Thomas J. Hensgens v. Pelican Beach Resort

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-268

THOMAS J. HENSGENS

VERSUS

PELICAN BEACH RESORT

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APPEAL FROM THE
THIRTY-FIRST JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON DAVIS, NO. C35111
HONORABLE CRAIG STEVE GUNNELL, DISTRICT JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, J. David Painter, and
Shannon J. Gremillion, Judges.

AFFIRMED.

Nahum D. Laventhal
3421 N. Causeway Boulevard - #800
Metairie, LA 70002
Telephone: (504) 837-9107
COUNSEL FOR:
Defendant/Appellee - Pelican Beach Resort

Kenneth O'Neil Privat
P. O. Drawer 449
Crowley, LA 70527-0449
Telepone: (337) 783-7142
COUNSEL FOR:
Plaintiff/Appellant - Thomas J. Hensgens

THIBODEAUX, Chief Judge.

Plaintiff, Thomas Hensgens, and his wife, Trina, rented a hotel room

from Defendant Pelican Beach Resort (“Pelican”) in Destin, Florida. During their

trip, an employee of Pelican stole approximately $3,600.00 in property from the

Hensgens‟ rented room. Hensgens, a Louisiana domiciliary, filed suit in Jefferson

Davis Parish against Pelican, a Florida domiciliary, alleging that Pelican was

vicariously liable for the property loss since the property was stolen by one of

Pelican‟s former employees. Pelican filed an Exception of Lack of Jurisdiction. The

trial court granted Pelican‟s exception and dismissed Hensgens‟ lawsuit with

prejudice. Hensgens appeals. For the following reasons, we affirm the judgment of

the trial court.

I.

ISSUES

The sole issue presented in this appeal is whether Pelican‟s contacts with

the State of Louisiana were sufficient to confer personal jurisdiction over it in

Louisiana.

II.

FACTS AND PROCEDURAL HISTORY

Hensgens and his wife planned to vacation in Destin, Florida, in June

2010. Hensgens‟ wife booked a room at Pelican for the vacation. Pelican advertises

its vacation property on the Internet, and customers are able to book rooms through its

website. Mrs. Hensgens, however, booked their room by calling Pelican directly, and

she testified that she only used the website to look at potential rooms. Indeed, having

stayed at Pelican before, Mrs. Hensgens testified that she knew Pelican‟s phone

number “by heart.”

During the Hensgens‟ stay at Pelican, a number of items were stolen

from their room. A housekeeper employed by Pelican was later convicted of the theft.

Mr. Hensgens filed suit to recover the value of the stolen items. In response, Pelican

filed its exception. At that time, Pelican affirmatively pled that it was solely

domiciled in Florida, had no office in Louisiana, and had no direct or meaningful

contacts with Louisiana.

Mrs. Hensgens testified that she had rented from Pelican several times in

the past, and, having memorized Pelican‟s phone number, she used it to call Pelican

and book the 2010 stay. She provided her credit card number over the phone, and she

did not use the Internet to book her vacation. Hensgens produced no flyers, mailings,

advertisements, or other evidence showing that Pelican sought out customers in

Louisiana or otherwise availed itself of Louisiana law.

The trial court granted Pelican‟s Exception and dismissed Hensgens‟

lawsuit with prejudice. In its written ruling, the trial court stated that the fact that no

flyers, mailings, advertisements, or other print media were distributed in Louisiana

and that no television or radio advertisements were used to promote Pelican in

Louisiana indicated that Pelican had not purposely availed itself of the laws of

Louisiana. Moreover, the trial court found it significant that Hensgens did not even

use the Internet to book his vacation. The trial court concluded that “the existence of

a business‟s internet website alone does not create the necessary minimum contacts to

impose personal jurisdiction.” Hensgens appeals.

III.

LAW AND DISCUSSION

Standard of Review

“An appellate court conducts a de novo review of the legal issue of

personal jurisdiction over a nonresident by a Louisiana court. However, the trial

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court‟s factual findings underlying the decision are reviewed under the manifest-error

standard of review.” Peters v. Alpharetta Spa, L.L.C., 04-979, pp. 3-4 (La.App. 1 Cir.

5/6/05), 915 So.2d 908, 910 (citations omitted).

Discussion

Louisiana‟s long-arm statute, La.R.S. 13:3201, authorizes the exercise of

personal jurisdiction over non-residents by providing, in pertinent part:

A. A court may exercise personal jurisdiction over a
nonresident, who acts directly or by an agent, as to a
cause of action arising from any one of the following
activities performed by the nonresident:
(1) Transacting any business in this state.
(2) Contracting to supply services or things in this state.
(3) Causing injury or damage by an offense or quasi
offense committed through an act or omission in this
state.
(4) Causing injury or damage in this state by an offense
or quasi offense committed through an act or omission
outside of this state if he regularly does or solicits
business, or engages in any other persistent course of
conduct, or derives revenue from goods used or
consumed or services rendered in this state.
(5) Having an interest in, using or possessing a real right
on immovable property in this state.
....
B. In addition to the provisions of Subsection A, a court
of this state may exercise personal jurisdiction over a
nonresident on any basis consistent with the constitution
of this state and of the Constitution of the United States.

