Williams v. Gould, Inc., Nos. 87-703

CourtSupreme Court of Nebraska
Writing for the CourtBOSLAUGH, WHITE, CAPORALE, SHANAHAN, and FAHRNBRUCH, JJ., and RIST, District Judge, and COLWELL; SHANAHAN
Citation232 Neb. 862,443 N.W.2d 577
PartiesMozella WILLIAMS, Personal Representative of the Estate of Vergil Williams, Deceased, Appellant, v. GOULD, INC., et al., Appellees, Sidney Lerner, M.D., Appellee and Cross-Appellant. Tyree BIGGS, Sr., Appellant, v. GOULD, INC., et al., Appellees, Sidney Lerner, M.D., Appellee and Cross-Appellant. Ulysses ABBOTT, Appellant, v. GOULD, INC., et al., Appellees, Sidney Lerner, M.D., Appellee and Cross-Appellant.
Docket NumberNos. 87-703,87-704 and 87-705
Decision Date21 July 1989

Page 577

443 N.W.2d 577
232 Neb. 862
Mozella WILLIAMS, Personal Representative of the Estate of Vergil Williams, Deceased, Appellant,
v.
GOULD, INC., et al., Appellees, Sidney Lerner, M.D., Appellee and Cross-Appellant.
Tyree BIGGS, Sr., Appellant,
v.
GOULD, INC., et al., Appellees, Sidney Lerner, M.D., Appellee and Cross-Appellant.
Ulysses ABBOTT, Appellant,
v.
GOULD, INC., et al., Appellees, Sidney Lerner, M.D., Appellee and Cross-Appellant.
Nos. 87-703, 87-704 and 87-705.
Supreme Court of Nebraska.
July 21, 1989.

Page 579

Syllabus by the Court

1. Judgments: Jurisdiction: Appeal and Error. When determination of a jurisdictional question involves factual findings, a trial court's decision on the question of jurisdiction will be upheld unless the factual findings concerning jurisdiction are clearly erroneous.

2. Judgements: Jurisdiction: Appeal and Error. When a jurisdictional question does not involve a factual dispute, determination of the jurisdictional issue is a matter of law, which requires an appellate court to reach a conclusion independent from the trial court's conclusion on the jurisdictional issue.

3. Pleadings: Proof. Confronted with a special appearance, a plaintiff has the burden to establish facts which demonstrate the court's personal jurisdiction over the defendant.

4. Pleadings: Proof: Affidavits. A special appearance, which is preliminary and collateral to determining the merits of an action, is a pleading within the purview of Neb.Rev.Stat. § 25-1244 (Reissue 1985). Consequently, in a hearing on a special appearance, an affidavit may be used to prove or disprove the factual basis for a court's assertion or exercise of personal jurisdiction over a defendant.

5. Due Process: Jurisdiction: States. Before a court can exercise personal jurisdiction over a nonresident defendant, the court must, first, determine whether a statutory standard of the long-arm statute is satisfied, and, if the long-arm statute has been satisfied, second, whether minimum contacts exist between the defendant and the forum state for personal jurisdiction over the defendant without offending due process.

[232 Neb. 863] 6. Jurisdiction: Actions. Pursuant to Neb.Rev.Stat. § 25-536(1)(b) (Reissue 1985) of Nebraska's long-arm statute, a court may exercise personal jurisdiction over a person who acts directly or by an agent concerning a cause of action arising from the person's contracting to supply services or things in Nebraska.

7. Due Process: Jurisdiction: States. Due process for personal jurisdiction over a nonresident defendant requires the defendant's minimum contacts with the forum state so that maintenance of the suit does not offend traditional notions of fairness and reasonableness.

8. Due Process: Jurisdiction: States. To determine whether a court has personal jurisdiction over a nonresident defendant, the court must examine the quality and nature of the nonresident's activities and ascertain that the nonresident has sufficient minimum contacts with the forum state to satisfy the requisite due process for assertion or exercise of personal jurisdiction.

9. Due Process: Jurisdiction: States. Fairness and reasonableness, essential to due process in personal jurisdiction over a nonresident defendant, require that the defendant's contact with the forum state must be of a quality and nature that the defendant should reasonably anticipate being haled into court in the forum state.

10. Due Process: Jurisdiction. The minimum contacts standard supplies a degree of predictability to the legal system that allows potential defendants to structure their primary conduct with some minimum assurance as to where the conduct will or will not render them liable to suit.

11. Jurisdiction: States. A defendant's purposeful act, directed to the forum state, not merely the unilateral activity of another who claims a relationship to the defendant, connects the defendant to the forum state.

