                      NOTICE: NOT FOR OFFICIAL PUBLICATION.
  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                  AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                     IN THE
              ARIZONA COURT OF APPEALS
                                 DIVISION ONE


           KATHRYN MARIE JONES, et al., Plaintiffs/Appellants,

                                         v.

           JEREMY DENNING, MD., et al., Defendants/Appellees.

                              No. 1 CA-CV 17-0605
                                FILED 11-15-2018


            Appeal from the Superior Court in Maricopa County
                           No. CV2016-054241
                  The Honorable John R. Hannah, Judge

       AFFIRMED IN PART; VACATED IN PART; REMANDED


                                    COUNSEL

Ahwatukee Legal Office, P.C., Phoenix
By David L. Abney
Counsel for Plaintiffs/Appellants

Jones, Skelton & Hochuli, P.L.C., Phoenix
By Jonathan Paul Barnes, Jr.
Counsel for Defendants/Appellees Dallas Neurosurgical

Lewis Brisbois Bisgaard & Smith, LLP, Phoenix
By Kevin C. Nicholas, Dina M. Anagnopoulos, Robert C. Ashley
Counsel for Defendant/Appellee Randall Kirby, MD
Broening Oberg Woods & Wilson, P.C., Phoenix
By James R. Broening, Alicyn M. Freeman, John C. Quinn
Counsel for Defendant/Appellee Judith Kirby, MD

Campbell, Yost, Clare & Norell, P.C., Phoenix
By Renee M. Coury, Jeffrey McLerran
Counsel for Defendants/Appellees Texas Health

Pepper Hamilton, LLP, Philadelphia, Pennsylvania
By Sean P. Fahey
Co-Counsel for Defendant/Appellee Medtronic, PLC

Pepper Hamilton, LLP, New York, New York
By Kenneth J. King
Co-Counsel for Defendant/Appellee Medtronic, PLC

Lewis Roca Rothgerber Christie, LLP, Phoenix
By Stephen M. Bressler, Kirstin A. Story
Co-Counsel for Defendant/Appellee Medtronic, PLC

Reed Smith, LLP, Los Angeles, California
By Michael K. Brown, Mildred Segura, Lisa M. Baird, Kasey J. Curtis
Co-Counsel for Defendant/Appellee Medtronic, PLC


                      MEMORANDUM DECISION

Judge James B. Morse Jr. delivered the decision of the Court, in which
Presiding Judge James P. Beene and Judge Michael J. Brown joined.


M O R S E, Judge:

¶1            Appellants Kathryn Marie Jones and Alan Jones (collectively,
the "Joneses") appeal the superior court's rulings dismissing their second
amended complaint. For the following reasons, we affirm in part, vacate in
part, and remand for further proceedings.

                FACTS AND PROCEDURAL HISTORY

¶2           In 2010, after seeing an advertisement in Phoenix Magazine, the
Joneses contacted Baylor Scoliosis Center in Plano, Texas, to address back
pain Kathryn was experiencing. Baylor Scoliosis Center then referred the
Joneses to Dr. Jeremy Denning, a physician unaffiliated with the Center.


                                     2
                     JONES, et al. v. DENNING, et. al.
                         Decision of the Court

The Joneses communicated with Dr. Denning and his assistant via email
and phone over the course of several months, and Kathryn Jones
underwent a three-day surgical procedure in Texas in October 2010.

¶3             Six years later, in August 2016, the Joneses filed a complaint
relating to the procedure against Dr. Denning; Dr. Richard Jackson; Dallas
Neurosurgical and Spine Associates, P.A.; Dr. Randall Kirby; Texas Health
Presbyterian Hospital Dallas; and Medtronic, PLC. The Joneses asserted
claims for battery, strict liability, loss of consortium, and medical
malpractice. They later amended their complaint to include Dr. Judith
Kirby; Stephanie Cracknell, RNFA, NP; Dallas Neurology Associates;
Dallas Neurosurgical Associates, P.A.; Texas Health Resources; Paula
Hagan; and Debra Gipson Sims, RN, as defendants. The amended
complaint also added claims for hedonic damages and punitive damages.1

