Ganey v. Kawasaki Motors Corp., U.S.A.

• Decision Date: 04 May 2006
• Docket Number: No. 05-1117.,05-1117.
• Parties: Rickey GANEY and Katherine Wilson Ganey, Appellants, v. KAWASAKI MOTORS CORPORATION, U.S.A.; Kawasaki Jukogyo Kabushini Kaisha (Kobe JP); Mike's Cycle, Inc.; Lakeside Ford, Inc.; Hilton M. Boothe, individually; Hilton M. Boothe d/b/a Hilton M. Boothe, Hilton's Consulting Service, and Hilton's Consulting Service, Inc., Appellees.
• Court: Arkansas Supreme Court

234 S.W.3d 838

Rickey GANEY and Katherine Wilson Ganey, Appellants, v. KAWASAKI MOTORS CORPORATION, U.S.A.; Kawasaki Jukogyo Kabushini Kaisha (Kobe JP); Mike's Cycle, Inc.; Lakeside Ford, Inc.; Hilton M. Boothe, individually; Hilton M. Boothe d/b/a Hilton M. Boothe, Hilton's Consulting Service, and Hilton's Consulting Service, Inc., Appellees.

No. 05-1117.

Supreme Court of Arkansas.

May 4, 2006.

Rehearing Denied June 22, 2006.

Sturgeon & Boyd, by: John Sturgeon, and David A. Hodges, Attorney at Law, Little Rock, AR, for appellants.

Davis, Wright, Clark, Butt & Carithers, PLC, by: Tilden P. Wright III and John G. Trice, Fayetteville, AR, for appellees Kawasaki Motors Corp., U.S.A. and Kawasaki Jukogyo Kabushini Kaisha (Kobe JP).

Wright, Lindsey & Jennings LLP, by: Alston Jennings, Jr., Little Rock, AR, for appellee Mike's Cycle, Inc.

Barber, McCaskill, Jones & Hale, P.A., by: Michael E. Hale and D. Keith Fortner, Little Rock, AR, for appellee Lakeside Ford, Inc.

DONALD L. CORBIN, Justice.

Appellants Rickey Ganey and Katherine Wilson Ganey appeal the order of the Polk County Circuit Court dismissing their complaint against Appellees Kawasaki Motors Corp., U.S.A., and Kawasaki Jukogyo Kabushini Kaisha (KOBE JP),¹ Mike's Cycle, Inc., Lakeside Ford, Inc., and Hilton M. Boothe, Individually, and Hilton M. Boothe d/b/a/ Hilton M. Boothe, Hilton's Consulting Service, and Hilton's Consulting Service, Inc.² On appeal, the Ganeys argue that it was error for the trial court to dismiss their complaint because: (1) the court had jurisdiction over Appellees; (2) the three-year statute of limitations under Arkansas law applied in this case; (3) the constitutional right to travel provides them with access to Arkansas courts. The Ganeys also argue that Katherine is entitled to damages for loss of consortium because she was engaged to Rickey at the time of the accident and later married him. As this case presents an issue of first impression, this court's jurisdiction is pursuant to Ark. Sup.Ct. R. 1-2(b)(1). We find no error and affirm.

The record reveals that Rickey suffered injuries while riding a four-wheeled Kawasaki All-Terrain Vehicle (ATV) on July 28, 2000, in a national park near Mena, Arkansas, when the ATV overturned and landed on him. As a result of his injuries, Rickey was rendered a paraplegic. On July 24, 2003, the Ganeys filed an amended complaint against Appellees in Polk County Circuit Court, alleging causes of action for negligence, breach of express and implied warranties, strict products liability, and civil conspiracy.³ According to the complaint, Boothe acquired the ATV new from Mike's Cycle. Boothe subsequently transferred the ATV to Lakeside. Rickey then purchased the used ATV from Lakeside.

Following the filing of the complaint, Lakeside filed an answer denying the Ganeys' allegations. In addition, Lakeside pleaded affirmatively that the trial court lacked jurisdiction over it and requested that the complaint be dismissed pursuant to Ark. R. Civ. P. 12(b)(2). Mike's Cycle answered separately denying any wrongdoing and averring that any cause of action was barred by the statute of limitations of Arkansas and Louisiana. In its answer, KMC denied the Ganeys' allegations and, pleading affirmatively, requested that the complaint be dismissed, pursuant to Ark. R. Civ. P. 12(b)(6), for failure to state a cause of action.⁴ KMC also averred that the Ganeys' complaint was barred by the statute of limitations and that it should also be dismissed under the doctrine of forum non conveniens.

