Chris Uche, M.D. v. Melody and Marvin Allison Indiv. A/N/F for Dorothy Mueller

Opinion issued October 11, 2007

Opinion issued October 11, 2007

In The

Court

of Appeals

For The

First

District of Texas

NO. 01-06-00546-CV

CHRIS UCHE, M.D., Appellant

V.

MELODY ALLISON, INDIVIDUALLY AND AS REPRESENTATIVE OF

THE ESTATE OF DOROTHY MUELLER, Appellee

On Appeal from the 56th District

Court

Galveston County, Texas

Trial Court Cause No.

02-CV-1436

O P I N I O N

In this medical malpractice suit, appellant, Chris Uche, M.D., brings an

accelerated interlocutory appeal challenging the trial court’s order denying his

motion for special appearance. In

one issue on appeal, Dr. Uche argues that the trial court erred in denying his

special appearance in favor of appellee, Melody Allison, individually and as

representative of the estate of Dorothy Mueller (collectively

“Allison”).

We reverse and render.

BACKGROUND

The facts of this dispute can be found in a prior opinion from this

Court. 1 Dorothy Mueller boarded a Carnival

Cruise Ship that departed from Galveston on February 21, 2002. Because Mrs. Mueller has a feeding tube,

her son-in-law and her daughter, Melody, went along with her. 2 During the voyage, Mrs. Mueller’s

feeding tube became dislodged.

According to Allison’s third amended petition, Mrs. Mueller attempted to

get care from the ship’s infirmary, where one doctor, Dr. Uche, and three nurses

were stationed. It is undisputed

that Mrs. Mueller did not get her feeding tube reinserted on the cruise

ship. A couple of weeks after the

cruise, Mrs. Mueller had a stroke that is alleged to have been the result of the

negligent care given aboard the ship.

Allison filed suit against various parties, including Dr. Uche, the head

nurse, and Carnival Cruise Lines.

In our prior opinion, we held that while Dr. Uche worked aboard the ship,

the Celebration , he served as an independent contractor and that Mrs.

Mueller’s injury occurred in international waters. 3

Dr. Uche filed a special appearance arguing that the trial court lacked

both general and specific jurisdiction over him. The trial court denied Dr. Uche’s motion

for special appearance on May 15, 2006.

On December 27, 2006, while this appeal was pending, Dr. Uche moved for

sanctions, alleging that Allison made “gross misstatements of fact and concocted

arguments [that] lack even a scintilla of merit or credibility independently, or

collectively, in addition to Appellees’ brief containing such an inordinate

amount of falsehoods, inventions and deceptions . . . .” On January 30, 2007, we ordered that the

motion for sanctions be carried with the case. Dr. Uche moved to stay the trial

proceedings, and, on December 8, 2006, we ordered that the commencement of trial

be stayed pending resolution of this appeal. See T ex. Civ. Prac. & Rem. Code Ann.

51.014(b) (Vernon Supp. 2006).

PERSONAL

JURISDICTION

In his sole issue on appeal, Dr. Uche argues that the trial court erred

when it denied his special appearance.

Standard of Review

Whether a court has personal jurisdiction over a defendant is a question

of law subject to de novo review.

BMC Software Belgium, N.V. v. Marchand , 83 S.W.3d 789, 794 (Tex.

2002); Glattly v. CMS Viron Corp. , 177 S.W.3d 438, 445 (Tex. App.—Houston

[1st Dist.] 2005, no pet.). The

trial court, however, must frequently resolve questions of fact before deciding

the jurisdictional question. BMC

Software , 83 S.W.3d at 794 . If

the trial court enters an order denying a special appearance and issues findings

of fact and conclusions of law, we may review the findings of fact on legal and

factual sufficiency grounds and review the conclusions of law de novo as a legal

question. Silbaugh v.

Ramirez , 126 S.W.3d 88, 94 (Tex. App.—Houston [1st Dist.] 2002, no pet.)

(citing BMC Software , 83 S.W.3d at 794 ).

If the trial court does not issue findings of fact and conclusions of

law, as here, “all facts necessary to support the judgment and supported by the

evidence are implied.” BMC

Software , 83 S.W.3d at 795 . In

other words, if the trial court does not issue findings of fact, a reviewing

court should presume that the trial court resolved all factual disputes in favor

of its judgment. Tri-State Bldg.

Specialties, Inc. v. NCI Bldg. Sys., L.P. , 184 S.W.3d 242, 246 (Tex.