¶4             Dallas Neurosurgical Associates, P.A.; Dallas Neurosurgical
and Spine Associates, P.A.; Dr. Denning; Dr. Jackson; and Stephanie
Cracknell, RNFA, NP (the "Dallas Neurological Defendants"), moved to
dismiss, as did Dr. Randall Kirby and Dr. Judith Kirby (the "Kirby
Defendants"). Texas Health Presbyterian Hospital Dallas, Texas Health
Resources, Paula Hagan, and Debra Gipson Sims, RN (the "Texas Health
Defendants"), also moved to dismiss, and Medtronic moved to dismiss for,
in part, lack of personal jurisdiction and res judicata.

¶5             The superior court dismissed the Kirby Defendants and the
Texas Health Defendants for lack of personal jurisdiction. It granted
Medtronic's motion to dismiss due to res judicata, finding that the United
States District Court for the District of Arizona had decided a case that
involved the same parties, "transactional nucleus of operative facts," and
same cause of action. See Jones v. Medtronic, 89 F. Supp. 3d 1035 (D. Ariz.
2015) ("Jones I"). The superior court did not address Medtronic's personal
jurisdiction arguments.

¶6           However, the court denied the Dallas Neurological
Defendants' motion to dismiss without prejudice. The Dallas Neurological
Defendants then filed a renewed motion to dismiss for lack of personal


1      The Joneses also sued Dr. John Ehteshami; Phoenix Orthopaedic
Consultants; Dr. Mario Castellanos; the Division of Advanced Surgery and
Pelvic Pain and Center for Women's Health at St. Joseph's Hospital and
Medical Center; and the spouses of Dr. Denning, Dr. Ehteshami, and Dr.
Castellanos. However, we do not address these parties because they are
not parties to this appeal.


                                     3
                     JONES, et al. v. DENNING, et. al.
                         Decision of the Court

jurisdiction. The court found that in the absence of evidence that Dr.
Denning reached out to Arizona patients, the Joneses could not establish
personal jurisdiction over Dr. Denning. The Joneses timely appealed.

¶7           While this appeal was pending, the United States Court of
Appeals for the Ninth Circuit issued a memorandum decision in which it
affirmed in part, vacated in part, and remanded Jones I for further
proceedings. See Jones v. Medtronic, Inc., No. 15-15653, 2018 WL 3912167, at
*1 (9th Cir. Aug. 16, 2018) ("Jones II"). We asked the parties for
supplemental briefing on the effect of Jones II on the Joneses' res judicata
arguments and consider those briefs in this case.

¶8            We have jurisdiction pursuant to Arizona Revised Statutes
("A.R.S.") section 12-2101(A)(1) and Article 6, Section 9, of the Arizona
Constitution.

                               DISCUSSION

¶9             The Joneses argue they have alleged sufficient facts to support
personal jurisdiction over the Dallas Neurological Defendants, the Kirby
Defendants, and the Texas Health Defendants in Arizona. They also argue
that Jones II requires us to vacate the superior court's res judicata ruling.
They ask us to vacate the judgments entered against them below and
remand for trial.

I.     STANDARD OF REVIEW

¶10            We review dismissal of claims for lack of personal jurisdiction
de novo. In re Marriage of Peck, 242 Ariz. 345, 348, ¶ 7 (App. 2017). We will
not set aside any findings of fact made by the superior court in reaching its
jurisdictional determination unless the findings are clearly erroneous. Id.
We review the application of res judicata de novo. A. Miner Contracting, Inc.
v. Toho-Tolani Cty. Improvement Dist., 233 Ariz. 249, 253, ¶ 11 (App. 2013).

II.    THE SUPERIOR COURT DID NOT ERR BY FINDING IT
       LACKED PERSONAL JURISDICTION OVER DR. DENNING
       AND THE SURGICAL-TEAM MEMBERS.

