Powers v. DISTRICT COURT OF TULSA COUNTY

227 P.3d 1060

2009 OK 91

Paul M. POWERS, Petitioner, v. The DISTRICT COURT OF TULSA COUNTY, State of Oklahoma, and the Honorable Terry H. Bitting, Special District Judge, Respondents. and Paul M. Powers, Petitioner, v. The District Court of Tulsa County, State of Oklahoma, and the Honorable Carl Funderburk, Special District Judge, Respondent.

Nos. 105,611, 106,432.

Supreme Court of Oklahoma.

December 8, 2009.

As Corrected December 29, 2009.

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Anthony Allen, James W. Feamster, III-PLLC, Anthony Allen, Seymour & Graham LLP, Tulsa, OK, for Petitioner.

Jack R. Givens, Givens and Givens, Tulsa, OK, for Real Party in Interest.

EDMONDSON, C.J.

¶ 1 These two proceedings involve challenges to in personam jurisdiction made by a husband to the matrimonial-based claims of his wife. We adjudicate both proceedings by a single opinion without consolidation. We hold in No. 105,611 that the record presented in the extraordinary writ proceeding is insufficient to challenge the district court's order. We hold in No. 106,432 that the district court's order sustaining in personam jurisdiction over the husband is in error because (1) Husband's motion challenged the facial sufficiency of Wife's petition, as amended, and not the factual basis of in personam jurisdiction over Husband, and (2) the trial court's reliance upon facts appearing beyond the face of the pleadings is an application of an incorrect standard for testing the facial sufficiency of those pleadings.¹ We deny prohibition in No. 105,611. In No. 106,432 we deny prohibition in part, and grant prohibition in part to prevent enforcement of the District Court's order and direct the trial court to provide a full and fair opportunity for the parties to present any evidence on the issue of in personam jurisdiction. We assume original jurisdiction pursuant to Okla. Const. Art. 7 § 4 to explain procedure when challenging the sufficiency of in personam jurisdiction allegations involving 43 O.S.Supp. 2004 § 601-201 of Oklahoma's version of the Uniform Interstate Family Support Act.

I. No. 105,611

¶ 2 Husband and Wife resided in the State of Missouri. Wife moved to Oklahoma and a few days later filed an action seeking legal separation, alimony, child support, child custody and attorney's fees.² Two days later Husband filed an action for divorce in Missouri. Husband was served with process in the Oklahoma proceeding but did not answer or otherwise plead within the time allowed by 12 O.S.Supp. 2004 § 2012, and 12 O.S.2001 §§ 2026, 2027, and District Court Rule 2.³ Wife, with notice to Husband, filed a motion for default judgment.

¶ 3 After the time to answer or otherwise plead, Husband filed a special appearance with a motion to dismiss challenging in personam jurisdiction. The trial court held one hearing, without adjudicating the motion to dismiss, and allowed Wife time to amend her petition. The trial court then held a hearing, determined Husband was in default, declined to consider the motion to dismiss, took evidence on the issue of temporary support, and issued an order for temporary support. Husband then filed a motion to vacate the temporary support order and requested that the trial court consider his motion to dismiss.

¶ 4 During a trial court hearing, discussion was had whether Husband's motion to dismiss could be considered when the trial court had not granted Husband leave to file out of time, and whether a request for such leave would waive in personam jurisdiction. Prior to expiration of the time to answer or otherwise plead, a party may request additional time pursuant to 12 O.S. 2001 § 2006(B)(1) to file a special appearance and motion to dismiss for lack of in personam jurisdiction without waiving the defense of lack of in personam jurisdiction.⁴ A request for extension of time pursuant to § 2006(B)(2) may be granted to file a special appearance and motion to dismiss without waiving in personam jurisdiction if the failure to act timely was the result of excusable neglect. Thus, a trial court's denial of either a § 2006(B)(1) or § 2006(B)(2) motion combined with a special appearance does not act to waive a defendant's defense of a lack of in personam jurisdiction.