App.—Houston [1st Dist.] 2005, no pet.) (citing American Type Culture

Collection, Inc. v. Coleman , 83 S.W.3d 801, 806 (Tex. 2002)). These findings are not conclusive when

the appellate record includes both the reporter’s and clerk’s records, and they

may be challenged for legal and factual sufficiency on appeal. Id. To the extent that the underlying facts

are undisputed, however, we conduct a de novo review. Glattly , 177 S.W.3d at

445 .

Two requirements must be met before a Texas court can exercise personal

jurisdiction over a nonresident defendant.

First, the Texas long-arm statute must authorize the exercise of

jurisdiction, and second, the exercise of jurisdiction must be consistent with

the guarantees of due process.

Coleman , 83 S.W.3d at 806 ; Tri-State , 184 S.W.3d at

248 .

The long-arm statute permits Texas courts to exercise personal

jurisdiction over a nonresident 4 defendant that “does business” in

Texas. Tex. Civ. Prac. & Rem. Code Ann. §

17.042 (Vernon 1997); BMC Software , 83 S.W.3d at 795 . The statute lists three activities that

constitute “doing business”: (1) contracting with a Texas resident when either

party is to perform the contract in whole or in part in Texas;

(2) committing a tort in whole or in part in Texas; and (3) recruiting

Texas residents for employment inside or outside of Texas. Tex. Civ. Prac. & Rem. Code Ann.

§ 17.042. This list,

however, is not exclusive, 5 and the statute’s “doing business”

requirement is limited only by the requirements of federal due process. Koll Real Estate Group, Inc. v.

Purseley , 127 S.W.3d 142, 146 (Tex. App.—Houston [1st Dist.] 2003, no pet.)

(citing Schlobohm v. Schapiro , 784 S.W.2d 355, 356 (Tex.

1990)).

Because the language of the long-arm statute is broad, its requirements

are considered satisfied if the exercise of personal jurisdiction comports with

federal due process limitations.

CSR, Ltd. v. Link , 925 S.W.2d 591, 594 (Tex. 1996). In practice, the two conditions are

combined into one requirement of due process. Wright v. Sage Eng’g, Inc ., 137

S.W.3d 238, 247 (Tex. App.—Houston [1st Dist.] 2004, pet. denied). Thus, the true determinative inquiry is

one of federal constitutional due process.

See id .; see also Guardian Royal Exch. Assurance, Ltd. v.

English China Clays, P.L.C ., 815 S.W.2d 223, 226 (Tex.

1991).

With respect to personal jurisdiction, federal due process requires two

things. First, the nonresident

defendant must have purposefully established such minimum contacts with the

forum state that the defendant could reasonably anticipate being sued

there. Glattly , 177 S.W.3d

at 447 (citing Burger King Corp. v. Rudzewicz , 471 U.S. 462 , 475–76, 105

S. Ct. 2174 , 2183–84 (1985)).

Second, if the nonresident defendant has purposefully established minimum

contacts with the forum, the exercise of personal jurisdiction must also comport

with traditional notions of fair play and substantial justice. Id. (citing Burger King ,

471 U.S. at 475–76, 105 S. Ct. at 2183–84). As to fairness, the defendant bears the

burden of presenting a “compelling case” that exercising jurisdiction over him

would not be fair and just. See

id. at 450. Only in rare cases,

however, will a Texas court’s exercise of personal jurisdiction not comport with

fair play and substantial justice when the nonresident defendant has

purposefully established minimum contacts with the forum state. Guardian Royal Exch. Assurance ,

815 S.W.2d at 231 .

A nonresident establishes minimum contacts with Texas by purposefully

availing itself of the privileges and benefits inherent in conducting business

in the state. Michiana Easy

Livin’Country, Inc. v. Holten , 168 S.W.3d 777, 784 (Tex. 2005); Koll ,

127 S.W.3d at 146 . The touchstone

of jurisdictional due process is “purposeful availment,” i.e., “it is essential

in each case that there be some act by which the defendant purposefully

avails itself of the privilege of conducting activities within the forum

State, thus invoking the benefits and protections of its laws.” Michiana ,

168 S.W.3d at 784 (quoting Hanson v. Denckla , 357 U.S. 235, 253 , 78 S.

Ct. 1228, 1240 (1958)) (emphasis in Michiana ). Three aspects of the requirement are

important in this case, as in Michiana : (1) only the defendant’s contacts

with the forum count, not the unilateral activity of another party or person;

(2) the acts relied on to establish jurisdiction must be “purposeful” rather

than fortuitous; and (3) the defendant must seek some benefit, advantage, or

profit by “availing” itself, or himself, of the jurisdiction. Id . at 785. It is the quality and nature of the

defendant’s contacts, rather than their number, that is important to the

minimum-contacts analysis.

