Phelps v. Kingston

536 A.2d 740, 130 N.H. 166, 1987 N.H. LEXIS 301
CourtSupreme Court of New Hampshire
DecidedDecember 7, 1987
DocketNo. 87-036
StatusPublished
Cited by81 cases

This text of 536 A.2d 740 (Phelps v. Kingston) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Phelps v. Kingston, 536 A.2d 740, 130 N.H. 166, 1987 N.H. LEXIS 301 (N.H. 1987).

Opinion

Johnson, J.

The plaintiffs, Nancy Phelps and her husband Richard Phelps, appeal from the Superior Court’s (Gray, J.) dismissal of their complaint for lack of in personam jurisdiction over the defendant, Haskell Kingston, D.M.D. For the reasons stated below, we hold that the superior court does have in personam jurisdiction over the defendant, and therefore reverse and remand.

During the late winter or early spring of 1985, plaintiff Nancy Phelps, a New Hampshire resident, developed what she later found to be a cancerous parotid gland tumor at the corner of the right side of her jaw. In late March of that year, while visiting her regular dentist, Dr. James Malloy, in Portsmouth, she mentioned the then undiagnosed lump and accompanying pain in her jaw to attending staff. The receptionist, who worked both part-time for Dr. Malloy in Portsmouth and part-time for the defendant, Dr. Kingston, offered to make the plaintiff an appointment with Dr. [169]*169Kingston, who she allegedly said had experience with such problems, at his office in Eliot, Maine. The plaintiff agreed, and the receptionist arranged an appointment for April 8, 1985. On that date Nancy Phelps saw Dr. Kingston at his Eliot, Maine office. As a result of that visit, she now sues him for dental malpractice, alleging that he failed reasonably and properly to diagnose and treat her condition, failed properly to follow-up her case, and prematurely discharged her from his care. She contends that, as a result of this alleged malpractice, the cancerous tumor grew and spread. This, she says, ultimately necessitated radical surgery, which caused serious nerve damage and disfigurement to the right side of her face. It also created the danger of the cancer’s terminal recurrence. In a separate but related action, the plaintiffs also sue Dr. Ira Schwartz, a Portsmouth internist who apparently lacks any contact with the State of Maine, for malpractice arising out of his examination of Nancy Phelps regarding the same jaw condition.

Dr. Kingston is a resident of South Berwick, Maine, with his sole office in Eliot, Maine. He holds a valid New Hampshire dental license and has been licensed to practice dentistry in this State since 1982. He thus continues to be subject to regulation by the board of dental examiners of New Hampshire. See RSA ch. 317-A. Indeed, Dr. Kingston was a New Hampshire resident from 1981 through 1983 and practiced dentistry in this State from 1981 through 1984. Of the 1350 families that he treats, approximately 100 reside in New Hampshire, as do two of his eight employees. Dr. Kingston also advertises his practice in the Yellow Pages for the Portsmouth, Exeter, Dover, Somersworth and Rochester area.

On the defendant’s motion to dismiss the action against him, the trial court issued the following order dismissing the plaintiffs’ complaint for lack of personal jurisdiction:

“The Court finds that the tortious act complained of happened, if at all, in Maine and therefore RSA 510:4(1) does not apply. The fact that the Defendant has contacts with N.H. is not determinative. RSA 510:4(1) states that jurisdiction arises out of the ‘acts enumerated above’ and one of the ‘acts enumerated above’ is the commission of a ‘tortious act within this state.’ Non relevant contacts with N.H. are therefore insufficient to give rise to jurisdiction. The Motion to Dismiss is granted.”

The plaintiffs now appeal this decision, contending that New Hampshire may exercise personal jurisdiction over the defendant consistent with RSA 510:4, I, and the United States Constitution.

