Park West Children's Fund, Inc. v. Trinity Broadcasting Network,inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

13-444

PARK WEST CHILDREN’S FUND, INC.

VERSUS

TRINITY BROADCASTING NETWORK, INC., ET AL.

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 20122873
HONORABLE RONALD F. WARE, DISTRICT JUDGE

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JIMMIE C. PETERS
JUDGE

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Court composed of John D. Saunders, Jimmie C. Peters, and John E. Conery,
Judges.

REVERSED, RENDERED, AND REMANDED.

Hunter W. Lundy
Daniel A. Kramer
Lundy, Lundy, Soileau & South
P. O. Box 3010
Lake Charles, LA 70602
(337) 439-0707
COUNSEL FOR PLAINTIFF/APPELLANT:
Park West Children’s Fund, Inc.

Lance J. Kinchen
Carroll Devillier, Jr.
Breazeale, Sachse & Wilson
P. O. Box 3197
Baton Rouge, LA 70821-3197
(225) 387-4000
COUNSEL FOR DEFENDANTS/APPELLEES:
Trinity Broadcasting Network, Inc.
International ChristianBroadcasting, Inc.

PETERS, J.

The plaintiff in this litigation, Park West Children’s Fund, Inc., appeals from

the trial court’s dismissal of their claims against the defendants, Trinity

Broadcasting Network, Inc. and International Christian Broadcasting, Inc., based

on the lack of personal jurisdiction over the defendants. For the following reasons,

we reverse the trial court judgment, render judgment rejecting the exception, and

remand the matter for further proceedings.

DISCUSSION OF THE RECORD

On July 5, 2012, Park West Children’s Fund, Inc. (Park West), a California

non-profit corporation, filed suit against Trinity Broadcasting Network, Inc., a

California non-profit corporation (TBN), and International Christian Broadcasting,

Inc., a Georgia non-profit corporation (ICB), seeking a declaratory judgment

establishing the ownership of a Bell JetRanger helicopter titled in Park West’s

name. Park West obtained service on both TBN and ICB by use of the Louisiana

Long-Arm Statute, La.R.S. 13:3201.

Neither TBN nor ICB answered the petition. Instead, on August 31, 2012,

they responded by filing a declinatory exception of lack of personal jurisdiction

together with a memorandum with attachments. Park West filed its own

memorandum with attachments on November 12, 2012, and the trial court set the

exception for a hearing on December 3, 2012. At that hearing, neither side offered

any evidence in support of their respective positions and merely argued the content

of the pleadings and attachments to their memoranda. After hearing the argument,

the trial court issued oral reasons for judgment in favor of TBN and ICB and

dismissed Park West’s suit. The trial court executed a written judgment to this

effect on December 17, 2012, and Park West then perfected this appeal.

In its appeal, Park West asserts three assignments of error:

I. The trial court’s findings that the defendants lacked minimum
contacts with Louisiana was[sic] manifestly erroneous.

II. The trial court’s findings that it would be “unfair to force
defendants to litigate” in Louisiana was[sic] manifestly
erroneous.

III. The trial court committed legal error in sustaining defendants’
declinatory exception of lack of personal jurisdiction.

OPINION

A court’s lack of personal jurisdiction over a defendant may be raised as a

declinatory exception pursuant to La.Code Civ.P. art. 925(A)(5). If the grounds

raised by the declinatory exception can be removed by amendment, the trial court

“shall order the plaintiff to remove them within the delay allowed by the court[.]”

La.Code Civ.P. art. 932(A). However, the remedy if the grounds cannot be

removed by amendment is dismissal of the plaintiff’s “action, claim, demand, issue,

or theory[.]” La.Code Civ.P. art. 932(B).

As noted in SteriFx, Inc. v. Roden, 41,383, pp. 5-6 (La.App. 2 Cir. 8/25/06),

939 So. 2d 533, 536-37:

Due process requires that, in order to subject a nonresident
defendant to a personal judgment, the defendant must have certain
minimum contacts with the forum state such that the maintenance of
the suit does not offend traditional notions of fair play and substantial
justice. International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct.
154, 90 L.Ed. 95 (1945); Helicopteros Nacionales de Colombia, S.A.
v. Hall, 466 U.S. 408, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984); de
Reyes v. Marine Management and Consulting, Ltd., 586 So.2d 103
(La.1991).

