Perna v. Hogan

162 S.W.3d 648, 2005 Tex. App. LEXIS 2034, 2005 WL 608548
CourtCourt of Appeals of Texas
DecidedMarch 17, 2005
Docket14-03-01289-CV, 14-03-01290-CV, 14-03-01293-CV to 14-03-01295-CV, 14-03-01305-CV
StatusPublished
Cited by34 cases

This text of 162 S.W.3d 648 (Perna v. Hogan) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Perna v. Hogan, 162 S.W.3d 648, 2005 Tex. App. LEXIS 2034, 2005 WL 608548 (Tex. Ct. App. 2005).

Opinion

OPINION

J. HARVEY HUDSON, Justice.

A number of individuals donated their bodies 1 to the Anatomical Board of the State of Texas (the “Anatomical Board”), the agency responsible for overseeing the Willed Body Program in Texas. The Anatomical Board assigned the bodies to the University of Texas Medieal Branch at Galveston (“UTMB”). After the donor bodies were used for medical, science, and educational purposes, they were cremated. Appellees 2 — members of the donors’ families — allege that the ashes of the donor participants’ cremated bodies were either not returned to them or were commingled *652 with the cremated remains of other donors.

Appellees sued Agostino Perna (“Per-na”) and Mobile Medical Training Unit, L.L.C. (“Mobile Medical”), alleging that they bought and sold human body parts and profited from such trade and that they purchased body parts from UTMB and Allen Tyler, the supervisor of the Willed Body Program at UTMB. Appellees further alleged Perna and Mobile Medical should have known that bodies and body parts they received or purchased from Tyler were being transferred to them illegally and that any resale was also illegal. Appellees brought claims for negligence, negligence per se, gross negligence, breach of contract, constructive fraud, fraud, intentional infliction of emotional distress, and vicarious liability, and sought actual and punitive damages. 3

Perna and Mobile Medical filed special appearances, which the pretrial court denied. In this interlocutory appeal, Perna and Mobile Medical appeal the pretrial court’s order denying their respective special appearances. 4 We reverse the order of the pretrial court and dismiss these six cases against Perna and Mobile Medical.

A Texas court may exercise jurisdiction over a nonresident if two conditions are satisfied. First, the Texas long-arm statute must authorize the exercise of jurisdiction. Second, the exercise of jurisdiction must be consistent with federal and state constitutional guarantees of due process. American Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 806 (Tex.2002), ce rt. denied, 537 U.S. 1191, 123 S.Ct. 1271, 154 L.Ed.2d 1025 (2003); Schlobohm v. Schapiro, 784 S.W.2d 355, 356 (Tex.1990).

The Texas long-arm statute authorizes the exercise of jurisdiction over a nonresident defendant who does business in Texas. Tex. Civ. Peac. & Rem.Code Ann. § 17.042 (Vernon 1997). The Texas long-arm statute specifically provides:

In addition to other acts that may constitute doing business, a nonresident does business in this state if the nonresident:
(1) contracts by mail or otherwise with a Texas resident and either party is to perform the contract in whole or in part in this state;
(2) commits a tort in whole or in part in this state; or
(3) recruits Texas residents, directly or through an intermediary located in this state, for employment inside or outside this state.

Id. While the statute enumerates several specifics acts constituting “doing business,” it also includes “other acts that may constitute doing business.” Schlobohm, 784 S.W.2d at 357. The “doing business” requirement permits the statute to reach as far as the federal constitutional requirements of due process will allow. Guardian Royal Exchange Assur., Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 226 (Tex.1991).

The plaintiff has the initial burden of pleading sufficient allegations to bring the nonresident defendant within the *653 provisions of the Texas long-arm statute. Coleman, 83 S.W.3d at 806; BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 793 (Tex.2002). The nonresident defendant then has the burden of negating all bases of personal jurisdiction. National Indus. Sand Ass’n v. Gibson, 897 S.W.2d 769, 772 (Tex.1995). If the plaintiff does not plead jurisdictional allegations, i.e., that the defendant has committed any act in Texas, the defendant can satisfy its burden of negating all bases of personal jurisdiction by presenting evidence that it is a nonresident at the special appearance hearing. Experimental Aircraft Ass’n, Inc. v. Doctor, 76 S.W.3d 496, 502 (Tex.App.-Houston [14th Dist.] 2002, no pet.); M.G.M. Grand Hotel, Inc. v. Castro, 8 S.W.3d 403, 408 n. 2 (Tex.App.-Corpus Christ 1999, no pet.); Hotel Partners v. KPMG Peat Marwick, 847 S.W.2d 630, 634 (Tex.App.-Dallas 1993, writ denied).

Perna and Mobile Medical argue appel-lees’ pleadings do not support the exercise of long-arm jurisdiction. In their various petitions, appellees allege that Allen Tyler of UTMB illegally transferred and/or sold bodies and/or body parts that were willed to UTMB to Perna and Mobile Medical so that they could resell them to for-profit medical equipment and training companies and private labs and hospitals. It was also alleged that Perna and Mobile Medical breached the duty to use ordinary care in ascertaining the origins of body parts provided by or purchased from Tyler, to refrain from acquiring, reselling, or disposing of body parts, and to treat the donors’ bodies with dignity and respect, and to return the ashes of the donors to designated family members.

We find appellees have not alleged facts in their petitions bringing Perna and Mobile Medical within the Texas long-arm Statute, i.e., that Perna or Mobile Medical committed any act in Texas. However, a plaintiffs failure to make jurisdictional allegations in the petition is not subject to attack by the specially appearing defendant. Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199, 202-03 (Tex.1985); McDermott v. Cronin, 31 S.W.3d 617, 620 (Tex.App.-Houston [1st Dist.] 2000, no pet.). But while the specially appearing defendant cannot attack the plaintiffs petition, the defendant can meet his burden of proof in such cases by simply presenting evidence that he is not a Texas resident. McDermott 31 S.W.3d at 620.

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Cite This Page — Counsel Stack

Bluebook (online)
162 S.W.3d 648, 2005 Tex. App. LEXIS 2034, 2005 WL 608548, Counsel Stack Legal Research, https://law.counselstack.com/opinion/perna-v-hogan-texapp-2005.