Trigeant Holdings, Ltd. v. Jones , 183 S.W.3d 717, 725 (Tex.

App.—Houston [1st Dist.] 2005, pet. denied). Random, fortuitous, or attenuated acts,

or the unilateral acts of a third party, are not sufficient to confer personal

jurisdiction. Id. Although not determinative,

foreseeability is an important consideration in deciding whether a nonresident

defendant has purposefully established minimum contacts. Glattly , 177 S.W.3d at

446–47.

The minimum contacts element of due process is further divided into

specific and general personal jurisdiction. Id. at 447 . A court may exercise specific

jurisdiction over a nonresident defendant if his alleged liability arises from,

or is related to, an activity conducted within the forum. Id. (citing CSR , 925

S.W.2d at 595 ). The contacts must

be purposefully directed at the forum and have a “substantial connection” that

results in the alleged injuries.

Shell Compañia Argentina de Petroleo, S.A. v. Reef Exploration,

Inc. , 84 S.W.3d 830, 837 (Tex. App.—Houston [1st Dist.] 2002, pet.

denied). We focus our analysis on

the relationship among the defendant, the forum, and the litigation. Id.

A court may exercise general jurisdiction over a nonresident defendant if

the defendant’s contacts with the forum state are continuous and systematic,

even if the cause of action did not arise from or relate to the defendant’s

contacts with the forum.

Glattly , 177 S.W.3d at 447 .

In confining one’s activities to another forum, “a nonresident may

purposefully avoid a particular jurisdiction by structuring its transactions so

as neither to profit from the forum’s laws nor be subject to its

jurisdiction.” Michiana , 168

S.W.3d at 785 . For the court to

have specific jurisdiction, the nonresident defendant must have established

minimum contacts by purposefully availing itself of the privilege of conducting

activities in Texas and there must be a substantial connection between those

contacts and the operative facts of the litigation. Moki Mac River Expeditions v.

Drugg , 221 S.W.3d 569, 576, 585 (Tex. 2007).

The plaintiff bears the initial burden of pleading sufficient allegations

to bring a nonresident defendant within the provisions of the Texas long-arm

statute. BMC Software , 83

S.W.3d at 793 . A nonresident

defendant challenging the court’s exercise of personal jurisdiction through a

special appearance carries the burden of negating all grounds for personal

jurisdiction alleged by the plaintiff.

Id. ; Glattly , 177 S.W.3d at 446 .

General Jurisdiction

On appeal, Allison contends that Dr. Uche had continuous and systematic

contacts with Texas because the ship on which he practiced took on 1,300 Texans

every week for a four-month period.

Under the section of the petition styled “Long Arm Statute,” Allison

alleges that Dr. Uche is

amenable to jurisdiction in Texas because [he] has

purposefully established minimum contacts with Texas. Specifically, [he] sought employment

with Carnival Corporation so as to be stationed in Galveston, Texas for months

at a time. For each week that

Defendants worked out of the Galveston port, over 1,000 Texas residents and

others coming to Texas boarded the ship.

The individual Defendants purposefully put themselves in the position of

providing medical care to any Texas resident who needed care during the

cruise. When medical care personnel

deliberately station themselves so as to be giving care to Texas residents for

months at a time, Texas has a substantial interest in ensuring the quality of

that care. Additionally, since

Defendants contract to work for Carnival for half a year at a time out of

Galveston, Texas or other United States ports, it would not be unduly burdensome

or otherwise unfair to them to defend this suit in Galveston, Texas.

Allison argues that the trial court

has general jurisdiction over Dr. Uche and that Dr. Uche had continuous and

systematic contacts with Texas because of the number of passengers who came

aboard the Celebration and the number of passengers who visited the

infirmary during the time that the Celebration was stationed in

Galveston. Dr. Uche argues that he did not have continuous and systematic

contacts with the state to subject him to general jurisdiction.

