Tarango v. Pastrana

• Decision Date: 05 August 1980
• Docket Number: No. 4441,4441
• Citation: 1980 NMCA 110,94 N.M. 727,616 P.2d 440
• Parties: Angelina TARANGO and Santiago Tarango, Plaintiffs-Appellants, v. Raul PASTRANA, Javier Meneses, J. Rolon, and Providence Memorial Hospital, Defendants-Appellees.
• Court: Court of Appeals of New Mexico

Page 440

616 P.2d 440

94 N.M. 727

Angelina TARANGO and Santiago TarangoPlaintiffs-Appellants, v.Raul PASTRANA, Javier Meneses, J. Rolon, and Providence Memorial Hospital, Defendants-Appellees.

No. 4441.

Court of Appeals of New Mexico.

Aug. 5, 1980.

[94 NM 727] Tandy L. Hunt, Hunt, Shamas & Currier, Roswell, for plaintiffs-appellants.

K. Gill Shaffer, Deborah S. Davis, Shaffer, Butt, Thornton & Baehr, P. C., Albuquerque, for Pastrana, Meneses and Rolon.

William J. Mounce, Grambling, Mounce, Sims, Galatzan & Harris, El Paso, Tex., for Providence Memorial Hosp.

OPINION

WOOD, Chief Judge.

Does New Mexico have personal jurisdiction over the defendants?This question involves our long-arm statute, the transaction of business, the commission of a tortious act, and due process.The trial court ruled there was a lack of jurisdiction; plaintiffs appeal.

According to the complaint, the three individual defendants performed a tubal ligation upon Angelina, and this surgery was performed at the Hospital.According to the complaint, the surgery was improperly performed because subsequent thereto Angelina became pregnant and gave birth to a child.Angelina, and her husband Santiago, sought damages which included the "reasonable economic cost of raising a child * * *. "We are not concerned with plaintiffs' theories of liability.

The Hospital moved to dismiss, asserting that it is a non-profit community hospital, that it is incorporated under Texas law, that it has only one facility which is located in El Paso, Texas, that it "in no way operates or does business in New Mexico or any other state."Dismissal was sought on the basis that the Hospital "was not served anywhere within the territorial limits of the State of New Mexico * * *. "

The individual defendants moved to dismiss, asserting that they were not residents of New Mexico, that they transact no business in New Mexico, and that their only contact with plaintiffs was in El Paso, Texas.Dismissal was sought on the basis that they were not served with process within the boundaries of New Mexico.

The motions to dismiss were heard on the basis of affidavits of the parties and answers to interrogatories.The trial court found that plaintiffs are residents of New Mexico and defendants knew this; that defendants are residents of Texas; that the Hospital operates only in El Paso, Texas; that the individual defendants are medical doctors who practice only in El Paso, Texas; that after the tubal ligation, Angelina returned to her home in Hidalgo County, New Mexico and subsequently became pregnant and bore a child.

There is no claim that any of the defendants were served within the territorial limits of New Mexico.Plaintiffs claim New Mexico has personal jurisdiction over defendants under New Mexico's long-arm statute.Section 38-1-16,N.M.S.A.1978 provides that a person who does any of the enumerated acts submits himself

to the jurisdiction of the courts of this state as to any cause of action arising from:

(1) the transaction of any business within this state;

(3) the commission of a tortious act within this state.* * *

Plaintiffs contend the defendants were doing business in New Mexico.This claim is based on the trial court's finding that defendants sent statements for payment of services rendered.Those statements were received by plaintiffs in New Mexico.The trial court ruled that the sending of the statements was insufficient.We agree.

Plaintiffs also contend that defendants committed a tortious act in New Mexico.Their theory is that even though any wrongful act on the part of defendants may have occurred in Texas, a tort is not complete until there is injury.SeePeralta v. Martinez, 90 N.M. 391, 564 P.2d 194(Ct.App.1977).Plaintiffs assert there was no injury until Angelina became pregnant.Inasmuch as Angelina became pregnant in New Mexico, plaintiffs assert the tortious act occurred in New Mexico.This view, of the place of commission of a tortious act, has been adopted in Illinois in connection with that state's long-arm statute.Gray v. American Radiator & Standard Sanitary Corp., 22 Ill.2d 432, 176 N.E.2d 761(1961);seeHoneywell, Inc. v. Metz Apparatewerke, 509 F.2d 1137(7th Cir.1975).New Mexico's long-arm statute was adopted from Illinois and the interpretation of the Illinois statute by Illinois courts, although not binding, is persuasive.Hunter-Hayes Elevator Co. v. Petroleum Club Inn Co., 77 N.M. 92, 419 P.2d 465(1966).The trial court ruled that even if a tortious act was committed in New Mexico, it was insufficient.Again, we agree.

The question of personal jurisdiction over out-of-state residents involves more than a technical "transaction of any business" or the technical "commission of a tortious act" within New Mexico.The meaning of those terms, in our statute, is to be equated with the minimum contacts sufficient to satisfy due process.Telephonic, Inc. v. Rosenblum, 88 N.M. 532, 543 P.2d 825(1975).Both Gray, supra, andHoneywell, supra, discussed the "quantum of contact sufficient to warrant jurisdiction."

Diamond A Cattle Company v. Broadbent, 84 N.M. 469, 505 P.2d 64(1973) stated: "It would be neither fair nor just to subject defendant to a judgment in personam on the basis that three payments were mailed into this state."Similarly, it would be neither fair nor just to subject defendants to in personam jurisdiction on the basis that statements for payment of services rendered in Texas were mailed to plaintiffs in New Mexico.Inasmuch as the minimum business contacts were insufficient to satisfy due process, the "transaction of any business" portion of our long-arm statute is not applicable.

Although the alleged tort may have been completed in New Mexico that, in itself, is insufficient.The minimum contact requirement must be met.Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 1239, 2 L.Ed.2d 1283(1958) states:

The unilateral activity of those who claim some relationship with a non-resident defendant cannot satisfy the requirement of contact with the forum State.The application of that rule will vary with the quality and nature of the defendant's activity but it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and...