¶ 5 Husband's special appearance and motion to dismiss filed after his time to answer or otherwise plead without leave of court, or having been treated by the court as timely, is a nullity and of no effect.⁵ Husband's untimely motion to dismiss and special appearance filed without leave of court was not an appearance, but the filing did not waive in personam jurisdiction. Husband's failure to answer or otherwise plead within the time allowed by the Pleading Code resulted in a default "judgment" for temporary child support, but did not waive his in personam jurisdiction defense.⁶

¶ 6 Federal court opinions discussing challenges to in personam jurisdiction, both pre- and post-adoption of the Oklahoma Pleading Code, state that when a motion to dismiss for lack of in personam jurisdiction is filed "the district court must accept as true the allegations set forth in the complaint to the extent they are uncontroverted by defendant's affidavits." Ten Mile Industrial Park v. Western Plains Service Corp., 810 F.2d 1518, 1524 (10th Cir.1987).⁷ Prior to trial, when a motion to dismiss for lack of jurisdiction is decided on the basis of affidavits and other written materials, the plaintiff need only make a prima facie showing.⁸ In federal courts "If the parties present conflicting affidavits, all factual disputes are resolved in the plaintiff's favor, and the plaintiff's prima facie showing is sufficient notwithstanding the contrary presentation by the moving party."⁹ When an evidentiary hearing is held to resolve factual disputes relating to in personam jurisdiction, the party asserting jurisdiction "has the burden to prove facts supporting jurisdiction by a preponderance of the evidence." Federal Deposit Ins. Corp. v. Oaklawn Apartments, 959 F.2d 170, 174 (10th Cir.1992). When facts outside of the pleadings are submitted on the issue of in personam jurisdiction, a motion to dismiss is not converted to a motion for summary judgment unless resolution of the jurisdictional question is intertwined with the merits of the cause of action.¹⁰ The attacks upon jurisdiction are thus classified as motions attacking the sufficiency of the complaint, motions which raise extra-pleading facts, and motions that contest jurisdictional facts that are intertwined with the merits of the action.¹¹

¶ 7 In courts of this state, a special appearance with a motion to dismiss is a proper method to challenge in personam jurisdiction.¹² While every provision of District Court Rule 4 does not govern each and every motion filed in a District Court,¹³ Rule 4 does govern motions to dismiss for a lack of in personam jurisdiction.¹⁴ Authors have explained that a defendant challenging in personam jurisdiction has an initial procedural burden to raise the facts challenging in personam jurisdiction.

The defendant initially has the burden of challenging the propriety of a summons, jurisdiction, or venue, but once this is done, the burden of proof shifts to the plaintiff. To satisfy the initial burden, a defendant will ordinarily need to accompany a motion to dismiss with an affidavit from either a person with knowledge of the facts, if possible, or otherwise by an attorney who states what the proof would show at a hearing.

David S. Clark & Charles W. Adams, Oklahoma Civil Pretrial Procedure: Jurisdiction, Service of Process, Venue, Motions to Dismiss Under Section 2012, § 10.1, 253, 257 (1995).

Normally, motions seeking a dismissal for lack of personal jurisdiction are accompanied by detailed affidavits setting forth the absence of contacts with Oklahoma. Conversely, responses to the motion are also accompanied by affidavits attempting to establish the sufficiency of the contacts to warrant the assertion of personal jurisdiction.

1-A Charles W. Adams & Daniel J. Boudreau, Vernon's Oklahoma Forms 2d: Civil Procedure, Motion to Dismiss-Lack of Jurisdiction Over the Person, § 4.4, 195, 196 (1999).

This Court has often explained that when in personam jurisdiction is challenged the jurisdiction over a non-resident defendant cannot be inferred, but must affirmatively appear from the trial court record, and the burden of proof in the trial court is upon the party asserting that jurisdiction exists.¹⁵ However, in personam jurisdiction may be waived by a defendant by a mere failure to object in a timely manner,¹⁶ and so a defendant has a procedural burden to place the challenge before the trial court at the proper time and in the proper form.

¶ 8 Approximately twenty years ago this Court stated that a motion may raise an issue of fact pursuant to Rule 4(c) of the Rules for District Courts. In Mott v. Carlson, 1990 OK 10, 786 P.2d 1247, we observed that "Motions raising fact issues shall be verified by a person having knowledge of the facts, if possible; otherwise, a verified statement of counsel of what the proof will show will suffice until a hearing or stipulation can be provided." Id. at 1251. We explained more recently that "The scope of Rule 4 includes motions not involving the merits of the action; and facts material to such motions, when contested, must be tried by the appropriate trier of fact." Crest Infiniti, II, LP v. Swinton, 2007 OK 77, ¶ 10, 174 P.3d 996, 1002. The procedure for raising facts in support of a pre-trial motion has been well-settled. Husband's motion to dismiss was not accompanied by affidavit of Husband or by counsel showing what proof would show at an evidentiary hearing to adjudicate contested facts. The motion was not accompanied by an evidentiary substitute.¹⁷ Husband's § 2012(B)(2) motion to dismiss challenging in personam jurisdiction thus challenges the facial sufficiency of Wife's petition, and...