The head nurse on the Celebration , Constance Jackson, testified by

deposition that she worked on the Celebration for four months. Jackson

estimated that the Celebration’s infirmary would see 20 passengers and 50

crew persons a week. She testified

that there were a lot of Texans on board, but that people came from other states

as well. 6 She said that the Celebration

would leave port once a week on average and that approximately 1,300 passengers

would board the Celebration every week. Out of the 2,000 person capacity of the

Celebration , there were three passengers to every crew member. The ship would stay in port for eight

hours to unload passengers and pick up new passengers, and it would then set out

to sea.

In his deposition, Dr. Uche testified that he worked on the

Celebration for a four-month period. He testified that Carnival assigns the

doctors to the ships and that he was on the ship 99% of the time. He would fly into one of the Houston

airports and then take a shuttle from the airport to the

Celebration . He flew at

least twice to the two Houston airports.

He stated that if a nurse saw something she cannot handle, she was

supposed to contact the doctor. Dr.

Uche stated that while aboard the ship, he could not refuse medical help to a

person, but that in certain circumstances he could refuse to see a patient. He clarified his answer to say that if

someone came to see him, he would have to see them. If a passenger came to see him in the

infirmary, he would never refuse to see them. The infirmary had a morning session and

an afternoon session, and he was on call 24 hours a day. Dr. Uche stated that if a passenger

boarded the ship with a headache, the passenger could come to the infirmary and

get some aspirin. He clarified that

most of the time while they were in port, the infirmary was closed. If someone became sick while at sea, the

clinic would arrange for the patient to be transported to a facility on land

once the ship docked.

Dr. Uche is not licensed to practice medicine in Texas, and he has never

practiced medicine in Texas. He

neither owns any property in Texas nor pays any taxes on any property in

Texas. Dr. Uche testified that he

conducts no business of any kind in Texas.

He only handled patients while on board the Celebration , and he

only saw patients after the ship had gone into international waters.

General jurisdiction requires a showing that the defendant conducted

“substantial activities” within the forum, which requires a more demanding

minimum contacts analysis than specific jurisdiction. Coleman , 83 S.W.3d at 807 ;

Guardian Royal Exch. Assurance , 815 S.W.2d at 228 . Thus, general jurisdiction presents a

“more onerous” burden of proof.

Marchand , 83 S.W.3d at 797 .

In essence, under general jurisdiction, the contacts “should be such as

to justify categorizing the defendant as a resident of this State.” Schexnayder , 187 S.W.3d at

243. “[O]ne suggested method of

determining whether general jurisdiction over a defendant truly lies in Texas is

by determining whether a citizen of another state, on a claim for wrongdoing in

another state, could nevertheless properly sue the defendant in Texas

courts.” Schexnayder , 187

S.W.3d at 243 (citing Charles Rhodes, The Predictability Principle in

Personal Jurisdiction Doctrine: A

Case Study on the Effects of a “Generally” too Broad, but “Specifically” too

Narrow Approach to Minimum Contacts , 57 B aylor L. Rev . 135, 149–55

(2005)).

Dr. Uche contends that he does not have minimum contacts with Texas

because any contact he had with Texas was not chosen by Dr. Uche, but rather by

Carnival, and that the unilateral acts of a third party do not meet the

requirements of a defendant who purposefully avails himself of the benefits and

protections of Texas law. For

instance, Dr. Uche argues that “Carnival’s voluntary choice to have Galveston be

a port of departure for its cruise line, is a unilateral act of its own, for

which Uche is not responsible.” Dr.

Uche also argues that

the fact that Carnival happens to have customers

(passengers), albeit Texas residents or residents of other states, is likewise a

result of Carnival’s (or arguably the customer/passenger’s) unilateral acts . .

. . Any monies paid to Uche by Carnival, on account of the Carnival/Uche

contract, executed in Georgia, for work to be performed in international waters

does not transform Uche into an entity that is purposefully availing itself of

the privilege of doing business in Texas.

Allison argues that Dr. Uche had ample contacts with Texas to justify

jurisdiction. Namely, the trial

court has general and specific jurisdiction over Dr. Uche based on the fact that

“Mrs. Mueller was one of approximately 1,300 Texans that boarded the Carnival

Celebration every week before it left its home port of Galveston.” Allison further argues that “the 1,300

Texans were the sole source of patients for the months he was based in

Galveston” and that Dr. Uche “made himself available to over 20,000 Texans for

medical care as he set up shop on the Carnival cruise ship across a 30’

gangplank from Galveston.” Allison

argues that “[t]he incident giving rise to this suit was a result of Uche’s

repeated weekly contacts with Texas made in pursuit of his medical

practice.”