12. Jurisdiction: States. In determining whether a defendant's conduct pursuant to a contract has purposefully established

Page 580

minimum contacts with the forum state, a court considers prior negotiations between the parties, contemplated consequences of the contract, terms of the contract, and the course of dealing between the parties.

13. Jurisdiction: States. If a defendant's minimum contacts with a forum state are sufficient for personal jurisdiction, a court may consider other factors bearing on reasonableness and fairness in requiring a nonresident to defend a suit in the forum state, such as the defendant's burden in the litigation commenced in the forum state, the forum state's interest in adjudicating the dispute, the plaintiff's interest in obtaining convenient and efficient relief, the judicial system's interest in efficient resolution of controversies, and the shared interest of the states in furthering fundamental substantive social policies.

14. Jurisdiction: States. So long as a nonresident actor's efforts are purposefully directed toward residents of another state, absence of physical contacts with the forum state does not defeat personal jurisdiction over the nonresident defendant in the forum state.

15. Pleadings: Jurisdiction: Pretrial Procedure. Any party to an action in which a special appearance has been filed is entitled to discovery authorized by the Nebraska Discovery Rules to ascertain facts relevant to the court's jurisdiction over the person of the defendant.

16. Motions for Continuance: Affidavits: Good Cause. Under Neb.Rev.Stat. [232 Neb. 864] § 25-1148 (Reissue 1985), an application for continuance must be in writing and supported by an affidavit which contains factual allegations demonstrating good cause or sufficient reason necessitating postponement of proceedings.

Martin A. Cannon, of Matthews & Cannon, P.C., Omaha, and Eugene Mattioni, of Mattioni, Mattioni & Mattioni, Ltd., for appellants.

William M. Lamson, Jr., and Patricia A. Zieg, of Kennedy, Holland, DeLacy & Svoboda, Omaha, for appellee Lerner.

BOSLAUGH, WHITE, CAPORALE, SHANAHAN, and FAHRNBRUCH, JJ., and RIST, District Judge, and COLWELL, District Judge, Retired.

SHANAHAN, Justice.

The appellants, Tyree Biggs, Sr., Ulysses Abbott, and Mozella Williams, who is the surviving spouse and personal representative of the estate of Vergil Williams, filed their separate actions in the district court for Douglas County, Nebraska, against Gould, Inc., Robert J. Fitzgibbons, Sr., M.D., and Sidney Lerner, M.D., concerning bodily injuries caused by exposure to lead, cadmium, and arsenic at Gould's smelter in Omaha.

The Petitions.

In substantially identical petitions, appellants alleged the relationship of the parties and the basis for appellants' actions. Gould, which operated its smelter in Omaha, was not a Nebraska corporation, but had its principal place of business in Minnesota. Gould employed Lerner, an Ohio citizen, as a medical consultant "for the ostensible purpose of examining workers at the Gould plant in Omaha, and informing them of and protecting them from the hazards" of contact with or exposure to toxic substances encountered in Gould's smelter operations. Lerner's employment also included "overseeing plant and corporate policy in regard to biological and industrial monitoring and the health and maintenance of workers exposed to toxins at the lead smelting and refining plant of Gould, Inc." Gould also employed Fitzgibbons, a Nebraska citizen, as a [232 Neb. 865] medical consultant and health care provider for Gould's Omaha employees. According to the appellants, Lerner and Fitzgibbons "failed to conduct their activities with the acceptable standards of medical care," with the result that the physicians' "careless, wanton and reckless acts and omissions" caused permanent bodily injury to Biggs and Abbott and resulted in Vergil Williams' death. Each appellant requested damages from the defendants.

Page 581

Long-Arm Statute.

Pursuant to the Nebraska "long-arm statute," Neb.Rev.Stat. § 25-536 (Reissue 1985), appellants served summons on Lerner. See, Neb.Rev.Stat. § 25-505.01 (Reissue 1985) (service of summons); Neb.Rev.Stat. § 25-540 (Reissue 1985) (service of summons outside Nebraska). Section 25-536 provides:

A court may exercise personal jurisdiction over a person:

(1) Who acts directly or by an agent, as to a cause of action arising from the person:

(a) Transacting any business in this state;

(b) Contracting to supply services or things in this state;

(c) Causing tortious injury by an act or omission in this state;

(d) Causing tortious injury in this state by an act or omission outside this state if the person regularly does or solicits business, engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in this state;

(e) Having an interest in, using, or possessing real property in this state; or

(f) Contracting to insure any person, property, or risk located within this state at the time of contracting; or

(2) Who has any other contact with or maintains any other relation to this state to afford a basis for the exercise of personal jurisdiction consistent with the Constitution of the United States.

