Phelps v. Kingston

• Decision Date: 07 December 1987
• Docket Number: No. 87-036,87-036
• Citation: 536 A.2d 740,130 N.H. 166
• Parties: Nancy PHELPS and Richard Phelps v. Haskell KINGSTON, D.M.D.
• Court: New Hampshire Supreme Court

Page 740

536 A.2d 740

130 N.H. 166

Nancy PHELPS and Richard Phelps v. Haskell KINGSTON, D.M.D.

No. 87-036.

Supreme Court of New Hampshire.

Dec. 7, 1987.

The Legal Clinics P.A., Manchester (Stephen E. Borofsky on the brief and orally), for plaintiffs.

Devine, Millimet, Stahl and Branch P.A., Manchester (George R. Moore and Thomas Quarles, Jr., on the brief, and orally), for defendant.

JOHNSON, Justice.

The plaintiffs, Nancy Phelps and her husband Richard Phelps, appeal from the Superior Court's (Gray, J.) dismissal of their complaint for lack of in personam jurisdiction over the defendant, Haskell Kingston, D.M.D. For the reasons stated below, we hold that the superior court does have in personam jurisdiction over the defendant, and therefore reverse and remand.

During the late winter or early spring of 1985, plaintiff Nancy Phelps, a New Hampshire resident, developed what she later found to be a cancerous parotid gland tumor at the corner of the right side of her jaw. In late March of that year, while visiting her regular dentist, Dr. James Malloy, in Portsmouth, she mentioned the then undiagnosed lump and accompanying pain in her jaw to attending staff. The receptionist, who worked both part-time for Dr. Malloy in Portsmouth and part-time for the defendant, Dr. Kingston, offered to make the plaintiff an appointment with Dr. Kingston, who she allegedly said had experience with such problems, at his office in Eliot, Maine. The plaintiff agreed, and the receptionist arranged an appointment for April 8, 1985. On that date Nancy Phelps saw Dr. Kingston at his Eliot, Maine office. As a result of that visit, she now sues him for dental malpractice, alleging that he failed reasonably and properly to diagnose and treat her condition, failed properly to follow-up her case, and prematurely discharged her from his care. She contends that, as a result of this alleged malpractice, the cancerous tumor grew and spread. This, she says, ultimately necessitated radical surgery, which caused serious nerve damage and disfigurement to the right side of her face. It also created the danger of the cancer's terminal recurrence. In a separate but related action, the plaintiffs also sue Dr. Ira Schwartz, a Portsmouth internist who apparently lacks any contact with the State of Maine, for malpractice arising out of his examination of Nancy Phelps regarding the same jaw condition.

Dr. Kingston is a resident of South Berwick, Maine, with his sole office in Eliot, Maine. He holds a valid New Hampshire dental license and has been licensed to practice dentistry in this State since 1982. He thus continues to be subject to regulation by the board of dental examiners of New Hampshire. See RSA ch. 317-A. Indeed, Dr. Kingston was a New Hampshire resident from 1981 through 1983 and practiced dentistry in this State from 1981 through 1984. Of the 1350 families that he treats, approximately 100 reside in New Hampshire, as do two of his eight employees. Dr. Kingston also advertises his practice in the Yellow Pages for the Portsmouth, Exeter, Dover, Somersworth and Rochester area.

On the defendant's motion to dismiss the action against him, the trial court issued the following order dismissing the plaintiffs' complaint for lack of personal jurisdiction:

"The Court finds that the tortious act complained of happened, if at all, in Maine and therefore RSA 510:4(I) does not apply. The fact that the Defendant has contacts with N.H. is not determinative. RSA 510:4(I) states that jurisdiction arises out of the 'acts enumerated above' and one of the 'acts enumerated above' is the commission of a 'tortious act within this state.' Non relevant contacts with N.H. are therefore insufficient to give rise to jurisdiction. The Motion to Dismiss is granted."

The plaintiffs now appeal this decision, contending that New Hampshire may exercise personal jurisdiction over the defendant consistent with RSA 510:4, I, and the United States Constitution.

In determining whether or not it may exercise in personam jurisdiction over a foreign defendant, a court must typically engage in a two-part inquiry. It must first determine whether the State's long-arm statute authorizes such jurisdiction. Weld Power Industries v. C.S.I. Technologies, 124 N.H. 121, 125, 467 A.2d 568, 570 (1983); Tavoularis v. Womer, 123 N.H. 423, 426, 462 A.2d 110, 112 (1983); Cove-Craft Industries v. B.L. Armstrong Co. Ltd., 120 N.H. 195, 198, 412 A.2d 1028, 1030 (1980). If the long-arm statute would establish jurisdiction over the defendant, the court must further ask whether the defendant has "minimum contacts" with the State sufficient to insure that suit against him there does not offend "traditional notions of fair play and substantial justice." International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945) (citation omitted); see Hall v. Koch, 119 N.H. 639, 644, 406 A.2d 962, 965 (1979). The plaintiff bears the burden of demonstrating facts sufficient to establish personal jurisdiction over the defendant. Weld Power Industries, supra 124 N.H. at 123, 467 A.2d at 469; Kibby v. Anthony Industries, Inc., 123 N.H. 272, 274, 459 A.2d 292, 293-94 (1983). In determining whether this burden has been met, the court will take facts that the plaintiff has properly pleaded as true and will construe reasonable inferences therefrom in the manner most favorable to the plaintiff. Weld supra; Lawton v. Great Southwest Fire Ins. Co., 118 N.H. 607, 610, 392 A.2d 576, 578 (1978); Bell v. Pike, 53 N.H. 473, 475 (1873).