¶11          The Joneses argue the superior court erred by finding it could
not assert personal jurisdiction over Dr. Denning and the surgical-team
members because Dr. Denning purposefully directed the Joneses to Texas




                                      4
                       JONES, et al. v. DENNING, et. al.
                           Decision of the Court

from Arizona in a September 2010 email.2 They also argue this
communication constituted an intentional tort that established personal
jurisdiction over Dr. Denning and the surgical-team members. They
additionally argue the superior court erred by relying on "purposeful
availment" doctrine rather than "purposeful-direction" doctrine. Finally,
they assert that even under a purposeful availment analysis, personal
jurisdiction is proper.

¶12             "For personal jurisdiction over a non-resident to exist, the
defendant must have sufficient minimum contacts with the forum state
such that the maintenance of the suit does not offend traditional notions of
fair play and substantial justice." Peck, 242 Ariz. at 348, ¶ 7; see also Int'l Shoe
Co. v. Washington, 326 U.S. 310, 320 (1945). "When a defendant challenges
the existence of personal jurisdiction, the plaintiff must come forward with
facts establishing a prima facie showing of jurisdiction . . . ." Peck, 242 Ariz.
at 348, ¶ 6. "Personal jurisdiction may be either general or specific and,
under both forms, 'the constitutional touchstone remains whether the
defendant purposefully established "minimum contacts" in the forum
[s]tate.'" Id. at ¶ 8 (quoting Williams v. Lakeview, 199 Ariz. 1, 3, ¶ 6 (2000)).
We consider only specific jurisdiction because the Joneses did not assert
general jurisdiction at the trial level or in their briefs.

¶13             Arizona courts may exercise specific jurisdiction over non-
resident defendants to the extent permitted by the Due Process Clause of
the United States Constitution. Id. at ¶ 9. Although email communications
may serve as the basis for personal jurisdiction, see Planning Grp. of
Scottsdale, L.L.C. v. Lake Mathews Mineral Properties, Ltd., 226 Ariz. 262, 268-
69, ¶¶ 26-31 (2011), "the requisite minimum contacts are not established
when the plaintiff's action 'requires the defendant to send communications
into th[e] forum[,]'" Batton v. Tenn. Farmers Mut. Ins. Co., 153 Ariz. 268, 274
(1987) (quoting Hunt v. Erie Ins. Grp., 728 F.2d 1244, 1248 (9th Cir. 1984)).
Finally, "it is not enough that a defendant know that he is dealing with an
Arizona resident then located in another state; the requisite activity must
instead be purposefully directed at the forum." Planning Grp. of Scottsdale,

2      The Joneses' personal jurisdiction arguments refer to "Dr. Denning
and the other surgical-team members," but the Joneses do not present any
jurisdictional arguments specifically addressing the Kirby Defendants; the
Texas Health Defendants; Dallas Neurosurgical Associates, P.A.; Dallas
Neurosurgical and Spine Associates, P.A.; Dr. Jackson; or Stephanie
Cracknell, RNFA, NP. Because the Joneses merely include these parties in
their arguments pertaining to "Dr. Denning and the other surgical-team
members," we address these parties in one discussion.


                                         5
                      JONES, et al. v. DENNING, et. al.
                          Decision of the Court

226 Ariz. at 271, ¶ 41 (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474
(1985)).

¶14            As an initial matter, we reject the Joneses' argument that the
superior court erred in applying "purposeful availment" doctrine rather
than "purposeful-direction" doctrine. No language in the superior court's
order indicates that the court used one approach or the other; instead, the
court merely concluded that Dr. Denning's contacts "clearly [did] not meet
the due-process 'minimum contacts' standard." This approach is consistent
with the Arizona Supreme Court's decision in Planning Group of Scottsdale,
which rejected a rigid separation of the "purposeful availment" and
"purposeful-direction" doctrines in favor of a "holistic approach" distilled
to a single question: "Considering all of the contacts between the
defendants and the forum state, did those defendants engage in purposeful
conduct for which they could reasonably expect to be hauled into that
state's courts with respect to that conduct?" 226 Ariz. at 267-68, ¶¶ 22-25.

