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                  ARKANSAS COURT OF APPEALS
                                         DIVISION IV
                                         No. CV-16-83



                                                   Opinion Delivered: January   25, 2017
CAROLYN LAWSON
                                 APPELLANT APPEAL FROM THE ASHLEY
                                           COUNTY CIRCUIT COURT
V.                                         [NO. 02CV-15-51]

SIMMONS SPORTING GOODS, INC.  HONORABLE DON GLOVER,
                     APPELLEE JUDGE
                                                   REVERSED AND REMANDED



                                   MIKE MURPHY, Judge

        Appellant Carolyn Lawson (“Lawson”) appeals from the Ashley County Circuit

 Court’s order granting appellee Simmons Sporting Goods, Inc.’s (“Simmons”) motion to

 dismiss for lack of personal jurisdiction. On appeal, Lawson contends that Simmons’s

 contacts with Arkansas are sufficient to subject it to personal jurisdiction in Arkansas. We

 agree and therefore reverse and remand.

        This lawsuit stems from a premises-liability suit. The relevant parties are Lawson and

 Simmons. Lawson is a resident of Ashley County, Arkansas. Simmons operates a retail

 sporting-goods store located in Bastrop, Louisiana. This is the corporation’s only store, and

 it has never operated a store in Arkansas. It is a Louisiana corporation with its principal place

 of business, registered office, and registered agent in Bastrop, Louisiana. The corporation

 has only two shareholders, both of whom are Louisiana residents.
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       Notably, however, Simmons advertises in Arkansas to draw Arkansas residents to its

store. Its advertising efforts include inserting promotional catalogs and display ads into

various Arkansas newspapers, running promotional ads on television, and running ads online

with the Arkansas Democrat-Gazette. The advertisements state that customers can get the

same deals by “shopping from home” on its website. Of particular interest, Simmons hosts

a “Big Buck Contest” in which the store awards a prize for the largest deer harvested in

Arkansas. To qualify, one must bring the deer to the store in Louisiana and must live within

200 miles of Bastrop, Louisiana.

       On August 3, 2013, Lawson traveled from her home in Arkansas to the Simmons

store in Louisiana to shop at the “Annual Tent Sale” event. Upon entering the store, she

fell on a rug located in the foyer and broke her arm. Lawson filed suit against Simmons in

the Ashley County Circuit Court seeking damages for her pain and suffering, past and future

medical expenses associated with care and treatment of the injuries sustained, and current

and future restrictions upon her activities imposed by her injuries. In response, Simmons

filed its motion to dismiss for lack of personal jurisdiction. A hearing was held on the matter,

and the court issued an order granting the motion to dismiss. From that order, Lawson has

timely appealed and presents one issue: the circuit court erred in granting Simmons’s motion

to dismiss based on personal jurisdiction.

       When matters outside the pleadings are presented and not excluded by the circuit

court in connection with a Rule 12(b) motion, we treat the motion as one for summary

judgment. Ark. R. Civ. P. 12(b); Hotfoot Logistics, LLC v. Shipping Point Mktg., Inc., 2013

Ark. 130, at 4, 426 S.W.3d 448, 451. The circuit court’s order of dismissal states that the


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court’s findings were based on “the facts, law, record, briefs, and arguments of counsel.”

Because it is clear to this court that the circuit court considered exhibits outside the pleadings

in making its ruling, the court’s dismissal is converted to one for summary judgment.

       The law is well settled regarding the standard of review used by this court in

reviewing a grant of summary judgment. Hotfoot Logistics, LLC v. Shipping Point Mktg., Inc.,

2014 Ark. 460, at 4, 447 S.W.3d 592, 595. A circuit court will grant summary judgment

only when it is apparent that no genuine issues of material fact exist requiring litigation and

that the moving party is entitled to judgment as a matter of law. Id. The burden of proof

shifts to the opposing party once the moving party establishes a prima facie entitlement to

summary judgment, and the opposing party must demonstrate the existence of a material

issue of fact. Id. This court views 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. After reviewing the undisputed facts, the circuit court should deny summary judgment

if, under the evidence, reasonable minds might reach different conclusions from the same

undisputed facts. Id. This review is not limited to the pleadings but also includes the affidavits

and other documents filed by the parties. Id.

