits. However, we recognize that appellee initially defended the action by asserting lack of personal jurisdiction, one of only two available defenses. See Chemical Methods Leasco, Inc. v. Ellison, 46 Ark. App. 288, 879 S.W.2d 467 (1994) (holding that with the exception of a defense based on fraud or want of jurisdiction, a foreign judgment is conclusive on a collateral attack, and the party attacking the judgment bears the burden of proving lack of jurisdiction or fraud in the procurement).
Appellee consistently maintained that Wisconsin lacked personal jurisdiction,arguing the issue in its response to the application and motion to dismiss and in response to appellant's motion for summary judgment. The record indicates that the parties extensively briefed the issue of personal jurisdiction and provided affidavits in support of their respective positions, and appellant points this court to no additional evidence or law that it was prevented from presenting to the trial court. Also, appellant received notice at the time appellee filed its initial response to the petition that appellee sought dismissal based on due process concerns. Thus, we conclude with little difficulty that the trial court acted properly. Standard of Review
Rule 56 of the Arkansas Rules of Civil Procedure governs motions for summary judgment. This rule mandates that the moving party bears the burden of proving, based on the pleadings, discovery responses, admissions, and any submitted affidavits, that no genuine issues of material fact exist for a trier of fact to resolve. See Ark. R. Civ. P. 56. The moving party is not required to file an affidavit in support of its motion for summary judgment, and affidavits filed in support of the motion are construed against the moving party. See Guthrie v. Kemp, 303 Ark. 74, 793 S.W.2d 782 (1990). When considering whether to grant a motion for summary judgment, the trial court must consider all proof in favor of the non-moving party. See Knowlton v. Ward, 318 Ark. 867, 889 S.W.2d 721 (1994). Once the moving party proves there are no genuine issues, the burden shifts to the non-moving party to set out specific facts that demonstrate there are genuine issues for trial. See id., 889 S.W.2d 721.
On a summary judgment appeal, we limit our review to the pleadings, affidavits, andother supporting documents filed by the parties in support of their arguments. See Earp v. Benton Fire Dep't. 52 Ark. App. 66, 914 S.W.2d 781 (1996). All evidence is viewed in the light most favorable to the non-moving party, and reversal will occur only when we determine that a material question of fact remains. See Keller v. Safeco Ins. Co. of Am., 317 Ark. 308, 877 S.W.2d 90 (1994). We need only decide if the grant of summary judgment was appropriate, considering whether the evidentiary items presented by the moving party in support of the motion failed to answer a material question of fact. See Inge v. Walker, 70 Ark. App. 114, 15 S.W.3d 348 (2000).
The Uniform Enforcement of Foreign Judgments Act, codified at Arkansas Code Annotated sections 16-66-602 to -608 (Supp. 1999) provides that Arkansas courts give any judgment of a court of the United States full faith and credit when the judgment is regular on its face and authenticated. See Strick Lease, Inc. v. M.P. Juels, 30 Ark. App. 15, 780 S.W.2d 594 (1989). For full faith and credit purposes, default judgments are considered judgments on the merits. See Butler Fence Co. v. Acme Fence & Iron Co., Inc., 42 Ark. App. 30, 852 S.W.2d 826 (1993). The primary purpose of the Act is to allow a party with a favorable judgment an opportunity to obtain prompt relief. See Chemical Methods, supra. A party may file a copy of a foreign judgment in the office of the clerk of the court having jurisdiction over the matter. See Ark. Code Ann. § 16-66-602 (Supp. 1999).
Wisconsin law allows that state to exercise specific, personal jurisdiction over a defendant when a plaintiff successfully proves that the court has personal jurisdiction over a non-resident defendant, i.e. that the non-resident defendant has sufficient minimum contactwith the state to satisfy the state's long-arm statute. See Brown v. LaChance, 477 N.W.2d 296 (Wis. Ct. App. 1991). Once a plaintiff makes a prima facie showing that the non-resident's actions fall within the statute, the burden shifts to the non-resident to demonstrate that an application of the statute violates due process. See Logan v. Optibase, Inc., 103 F.3d 49 (1996). This is so because under Wisconsin law, compliance with the long-arm statute is presumptively compliance with due process concerns. See Brown, supra. The statute is liberally construed to favor the exercise of jurisdiction. See M.C.I. v. Elbin, 430 N.W.2d 366 (Wis. Ct. App. 1988).
