{ "id": 1588619, "name": "Velda ROBERTS, Individually, as representative of the estate of Jerry Dean Roberts, and as Next Friend of Kerri Roberts, a Minor, Randall R. Roberts and Bobby D. Roberts, Plaintiffs-Appellants, v. PIPER AIRCRAFT CORPORATION, Avco Corporation, Avco Lycoming Corporation, Defendants, and Custom Airmotive, Inc., B & S Aircraft Parts & Accessories, Scenic Aviation, Defendant-Appellees", "name_abbreviation": "Roberts v. Piper Aircraft Corp.", "decision_date": "1983-09-08", "docket_number": "No. 7000", "first_page": "363", "last_page": "369", "citations": [ { "type": "official", "cite": "100 N.M. 363" }, { "type": "parallel", "cite": "670 P.2d 974" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "69 N.M. 476", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2790389 ], "weight": 2, "year": 1961, "opinion_index": 0, "case_paths": [ "/nm/69/0476-01" ] }, { "cite": "86 N.M. 261", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2822843 ], "weight": 2, "year": 1974, "opinion_index": 0, "case_paths": [ "/nm/86/0261-01" ] }, { "cite": "444 U.S. 286", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11306135 ], "weight": 3, "year": 1980, "opinion_index": 0, "case_paths": [ "/us/444/0286-01" ] }, { "cite": "357 U.S. 235", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6162253 ], "weight": 3, "year": 1958, "opinion_index": 0, "case_paths": [ "/us/357/0235-01" ] }, { "cite": "326 U.S. 310", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6157001 ], "weight": 3, "year": 1945, "opinion_index": 0, "case_paths": [ "/us/326/0310-01" ] }, { "cite": "176 N.E.2d 761", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1961, "opinion_index": 0 }, { "cite": "22 Ill.2d 432", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2788413 ], "year": 1961, "opinion_index": 0, "case_paths": [ "/ill-2d/22/0432-01" ] }, { "cite": "94 N.M. 727", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1573124 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/94/0727-01" ] } ], "analysis": { "cardinality": 716, "char_count": 15165, "ocr_confidence": 0.798, "pagerank": { "raw": 1.6964442832551386e-07, "percentile": 0.7000904299825974 }, "sha256": "d7fd57acb67341fe16a975e770e45d9a077e47139b4e53d32f10662178f0d509", "simhash": "1:09974fb161a6887c", "word_count": 2416 }, "last_updated": "2023-07-14T21:45:38.267108+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HENDLEY and BIVINS, JJ., concur." ], "parties": [ "Velda ROBERTS, Individually, as representative of the estate of Jerry Dean Roberts, and as Next Friend of Kerri Roberts, a Minor, Randall R. Roberts and Bobby D. Roberts, Plaintiffs-Appellants, v. PIPER AIRCRAFT CORPORATION, Avco Corporation, Avco Lycoming Corporation, Defendants, and Custom Airmotive, Inc., B & S Aircraft Parts & Accessories, Scenic Aviation, Defendant-Appellees." ], "opinions": [ { "text": "OPINION\nNEAL, Judge.\nThe plaintiffs appeal the dismissal of three defendants for lack of personal jurisdiction. We discuss the meaning of \u201ctortious act,\u201d as used in our long-arm statute, NMSA 1978, 38-l-16(A)(3), \u201cminimum contacts,\u201d and whether the trial court erred when it refused to allow the plaintiffs additional time for discovery of jurisdictional facts.\nJerry Dean Roberts was killed in a plane crash near Albuquerque. This wrongful death action arises out of that crash.\nThe three dismissed defendants are Scenic Aviation, Custom Airmotive, Inc. and B & S Aircraft, Inc. The plaintiffs allege that Scenic Aviation supplied defective fuel, causing the plane to crash. The plaintiffs also allege that Custom Airmotive and B & S Aircraft negligently repaired the plane, causing it to crash.\nNone of the three defendants are located in New Mexico. Scenic Aviation is in Nevada. Custom Airmotive is in Oklahoma. B & S Aircraft is in Kansas.\nI. PERSONAL JURISDICTION\nThere is no claim of personal service within the territorial limits of New Mexico. Under the facts here, before New Mexico can exercise personal jurisdiction over the three nonresident defendants two requirements must be met. Our long-arm statute, \u00a7 38-l-16(A) must apply, and there must be \u201cminimum contacts\u201d with New Mexico so due process is not violated. Tarango v. Pastrana, 94 N.M. 727, 616 P.2d 440 (Ct.App.1980).\nA. \u201cTortious act\u201d\nSection 38-l-16(A) states in part:\n38-1-16. Personal service of process outside state.