Townsend v. University Hospital

• Decision Date: 13 August 2002
• Docket Number: No. 06-02-00021-CV.,06-02-00021-CV.
• Parties: Ardis Noreen TOWNSEND, et al., Appellants, v. UNIVERSITY HOSPITAL-UNIVERSITY OF COLORADO, et al., Appellees.
• Court: Texas Court of Appeals

83 S.W.3d 913

Ardis Noreen TOWNSEND, et al., Appellants, v. UNIVERSITY HOSPITAL-UNIVERSITY OF COLORADO, et al., Appellees.

No. 06-02-00021-CV.

Court of Appeals of Texas, Texarkana.

Submitted July 12, 2002.

Decided August 13, 2002.

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William L. Kirkman, Bourland, Kirkman, Seidler & Evans, LLP, Michael W. Johnston, Johnston & Associates, LLP, Fort Worth, for appellant. Greg W. Curry, Debora B. Alsup, Aditi R. Dravid, Thompson & Knight, LLP, Dallas, for appellee.

Before MORRISS, C.J., GRANT and ROSS, JJ.

OPINION

Opinion by Justice ROSS.

Ardis Noreen Townsend, Julian E. "Pete" Townsend, Javier Olivares, and Alex Olivares, a minor, by and through his next friend and father, John Olivares (the Townsends) appeal the trial court's dismissal of their case against University Hospital-University of Colorado (UCH), University of Colorado Health Sciences Center (UCHSC), David B. Badesch, M.D., F.A.C.P., Michael C. Thigpen, M.D., Norbert F. Voelkel, M.D., Lazaro E. Gerschenson, M.D., Randall Williams, M.D., Bertron M. Groves, M.D., and the individual members of the Institutional Review Board for UCH from January 1, 1998 to May 1999 (the Colorado defendants). None of the Colorado defendants are residents of Texas, and the dismissal was granted after they entered a special appearance.

The Townsends bring two points of error, contending: 1) the Colorado defendants are subject to the specific jurisdiction of the State of Texas because they knowingly accepted a referral of a patient from Texas and because their agents' actions took place in Texas, and 2) the Colorado defendants are subject to the general jurisdiction of the State of Texas.

The Townsends filed suit against the Colorado defendants for fraud, intentional infliction of emotional distress, assault, assault and battery, intentional abandonment, breach of fiduciary duties, breach of the duty of good faith and fair dealing, violations of the Deceptive Trade Practices Act, constructive fraud, negligence, gross negligence, negligent abandonment, negligent infliction of emotional distress, negligent breach of fiduciary duty, and malpractice under the common law, including lack of informed consent and res ipsa loguitur or, if applicable, the Texas Medical Liability and Insurance Improvement Act of 1977, in relation to the death of Julia Caren Townsend Olivares while in the care of the Colorado defendants.

Olivares received a medical consultation from Dr. Luisa Gan at the Mesquite Medical Center for bronchial problems after going to the emergency room complaining of extreme shortness of breath and coughing up blood. Gan transferred Olivares to Medical City of Dallas, where Dr. David Weill examined Olivares. Weill concluded Olivares' pulmonary hypertension was too advanced to be treated at Medical City and recommended she be transferred to the Pulmonary Hypertension Center at UCH in Denver, Colorado. Olivares was airlifted to UCH, arriving February 16, 1999.

Olivares remained at UCH for approximately one week. UCH treated Olivares until her sudden death February 21, 1999. An autopsy revealed she died of complications associated with a disease of her lungs called primary pulmonary hypertension, but the autopsy did not reveal which complications occurred and resulted in Olivares' death.

After being sued in Texas, the Colorado defendants filed a special appearance contesting personal jurisdiction. The Colorado defendants asserted they: 1) are not citizens of the State of Texas; 2) are not licensed to practice medicine in Texas; 3) do not practice medicine in Texas; 4) do not do business in Texas; 5) own no property, leases, or investments in Texas; 6) have never paid taxes in Texas; 7) have not committed any tort in Texas; 8) have not entered into any contracts with Texas residents for the provision of medical care or treatment or for the referral of patients; and 9) have not appointed any agent for service of process in Texas and are not required to do so. The Colorado defendants further contend that the Townsends' causes of action did not arise from or relate to any contacts with Texas by the Colorado defendants and that the Colorado defendants did not and do not have continuous or systematic contacts with Texas. After conducting a hearing on the special appearance, the trial court granted the Colorado defendants' motion to dismiss pursuant to their special appearance and dismissed all the Townsends' causes of action for lack of personal jurisdiction.