¶15           Here, the superior court did not err in finding that the
contacts were insufficient to confer personal jurisdiction. The September
2010 email does not constitute sufficient minimum contacts. The Joneses
admit that they, rather than Dr. Denning and the surgical team, initiated the
email contact, and the documents provided by the Joneses do not
demonstrate otherwise. See G.T. Helicopters, Inc. v. Helicopters, Ltd., 135 Ariz.
380, 383-84 (App. 1983) ("[T]he mere fact that there were telephone
conversations between appellant in Scottsdale . . . and appellees in
Michigan, [did] not establish sufficient contacts. This is particularly so
where it was the appellant who initiated the contacts."). Furthermore, the
September 2010 email did not seek to persuade the Joneses to travel to
Texas; it merely responded to questions sent by the Joneses.3 Cf. Walden v.
Fiore, 571 U.S. 277, 285 (2014) ("[W]e have upheld the assertion of
jurisdiction over defendants who have purposefully reached out beyond

3       Although the Joneses assert the email played a crucial role in their
decision to schedule the surgeries with Dr. Denning, the emails presented
by the Joneses show that the Joneses sought to schedule the surgeries with
Dr. Denning before receiving the September 2010 email. Additionally, the
Joneses do not dispute that the Baylor Scoliosis Center referred the Joneses
to Dr. Denning in the ordinary course of business, that Dr. Denning had no
business relationship with the Center, and that he did not participate in the
Center's out-of-state marketing efforts. See Britz v. Kinsvater, 87 Ariz. 385,
388 (1960) ("Inasmuch as the trial court's findings of fact are not themselves
challenged by this appeal, we may assume that their accuracy is
conceded.").


                                       6
                      JONES, et al. v. DENNING, et. al.
                          Decision of the Court

their State and into another by, for example . . . circulating magazines to
deliberately exploit a market in the forum State . . . ." (internal quotation
marks and brackets omitted)); Planning Grp. of Scottsdale, 226 Ariz. at 268-
69, ¶¶ 26-31 (concluding "a series of telephone calls, e-mails, faxes, and
letters to the Arizona plaintiffs[] seeking to persuade the plaintiffs to invest
in [a] mining venture" showed purposeful direction). Although the Joneses
refer to other emails in their complaint, their briefs only reference the
September 2010 email and the other emails appear to be responses to emails
sent by the Joneses. None of these communications establish the necessary
minimum contacts.

¶16             We similarly reject the Joneses' assertion that the September
2010 email constituted tortious misrepresentation establishing personal
jurisdiction over Dr. Denning and the surgical-team members. "A forum
[s]tate's exercise of jurisdiction over an out-of-state intentional tortfeasor
must be based on intentional conduct by the defendant that creates the
necessary contacts with the forum." Walden, 571 U.S. at 286; see also Batton,
153 Ariz. at 274 ("The mere fact that Tennessee Farmers responded to
Batton's Arizona lawyers, and may have committed a tort against Batton in
the process, is not evidence that Tennessee Farmers purposefully availed
itself of the privilege of conducting business in Arizona.").

¶17           Because the September 2010 email did not constitute
sufficient minimum contacts with Arizona, the superior court did not err
when it found that the Joneses failed to establish personal jurisdiction over
Dr. Denning and the surgical-team members.4

III.   WE NEED NOT ADDRESS THE JONESES' COMMUNITY
       LIABILITY ARGUMENTS.

¶18          The Joneses argue that under the principles of community
property, Dr. Judith Kirby is liable for the torts committed by Dr. Randall
Kirby. Because Dr. Randall Kirby was properly dismissed, supra ¶ 17, we
need not address the Joneses' community liability claims against his spouse.



4       Similarly, the Joneses assert the whole surgical team was subject to
the court's personal jurisdiction under a theory of joint venture or
partnership based on personal jurisdiction over Dr. Denning. The surgical-
team members contend that this argument is waived because it was not
raised below. We need not consider this argument, or whether it was
properly raised below, because the superior court correctly found that there
is no personal jurisdiction over Dr. Denning.


