Clark v. Noyes

Citation871 S.W.2d 508
Decision Date13 January 1994
Docket NumberNo. 05-93-00196-CV,05-93-00196-CV
PartiesIsaiah CLARK, Appellant, v. Frank NOYES, M.D., Appellee.
CourtCourt of Appeals of Texas

James D. Blume and Jennifer Stoddard, Dallas, for appellant.

Scott W. MacLaren, Dallas, for appellee.



BARBER, Justice.

Isaiah Clark, a Texas resident, filed a medical malpractice suit in the 101st District Court in Dallas County, Texas, against Frank Noyes, M.D., an Ohio resident. Dr. Noyes filed a special appearance to present a motion objecting to jurisdiction by the Texas court. Following a hearing, the trial court sustained Dr. Noyes's motion and dismissed the cause for want of personal jurisdiction. Clark appeals asserting one point of error: that the trial court erred in sustaining Dr. Noyes's objection to personal jurisdiction. We affirm the trial court's order.


In plaintiff's original petition, Clark alleges that he injured his knee in 1983. Due to continued significant disability, Clark consulted Dr. Noyes for an orthopedic examination at the Cincinnati Sportsmedicine Center in Cincinnati, Ohio, on July 11, 1984. Dr. Noyes performed an arthroscopic evaluation and recommended reconstructive knee surgery. Dr. Noyes performed a second arthroscopic evaluation on July 19, 1984, and again recommended surgery. On July 29, 1984, Dr. Noyes performed surgery to reconstruct Clark's knee. Clark was discharged on September 4, 1984. In September 1992, Clark filed a medical malpractice action against Dr. Noyes alleging that Dr. Noyes was negligent in performing the surgery.

Dr. Noyes filed a special appearance objecting to personal jurisdiction. A deposition was submitted as evidence at the hearing on the special appearance. In the deposition, Dr. Noyes testified that he was licensed in Michigan, Ohio, and Kentucky, and had hospital privileges in Ohio and Kentucky. Dr. Noyes was not licensed in Texas. Dr. Noyes was employed by the Cincinnati Sportsmedicine Center. He provided treatment to all of his patients in Cincinnati. Dr. Noyes treated Clark in 1984. At the time he was treated, Clark represented that he was a Kentucky resident. Clark received all of his treatment in Cincinnati. Dr. Noyes never provided treatment to Clark, or to any other patient, in Texas.


During oral argument, counsel for Clark asserted that Clark was required only to make a prima facie showing of personal jurisdiction and that we should take Clark's pleadings as true and resolve all conflicts in the evidence in favor of a prima facie showing of personal jurisdiction. In making the argument, counsel relied on Bullion v. Gillespie, 895 F.2d 213 (5th Cir.1990). However, Bullion addressed the procedure for determining personal jurisdiction in federal court. In federal court, when jurisdictional facts are disputed, the party seeking to invoke the jurisdiction of the court has the burden of showing sufficient minimum contacts. Id. at 216-17. The Fifth Circuit stated that when the jurisdictional issue was being decided on the basis of affidavits, only a prima facie case of personal jurisdiction need be shown. Id. at 217. In making such a determination, the court is to take the uncontroverted allegations as true and resolve conflicts in favor of the plaintiff in determining whether a prima facie showing of personal jurisdiction is made. Id.

Although we use the federal due process standard in analyzing minimum contacts, see, e.g., Schlobohm v. Schapiro, 784 S.W.2d 355, 357 (Tex.1990), we do not use federal procedural rules in determining how such proof must be made. If we were to adopt this standard of review, we would be incorrectly placing the burden on the plaintiff. In Texas, the defendant has the burden of proving lack of jurisdiction and must negate every possible ground of personal jurisdiction. Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199, 203 (Tex.1985). In determining whether the trial court erred in sustaining Dr. Noyes's objection to personal jurisdiction, we examine the entire record. See Bellair, Inc. v. Aviall of Texas, Inc., 819 S.W.2d 895, 898 (Tex.App.--Dallas 1991, writ denied). We review the evidence in the light most favorable to the trial court's ruling. See Project Eng'g USA Corp. v. Gator Hawk, Inc., 833 S.W.2d 716, 722 (Tex.App.--Houston [1st Dist.] 1992, no writ).

The trial court did not make findings of fact or conclusions of law in connection with its ruling on the special appearance, nor did the parties request findings or conclusions. "Under these circumstances, the trial court's judgment implies all necessary fact findings in support of the judgment." Temperature Systems, Inc. v. Bill Pepper, Inc., 854 S.W.2d 669, 672 (Tex.App.--Dallas 1993, writ dism'd by agr.). We affirm the trial court's judgment if it can be upheld on any legal theory that is supported by the evidence. Id.