[170]*170In determining whether or not it may exercise in personam jurisdiction over a foreign defendant, a court must typically engage in a two-part inquiry. It must first determine whether the State’s long-arm statute authorizes such jurisdiction. Weld Power Industries v. C.S.I. Technologies, 124 N.H. 121, 125, 467 A.2d 568, 570 (1983); Tavoularis v. Womer, 123 N.H. 423, 426, 462 A.2d 110, 112 (1983); Cove-Craft Industries v. B. L. Armstrong Co. Ltd., 120 N.H. 195, 198, 412 A.2d 1028, 1030 (1980). If the long-arm statute would establish jurisdiction over the defendant, the court must further ask whether the defendant has “minimum contacts” with the State sufficient to insure that suit against him there does not offend “traditional notions of fair play and substantial justice.” International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (citation omitted); see Hall v. Koch, 119 N.H. 639, 644, 406 A.2d 962, 965 (1979). The plaintiff bears the burden of demonstrating facts sufficient to establish personal jurisdiction over the defendant. Weld Power Industries, supra at 123, 467 A.2d at 469; Kibby v. Anthony Industries, Inc., 123 N.H. 272, 274, 459 A.2d 292, 293-94 (1983). In determining whether this burden has been met, the court will take facts that the plaintiff has properly pleaded as true and will construe reasonable inferences therefrom in the manner most favorable to the plaintiff. Weld supra; Lawton v. Great Southwest Fire Ins. Co., 118 N.H. 607, 610, 392 A.2d 576, 578 (1978); Bell v. Pike, 53 N.H. 473, 475 (1873).

RSA 510:4, I, the New Hampshire long-arm statute that confers jurisdiction over individuals, provides that:

“Any person who is not an inhabitant of this state and who, in person or through an agent, transacts any business within this state, commits a tortious act within this state, or has the ownership, use, or possession of any real or personal property situated in this state submits himself, or his personal representative, to the jurisdiction of the courts of this state as to any cause of action arising from or growing out of the acts enumerated above.”

The question whether RSA 510:4, I, provides for jurisdiction over a foreign defendant in a malpractice suit, when all examination and treatment occurred outside the State, is not one that this court has previously addressed. However, we have held that the legislature intended RSA 510:4, I, “to be construed in the broadest legal sense to encompass personal, private and commercial transactions.” Leeper v. Leeper, 114 N.H. 294, 297, 319 A.2d 626, 628 (1974) (citations omitted). We have further held that the [171]*171legislature’s purpose in enacting the statute was to provide resident plaintiffs a convenient forum in which to sue for injuries attributable to foreign defendants. Tavoularis, supra at 425, 462 A.2d at 112. In light of these legislative purposes, we have further construed both RSA 510:4, I, and its corporate parallel, RSA 293-A:121, to provide jurisdiction over foreign defendants to the full extent that the statutory language and due process will allow. Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 774 (1984); Tavoularis, supra at 426, 462 A.2d at 112; Roy v. Transairco, Inc., 112 N.H.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cappello v. Restaurant Depot, LLC
89 F.4th 238 (First Circuit, 2023)
Vapotherm, Inc. v. Santiago
38 F.4th 252 (First Circuit, 2022)
Allstate v. Grohe Canada, Inc.
2018 DNH 032 (D. New Hampshire, 2018)
Campbell v. CGM, LLC
2015 DNH 143 (D. New Hampshire, 2015)
D’Jamoos v. Atlas Aircraft, et al.
2009 DNH 170 (D. New Hampshire, 2009)
Vermont Wholesale Building Products, Inc. v. J.W. Jones Lumber Co.
914 A.2d 818 (Supreme Court of New Hampshire, 2006)
Beckwith Builders v. Depietri, et al.
2006 DNH 107 (D. New Hampshire, 2006)
Eastern Bridge v. Bette & Cring
2006 DNH 061 (D. New Hampshire, 2006)
Northern Laminate Sales, Inc. v. Davis
403 F.3d 14 (First Circuit, 2005)
Dagesse v. Esperti, et al.
2003 DNH 209 (D. New Hampshire, 2003)
Christian v. Barricade Books
2003 DNH 078 (D. New Hampshire, 2003)
Northern Laminate Sales, Inc. v. Matthews
249 F. Supp. 2d 130 (D. New Hampshire, 2003)
Northern Laminate v. Matthews
2003 DNH 032 (D. New Hampshire, 2003)
Steir v. Girl Scouts
2002 DNH 167 (D. New Hampshire, 2002)
Raymarine v. Argonaut Computer
2002 DNH 147 (D. New Hampshire, 2002)
Remsburg v. Docusearch et al.
2002 DNH 035 (D. New Hampshire, 2002)
The Mountain Corp. v. Noles
2002 DNH 010 (D. New Hampshire, 2002)

Cite This Page — Counsel Stack

Bluebook (online)
536 A.2d 740, 130 N.H. 166, 1987 N.H. LEXIS 301, Counsel Stack Legal Research, https://law.counselstack.com/opinion/phelps-v-kingston-nh-1987.