In their first point of error, the Townsends contend the trial court erred in dismissing their case because the Colorado defendants are subject to specific jurisdiction. A nonresident defendant must negate all bases of personal jurisdiction to prevail in a special appearance. CSR Ltd. v. Link, 925 S.W.2d 591, 596 (Tex.1996); LeBlanc v. Kyle, 28 S.W.3d 99, 101 (Tex. App.-Texarkana 2000, pet. denied). Whether a court can assume personal jurisdiction over a nonresident defendant is a question of law that we review de novo. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 794 (2002); Hotel Partners v. Craig, 993 S.W.2d 116, 120 (Tex.APP-Dallas 1994, writ denied). We review the trial court's resolution of any underlying factual questions for factual sufficiency of the evidence. LeBlanc, 28 S.W.3d at 101 n. 2. We will affirm if we can uphold the trial court's order on any legal theory finding support in the evidence. See Happy Indus. Corp. v. Am. Specialties, Inc., 983 S.W.2d 844, 847 (Tex.App.-Corpus Christi 1998, pet. dism'd w.o.j.); see also Cartlidge v. Hernandez, 9 S.W.3d 341, 345 (Tex. App.-Houston [14th Dist.] 1999, no pet.); Transportation Especial Autorizada, S.A. de C.V. v. Seguros Comercial Am., S.A. de C.V., 978 S.W.2d 716, 719 (Tex.App.-Austin 1998, no pet.); Fish v. Tandy Corp., 948 S.W.2d 886, 892 (Tex.App.-Fort Worth 1997, writ denied); Clark v. Noyes, 871 S.W.2d 508, 511-12 (Tex.App.-Dallas 1994, no writ); NCNB Tex. Nat'l Bank v. Anderson, 812 S.W.2d 441, 445 (Tex.App.-San Antonio 1991, no writ).

When a personal jurisdictional question is reviewed, we review all the evidence. See Nikolai v. Strate, 922 S.W.2d 229, 236 (Tex.App.-Fort Worth 1996, writ denied); Hotel Partners v. KPMG Peat Marwick, 847 S.W.2d 630, 632 (Tex.App.-Dallas 1993, writ denied). But the review is not a de novo review. The proper standard for reviewing the evidence in a case involving a challenge to in personam jurisdiction is factual sufficiency. See Nikolai, 922 S.W.2d at 236; Hotel Partners, 847 S.W.2d at 632. Thus, we may reverse the decision of the trial court only if its ruling is so against the great weight and preponderance of the evidence as to be manifestly erroneous or unjust. See In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951); Runnells v. Firestone, 746 S.W.2d 845, 849 (Tex.App.-Houston [14th Dist.] ), writ denied, 760 S.W.2d 240 (Tex.1988) (per curiam). In reviewing such a point of error, we must consider and weigh all of the evidence, both the evidence that tends to prove the existence of a vital fact as well as evidence that tends to disprove its existence. See Ames v. Ames, 776 S.W.2d 154, 158-59 (Tex.1989); Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). So, considering the evidence, if a finding is so contrary to the great weight and preponderance of the evidence as to be manifestly unjust, the point should be sustained, regardless of whether there is some evidence to support it. Watson v. Prewitt, 159 Tex. 305, 320 S.W.2d 815, 816 (1959); King's Estate, 244 S.W.2d at 661.

If evidence supports the implied findings of fact, we must uphold the trial court's judgment on any legal theory supported by the evidence. See Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990); Point Lookout W., Inc. v. Whorton, 742 S.W.2d 277, 278 (Tex.1987); Runnells, 746 S.W.2d at 848. This is so regardless of whether the trial court articulates the correct legal reason for the judgment. See Harrington v. R.R. Comm'n, 375 S.W.2d 892, 895 (Tex.1964); Marifarms Oil & Gas, Inc. v. Westhoff 802 S.W.2d 123, 125 (Tex.App.-Fort Worth 1991, no writ).

A court may assert personal jurisdiction over a nonresident defendant only if the requirements of both the Due Process Clause of the Fourteenth Amendment to the United States Constitution and the Texas long-arm statute are satisfied. U.S. CONST. amend. XIV, § 1; TEX. CIV. PRAC. REM.CODE ANN. § 17.042 (Vernon 1997); Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 413-14, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984); CSR Ltd., 925 S.W.2d at 594. The Texas Supreme Court has consistently interpreted the long-arm statute as reaching "as far as the federal constitutional requirements of due process will allow." Guardian Royal Exch. Assurance, Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 226 (Tex. 1991).

Under the Due Process Clause, a defendant must have certain minimum contacts with the forum such that maintaining suit there will not offend "traditional notions of fair play and substantial justice." Int'l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 85 L.Ed. 278 (1940)). 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. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475-76, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). However, a defendant should not be subject to the jurisdiction of a foreign court based on "random," "fortuitous," or "attenuated" contacts. Id., 471 U.S. at 475, 105 S.Ct. 2174.

The Texas Supreme Court has articulated a three-pronged formula to ensure compliance with the federal standard: 1) there must be a "substantial connection" between the nonresident defendant and Texas arising from action or conduct of the nonresident defe...