Allison has pleaded that

[He] sought employment with Carnival Corporation so as

to be stationed in Galveston, Texas for months at a time . . . The individual

defendants purposefully put themselves in the position of providing medical care

to any Texas resident who needed care during the cruise. When medical care personnel deliberately

station themselves so as to be giving care to Texas residents for months at a

time, Texas has a substantial interest in ensuring the quality of that

care.

We limit our analysis to Dr. Uche’s contacts with the state, not

Carnival’s contacts with the state. 7 See Moki Mac , 221 S.W.3d at 575

(stating that, for purposeful availment, “only the defendant’s contacts with the

forum are relevant, not the unilateral activity of another party or a third

person”). Here, while it may have

been foreseeable that Dr. Uche would commit some act or fail to act and that his

actions could lead to litigation in Texas, the record in this case does not

reflect that Dr. Uche himself, purposefully directed any act toward Texas. See CSR Ltd. , 925 S.W.2d at 596

(“Absent . . . a purposeful act, foreseeability alone cannot create minimum

contacts between [the defendant] and Texas.”).

Allison’s pleading that Dr. Uche purposefully “sought employment with

Carnival Corporation so as to be stationed in Galveston, Texas for months at a

time” is refuted by Dr. Uche’s statement that Carnival assigns him to a

specific ship. He stated that

“Carnival assigns you, but sometimes you can request.” He clarified, “[W]ell, that’s where I

was assigned. I mean, see, working

for a company you can’t really say, well, I want to go here. That’s where I was assigned to go.”

The record does not show that Dr. Uche asked Carnival that he be sent to

Texas, that he intended to serve the Texas market, that he communicated with

patients living in Texas, or that he had any substantial contact with Texas

residents before the ship reached international waters. See Moki Mac , 221 S.W.3d at 577

(“Examples of additional conduct that may indicate whether a defendant

purposefully availed itself of a particular forum include advertising and

establishing channels of regular communication to customers in the forum

state.”); see also CSR , 925 S.W.2d at 595 (stating that there must be

some indication that defendant intended to serve Texas market). Nor does the record show that the

alleged tortious medical treatment or failure to give medical treatment occurred

in Texas. See Anderson v.

Bechtle , 2001 WL 930205 , at *2 (Tex. App.—Houston [1st Dist.] Aug. 16, 2001,

no pet) (not designated for publication) (“Standing alone, it is difficult to

see how a failure to act could meet the purposeful availment requirement needed

to establish personal jurisdiction.”).

Thus, we conclude that the record does not support Allison’s claims that

Dr. Uche purposefully put himself in a position to treat Texas

residents. 8

Moreover, although Dr. Uche traveled to the state, occasional travel to

Texas is insufficient by itself to establish continuous and systematic

contact. Preussag

Aktiengesellschaft v. Coleman , 16 S.W.3d 110, 124 (Tex. App.—Houston [1st

Dist.] 2000, pet. dism’d w.o.j.); Minucci v. Sogevalor, S.A ., 14 S.W.3d

790, 796 (Tex. App.—Houston [1st Dist.] 2000, no pet.). While it is true that the

Celebration had its port in Galveston, Texas, and that Dr. Uche stayed on

the ship during its time in port, port calls are not construed as substantial

contacts of a quality sufficient to establish a court’s general jurisdiction

over a nonresident defendant.

See Asarco, Inc. v. Glenara, Ltd ., 912 F.2d 784 , 786–87 (5th Cir.

1990) (finding no jurisdiction and discounting quality of contacts regarding 20

port calls of vessels to Louisiana because company that managed vessels did not

choose where vessels would make port); Nicolaisen v. Toei Shipping Co.,

Ltd ., 722 F. Supp. 1162, 1165 (D. N.J.1989) (finding that 17 port calls to

New Jersey over a three-to-four year period and shipowner’s dealing with time

charterer in New Jersey did not establish general jurisdiction); Am. Overseas

Marine Corp. v. Patterson , 632 So.2d 1124 , 1126–30 (Fla. App. 1994) (finding

no jurisdiction and discounting quality of contacts relating to port calls in

Florida because they were not made on the orders of defendants but instead were

made at the direction of the United States military under contracts with the

United States). Thus, the fact that

the Celebration operated out of Galveston does not support the exercise

of general jurisdiction over Dr. Uche.