Personal Jurisdiction

In Davis v. Dempster, Inc., 00-662 (La.App. 3 Cir. 11/29/00), 790 So.2d

43, writ denied, 00-3519 (La. 2/9/01), 785 So.2d 830 (citations omitted), this court

discussed the types of personal jurisdiction:

[P]ersonal jurisdiction may be either general or specific.
When the suit arises out of or is related to a defendant‟s
contacts with the forum state, the exercise of personal
jurisdiction is one of specific jurisdiction. However, if
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the exercise of jurisdiction arises in a case not stemming
from the defendant‟s contacts with the forum, the
exercise of personal jurisdiction is one of general
jurisdiction. When this latter category is in question, a
defendant may be subject to the forum state‟s exercise of
personal jurisdiction if contacts with the state are
continuous and systematic.
In de Reyes [v. Marine Management and Consulting,
Ltd.], 586 So.2d 103 [(La.1991)], the Louisiana Supreme
Court explained that whether proceeding under a theory
of general jurisdiction or one involving specific
jurisdiction, the analysis is the same. Under either
theory, a determination as to whether due process
standards have been met requires a two-part analysis of
1) minimum contacts with the forum state and 2)
consideration of whether maintenance of the suit is
consistent with notions of fair play and substantial
justice.

Burden of Proof

The burden of proving minimum contacts with the forum state, for long-

arm statute purposes, is on the party claiming jurisdiction to be proper. Hunt v. Schult

Homes Corp., 94-1592 (La.App. 3 Cir. 5/3/95), 657 So.2d 124. If Hensgens is able to

establish that Pelican has had sufficient minimal contacts with Louisiana, then a

presumption arises that assertion of personal jurisdiction by the state court is

reasonable. The burden then shifts to Pelican to prove that the State of Louisiana‟s

assertion of personal jurisdiction would be unreasonable in light of traditional notions

of fair play and substantial justice. See de Reyes, 586 So.2d 103.

Minimum Contacts

To determine whether minimum contacts exist, a court must engage in “a

factual examination of the „relationship among the forum, the defendant, and the

litigation.‟” A&L Energy, Inc. v. Pegasus Group, 00-3255, p. 6 (La. 6/29/01), 791

So.2d 1266, 1271-72, cert. denied, 534 U.S. 1022, 122 S.Ct. 550 (2001) (quoting

Shaffer v. Heitner, 433 U.S. 186, 204, 97 S.Ct. 2569, 2580 (1977)). Here, the record

reveals that Pelican is a business domiciled in Florida. It has no office in Louisiana,

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and it does not target its advertising to Louisiana residents. Moreover, the act giving

rise to this litigation—the theft— occurred in Florida.

In asserting that Louisiana may exercise personal jurisdiction over

Pelican, Hensgens relies solely on the fact that Pelican has an Internet website that is

accessible to Louisiana residents. Hensgens points out that Pelican‟s website allows

for online booking and provides a telephone number and asserts that this “invitation”

provides the requisite minimum contacts with Louisiana.

In Williams v. Frank Parra Auto Plex, Inc., 05-737 (La.App. 3 Cir.

3/22/06), 929 So.2d 755, this court considered whether Internet websites provided

sufficient contacts with Louisiana to support personal jurisdiction under the long-arm

statute. In finding that insufficient contacts existed, the Williams court recognized the

“sliding scale” analysis used by the courts in Zippo Manufacturing Company v. Zippo

Dot Com, Inc., 952 F. Supp. 1119 (W.D. Pa. 1997) and Mink v. AAAA Development

LLC, 190 F.3d 333 (5th Cir. 1999). In Zippo, the court noted that “the likelihood that

personal jurisdiction can be constitutionally exercised [based on Internet use] is

directly proportionate to the nature and quality of commercial activity that an entity

conducts over the Internet.” Zippo, 952 F. Supp. at 1124. In Mink, the court

concluded that the presence of e-mail access, a printable order form, and a toll-free

number on a website, without more, was insufficient to establish personal jurisdiction.

Mink, 190 F.3d 330.

Here, Hensgens has shown only that Pelican operates a website

accessible to Louisiana residents. While customers have the option of booking their

reservations online, Hensgens‟ wife testified that she opted to make their reservation

by calling Pelican‟s toll-free number, which she had memorized from previous

bookings. Hensgens only used the Internet site to view pictures of the property.

When this limited contact via the Internet is considered with the act allegedly giving

rise to liability, i.e., the theft of property in Florida, we conclude that Hensgens has

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not met his initial burden of showing sufficient minimum contacts with the State of

Louisiana that would support its exercise of personal jurisdiction over Pelican.

Hensgens has failed to show how Pelican “purposely availed” itself of the privilege of

conducting activities in this state.

IV.

CONCLUSION

For the reasons articulated above, we affirm the judgment of the trial

court. Costs of this appeal are assessed against Appellant, Thomas J. Hensgens.

AFFIRMED.

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