Ringgold v. Theriot

Ringgold v. Theriot

IN THE UTAH COURT OF APPEALS
 

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Jan Alicia Ringgold,

Petitioner and Appellee,

v.

Randy Lester Theriot,

Respondent and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030587-CA
 

F I L E D
(October 7, 2004)
 

2004 UT App 350

 

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Fifth District, St. George Department

The Honorable James L. Shumate

Attorneys: Brian L. Olson, St. George, for Appellant

Odean Bowler, St. George, for Appellee

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Before Judges Bench, Jackson, and Orme.

JACKSON, Judge:

    Randy Theriot appeals the lower court's determination that it had personal jurisdiction to issue a protective order against him on behalf of Jan Alicia Ringgold under Utah Code section 30-6-4.2. Regrettably, we were not favored with a brief from Ringgold. We reverse and remand for further proceedings.

    The procedures for determining personal jurisdiction are fairly well entrenched. When personal jurisdiction is contested, "the plaintiff has the burden of proving jurisdiction exists." Benton v. Cameco Corp., 375 F.3d 1070, 1074 (10th Cir. 2004) (quotations and citation omitted); see also Anderson v. American Soc'y of Plastic & Reconstructive Surgeons, 807 P.2d 825, 827 (Utah 1990). In deciding questions of jurisdiction, a court "'may determine jurisdiction on affidavits alone, permit discovery, or hold an evidentiary hearing.'" Phone Directories v. Henderson, 2000 UT 64,¶2, 8 P.3d 256 (quoting Anderson, 807 P.2d at 827).

    "If an evidentiary hearing is held, the plaintiff has the burden of proving jurisdiction by a preponderance of the evidence."(1) Kamdar & Co. v. Laray Co., 815 P.2d 245, 247-48 (Utah Ct. App. 1991) (citation omitted). A defendant challenging jurisdiction has a right to cross-examine the plaintiff's witnesses and to present competing evidence. See State v. Cramer, 2002 UT 9,¶19, 44 P.3d 690 ("Due process [under the Utah Constitution] includes, among other things, the 'opportunity to submit evidence, examine and cross-examine witnesses.'" (quoting Christiansen v. Harris, 109 Utah 1, 163 P.2d 314, 317 (1945))).

    In the present case, the lower court determined it had personal jurisdiction based solely upon the testimony of Ringgold. When Theriot attempted to cross-examine Ringgold, the court refused. We are somewhat puzzled by this refusal to allow Theriot the opportunity to challenge Ringgold's assertion of facts supporting personal jurisdiction. The court cautioned Theriot that "if you cross-examine you lose your special appearance, and the whole issue of jurisdiction becomes moot." In Utah, "[t]he distinction between general and special appearances has been abolished by the language contained in Rule 12(b) [of the Utah Rules of Civil Procedure]," Brown & Assocs., Inc. v. Carnes Corp., 547 P.2d 206, 207 (Utah 1976), and "[a] party need no longer appear 'specially' to attack the court's jurisdiction," Clarkson v. Western Heritage, Inc., 627 P.2d 72, 74 (Utah 1981) (Stewart, J., concurring) (citation omitted). See also Curtis v. Curtis, 789 P.2d 717, 725 n.17 (Utah Ct. App. 1990) ("Today the distinction between general and special appearances has been effectively abolished by Rule 12(b).").

    We conclude that once the lower court commenced an evidentiary hearing regarding personal jurisdiction, it should have required Ringgold to prove jurisdiction by a preponderance of the evidence after allowing Theriot to develop the facts through cross-examination and presenting competing evidence. Accordingly, we reverse the trial court's determination of personal jurisdiction and remand to allow the court to hear further evidence regarding jurisdiction.(2)

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Norman H. Jackson, Judge

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WE CONCUR:

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Russell W. Bench,

Associate Presiding Judge

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Gregory K. Orme, Judge

1. Alternatively, "if [a court] proceeds on documentary evidence alone . . . , the plaintiff is only required to make a prima facie showing of personal jurisdiction." Neways, Inc. v. McCausland, 950 P.2d 420, 422 (Utah 1997) (citing Anderson v. American Soc'y of Plastic & Reconstructive Surgeons, 807 P.2d 825, 827 (Utah 1990)). Nonetheless, "the plaintiff must prove jurisdiction at trial by a preponderance of the evidence after making a prima facie showing before trial." Id.

2. In order to prove personal jurisdiction, Ringgold must prove by a preponderance of the evidence that "there exist 'minimum contacts with the [forum state] such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.'" MFS Series Trust III v. Grainger, 2004 UT 61,¶10, 96 P.3d 927 (quoting International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)) (alteration in original).