Moreover, Carnival’s decision to make Galveston a port of call diminishes

the quality of Dr. Uche’s contact—living on a ship that is docked in the port of

Galveston—with the state. See

Farwah v. Prosperous Maritime Corp. , 220 S.W.3d 585, 594 (Tex. App.—Beaumont 2007, no

pet.) (concluding that because decision to make Texas a port of call was made by

a third party, quality of defendant’s contact diminished); see also Am. Type

Culture Collection , 83 S.W.3d at 809 (discounting quality of contact

regarding defendant’s attendance at five conferences in Texas when defendant did

not select conference locations); Reyes v. Marine Drilling Cos ., 944

S.W.2d 401 , 402–04 (Tex. App.—Houston [14th Dist.] 1997, no writ) (discounting

quality of contact when defendant sent representatives to Texas at least 204

times to perform quality-assurance inspections that were necessitated under

contractual obligations between defendant and United States government). Thus, we also conclude that Dr.

Uche’s limited presence in the state is not enough to amount to substantial

activities in the state for a court to exercise general jurisdiction.

Because Dr. Uche’s contacts were not purposefully directed at Texas and

because the contacts he did have with the state were not continuous and

systematic, we conclude that the trial court lacks general jurisdiction over Dr.

Uche. 9

Specific Jurisdiction

We recognize that on one occasion the United States Supreme Court has

found specific jurisdiction based on alleged wrongdoing intentionally directed

at a resident of the forum. See

Calder v. Jones , 465 U.S. 783 , 788–789, 104 S. Ct. 1482 , 1486–87

(1984). However, the Texas Supreme

Court has held that the foreseeability of causing injury in another state is not

a “sufficient benchmark” for the exercise of personal jurisdiction over a

defendant. Michiana , 168

S.W.2d at 789. Rather, “it is ‘the

defendant’s conduct and connection with the forum’ that are critical.’” Id.

The operative fact of Allison’s claim with respect to specific

jurisdiction is Dr. Uche’s alleged failure to give care aboard the

Celebration . In her third

amended petition, Allison states,

There was apparently no qualified physician on board and the nurses on

board did not have the medical training necessary to reinsert and retape the

feeding tube, and refused to do so.

Instead, Carnival informed the Allisons and Mrs. Mueller [that] they had

to fend for themselves. As a result

of the actions and inactions of defendants, Mrs. Mueller suffered a stroke on

March 16, 2002, which left her significantly impaired far beyond her pre-March

condition so that her quality of life has been significantly diminished.

Allison alleges that Dr. Uche “provided medical care, advice and

treatment to Dorothy Mueller by assessing her condition, determining her need

for care, and then abandoning her.”

At the hearing on Dr. Uche’s special appearance, however, counsel for

Allison stated that a nurse came to Mrs. Mueller’s cabin and escorted her to the

infirmary but that, because Mrs. Mueller was in a wheelchair, it was difficult

to get around in the infirmary.

Medical personnel then came to Mrs. Mueller’s cabin, but did not inform

anyone that a medical doctor was on board.

In short, although Allison alleges that Dr. Uche committed a tort in

whole or in part in this State and thus satisfies the jurisdictional

requirements of the Texas Long-Arm Statute and federal due process, there is no

evidence that he was even made aware of her condition.

Allison has not produced any evidence of any connection between Dr.

Uche’s conduct and contacts with Texas and Mrs. Mueller’s injuries, which are

alleged to have happened while she was on the Celebration in

international waters. See Shell

Compania Argentina de Petroleo , 84 S.W.3d at 837 (holding that to satisfy

minimum contacts element of due process, contacts must be purposefully directed

at forum and have substantial connection that results in alleged injuries). Allison presented no evidence at the

special appearance hearing that Dr. Uche was made aware of Dorothy’s need for

assistance, assessed her medical condition, determined her need for care, or

abandoned her, as Allison alleges.

Contrary to Allison’s allegations, Dr. Uche’s affidavit states that it

was never made known to him, nor was he in any way aware, that Dorothy needed

medical assistance. He also states

that he never had a physician-patient relationship with Dorothy. Allison did not rebut this

evidence. Therefore, we cannot say

that Dr. Uche’s alleged failure to act on the high seas to treat a passenger

from Texas, Dorothy, bears a substantial connection with Dr. Uche’s contacts

with Texas sufficient to subject him to the specific jurisdiction of the courts

of this state. Stated another way,

Dr. Uche’s travel within the state and his temporary residence on board the

Celebration for the purpose of rendering medical services are not

sufficiently related to the acts of medical negligence alleged to have taken

place in international waters to satisfy the requirements of federal due process

in subjecting him to personal jurisdiction in this state.