\nA. Any person, whether or not a citizen or resident of this state, who in person or through an agent does any of the acts enumerated in this subsection thereby submits himself or his personal representative to the jurisdiction of the courts of this state as to any cause of action arising from:\n(1)the transaction of any business within this state;\n* * * * * *\n(3) the commission of a tortious act within this state;\nThe plaintiffs contend that all three dismissed defendants committed a \u201ctortious act within this state,\u201d \u00a7 38-l-16(A)(3). They do not rely on \u201cthe transaction of any business in this state,\u201d \u00a7 38-l-16{A)(l).\nThe fuel was supplied by Scenic Aviation in Nevada and the repair work was done by Custom Airmotive in Oklahoma and B & S Aircraft in Kansas. Does the fact that the plane crashed in New Mexico mean that a tortious act has been committed within this state? Gray v. American Radiator & Standard Sanitary Corp., 22 Ill.2d 432, 176 N.E.2d 761 (1961), interpreted \u201ctortious act.\u201d Tarango states that our long-arm statute was based on Illinois\u2019 and \u201cthe interpretation of the Illinois statute by Illinois courts, although not binding, is persuasive.\u201d\nIn Gray, a water heater, constructed outside Illinois, exploded and injured the plaintiff in Illinois. The defendant contended that it had not committed a tortious act in Illinois. The court disagreed:\nThe wrong in the case at bar did not originate in the conduct of a servant physically present here, but arose instead from acts performed at the place of manufacture. Only the consequences occurred in Illinois. It is well-established, however, that in law the place of a wrong is where the last event takes place which is necessary to render the actor liable. Restatement, Conflict of Laws, sec. 377. * * * We think it is clear that the alleged negligence in manufacturing the valve cannot be separated from the resulting injury; and that for present purposes, like those of liability and limitations, the tort was committed in Illinois.\nNo New Mexico case has interpreted \u201ctortious act within this state.\u201d Tarango discussed only \u201cminimum contacts.\u201d We feel the Gray interpretation is sound and under the facts of this case we hold that when negligent acts occur outside New Mexico which cause injury within New Mexico, a \u201ctortious act\u201d has been committed within this state.\nThe defendants contend that their negligence, if any, occurred outside the state and therefore they have not committed a tortious act \u201cwithin this state.\u201d As did the court in Gray we reject this narrow interpretation. In our modern commercial world business is often transacted across state lines and products are placed in the stream of commerce for consumption in all fifty states. Gray recognizes this. The defendants\u2019 interpretation is at odds with modern commercial reality and would severely restrict the power of New Mexico courts.\nConsidering the plaintiffs\u2019 complaint in light of Gray, the allegations support the conclusion that under \u00a7 38-l-16(A)(3) the defendants have committed a tortious act within this state.\nB. \u201cMinimum contacts\u201d\nA state court may exercise personal jurisdiction over a non-resident defendant only if there are \u201cminimum contacts\u201d between the defendant and the forum state. The contacts must be enough so that maintenance of the suit does not offend \u201ctraditional notions of fair play and substantial justice.\u201d International Shoe Co. v. Washington, Etc., 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945).\nBefore personal jurisdiction can be exercised \u201cit 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.\u201d Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958). The defendant\u2019s contacts with the forum state must be such that he should \u201creasonably anticipate being haled into court there.\u201d World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980).\n1. Scenic Aviation\nThe plaintiffs\u2019 argument is that Scenic Aviation sold them defective fuel. They argue that it was foreseeable that bad fuel could cause an accident outside Nevada, where Scenic Aviation is located, and therefore Scenic Aviation should expect to be sued anywhere. This \u201cforeseeability\u201d argument was specifically rejected in WorldWide Volkswagen.\nWorld-Wide Volkswagen involved an Audi, purchased in New York, which crashed in Oklahoma. The plaintiffs sued the New York dealer and the distributor, World-Wide, which operated in New York, New Jersey, and Connecticut, alleging faulty gas tank location. The plaintiffs argued that cars are mobile, used in interstate travel, and therefore, the defendants should expect to be sued in Oklahoma or any other state. The court rejected this argument stating that \u201c \u2018[fjoreseeability\u2019 alone has never been a sufficient benchmark for personal jurisdiction under the Due Process Clause.