Phc-Minden, L.P. v. Kimberly-Clark Corp., 12-04-00259-CV.

• Citation: 202 S.W.3d 193
• Decision Date: 17 August 2005
• Docket Number: No. 12-04-00259-CV.,12-04-00259-CV.
• Parties: PHC-MINDEN, L.P. d/b/a Minden Medical Center, Appellant, v. KIMBERLY-CLARK CORPORATION, Appellee.
• Court: Court of Appeals of Texas

Page 193

202 S.W.3d 193

PHC-MINDEN, L.P. d/b/a Minden Medical Center, Appellant, v. KIMBERLY-CLARK CORPORATION, Appellee.

No. 12-04-00259-CV.

Court of Appeals of Texas, Tyler.

August 17, 2005.

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R. Brent Cooper, Diana L. Faust, Cooper & Scully, P.C., Dallas, for appellant.

C. Michael Moore, David G. Cabrales, Locke Liddell & Sapp LLP, Dallas, Deborah L. Sterling, Fulbright & Jaworski L.L.P., Houston, Rodney E. VanAusdal, James K. Horstman, Iwan Cray Huber Horstman & VanAusdal LLC, Chicago, IL, for appellee.

Panel consisted of WORTHEN, C.J., GRIFFITH, J. and DeVASTO, J.

OPINION DENYING MOTION FOR REHEARING

JAMES T. WORTHEN, Chief Justice.

Appellant PHC-Minden, L.P. d/b/a Minden Medical Center ("MMC") filed a motion for rehearing, which is denied. However, we withdraw our opinion dated May 31, 2005 and substitute the following opinion in its place.

MMC appeals the trial court's order denying its special appearance. MMC presents four issues. We affirm.

BACKGROUND

After Jajah Eddington's death, her family and the representative of her estate (collectively, the "plaintiffs") filed a wrongful death and survivorship action against Kimberly-Clark Corporation. According to the original petition, Eddington became ill and sought diagnosis and treatment at MMC located in Minden, Louisiana. Eddington was instructed by physicians at MMC to follow up with her primary doctor in the next week if she did not feel better. Several days later, Eddington was admitted to Good Shepherd Medical Center in Longview, Texas. However, the plaintiffs alleged, Eddington's condition deteriorated to the point where her life could not be saved.

Eddington suffered from an infection that was the result of toxic shock syndrome, which the plaintiffs alleged was caused by her use of Kotex tampons manufactured, sold, distributed, or otherwise marketed by Kimberly-Clark. Kimberly-Clark filed a third-party action against MMC, among others, alleging that MMC had violated its duty of care to Eddington, which resulted in her death. In response, MMC filed a special appearance and, subject to that special appearance, an original answer to the third-party action.

As a result of the third-party action and special appearance, Kimberly-Clark and MMC conducted extensive discovery, including depositions. After a hearing, the trial court denied MMC's special appearance and found that the court had general jurisdiction over MMC. This appeal followed.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

In its first issue, MMC argues that the trial court erred in failing to make findings of fact and conclusions of law, as requested, concerning its denial of MMC's special appearance. Rule 28.1 of the Texas Rules of Appellate Procedure provides that in appeals from interlocutory orders "[t]he trial court need not, but may-within 30 days after the order is signed-file findings of fact and conclusions of law." TEX. R.APP. P. 28.1; Hoffmann-La Roche, Inc. v. Kwasnik, 109 S.W.3d 21, 26 (Tex.App.-El Paso 2003, no pet.). Because this is an interlocutory appeal, the trial court was not required to file findings of fact and conclusions of law. Therefore, it did not err by failing to do so. Accordingly, we overrule MMC's first issue.

SPECIAL APPEARANCE

In its second issue, MMC argues that the trial court erred by denying its special appearance because the evidence regarding the quality of MMC's Texas contacts is legally and/or factually insufficient to support a finding of general jurisdiction. In its third issue, MMC contends that the trial court erred by denying its special appearance because the evidence regarding the quality of MMC's Texas contacts, through its parent corporation Province Healthcare Company ("Province"), is legally and/or factually insufficient to support general jurisdiction. In its fourth issue, MMC argues that the trial court erred by denying its special appearance because maintenance of this suit in Texas offends traditional notions of fair play and substantial justice.

