Tercero v. ROMAN CATH. DIOCESE OF NORWICH

• Decision Date: 23 May 2002
• Docket Number: No. 25,618.,25,618.
• Citation: 132 N.M. 312,2002 NMSC 18,48 P.3d 50
• Parties: Navor TERCERO, Plaintiff-Respondent, v. ROMAN CATHOLIC DIOCESE OF NORWICH, Connecticut, Defendant-Petitioner, and Roman Catholic Church of the Archdiocese of Santa Fe, a New Mexico Corporation, Servants of the Paraclete, f/k/a Via Coeli, Father Barney Bissonnette, and the Estate of John McCarthy, M.D., Defendants.
• Court: New Mexico Supreme Court

48 P.3d 50

132 N.M. 312

2002 NMSC 18

Navor TERCERO, Plaintiff-Respondent, v. ROMAN CATHOLIC DIOCESE OF NORWICH, Connecticut, Defendant-Petitioner, and Roman Catholic Church of the Archdiocese of Santa Fe, a New Mexico Corporation, Servants of the Paraclete, f/k/a Via Coeli, Father Barney Bissonnette, and the Estate of John McCarthy, M.D., Defendants.

No. 25,618.

Supreme Court of New Mexico.

May 23, 2002.

Rehearing Denied June 12, 2002.

Beall & Biehler, P.A., Lisa P. Ford, Albuquerque, NM, for Petitioner.

Law Office of Daymon Ely, Daymon B. Ely, Albuquerque, NM, for Respondent.

OPINION

MAES, Justice.

{1} This appeal involves the alleged sexual molestation of then school boy Plaintiff-Respondent, Tercero, by Father Bissonnette (Bissonnette) between 1966-68, while he was a priest at the Santa Fe Archdiocese. The issue presented on appeal is whether the district court in New Mexico has long-arm jurisdiction over Defendant-Petitioner, the Diocese of Norwich, Connecticut, (the Diocese) in the resulting lawsuit. The trial court dismissed Tercero's claims against the Diocese based on a lack of jurisdiction, and the Court of Appeals reversed. We reverse, concluding there was no long-arm jurisdiction over the Diocese.

FACTS

{2} Bissonnette was ordained as a priest and incardinated into the Diocese in 1958. In 1963, after reports of inappropriate conduct with boys, the Bishop of Norwich suspended Bissonnette "a divinis," meaning that he could not perform sacraments. Thereafter, the Diocese sent Bissonnette to the Via Coeli Center (Via Coeli or the Center), also known as the Servants of the Paraclete, in New Mexico, for counseling and therapy for pedophilia. The Diocese paid for Bissonnette's transportation to New Mexico, as well as for his treatment and room and board at Via Coeli. In May 1963, the Bishop wrote to the Center delegating it the authority to remove the suspension when it felt it was proper. However, in September 1963, based on a request from the Center, the Bishop lifted Bissonnette's suspension.

{3} Bissonnette returned to Connecticut in 1964 where he was told by the Bishop that he could never again function as a priest for the Diocese. Although not formally excardinated from the Diocese, Bissonnette was dismissed by the Diocese and given his "walking papers," as he referred to them. The Bishop later communicated to the Center and Bissonnette his recommendation that Bissonnette seek a benevolent bishop for whom he could work, but that the Bishop could not, in good conscience, provide Bissonnette with a recommendation. Thereafter, Bissonnette decided by himself to return to New Mexico from Connecticut. Paying his own transportation costs, Bissonnette returned to Via Coeli and then was transferred by the Center to one of its facilities in Minnesota. While in Minnesota, Bissonnette was given an assignment within the Diocese of Duluth. The Connecticut Diocese continued to pay for Bissonnette's stays at the Via Coeli facilities, both in New Mexico and Minnesota. The Roman Catholic Church of the Archdiocese of Santa Fe, The Servants of the Paraclete, and Father Bissonnette are also named defendants in the action; however, these additional defendants are not parties to this appeal.

{4} In early 1966, Bissonnette wrote to the Bishop seeking permission to return to New Mexico. The Bishop agreed with his request, provided Via Coeli was willing to accept him back. Upon his return, Bissonnette met with the Archbishop of Santa Fe, who assigned him to St. Anne's Parish in New Mexico. There, he eventually planned to apply for incardination into the Archdiocese of Santa Fe. He performed the assignment until 1968, when he was dismissed by that archdiocese for sexual molestation. Following his dismissal, Bissonnette returned to the Via Coeli Center in New Mexico where he again underwent treatment paid for by the Diocese.