RSA 510:4, I, the New Hampshire long-arm statute that confers jurisdiction over individuals, provides that:

"Any person who is not an inhabitant of this state and who, in person or through an agent, transacts any business within this state, commits a tortious act within this state, or has the ownership, use, or possession of any real or personal property situated in this state submits himself, or his personal representative, to the jurisdiction of the courts of this state as to any cause of action arising from or growing out of the acts enumerated above."

The question whether RSA 510:4, I, provides for jurisdiction over a foreign defendant in a malpractice suit, when all examination and treatment occurred outside the State, is not one that this court has previously addressed. However, we have held that the legislature intended RSA 510:4, I, "to be construed in the broadest legal sense to encompass personal, private and commercial transactions." Leeper v. Leeper, 114 N.H. 294, 297, 319 A.2d 626, 628 (1974) (citations omitted). We have further held that the legislature's purpose in enacting the statute was to provide resident plaintiffs a convenient forum in which to sue for injuries attributable to foreign defendants. Tavoularis, supra 123 N.H. at 425, 462 A.2d at 112. In light of these legislative purposes, we have further construed both RSA 510:4, I, and its corporate parallel, RSA 293-A:121, to provide jurisdiction over foreign defendants to the full extent that the statutory language and due process will allow. Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 774, 104 S.Ct. 1473, 1478, 79 L.Ed.2d 790 (1984); Tavoularis, supra 123 N.H. at 426, 462 A.2d at 112; Roy v. Transairco, Inc., 112 N.H. 171, 176, 291 A.2d 605, 608 (1972); Seymour v. Parke, Davis & Company, 294 F.Supp. 1257, 1259 (D.N.H.1969), aff'd, 423 F.2d 584 (1970); Roy v. North American Newspaper Alliance, Inc., 106 N.H. 92, 94-95, 205 A.2d 844, 845-46 (1964).

As noted above, a court's principal inquiry in determining whether the due process clause permits personal jurisdiction over a foreign defendant is whether the defendant maintains minimum contacts with the forum State. Absent such contacts, the fourteenth amendment forbids the State to exercise jurisdiction. Williams v. Williams, 121 N.H. 728, 732, 433 A.2d 1316, 1319 (1981); Kulko v. California Superior Court, 436 U.S. 84, 91-93, 98 S.Ct. 1690, 1696, 1697, 56 L.Ed.2d 132, reh'g denied, 438 U.S. 908, 98 S.Ct. 3127, 57 L.Ed.2d 1150 (1978).

The question whether sufficient contacts exist to warrant jurisdiction is one that can be answered only in light of the facts of the particular case:

"Like any standard that requires a determination of 'reasonableness,' the 'minimum contacts' test of International Shoe is not susceptible of mechanical application; rather, the facts of each case must be weighed to determine whether the requisite 'affiliating circumstances' are present. We recognize that this determination is one in which few answers will be written 'in black and white. The greys are dominant and even among them the shades are innumerable.' "

Kulko, supra at 92, 98 S.Ct. at 1696 (quoting Estin v. Estin, 334 U.S. 541, 545, 68 S.Ct. 1213, 1216, 92 L.Ed. 1561 (1948)) (citations omitted). Nevertheless, the United States Supreme Court has frequently stated that the minimum contacts inquiry is best informed by asking whether the defendant's "conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there." World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980). The Supreme Court has further elucidated this inquiry by stating that, where the litigation in question arises out of or relates to the defendant's forum contacts, the minimum contacts requirement is satisfied provided the defendant "has 'purposefully directed' his activities at residents of the forum." Burger King v. Rudzewicz, 471 U.S. 462, 472, 105 S.Ct. 2174, 2181, 85 L.Ed.2d 528 (1985); Kenerson v. Stevenson, 604 F.Supp. 792, 793-94 (D.Me.1985); Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1239, 2 L.Ed.2d 1283 (1958). However, even where the litigation does not "arise out of or relate to" forum contacts, those contacts directed at New Hampshire citizens may satisfy due process for jurisdictional purposes provided they are substantial. Helicopteros Nacionales de...