We hold that Dr. Uche has negated all grounds for personal jurisdiction

asserted by Allison. We conclude

that the trial court lacks general jurisdiction over Dr. Uche because he did not

have continuous and systematic contacts with Texas. We also conclude that specific

jurisdiction is lacking because his alleged liability to Allison does not arise

from or relate to his contacts with Texas.

Conclusion

We reverse the order of the trial court and render judgment dismissing

Dr. Uche from the litigation. We

deny Dr. Uche’s motion for sanctions.

We withdraw our December 8, 2006 order that stayed the commencement of

trial.

Evelyn V. Keyes

Justice

Panel consists of Chief Justice

Radack and Justices Keyes and Higley.

1 In our prior opinion, we conditionally granted mandamus

relief because the trial court abused its discretion in imposing death penalty

sanctions against Carnival Cruise Lines.

See In re Carnival , 193 S.W.3d 229, 237 (Tex. App.—Houston [1st

Dist.] 2006, orig. proceeding).

2 Mrs. Mueller suffered a stroke in early 2000 that

required her to wear the feeding tube.

See In re Carnival , 193 S.W.3d at 232 .

3 See In re Carnival , 193 S.W.3d at 234 .

4 A “nonresident” includes “an individual who is not a

resident of [Texas]” and “a foreign corporation, joint-stock company,

association, or partnership.” Tex. Civ. Prac. & Rem. Code Ann. §

17.041 (Vernon 1997).

5 BMC Software Belgium, N.V. v. Marchand , 83 S.W.3d 789, 795 (Tex.

2002).

6 Other than Jackson’s testimony, Allison presented no

evidence of the number of Texans onboard the Celebration , but presumably

it was substantial.

7 In her response to Dr. Uche’s motion for sanctions,

Allison requests that this Court take judicial notice that Carnival had

stationed the Celebration in the port of Galveston since 2000. Although this may be true, we are not

concerned with the contacts that Carnival had with Galveston, Texas, but rather

the contacts that Dr. Uche had.

See Moki Mac River Expeditions v. Drugg , 221 S.W.3d 569, 575 (Tex.

2007).

8 In her brief, Allison claims that it was Dr. Uche

himself who stationed himself at that port. Allison cites no authority or citation

to the record that Dr. Uche made the decision to work on a ship based in

Galveston, and the record reveals the opposite—that Carnival made the decision

to send Dr. Uche to Galveston.

9 In Florida, the courts of appeals have held that its

long-arm statute does not allow the court to exercise personal jurisdiction over

doctors who serve aboard cruise ships unless the injury occurred inside

Florida’s territorial waters.

See Elmlund v. Mottershead , 750 So.2d 736, 736 (Fla. Ct. App.

2000); Benson v. Norwegian Cruise Line Limited , 859 So.2d 1213, 1215

(Fla. Ct. App. 2003) (reversing order granting special appearance because injury

occurred within Florida’s jurisdictional waters).

But, in Wurtenberger v. Cunard Line Ltd ., a

cruise ship’s physician, who was not a resident of New York, and who was sued

for medical malpractice for incidents that did not occur in New York, was

nevertheless found to be subject to personal jurisdiction under New York’s

long-arm statute. 370 F. Supp. 342 ,

344–45 (S.D. N.Y. 1974). The court

found preliminarily that the physician had “transacted business” within the

state because, although he was not licensed to practice medicine in New York and

claimed to have been in New York on only four occasions, he was a member of the

ship’s crew when it departed New York and when it returned to New York, and

presumably practiced medicine while the ship was in New York waters. Id . at 344. With respect to the “nexus” requirement

of section 302(a)(1), the court determined that the physician was present on the

ship when passengers boarded in New York, and effectively held himself out as a

qualified doctor who would treat medical problems on the cruise. Id . at 345. Thus, some of the ship’s passengers,

many of whom were foreseeably New York residents, decided to forego other

medical services while at sea in reliance on the physician’s competence. Id . The court reasoned that “[t]he alleged

subsequent malpractice in the course of the cruise, therefore, while it did not

occur in New York, may be said to have arisen out of [the doctor’s] ‘transaction

of business’ in New York.”

Id .