STANDARD OF REVIEW

{5} Challenges made to a plaintiff's assertion of personal jurisdiction must be decided solely upon the facts of each individual case. See Doe v. Roman Catholic Diocese of Boise, Inc., 121 N.M. 738, 743, 918 P.2d 17, 22 (Ct.App.1996)

. "[T]o the extent that a district court's conclusions concerning whether a plaintiff has proven personal jurisdiction rest on legal precepts, those conclusions are reviewed on appeal de novo.... On the other hand, a district court's conclusions based upon findings of fact are not disturbed on appeal unless clearly erroneous." Campos Enters., Inc. v. Edwin K. Williams & Co., 1998-NMCA-131, ¶ 5, 125 N.M. 691, 964 P.2d 855 (citing Mylan Labs., Inc. v. Akzo, N.V., 2 F.3d 56, 60 (4th Cir.1993)). In this case, the record reveals that the district court failed to make findings of fact. Therefore, we conduct a de novo review on the issue of the existence of personal jurisdiction under the facts of this appeal. Where, as here, a timely challenge is raised under Rule 1-012(B)(2) NMRA 2002 contesting personal jurisdiction, the party asserting such jurisdiction has the burden of establishing that fact. Smith v. Halliburton Co., 118 N.M. 179, 185, 879 P.2d 1198, 1204 (Ct.App.1994).

ANALYSIS

{6} Utilizing New Mexico's long-arm statute, our courts may exercise personal jurisdiction over non-residents. See NMSA 1978, § 38-1-16 (1971). That statute provides, in pertinent part:

A. Any person, whether or not a citizen or resident of this state, who in person or through an agent does any of the acts enumerated in this subsection thereby submits himself or his personal representative 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.

This statute extends the jurisdictional reach of New Mexico courts as far as constitutionally permissible. See United Nuclear Corp. v. Gen. Atomic Co., 91 N.M. 41, 42, 570 P.2d 305, 306 (1977)

. The Diocese challenges the district court's jurisdiction over it in the suit arising from Bissonnette's alleged molestation of Tercero while the priest was assigned to a parish in the Santa Fe Archdiocese.

{7} Long-arm statutes have been held to be in derogation of the common law, hence, they must be strictly construed. Worland v. Worland, 89 N.M. 291, 295, 551 P.2d 981, 985 (1976). The constitutional standard requires that prior to a nonresident defendant being sued in a forum state, the defendant must have sufficient minimum contacts with the forum state so that permitting the action will not violate "traditional conception[s] of fair play and substantial justice." Int'l Shoe Co. v. Washington, 326 U.S. 310, 320, 66 S.Ct. 154, 90 L.Ed. 95 (1945). A defendant will be found to have sufficient minimum contacts, satisfying due process, where the defendant has a connection with the forum state and has acted in the state in such a manner that they "should reasonably anticipate being haled into court there." World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980). "[I]t 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." Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958). As noted in Tarango v. Pastrana, 94 N.M. 727, 728, 616 P.2d 440, 441 (Ct.App.1980), "[t]he 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."

{8} In determining whether personal jurisdiction exists over the out-of-state Diocese, we apply the following three-part test to the specific facts of the case: (1) Did the Diocese commit an act or omission specifically set forth in the long-arm statute; (2) Does Tercero's cause of action arise out of the alleged acts or omissions; and (3) Has the Diocese established sufficient minimum contacts with New Mexico to satisfy due process concerns? See Fed. Deposit Ins. Corp. v. Hiatt, 117 N.M. 461, 463, 872 P.2d 879, 881 (1994)

; Sanchez v. Church of Scientology of Orange County, 115 N.M. 660, 663, 857 P.2d 771, 774 (1993). In applying this test, the analysis of whether the Diocese transacted business or committed a tortious act within New Mexico merges with the inquiry regarding whether such activities constitute minimum contacts sufficient to satisfy due process concerns. See, e.g., Telephonic, Inc. v. Rosenblum, 88 N.M. 532, 534, 543 P.2d 825, 827 (1975) ("We have repeatedly equated the `transaction of business' ... with the due process standard of `minimum contacts'...."); Tarango, 94 N.M. at 728,

616 P.2d at 441 (meaning of terms "transaction of any business" and "commission of a tortious act" to be equated with minimum contacts sufficient to satisfy due process).

{9} We note that any actions by the Diocese after the alleged abuse of Tercero, such as paying for Bissonnette's additional stay and treatment at Via Coeli, does not impact our analysis of whether long-arm jurisdiction can properly be established. See Doe, 121 N.M. at 744,

918 P.2d at 23 ("As a general rule, the existence of personal jurisdiction may not be established by events which have occurred after the acts which gave rise to Plaintiff's claims." (citing Steel v. United States, 813 F.2d 1545, 1549 (9th Cir. 1987)). Accordingly, those matters are not considered in the Court's analysis.

Transaction of Business

{10} "Transaction of any business" under the long-arm statute has been defined as, "`doing a series of similar acts for the purpose of thereby realizing pecuniary benefit, or otherwise accomplishing an object, or doing a single act for such purpose with the intention of thereby initiating a series of such acts.'" Telephonic, 88 N.M. at 534, 543 P.2d at 827 (quoting Restatement (Seco...