Standard of Review

The plaintiff has the burden to plead a prima facie showing of jurisdiction. Haught v. Agricultural Prod. Credit Ass'n, 39 S.W.3d 252, 256 (Tex.App.-Tyler 2000, no pet.). In a special appearance, the nonresident defendant has the burden of proof to negate all bases of personal jurisdiction. Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199, 203 (Tex.1985). On appeal, we determine the special appearance on the basis of the pleadings, any stipulations made by and between the parties, such affidavits and attachments as may be filed by the parties, the results of discovery processes, and any oral testimony. TEX.R. CIV. P. 120a; De Prins v. Van Damme, 953 S.W.2d 7, 18-19 (Tex.App.-Tyler 1997, writ denied). Whether a court has personal jurisdiction over a defendant is a question of law and, therefore, our review is de novo. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex.2002). Where, as here, a trial court does not issue findings of fact and conclusions of law with its special appearance ruling, all facts necessary to support the judgment and supported by the evidence are implied. Id. at 795. When the appellate record includes the reporter's and clerk's records, these implied findings are not conclusive and may be challenged for legal and factual sufficiency in the appellate court. Id.

For legal sufficiency issues, if there is more than a scintilla of evidence to support the finding, the no-evidence challenge fails. Id. When the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, the evidence is no more than a scintilla and, in legal effect, is no evidence. Texas Dep't of Public Safety v. Williams, 76 S.W.3d 647, 650 (Tex.App.-Corpus Christi 2002, no pet.) (citing Kindred v. Con Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983)). The test for "more than a scintilla of evidence" is that if reasonable minds cannot differ from the conclusion, then the evidence offered to support the existence of a vital fact lacks probative force, and it will be held to be the legal equivalent of no evidence. Id. In our factual sufficiency review, we may reverse the decision of the trial court only if its finding is so against the overwhelming weight and preponderance of the evidence as to be clearly erroneous and manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Haught, 39 S.W.3d at 256.

In Personam Jurisdiction

Texas courts may exercise jurisdiction over nonresidents if they voluntarily submit to jurisdiction or if they may be held to answer under the state's long-arm statute. Allianz Risk Transfer (Bermuda) Ltd. v. S.J. Camp & Co., 117 S.W.3d 92, 95 (Tex.App.-Tyler 2003, no pet.); see Moore v. Elektro-Mobil Technik GmbH, 874 S.W.2d 324, 328 (Tex.App.-El Paso 1994, writ denied). The Texas long-arm statute governs Texas courts' exercise of jurisdiction over nonresident defendants. See TEX. CIV. PRAC. & REM.CODE ANN. §§ 17.041-.045 (Vernon 1997); Marchand, 83 S.W.3d at 795. Before a Texas court may exercise jurisdiction over a nonresident defendant, two conditions must exist: (1) the Texas long-arm statute must authorize the exercise of jurisdiction and (2) the exercise of jurisdiction must be consistent with federal and state guarantees of due process. See Schlobohm v. Schapiro, 784 S.W.2d 355, 356 (Tex.1990). The Texas long-arm statute states as follows:

In addition to other acts that may constitute doing business, a nonresident does business in this state if the nonresident:

(1) contracts by mail or otherwise with a Texas resident and either party is to perform the contract in whole or in part in this state;

(2) commits a tort in whole or in part in this state; or

(3) recruits Texas residents, directly or through an intermediary located in this state, for employment inside or outside this state.

TEX. CIV. PRAC. & REM.CODE ANN. § 17.042 (Vernon 1997). The broad language of Section 17.042 extends Texas courts' personal jurisdiction as far as the federal constitutional requirements of due process will permit. Allianz Risk Transfer (Bermuda) Ltd., 117 S.W.3d at 95; Marchand, 83 S.W.3d at 795. In determining whether a nonresident defendant has met its burden to negate all bases of jurisdiction, we rely on precedent from the United States Supreme Court and other federal courts, as well as our own state's decisions. Marchand, 83 S.W.3d at 795.

Personal jurisdiction over nonresident defendants is constitutional when two conditions are met: (1) the defendant has established minimum contacts with the forum state and (2) the exercise of jurisdiction comports with traditional notions of fair play and substantial justice. Id. (citing International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945)). A defendant should not be subject to a foreign court's jurisdiction based on "random," "fortuitous," or "attenuated" contacts. Id. A nonresident defendant that has "purposefully availed" itself of the privileges and benefits of conducting business in the foreign jurisdiction has sufficient contacts with the forum to confer personal jurisdiction. Id. Although not determinative, foreseeability is an important consideration in deciding whether the nonresident defendant has purposefully established "minimum contacts" with the forum state. Id. The foreseeability critical to a due process analysis is that the nonresident defendant's conduct and connection with the forum state are such that it should reasonably anticipate being haled into court there. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474, 105 S.Ct. 2174, 2183, 85 L.Ed.2d 528 (1985) (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980)).

Once it has been determined that the nonresident defendant purposefully established minimum contacts with the forum state, the contacts are evaluated in light of other...