Deerinwater v. Circus Circus Enterprises

• Decision Date: 06 March 2001
• Docket Number: No. 94,537.,94,537.
• Citation: 2001 OK CIV APP 37,21 P.3d 646
• Parties: Juanita DEERINWATER, Plaintiff/Appellant, v. CIRCUS CIRCUS ENTERPRISES, d/b/a Gold Strike Casino Resort, Defendant/Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

21 P.3d 646

2001 OK CIV APP 37

Juanita DEERINWATER, Plaintiff/Appellant, v. CIRCUS CIRCUS ENTERPRISES, d/b/a Gold Strike Casino Resort, Defendant/Appellee.

No. 94,537.

Court of Civil Appeals of Oklahoma, Division No. 2.

March 6, 2001.

Bill M. Shaw, Shaw, Crutchfield & Shaw, Claremore, OK, for Appellant.

Richard M. Eldridge, Michael F. Smith, Rhodes, Hieronymus, Jones, Tucker & Gable, P.L.L.C., Tulsa, OK, for Appellee.

Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 2.

COLBERT, JUDGE:

¶ 1 Juanita Deerinwater appeals the trial court's order refusing to vacate a prior order dismissing her suit against Circus Circus Enterprises for lack of in personam jurisdiction.¹ The issue on appeal in this action involving personal injury is whether the trial court abused its discretion in refusing to vacate the prior order. Based upon our review of the record and applicable law, we find that the court did not err and affirm.

BACKGROUND

¶ 2 In February 1999, Deerinwater, an Oklahoma resident, visited the Gold Strike Casino Resort (Casino), owned by Circus Circus. Casino is located in Tunica, Mississippi, and Circus Circus is a Mississippi corporation. Deerinwater alleged that, on or about February 27, 1999, a fire alarm sounded and all Casino guests were instructed to evacuate their rooms. Her room was located on the nineteenth floor and, while descending the stairs, she fell, twisting her ankle and knee. She incurred numerous medical bills as a result of her injuries.

¶ 3 In September 1999, Deerinwater filed a negligence action against Circus Circus in Rogers County District Court. She argued that Oklahoma could assert jurisdiction over Circus Circus because the corporation advertises in Oklahoma via flyers, pamphlets, and commercials. She also argued that Oklahoma could assert jurisdiction over Circus Circus because it had sent her and several other Oklahoma residents targeted mailings advertising special promotions at Casino.²

¶ 4 Circus Circus moved to dismiss the case for lack of in personam jurisdiction. Attached to its motion and brief is the affidavit of its corporate counsel, denying Oklahoma's jurisdiction on the following grounds: (1) Circus Circus does not have, nor has it ever had, any employees, officers, or agents permanently engaged in business in Oklahoma; (2) Circus Circus does not own, operate, or control any subsidiary or affiliate companies domiciled in Oklahoma, nor has it ever done so; (3) Circus Circus does not regularly or continuously do business in Oklahoma, nor is it authorized to do so; (4) Circus Circus does not maintain records, operate bank accounts, real property, or personal property in Oklahoma and has never done so; (5) Circus Circus does not pay income taxes or file tax returns in Oklahoma, nor does it hold any Oklahoma vehicle licenses or registrations; (6) Circus Circus does not hold corporate meetings in Oklahoma; (7) Circus Circus does not do mass mailing solicitations in Oklahoma; and (8) Circus Circus does not consent to Oklahoma's jurisdiction. The affidavit acknowledged that Circus Circus sends letters regarding special promotions directly to those individuals who have visited Casino in the past. However, it made no mention of other forms of advertising.

¶ 5 After a hearing on the matter, the trial court entered an order on December 2, 1999, sustaining the motion to dismiss. Deerinwater then filed a motion to vacate the court's order on December 13, 1999, pursuant to 12 O.S. Supp.2000 § 1031.1(B), which allows a court to vacate a judgment upon the motion of a party if the motion is made no later than thirty days after the judgment has been filed with the court clerk. In a subsequent order filed March 14, 2000, the trial court did not specifically rule on the motion to vacate, but effectively refused to vacate the prior order by again granting the motion to dismiss. Deerinwater appeals.

STANDARD OF REVIEW

¶ 6 Deerinwater filed the motion to vacate to request that the court correct certain scrivener's errors in its order. She also requested "that the Court should reconsider its judgment in that it is contrary to Oklahoma Law." Although the motion was specifically brought under section 1031.1, Circus Circus apparently interpreted the motion as a combined motion to vacate and motion to reconsider. Therefore, even though the motion includes language requesting that the court reconsider its order, this court will treat the motion as one to vacate.