Section 801.05(1)(d) (1994) of the Wisconsin Statutes Annotated provides Wisconsin courts with personal jurisdiction over any defendant who, at the beginning of litigation, is engaged in significant and not sporadic contact with the state. In addition, section 801.05(5) mandates that the agreement underlying the cause of the litigation "involves or contemplates some substantial connection" with the Badger State. See Wis. Stat. Ann. § 801.05(5) (1994). A defendant may also fall within the long-arm statute when an action "relates to goods, documents of title, or other things of value shipped from [Wisconsin] by the plaintiff to the defendant on the defendant's order or direction. See Wis. Stat. Ann. § 801.05(5)(d) (1994). Wisconsin recognizes consent to jurisdiction clauses. See Datronic Rental Corp. v. DeSol Inc., 474 N.W.2d 780 (Wis. 1991). Personal jurisdiction may be waived by consent, and consent to jurisdiction clauses are enforceable and recognized as providing sufficient minimum contact to satisfy due process concerns. See id.
A review of the evidence in the light most favorable to appellees as the non-movingparty supports the trial court's decision to deny appellant's motion for summary judgment. In support of its motion, appellant provided the trial court with a copy of an alleged contract between the parties, and an affidavit from Stephen B. Schoenberger, who stated that he reviewed the contract between the parties and that the copy of the contract attached to the pleading as an exhibit was a true and correct copy. Appellant also pointed the court to appellee's affidavits that stated that appellant delivered the equipment from Wisconsin to appellee's work site in Oklahoma. Assuming arguendo that appellant's proof established that there was no genuine issue that appellee fell within the Wisconsin long-arm statute, the burden switched to appellee to provide specific facts to demonstrate that subjecting it to Wisconsin jurisdiction violated due process concerns. In support of its contention, appellee provided the court with a five-page facsimile, which noted at the top that it was received from appellants. None of the five pages referenced the terms and conditions page that contained the disputed jurisdiction selection clause. Also, appellee presented affidavits that appellant initiated contact with them, that appellant delivered the equipment to its work site in Oklahoma, that the contract was signed in Arkansas, that appellee was not required to perform any acts in the state of Wisconsin, and that appellant took the equipment back to Wisconsin the same day it was delivered to appellee's work site. These facts support the trial court's decision that genuine issues of material fact existed that rendered summary judgment in favor of appellant inappropriate.
Appellant argues that because the trial court denied its motion for summary judgment after finding that material issues of facts existed as to whether Wisconsin had sufficientcontact or personal jurisdiction, the trial court's decision to grant appellee's motion because appellee did not have minimum contact with Wisconsin is inconsistent. We disagree.
As discussed previously, once appellant met the initial threshold of proving that appellee fell within the Wisconsin long-arm statute, the burden shifted to appellee. Thus, appellee bore the burden of proving that no genuine issue of material fact existed that an exercise of personal jurisdiction by Wisconsin would violate due process because appellee did not have minimum contacts with Wisconsin such that it could have anticipated being hauled into a Wisconsin court. Once appellee established that no genuine issues of fact existed regarding its lack of minimum contact with Wisconsin, appellant bore the burden of setting out specific facts to prove there were genuine issues to litigate.
Appellant did not dispute that appellee's sole contact with Wisconsin consisted of receiving a phone call and a facsimile from appellant, followed by a one-time delivery of equipment from Wisconsin to Oklahoma. Instead, appellant's proof consisted of the alleged contract and an affidavit from its president, Stephen Schoenberger, that he had "reviewed and [was] familiar with the contract entered into between [the parties] . . . and that a true and correct copy of said contract is attached hereto as Exhibit 3." However, Schoenberger did not state that he had personal knowledge that appellant sent or that appellees received a contract that contained a jurisdiction selection clause provision. Additionally, Schoenberger did not relate any personal knowledge of contacts that appellee had with the state of Wisconsin to refute its contention that its contact with Wisconsin was based on a single, isolated incident that it did not initiate. While appellant attempts to make much of the factthat the equipment was manufactured in Wisconsin, it is difficult to ignore the reality that the equipment was delivered to appellee's Oklahoma work site, rejected within fifteen minutes of start-up, and returned to Wisconsin on the same date it was delivered. The record simply does not indicate that appellee had any other contact with Wisconsin other than that initiated by appellant that would allow this court to conclude that appellee purposely availed itself of the privilege of doing business in Wisconsin. Accordingly we affirm.
Affirmed.
Crabtree and Baker, JJ., agree.