Boothe filed a motion to dismiss pursuant to Rule 12 on October 30, 2003, stating that the Ganeys failed to properly issue and serve summons and that the court lacked personal and subject-matter jurisdiction. KMC filed a motion to dismiss on January 30, 2004, arguing that the Ganeys' action of filing suit in Arkansas constituted impermissible forum shopping and that Louisiana law, specifically La. Civ.Code Ann. art. 3492 (1994), which provides for a one-year statute of limitations, should apply, thus, rendering the complaint time barred. Lakeside filed its motion to dismiss on the basis of a lack of personal jurisdiction on February 31, 2004, averring that it never advertised or conducted business in Arkansas. Mike's Cycle filed a motion to dismiss, arguing that the court lacked personal jurisdiction and stating that the action was barred by Louisiana's one-year statute of limitations.

A hearing was held on the pending motions on August 4, 2004. Thereafter, the trial court granted the motions to dismiss filed by Boothe and Lakeside. A second hearing was held on April 6, 2005. At the conclusion of that hearing, the trial court announced from the bench that it was granting KMC's motion to dismiss on the basis that Louisiana law, and specifically, its one-year statute of limitations, applied thereby barring the Ganeys' complaint. The trial court further announced that it was granting Mike's Cycle's motion to dismiss because of a lack of personal jurisdiction.

The Ganeys filed a motion for reconsideration as to the trial court's oral ruling that Louisiana rather than Arkansas law applied. The trial court entered an order denying the motion for reconsideration on May 20, 2005. A written order memorializing the trial court's previous oral ruling was subsequently entered on July 12, 2005. In that order, the trial court reiterated that it was denying the Ganeys' motion for reconsideration. This appeal followed.

I. Error to Grant Motion to Dismiss

For their first point on appeal, the Ganeys argue that it was error for the trial court to dismiss their complaint against Appellees as the court had personal jurisdiction over each Appellee, and the applicable statute of limitations is three years under Arkansas's law. Mike's Cycle and Lakeside each argue that the trial court lacked personal jurisdiction, as they had not established the requisite minimum contacts with Arkansas required for personal jurisdiction. KMC argues that dismissal was warranted because Louisiana law, and its one-year statute of limitations, applies in this case. We will review the facts and circumstances surrounding each Appellee separately in order to determine whether the trial court's order of dismissal was appropriate.

a. Personal Jurisdiction

The Ganeys first argue that the trial court erred in dismissing Boothe, as their complaint alleged sufficient facts to maintain personal jurisdiction over Boothe. It is unnecessary for this court to address the merits of this argument as the Ganeys failed to properly raise it before this court. It is axiomatic that this court will not consider arguments that are unsupported by convincing argument or sufficient citation to legal authority. Rigsby v. Rigsby, 356 Ark. 311, 149 S.W.3d 318 (2004); City of Benton v. Arkansas Soil & Water Conserv. Comm'n, 345 Ark. 249, 45 S.W.3d 805 (2001). Because the Ganeys fail to support their contention regarding the court's jurisdiction over Boothe with either argument or authority, we are precluded from addressing it.

Next, we turn to the Ganeys' claims that the trial court had jurisdiction over Mike's Cycle and Lakeside. With regard to both of these parties, the Ganeys argue that the trial court had personal jurisdiction because residents of Arkansas could access Mike's Cycle and Lakeside, and their inventories, through the Internet. Moreover, the Ganeys argue that both Mike's Cycle and Lakeside have sold products to Arkansas residents, and as such, have established sufficient minimum contacts establishing personal jurisdiction. Mike's Cycle counters that the trial court correctly dismissed the action against them, as the court did not have personal jurisdiction over it because the company never conducted any business in Arkansas. Lakeside argues that it was subject to neither personal nor general jurisdiction based on the allegations in the Ganeys' complaint and, thus, it was proper for the trial court to dismiss the Ganeys' action.

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 judgment. See Kyzar v. City of West Memphis, 360 Ark. 454, 201 S.W.3d 923 (2005) (holding that a motion to dismiss will be treated as one for summary judgment when a trial court considers matters outside the pleadings).

Summary judgment should only be granted when it is clear that there are no genuine issues of material fact to be litigated, and the moving party is entitled to judgment as a matter of law. Kyzar, 360 Ark. 454, 201 S.W.3d 923; Calcagno v. Shelter Mut. Ins. Co., 330 Ark. 802, 957 S.W.2d 700 (1997). The burden of sustaining a motion for summary judgment is the responsibility of the moving party. Pugh v. Griggs, 327 Ark. 577, 940 S.W.2d 445 (1997). Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Id. We view the evidence in the light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id. Remaining mindful of this standard, we now review whether the trial...