       Here, there are no disputed facts as the parties agree on the essential facts surrounding

Simmons’s contacts with Arkansas. Thus, the question before this court is not whether there

were material facts in dispute concerning Simmons’s contacts with Arkansas, but whether

the facts asserted form a sufficient basis to subject Simmons to the personal jurisdiction of

Arkansas courts as a matter of law. Because this is an issue of law, our review is de novo.

Pritchett v. Evans, 2013 Ark. App. 679, at 4, 430 S.W.3d 223, 226.



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         Lawson contends that personal jurisdiction over Simmons exists. We begin our

analysis with our long-arm statute, which provides in pertinent part, “The courts of this

state shall have personal jurisdiction of all persons, and all causes of action or claims for relief,

to the maximum extent permitted by the due process of law clause of the Fourteenth

Amendment of the United States Constitution.” Ark. Code Ann. § 16-4-101(b) (Repl.

2010).

         Accordingly, “the exercise of personal jurisdiction is limited only by federal

constitutional law.” Hotfoot, 2014 Ark. 460, at 5, 447 S.W.3d at 595. In accordance with

the statute, we look to the Fourteenth Amendment due-process jurisprudence when

deciding an issue of personal jurisdiction. Id. The seminal case on personal jurisdiction and

the Due Process Clause is International Shoe Co. v. Washington, 326 U.S. 310 (1945).

International Shoe provides that state courts may exercise personal jurisdiction over an out-

of-state defendant who has “certain minimum contacts with [the State] such that the

maintenance of the suit does not offend ‘traditional notions of fair play and substantial

justice.’” Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 923 (2011)

(quoting Int’l Shoe Co., 326 U.S. at 316). The Supreme Court identified two types of

personal jurisdiction: general and specific. Hotfoot, 2014 Ark. 460, at 6, 447 S.W.3d at 596.

         This case requires us to determine whether Simmons had the minimum contacts

necessary to create specific jurisdiction. A forum may assert specific jurisdiction over a

nonresident defendant where an alleged injury arises out of or relates to actions by the

defendant himself that are purposefully directed toward forum residents, and where

jurisdiction would not otherwise offend “fair play and substantial justice.” Burger King Corp.


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v. Rudzewicz, 471 U.S. 462, 4676 (1985) (quoting Int’l Shoe Co., 326 U.S. at 320). The

defendant must have “purposefully directed” his activities at residents of the forum, and the

litigation must result from alleged injuries that “arise out of or relate to” those activities. Id.

at 472.

          The proper focus of the “minimum contacts” inquiry is “the relationship among the

defendant, the forum, and the litigation.” Walden v. Fiore, 134 S. Ct. 1115, 1121 (2014).

First, the relationship must arise out of contacts that the “defendant himself” creates with the

forum State. Id. at 1122 (quoting Burger King Corp., 471 U.S. at 475). Second, our

“minimum contacts” analysis looks to the defendant’s contacts with the forum State itself,

not the defendant’s contacts with persons who reside there. Id. Notably, the proper question

is not where the plaintiff experienced a particular injury or effect but whether the

defendant’s conduct connects him to the forum in a meaningful way. Id. at 1125.

Furthermore, “[a] nonresident defendant’s contacts with a forum state must be sufficient to

cause the defendant to ‘reasonably anticipate being haled into court there.’ This ‘purposeful

availment’ requirement ensures that a defendant will not be haled into a jurisdiction solely

as a result of ‘random’, ‘fortuitous’, or ‘attenuated contacts’.” Yanmar Co., Ltd. v. Slater,

2012 Ark. 36, at 6, 386 S.W.3d 439, 444 (quoting Burger King Corp., 471 U.S. at 475).

          In a recent case, the Supreme Court of Arkansas reiterated its adoption of the Eighth

Circuit’s five-factor test for determining minimum contacts over nonresident corporations.

Hotfoot, 2014 Ark. 460, 447 S.W.3d 592. Those five factors are (1) the nature and quality

of contacts with the forum state; (2) the quantity of such contacts; (3) the relation of the

cause of action to the contacts; (4) the interest of the forum state in providing a forum for


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its residents; and (5) convenience of the parties. Id. at 7, 447 S.W.3d at 596. Additionally, a

state can exercise specific personal jurisdiction even if the defendant’s contacts with the

forum are slight. Id.