The due process test has evolved into a two-part test, the first
part being the “minimum contacts” prong, which is satisfied by a
single act or actions 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.” Burger King Corp.
v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 2183, 85 L.Ed.2d
528 (1985). The nonresident’s “purposeful availment” must be such
that the defendant “should reasonably anticipate being haled into
court” in the forum state. Ruckstuhl v. Owens Corning Fiberglas
Corporation, 1998-1126 (La.4/13/99), 731 So.2d 881, cert. denied,
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528 U.S. 1019, 120 S.Ct. 526, 145 L.Ed.2d 407 (1999). By requiring
that a defendant must have purposefully availed himself of the
privilege of conducting activities within the forum state, thus invoking
the benefits and protections of its laws, the requirement ensures that
he will not be haled into a jurisdiction solely as a result of a random,
fortuitous or attenuated contact, or by the unilateral activity of another
party or a third person. de Reyes v. Marine Management & Consulting,
Ltd., supra; Alonso v. Line, 2002-2644 (La.5/20/03), 846 So.2d 745,
cert. denied, 540 U.S. 967, 124 S.Ct. 434, 157 L.Ed.2d 311 (2003).

The second part of the due process test centers around the
fairness of the assertion of jurisdiction. Hence, once the plaintiff
meets his burden of proving minimum contacts, “a presumption of
reasonableness of jurisdiction arises” and “the burden then shifts to
the opposing party to prove the assertion of jurisdiction would be so
unreasonable in light of traditional notions of fair play and substantial
justice as to overcome the presumption of reasonableness created by
the defendant’s minimum contacts with the forum.” de Reyes v.
Marine Management and Consulting, Ltd., supra. In determining this
fundamental fairness issue, the court must examine (1) the defendant’s
burden; (2) the forum state’s interest; (3) the plaintiff’s interest in
convenient and effective relief; (4) the judicial system’s interest in
efficient resolution of controversies; and (5) the state’s shared interest
in furthering fundamental social policies. Ruckstuhl v. Owens
Corning Fiberglas Corporation, supra.

Appellate courts when reviewing a trial court’s legal ruling on a
declinatory exception of lack of personal jurisdiction apply a de novo
standard. Walker v. Super 8 Motels, Inc., 2004-2206 (La.App. 4th
Cir.12/7/05), 921 So.2d 983. However, the trial court’s factual
findings underlying the decision are reviewed under the manifest error
standard of review. Diamond v. Progressive Security Insurance
Company, 2005-0820 (La.App. 1st Cir.3/24/06), 934 So.2d 739;
Peters v. Alpharetta Spa, L.L.C., 2004-0979 (La.App. 1st Cir.5/6/05),
915 So.2d 908.

These concepts have been legislatively embodied by La.R.S. 13:3201,

Louisiana’s long-arm statute, which “[extends] personal jurisdiction of the

Louisiana courts over nonresidents to comport with the due process clause of the

Fourteenth Amendment of the United States Constitution.” Hunter v. Meyers, 96-

1075, p. 3 (La.App. 1 Cir. 3/27/97), 691 So.2d 318, 320. In other words, La.R.S.

12:3201 and the limits set forth in International Shoe and de Reyes are co-

extensive.

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Park West utilized the Louisiana Long-Arm Statute to establish jurisdiction

of the non-resident defendants TBN and ICB, and the sole inquiry is whether

Louisiana’s exercise of jurisdiction comports with constitutional due process. See

Petroleum Helicopters, Inc. v. Avco Corp., 513 So.2d 1188 (La.1987). With

regard to the evidentiary burden of proof, the fifth circuit stated in Phillips v. Home

Insurance Co., 95-406, p. 6 (La.App. 5 Cir. 2/27/96), 671 So.2d 946, 947, that:

La.C.C.P. art. 931 provides that, on the trial of the peremptory
exception pled at or prior to the trial of the case, evidence may be
introduced to support or controvert any of the objections pleaded,
when the grounds thereof do not appear from the petition. Evidence is
“any species of proof, or probative matter, legally presented at the
trial, by the act of the parties and through the medium of witnesses,
records, documents, exhibits, concrete objects, etc., for the purpose of
inducing belief in the minds of the court or jury as to their
contention.” Black’s Law Dictionary 498 (5th ed. 1979); Ustica
Enterprises, Inc. v. Costello, 434 So.2d 137, 139 (La.App. 5th
Cir.1983). When no evidence is presented at the hearing on the
exception, then the objection must be decided upon the facts alleged
in the petition. Younger v. Marshall, 618 So.2d 866, 871 (La.1993).
However, when evidence is presented, then the issue must be decided
on the evidence submitted.

Additionally, “[e]vidence not properly and officially offered and introduced shall

not be considered, even if it is physically placed in the record.” Adams v. Allstate

Ins. Co., 01-1244, p. 6 (La.App. 5 Cir. 2/26/02), 809 So.2d 1169, 1173.