\u201d\nThe court reaffirmed the proposition that there must be \u201ccontacts, ties, or relations\u201d between the non-resident defendant and the forum state before personal jurisdiction may be exercised. In World-Wide Volkswagen, the court found no contacts. The defendants closed no sales and performed no services in Oklahoma. They did not solicit business there, nor did the record show that they sold any cars to Oklahoma residents. The defendants did not avail themselves of the privileges and benefits of Oklahoma law.\nThe plaintiffs here argue that it was foreseeable that if Scenic Aviation sold defective fuel in Nevada it should expect to be sued in New Mexico. They argue that it is not unreasonable to subject Scenic Aviation to personal jurisdiction within a radius of one tank of fuel. While this argument has a certain logic, it must be rejected. World-Wide Volkswagen is clear: without minimum contact with the forum state, foreseeability alone does not warrant personal jurisdiction over a non-resident defendant.\nHere the record is devoid of any contact between Scenic Aviation and New Mexico. Scenic Aviation is a fixed-base operator selling aviation fuel in Las Vegas, Nevada. There is no evidence that Scenic Aviation advertises in New Mexico, or sells fuel to New Mexico residents. Without \u201ccontacts, ties, or relations\u201d with New Mexico the fact that fuel sold by Scenic Aviation found its way into our state does not support a valid exercise of personal jurisdiction. World-Wide Volkswagen.\n2. Custom Airmotive\nBefore the plane\u2019s flight through New Mexico, the engines of the plane were shipped from Texas to Custom Airmotive in Oklahoma for repair. It is alleged that the work was faulty and caused the crash.\nUnlike Scenic Aviation, Custom Airmotive has contacts with New Mexico. It advertises in Trade-A-Plane and Aircraft Mechanic Journal, national trade journals. The affidavit of Norman Lickteig, President of Custom Airmotive, indicates that Custom Airmotive has performed work for New Mexico residents. He states:\n6. Custom Airmotive, Inc. has, on limited occasions, performed aircraft repair and overhaul operations for residents of the State of New Mexico * * *.\n**:};**:{;\n* * * Prior to the accident alleged in this suit, Custom Airmotive did advertise in national aircraft publications, namely Trade-A-Plane, and Aircraft Mechanic Journal, which publications your Affiant is informed to believe are circulated in the State of New Mexico.\nAlso, by advertising in trade journals which circulate in New Mexico it has solicited business here. These items are sufficient minimum contacts. It has purposely availed itself of the benefits and protections of New Mexico law. If a New Mexico customer refused to pay it could sue in our courts. Because it has performed work for New Mexico residents it \u201cshould reasonably anticipate being haled into court\u201d here. World-Wide Volkswagen.\nCustom Airmotive points to contacts that are missing and ignores those that exist. It argues that the work for New Mexico residents is minimal, and that it does not have a telephone listing here. It argues that when it does repair work for New Mexico customers the customer is required to ship the aircraft component to it in Oklahoma. These were not all of the. contacts. Here we have enough contact to justify personal jurisdiction.\nWhether or not personal jurisdiction exists is fundamentally a question of fairness. Is it \u201creasonable * * * to require the corporation to defend the particular suit which is brought [in the forum state]\u201d? International Shoe. Here Custom Airmotive receives revenue from New Mexico and avails itself of the protection of our laws. Because it does repair work for New Mexico residents, it is not at all unreasonable or unfair for it to defend here.\n3. B & S Aircraft\nB & S Aircraft, in Kansas, worked on the plane\u2019s hydraulic pumps. It is alleged that faulty repair caused the crash.\nOn April 6, 1983, Judge Wood entered an order to correct the record on appeal and ordered that certain items in a companion case be included in the record on appeal. One of the items was the deposition of the president of B & S, which established that B & S has repaired aircraft components shipped by New Mexico residents to B & S. This deposition would establish \u201cminimum contacts\u201d, however, it was never introduced into evidence at the summary judgment hearing. In his order, Judge Wood was relying on plaintiffs\u2019 counsel\u2019s representation that \u201cthose items were omitted by error or accident from the Record on Appeal.