       In Lawson’s case, the facts demonstrating contacts between the parties are explained

as follows. From 2012 to 2015, Simmons printed and distributed catalogs in the State of

Arkansas, and purchased newspaper advertising in Arkansas newspapers, as well as television

advertisements. Importantly, Simmons hosted a contest that targeted Arkansas residents for

the largest deer harvested in Arkansas. Simmons circulated a total of 483,700 print

advertisements and a total of 1,696,704 copies of the catalog. 1 However, the relation of the

cause of action to the contacts is weak. This cause of action arises out of a premises-liability

suit that occurred in Louisiana; it is not directly connected to Simmons’s advertisements. As

discussed above, however, the proper question is not where the plaintiff experienced a

particular injury or effect, but whether the defendant’s conduct connects him to the forum

in a meaningful way. Walden, supra. Moreover, Arkansas does have a strong interest in

providing a forum for its residents, particularly for those residents who act in response to

solicitation from outside states. Lastly, Simmons is located roughly thirty miles away from

the forum, so the argument regarding an inconvenient forum is weak.

       Applying that same five-factor test, Myers v. Casino Queen, Inc., has similar facts to

the case at hand. 689 F.3d 904, 911 (8th Cir. 2012). There, Myers filed suit in Missouri

against Casino Queen, which is located in Illinois, for tortious conduct. The court noted



       1
        The total circulation does not include Arkansas Democrat-Gazette display
advertisements and does not include Internet advertising.

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that although his injuries did not arise out of Casino Queen’s advertising activities in a strict

proximate-cause sense, his injuries were nonetheless related to Casino Queen’s advertising

activities because he was injured after responding to the solicitation. Id. The court reasoned

that Casino Queen knew that customers from Missouri patronized its casino, and it could

have foreseen that those customers would return to Missouri. Id. Because it was foreseeable

that Casino Queen’s actions could have consequences felt in Missouri, the Eighth Circuit

held that jurisdiction was authorized under Missouri’s long-arm statute. 2 Id. Furthermore,

the Eighth Circuit Court of Appeals wrote the following:

        When a foreign corporation directly targets residents in an ongoing effort to
        further a business relationship, and achieves its purpose, it may not necessarily
        be unreasonable to subject that corporation to forum jurisdiction when the
        efforts lead to a tortious result. The corporation’s own conduct increases the
        likelihood that a specific resident will respond favorably. If the resident is
        harmed while engaged in activities integral to the relationship the corporation
        sought to establish, we think the nexus between the contacts and the cause of
        action is sufficiently strong to survive the due process inquiry at least at the
        relatedness stage.

Id. at 913.

        One point Simmons relies on is the fact that Lawson went to Simmons on her own

the day of the incident without relying on a specific advertisement. She had, however, been

aware of Simmons’s advertisements in Arkansas, citing that she had seen one of their

shoppers-guide inserts before. As in Myers, Simmons actively pursues marketing campaigns

directed at Arkansas residents for the purpose of attracting customers to patronize the store.

Similarly, Myers did not go to Casino Queen the day he was injured because he had relied



        2
         While Missouri’s and Arkansas’s long-arm statutes differ in wording, there is no
substantive difference.

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on a particular ad, but the court held that his injuries were nonetheless related to Casino

Queen’s advertising activities because he was injured after responding to the solicitation in

general. Id. at 913. The fact that Lawson did not respond directly to the solicitation—the

record explains that she went to the store that day because her daughter had wanted to

attend the tent sale that she had learned about by “word of mouth”—Simmons ultimately

reached its goal of having Arkansas shoppers patronize the store.

       Based on the record before us, and the standards and factors discussed above, we hold

that the contacts between Lawson and Simmons are sufficient to warrant personal

jurisdiction over Simmons. Simmons should not have been surprised to be haled into court

in Arkansas because it anticipated and, in fact, wanted Arkansas residents to patronize its

store, and obviously the residents would return home to Arkansas afterward. Under such

circumstances, the assertion of personal jurisdiction is to be anticipated. 3 Accordingly, we

reverse the circuit court’s order dismissing the case for lack of personal jurisdiction and

remand to the circuit court for further proceedings.

       Reversed and remanded.

       ABRAMSON and GLOVER, JJ., agree.

       Gibson & Keith, PLLC, by: Paul W. Keith, for appellant.

       Hudson, Potts & Bernstein, LLP, by: G. Adam Cossey¸ for appellee.




       3
        Moreover, this court notes that Simmons wholly ignored the five-factor test
discussed in Hotfoot and Myers as the most recent examples of personal-jurisdiction cases.

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