                                       7
                     JONES, et al. v. DENNING, et. al.
                         Decision of the Court

IV.    THE SUPERIOR COURT'S RES JUDICATA RULING MUST BE
       VACATED.

¶19            In simultaneous briefing by the parties, the Joneses argue we
must vacate the superior court's res judicata ruling in light of Jones II.
Medtronic concedes that res judicata is no longer applicable because there
is no longer a final judgment on the merits. See Campbell v. SZL Props., Ltd.,
204 Ariz. 221, 225, ¶ 20 (App. 2003) ("[A] vacated judgment cannot have any
collateral estoppel effect."). However, Medtronic has offered three
alternative bases upon which to affirm the superior court's dismissal—lack
of personal jurisdiction, collateral estoppel, and failure to state a claim.

¶20           Although Medtronic raises personal jurisdiction in their
briefs, the superior court did not rule on the issue. The Joneses have
asserted grounds for personal jurisdiction over Medtronic independent of
their arguments for personal jurisdiction over Dr. Denning and the surgical-
team members. Medtronic has contested those allegations. Because these
competing claims have not been resolved by the superior court, we decline
to consider them here. See Mathews ex rel. Mathews v. Life Care Ctrs. Of Am.,
Inc., 217 Ariz. 606, 611, ¶ 23 (App. 2008) (declining to address arguments
that "were not the basis of the trial court's ruling and were either not raised
or not fully developed before the trial court").

¶21           Similarly, because the superior court's decision was based
exclusively on res judicata, we decline to address Medtronic's collateral
estoppel and failure to state a claim argument, vacate the superior court's
res judicata ruling, and remand for further proceedings. See id.

V.     ATTORNEYS' FEES AND COSTS

¶22           The Joneses request an award of their reasonable costs on
appeal. Because the Joneses have only partially prevailed, we deny their
request. See A.R.S. § 12-342 (authorizing an award of costs to the prevailing
party on appeal); see also Zwicky v. Premiere Vacation Collection Owners Ass'n,
244 Ariz. 228, 234, ¶ 34 (App. 2018) (declining to award costs where "both
parties partially prevailed on appeal").

¶23             The Dallas Neurological Defendants request an award of
attorneys' fees under ARCAP 25, which is within this Court's discretion.
Ariz. Dep't of Rev. v. Gen. Motors Acceptance Corp., 188 Ariz. 441, 446 (App.
1996); see also ARCAP 25 (authorizing the imposition of sanctions if appeal
was frivolous or filed solely for the purpose of delay). In the exercise of our
discretion, we decline to award attorneys' fees as a sanction against the
Joneses.


                                      8
                      JONES, et al. v. DENNING, et. al.
                          Decision of the Court

¶24          Dr. Judith Kirby requests an award of her costs on appeal
pursuant to A.R.S. § 12-342. Because Dr. Judith Kirby is a prevailing party,
we award her taxable costs on appeal.

¶25           The Texas Health Defendants request an award of their
reasonable attorneys' fees on appeal pursuant A.R.S. § 12-341.01
(authorizing an award of fees in any contested action arising out of a
contract). We deny this request because although the Joneses' complaint
references formation of a contract, their claims do not "arise out of a
contract." See Ramsey Air Meds, L.L.C. v. Cutter Aviation, Inc., 198 Ariz. 10,
15, ¶ 27 (App. 2000) ("[A] tort claim will 'arise out of a contract' only when
the tort could not exist 'but for' the breach or avoidance of contract. . . . The
test is whether the defendant would have a duty of care under the
circumstances even in the absence of contract."). The Texas Health
Defendants also seek their costs on appeal pursuant to A.R.S. § 12-342(A).
Because the Texas Health Defendants are prevailing parties, we award their
costs on appeal.

                               CONCLUSION

¶26           For the foregoing reasons, we affirm the superior court's
rulings on personal jurisdiction and vacate and remand the court's res
judicata ruling.




                           AMY M. WOOD • Clerk of the Court
                            FILED: AA




                                         9