\u201d See NMSA 1978, Civ.App.R. 8(f). That representation was incorrect. On January 19, 1983, the trial court entered an order stating:\n[T]he matters designated as \u201call pleadings, notices of hearing, testimony, depositions, exhibits and all other documents of record\u201d in [the companion case] will not be considered as part of the record in this cause, except as offered in argument. (Emphasis added.)\nAlthough plaintiffs\u2019 counsel referred to the deposition of the president of B & S, it was never offered at the hearing.\nIn a summary judgment hearing the trial court may properly consider only those depositions before it. Also, if counsel desires the court to take judicial notice of another judicial proceeding there should be a clear delineation in the record as to what is being noticed. See Frost v. Markham, 86 N.M. 261, 522 P.2d 808 (1974). Because the deposition of the president of B & S was never offered to the trial court it cannot be relied upon on appeal. Without that deposition, the plaintiffs\u2019 have not demonstrated that personal jurisdiction over B & S can properly be exercised.\nII. DISCOVERY\nThe plaintiffs contend that the trial court erred when it refused to allow them additional time to discover jurisdictional facts. They argue that because they made a motion for production of documents under NMSA 1978, Civ.P.R. 34 (Repl.Pamp.1980), they were entitled to thirty days for discovery, and that the hearing on the motion to dismiss was held before the thirty days expired.\nBecause we have decided that Custom Airmotive is subject to our jurisdiction, this issue is moot as to it. The record indicates that no motion for production of documents from Scenic Aviation was made. The request was made of Custom Airmotive and B & S Aircraft only. The plaintiffs cannot argue that they were entitled to thirty days for discovery against Scenic Aviation.\nWe review the trial court\u2019s decision limiting discovery only for an abuse of discretion. Salitan v. Carrillo, 69 N.M. 476, 368 P.2d 149 (1961). On July 21, 1982 Scenic Aviation made a motion to dismiss for lack of personal jurisdiction. The motion was heard September 3, 1982. As of September 3,1982 the plaintiffs had not sought discovery against Scenic Aviation although they knew that proof of jurisdiction would be necessary at the hearing. The trial court did not abuse its discretion when it refused to allow more time.\nAs to B & S Aircraft, the record shows only a motion to produce but nothing more. This was filed only three days before the hearing. Plaintiffs do not specify what this production would have shown or how it could have affected the trial court\u2019s ruling. As we have pointed out, plaintiffs apparently had a deposition which they could have offered but failed to do so. Plaintiffs cannot avoid the consequence of their error by seeking to claim lack of discovery, when no attempt, other than the motion to produce, has been called to our attention.\nThe trial court\u2019s dismissal of Scenic Aviation and B & S Aircraft is affirmed. The trial court\u2019s dismissal of Custom Airmotive is reversed. Custom Airmotive shall pay the costs of this appeal.\nIT IS SO ORDERED.\nHENDLEY and BIVINS, JJ., concur.", "type": "majority", "author": "NEAL, Judge." } ], "attorneys": [ "Robert R. Fuentes, P.A., Corrales, Fisher, Gallagher, Perrin & Lewis, Houston, Tex., for plaintiffs-appellants.", "Modrall, Sperling, Roehl, Harris & Sisk, P.A., Leland S. Sedberry, Jr., Mark Thompson, III, Albuquerque, for defendant-appellee B & S Aircraft Parts & Accessories.", "Johnson & Lanphere, P.C., Donald C. Schutte, Albuquerque, for defendant-appellee Scenic Aviation Services, Inc.", "Keleher & McLeod, P.A., Charles A. Pharris, Rebecca A. Houston, Albuquerque, for defendant-appellee Custom Airmotive, Inc." ], "corrections": "", "head_matter": "670 P.2d 974\nVelda ROBERTS, Individually, as representative of the estate of Jerry Dean Roberts, and as Next Friend of Kerri Roberts, a Minor, Randall R. Roberts and Bobby D. Roberts, Plaintiffs-Appellants, v. PIPER AIRCRAFT CORPORATION, Avco Corporation, Avco Lycoming Corporation, Defendants, and Custom Airmotive, Inc., B & S Aircraft Parts & Accessories, Scenic Aviation, Defendant-Appellees.\nNo. 7000.\nCourt of Appeals of New Mexico.\nSept. 8, 1983.\nRobert R. Fuentes, P.A., Corrales, Fisher, Gallagher, Perrin & Lewis, Houston, Tex., for plaintiffs-appellants.\nModrall, Sperling, Roehl, Harris & Sisk, P.A., Leland S. Sedberry, Jr., Mark Thompson, III, Albuquerque, for defendant-appellee B & S Aircraft Parts & Accessories.\nJohnson & Lanphere, P.C., Donald C. Schutte, Albuquerque, for defendant-appellee Scenic Aviation Services, Inc.\nKeleher & McLeod, P.A., Charles A. Pharris, Rebecca A. Houston, Albuquerque, for defendant-appellee Custom Airmotive, Inc." }, "file_name": "0363-01", "first_page_order": 395, "last_page_order": 401 }