Texas courts may exercise personal jurisdiction over non-resident defendants if two conditions are met. Schlobohm, 784 S.W.2d at 356. "First, the Texas long-arm statute must authorize the exercise of jurisdiction." Id. Second, the exercise of jurisdiction must comport with "federal and state constitutional guarantees of due process." Id.

A. Texas Long-Arm Statute

The Texas long-arm statute authorizes Texas courts to exercise personal jurisdiction over non-resident defendants "doing business" in the state. See TEX.CIV.PRAC. & REM.CODE ANN. § 17.042 (Vernon 1986). Section 17.042 lists specific acts which constitute doing business in Texas. Id. The statute also provides that "other acts" may constitute doing business in Texas for purposes of the long-arm statute. Id. "[T]he broad language of the long-arm statute's doing business requirement allows the statute to reach as far as the federal constitution permits." Schlobohm, 784 S.W.2d at 357; Temperature Systems, Inc., 854 S.W.2d at 674. We, therefore, consider whether the exercise of personal jurisdiction over Dr. Noyes would violate federal constitutional due process requirements. See Guardian Royal Exchange Assurance, Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 226 (Tex.1991).

B. Federal Due Process

"Federal constitutional requirements of due process limit the power of the state to assert personal jurisdiction over non-resident defendants...." Id. at 226. Two requirements must be met for the exercise of personal jurisdiction over non-residents to comport with federal due process. See id. at 230-31; Temperature Systems, Inc., 854 S.W.2d at 674. First, the non-resident defendant must have purposely established minimum contacts with the forum state. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474-75, 105 S.Ct. 2174, 2183-84, 85 L.Ed.2d 528 (1985); Guardian Royal, 815 S.W.2d at 226. "There must be a 'substantial connection' between the nonresident defendant and Texas arising from action or conduct of the nonresident defendant purposefully directed toward Texas." Guardian Royal, 815 S.W.2d at 230. Second, the exercise of jurisdiction must comport with traditional notions of fair play and substantial justice. Id. at 231; see also Burger King Corp., 471 U.S. at 476, 105 S.Ct. at 2183-84.


The constitutional touchstone in determining whether the exercise of personal jurisdiction over a non-resident comports with due process is whether the non-resident defendant purposefully established "minimum contacts" in the forum state. Asahi Metal Industry Co., Ltd. v. Superior Court of California, 480 U.S. 102, 108, 107 S.Ct. 1026, 1030, 94 L.Ed.2d 92 (1987); Guardian Royal, 815 S.W.2d at 226-27. Minimum contacts must be based on "some act by which the defendant purposefully avails [himself] of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws." Burger King Corp., 471 U.S. at 475, 105 S.Ct. at 2183 (quoting Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1240, 2 L.Ed.2d 1283 (1958)). The unilateral activity of those claiming a relationship with the non-resident defendant cannot satisfy the minimum contacts requirement. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 298, 100 S.Ct. 559, 567-68, 62 L.Ed.2d 490 (1980) (quoting Hanson, 357 U.S. at 253, 78 S.Ct. at 1240). The purposeful availment requirement ensures that a non-resident defendant is not haled into the courts of a jurisdiction as the result of "random," "fortuitous," or "attenuated" contacts. Burger King Corp., 471 U.S. at 475, 105 S.Ct. at 2183 (citing Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 774, 104 S.Ct. 1473, 1478, 79 L.Ed.2d 790 (1984)).

Texas courts may exercise two types of jurisdiction based on a non-resident's contacts with the state. If the controversy arises out of the defendant's contacts with Texas, the court may invoke specific jurisdiction over the non-resident defendant. See Helicopteros Nacionales de Colombia, S.A. v Hall, 466 U.S. 408, 414, 104 S.Ct. 1868, 1872, 80 L.Ed.2d 404 (1984); Guardian Royal, 815 S.W.2d at 227. If the cause of action does not arise out of the contacts, Texas courts may exercise personal jurisdiction over a non-resident defendant who maintains continuous and systematic contacts with the state. Helicopteros, 466 U.S. at 414, 104 S.Ct. at 1872; Guardian Royal, 815 S.W.2d at 228.

A. Specific Jurisdiction

Clark first argues that Texas courts have specific jurisdiction over Dr. Noyes. 1 Clark specifically alleges that Dr. Noyes purposefully directed his medical services to Texas residents. In addition to himself, Clark alleges that Dr. Noyes treated a Houston Oilers football player and a Cincinnati Rockers professional indoor football player, both of whom he alleges were Texas residents. In footnote two of his brief, Clark asserts that Dr. Noyes's referral of Texas patients to Texas physicians and his acceptance of referrals from Texas physicians establishes sufficient contacts to...

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