¶ 7 In Schepp v. Hess, 1989 OK 28, 770 P.2d 34, the Oklahoma Supreme Court addressed motions brought pursuant to section 1031.1. Motions filed more than ten but within thirty days after the court's order was filed invoke a court's "term-time" power.³ Trial judges exercise term-time power with a very broad discretion which is virtually unlimited. Id. at ¶ 9, 770 P.2d at 38. Section 1031.1 does not restrict the exercise of term-time power to any specific ground. Id. at ¶ 8, 770 P.2d at 38.

¶ 8 "The standard of review of a trial court's ruling either vacating or refusing to vacate a judgment is abuse of discretion." Ferguson Enters., Inc. v. H. Webb Enters., Inc., 2000 OK 78, ¶ 5, 13 P.3d 480, 482. An abuse of discretion involves a clearly erroneous conclusion, against the logic and effect of the facts presented. See Oklahoma Turnpike Auth. v. Horn, 1993 OK 123, ¶ 6, 861 P.2d 304, 306.

DISCUSSION

¶ 9 The trial court's refusal to vacate its order dismissing the suit for lack of in personam jurisdiction is not clearly erroneous in light of the facts presented. Oklahoma's long-arm statute, 12 O.S.1991 § 2004(F), provides that "[a] court of this state may exercise jurisdiction on any basis consistent with the Constitution of this state and the Constitution of the United States." In Hough v. Leonard, 1993 OK 112, ¶ 7, 867 P.2d 438, 442, the Oklahoma Supreme Court explained that section 2004(F) is a codification of the court's holding in Fields v. Volkswagen of America, Inc., 1976 OK 106, ¶ 6, 555 P.2d 48, 52, that the intent of Oklahoma's long-arm statute is to extend the jurisdiction of Oklahoma courts over non-residents to the outer limits permitted by the Oklahoma Constitution and the due process requirements of the United States Constitution.

¶ 10 Those outer limits were defined by Marathon Battery Co. v. Kilpatrick, 1965 OK 212, 418 P.2d 900, which adopted the standard established by International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). In International Shoe, the United States Supreme Court stated that due process "requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend `traditional notions of fair play and substantial justice.'" Id. at 316, 66 S.Ct. at 158 (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 343, 85 L.Ed. 278 (1940)). The Supreme Court cautioned, however, that the due process clause protects a non-resident defendant's liberty interest in not being subject to binding judgments in a state with which it has established no meaningful "contacts, ties or relations." Id. at 319, 66 S.Ct. at 160.

¶ 11 In personam jurisdiction may be either general or specific. A court may assert general jurisdiction over a non-resident defendant if the defendant has maintained "continuous and systematic contacts" with the forum. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 415-16 & n. 9, 104 S.Ct. 1868, 1872-73 & n. 9, 80 L.Ed.2d 404 (1984). The facts required to establish general jurisdiction must be "extensive and persuasive." Reliance Steel Prods. Co. v. Watson, Ess, Marshall & Enggas, 675 F.2d 587, 589 (3d Cir.1982). This is a rigorous burden, and it ensures that a non-resident will be treated as fairly as a resident of the forum in terms of amenability to suit there. See Giangola v. Walt Disney World Co., 753 F.Supp. 148, 154 (D.N.J.1990). When general jurisdiction is found to exist, all causes of action against the defendant, whether or not related to the defendant's activities in that state, may be pursued in its courts.

¶ 12 A finding of specific jurisdiction involves a two-step process. First, a court must determine whether the non-resident defendant had the requisite minimum contacts with the forum such that the defendant should have "reasonably anticipate[d] being haled into court there." World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980). What constitutes minimum contacts varies with the "quality and nature of the defendant's activity." Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1240, 2 L.Ed.2d 1283 (1958). Generally, the minimum contacts requirement is satisfied when the cause of action relates to or arises out of the defendant's forum-related activities. Bearry v. Beech Aircraft Corp., 818 F.2d 370, 374 (5th Cir.1987).

¶ 13 Next, assuming that minimum contacts have been established, a court may inquire as to whether "the assertion of personal jurisdiction would comport with `fair play and substantial justice.'" Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476, 105 S.Ct. 2174, 2184, 85 L.Ed.2d 528 (1985) (quoting International Shoe, 326 U.S. at 320, 66 S.Ct. at 160). The assertion of in personam jurisdiction comports with "fair play and substantial justice" if it is reasonable to require the defendant to defend suit in the forum. World Wide Volkswagen, 444 U.S. at 292, 100 S.Ct. at 564.⁴ Circus Circus argues that Oklahoma can constitutionally assert neither general nor specific jurisdiction. We agree.

General Jurisdiction

¶ 14 The leading United States Supreme Court case discussing general jurisdiction is Helicopteros, 466 U.S. 408, 104 S.Ct. 1868, 80 L.Ed.2d 404. In Helicopteros, the Texas Supreme Court had ruled that a Columbian corporation had sufficient contacts with Texas to...