Special Appearance.

Lerner filed a special appearance in the actions, objecting to personal jurisdiction by a Nebraska court "for the reason that the Court is without jurisdiction of this Defendant in that this [232 Neb. 866] Defendant has had insufficient minimum contact with the State of Nebraska sufficient to satisfy the due process requirements of the United States Constitution and Nebraska Constitution."

Hearing on Special Appearance.

At the hearing on Lerner's special appearance, the parties offered affidavits concerning the question of personal jurisdiction over Lerner.

On May 21, 1975, Lerner, an expert on the medical aspects of occupational lead exposure and a resident of Cincinnati, Ohio, wrote to J.E. Gillan, Gould's corporate...

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36 practice notes
  • State ex rel. Grape v. Zach, No. S-93-454
    • United States
    • Supreme Court of Nebraska
    • December 9, 1994
    ...on the issue will be upheld unless the factual findings concerning jurisdiction are clearly incorrect. See Williams v. Gould, Inc., 232 Neb. 862, 443 N.W.2d 577 (1989). The question as to whether jurisdiction existing under the act should be exercised is another matter. That determination i......
  • Quality Pork Intern. v. RUPARI FOOD SVCS., No. S-01-1203.
    • United States
    • Supreme Court of Nebraska
    • March 5, 2004
    ...has the burden to establish facts which demonstrate the court's personal jurisdiction over the defendant. Williams v. Gould, Inc., 232 Neb. 862, 443 N.W.2d 577 (1989). In a hearing on a special appearance, an affidavit may be used to prove or disprove the factual basis for a court's asserti......
  • Distinctive Printing and Packaging Co. v. Cox, No. 87-654
    • United States
    • Supreme Court of Nebraska
    • July 21, 1989
    ...I see nothing to prevent the application of the "excessive fines" clause of article I, § 9, of the Nebraska Constitution in the case [232 Neb. 862] before us. See Colonial Pipeline Co. v. Brown, 258 Ga. 115, 365 S.E.2d 827 I would affirm. ...
  • Riley v. State, No. S-91-541
    • United States
    • Supreme Court of Nebraska
    • October 1, 1993
    ...appellate court to reach a conclusion independent from the trial court's conclusion on the jurisdictional issue." Williams v. Gould, Inc., 232 Neb. 862, 871, 443 N.W.2d 577, 584 (1989). See, also, Huffman v. Huffman, 232 Neb. 742, 441 N.W.2d 899 Summary judgment is appropriate where "the pl......
  • Request a trial to view additional results
37 cases
  • State ex rel. Grape v. Zach, No. S-93-454
    • United States
    • Supreme Court of Nebraska
    • December 9, 1994
    ...on the issue will be upheld unless the factual findings concerning jurisdiction are clearly incorrect. See Williams v. Gould, Inc., 232 Neb. 862, 443 N.W.2d 577 (1989). The question as to whether jurisdiction existing under the act should be exercised is another matter. That determination i......
  • Quality Pork Intern. v. RUPARI FOOD SVCS., No. S-01-1203.
    • United States
    • Supreme Court of Nebraska
    • March 5, 2004
    ...has the burden to establish facts which demonstrate the court's personal jurisdiction over the defendant. Williams v. Gould, Inc., 232 Neb. 862, 443 N.W.2d 577 (1989). In a hearing on a special appearance, an affidavit may be used to prove or disprove the factual basis for a court's asserti......
  • Distinctive Printing and Packaging Co. v. Cox, No. 87-654
    • United States
    • Supreme Court of Nebraska
    • July 21, 1989
    ...I see nothing to prevent the application of the "excessive fines" clause of article I, § 9, of the Nebraska Constitution in the case [232 Neb. 862] before us. See Colonial Pipeline Co. v. Brown, 258 Ga. 115, 365 S.E.2d 827 I would affirm. ...
  • Riley v. State, No. S-91-541
    • United States
    • Supreme Court of Nebraska
    • October 1, 1993
    ...appellate court to reach a conclusion independent from the trial court's conclusion on the jurisdictional issue." Williams v. Gould, Inc., 232 Neb. 862, 871, 443 N.W.2d 577, 584 (1989). See, also, Huffman v. Huffman, 232 Neb. 742, 441 N.W.2d 899 Summary judgment is appropriate where "the pl......
  • Request a trial to view additional results

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