Despite the fact that neither party introduced evidence in support or in

opposition to the jurisdiction exception, the trial court considered the content of the

attachments filed in the record with the memoranda of the parties and rendered

judgment based on the content of those attachments.1 In doing so, the trial court

considered the second-prong factors set forth in SteriFx, Inc., 939 So.2d 536, and

1
We note that on appeal that TBN acknowledged that the affidavit of David C. Loe, its
acting general counsel, was not totally accurate when he stated that TBN was not “licensed to do
business in Louisiana.” In brief to this court, TBN acknowledged that it is a subsidiary of Trinity
Christian Center of Santa Ana, Inc., which has been registered with the Louisiana Secretary of
State and qualified to do business in this state since April 18, 1988. However, since Mr. Loe’s
affidavit was never admitted into evidence, we need not consider this inaccuracy.
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concluded that “it would be unfair to force” TBN and ICB to litigate the matter in

Louisiana.2 We need not consider the trial court’s factual findings on a manifest

error basis because we find that it committed legal error in considering the content

of the exhibits not filed into evidence. Such a finding of legal error requires a de

novo review on appeal. Id. at 535.

Considering only the facts alleged in the pleadings, we find that Park West

met its burden of establishing minimum contacts and that TBN and ICB failed to

establish that the assertion of jurisdiction is unfair. In its petition for declaratory

relief, Park West asserted that it and both defendants are nonresident defendants.

Park West further asserted that it performs humanitarian activities all over the

world, but that it has its principal business establishment in Calcasieu Parish,

Louisiana.

The petition asserted that in 2005, TBN and/or ICB donated $354,000.00 to

Park West for the specific purpose of purchasing a helicopter for use in its relief

missions. In support of that assertion, Park West attached to its petition a

September 23, 2005 announcement, which appeared on TBN’s website wherein

TBN documented a trip by Paul Crouch, its founder, to South Louisiana in support

of victims of Hurricane Katrina. The announcement detailed TBN’s relationship to

Park West; its donation of the helicopter to Park West, which was then being used

for relief efforts along the Louisiana Gulf Coast; Crouch’s personal view of the

devastated area; and his call to others for contributions to help in the recovery. Not

only did the announcement give TBN credit for donating the helicopter and for its

presence in Louisiana, but it also stated that TBN had been active in the recovery

2
Because the trial court based its reasons for judgment on the second prong of the due
process analysis, we can only conclude that the trial court found that Park West met the
minimum contacts prong of the analysis.
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process before Crouch’s arrival by previously providing 10,000 Bibles and 85,000

toys for distribution in the affected area.

In its petition, Park West also asserted that the helicopter had been

purchased, registered, and maintained in Louisiana, but that it had also been used

throughout the United States, Central America, and the Caribbean in humanitarian

efforts; and that TBN and/or ICB had worked in conjunction with Park West on

some of those efforts. This assertion was supported by a letter from Crouch to Don

Tipton, Chief Executive Officer of Park West, dated May 15, 2012, which starts

with the statement that “[i]t has been our joy to work with you, Sondra and

Friendships through the years. Together we have done important things for the

Kingdom of God by bringing emergency relief goods to needy people in different

areas of the world.” Another exhibit attached to the original petition, an e-mail

from Tipton to TBN’s attorney, dated May 1, 2012, references activity by Park

West in delivering supplies for TBN from its Louisiana facility to various locations

in the Caribbean, as well as the storage of a “medical container” belonging to TBN

at Park West’s Louisiana facility. It also references generators sent by TBN to

Park Place’s Louisiana facility, which had been transported to Haiti for relief

efforts there.

Considering only the pleadings before us, we conclude, as apparently did the

trial court, that Park Place overcame its burden of establishing minimum contacts

for jurisdiction purposes and that the burden shifted to TBN and ICB to establish

that it would be unfair for Louisiana to assert jurisdiction. Because TBN and ICB

submitted no evidence on this point, we find that TBN and ICB failed in their

burden of proof.

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DISPOSITION

For the foregoing reasons, we reverse the trial court judgment granting the

exception of lack of personal jurisdiction in favor of Trinity Broadcasting Network,

Inc. and International Christian Broadcasting, Inc. and dismiss the claims of Park

West Children’s Fund, Inc., and we render judgment in favor of Park West

Children’s Fund, Inc. dismissing the exception. We tax all costs of this appeal to

Trinity Broadcasting Network, Inc. and International Christian Broadcasting, Inc.

and remand the matter to the trial court for further proceedings.

REVERSED, RENDERED, AND REMANDED.

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