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Cronin v. Sierra Medical Center6/19/2000
Tercero v. Roman Catholic Diocese of Norwich, Conn., 1999-NMCA-052, 12, 127 N.M. 294, 980 P.2d 77, cert. granted, No. 25,618 (April 17, 1999).
DISCUSSION
Plaintiffs failed to serve process upon Defendants within the territorial limits of New Mexico. Nevertheless, they contend that the trial court had the authority to assert personal jurisdiction over the non-resident Defendants. In order for this contention to hold true, the conduct Plaintiffs complain of must meet a three-part test: (1) Defendants must have done at least one of the acts enumerated in our long-arm statute, (2) Plaintiffs' causes of action must have arisen from the act or acts, and (3) Defendants must have had minimum contacts with New Mexico sufficient to satisfy constitutional due process. See Visarraga v. Gates Rubber Co., 104 N.M. 143, 146, 717 P.2d 596, 599 (Ct. App. 1986).
A. Long-Arm Statute and Causes of Action
Plaintiffs claim Defendants' conduct satisfies the requirements of our long-arm statute. See NMSA 1978, ยง 38-1-16 (1971). Section 38-1-16(A) provides that any party, whether or not a resident of New Mexico, who does one or more of our long-arm statute's enumerated acts submits to the jurisdiction of the courts of this State so long as the complainant's cause of action arises from:
(1) the transaction of any business within this state;
(2) the operation of a motor vehicle upon the highways of this state;
(3) the commission of a tortious act within this state;
(4) the contracting to insure any person, property or risk located within this state at the time of contracting;
(5) with respect to actions for divorce, separate maintenance or annulment, . . . if one party to the marital relationship continues to reside in the state. Section 38-1-16(A).
The parties agree that based on the facts presented in this case, we need only consider whether Defendants' conduct falls within subsections (1) and (3) of our long-arm statute.
1. Business
Plaintiffs claim Defendants transacted business in New Mexico. The determination of whether a party has transacted business within the meaning of our State's long-arm statute must be made on a case-by-case basis. See Telephonic, Inc. v. Rosenblum, 88 N.M. 532, 534, 543 P.2d 825, 827 (1975) (stating that the resolution of this issue is to "be determined by the facts in each case"). It appears from the record that Plaintiffs raised this claim only as to Hospital at the trial court level. We restrict our analysis accordingly. See Beneficial Fin. Co. v. Alarcon, 112 N.M. 420, 424, 816 P.2d 489, 493 (1991) (ruling that matters not properly before the trial court cannot be considered for the first time on appeal).
Plaintiffs contend that Hospital transacted business in New Mexico because it placed advertisements in several New Mexico telephone directories, produced television commercials that could be and were viewed by New Mexico customers, and previously performed health care services for other New Mexico customers. In support of their contention, Plaintiffs provided the trial court with copies of Hospital's written ads, which appeared in the white and yellow pages of the Roswell, Alamogordo, Silver City, and Las Cruces telephone directories for the years 1994 to 1997. Plaintiffs also produced Patient's affidavit in which he stated that he was aware of and had seen Hospital's commercial advertisements on his television. In his affidavit, Patient averred that he decided to have the surgery performed at Hospital based on its general solicitations, as well as on the recommendation from some of his fellow employees
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