This memorandum opinion was not selected for pub lication in the New Mexico Reports. Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official paper version filed by the Court of Appeals and does 4 not include the filing date. 5 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 6
FRANK CARRIL, 7 Plaintiff-Appellant, 8

v. NO. 29,612 9 MICHAEL BLACK, d/b/a 10 OASIS LANDSCAPE AND POOLS, 11 OASIS LANDSCAPE AND POOLS, INC. 12 and SAN JUAN PRODUCTS, 13 Defendants-Appellees. 14 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 15 James T. Martin, District Judge 16 Filosa & Filosa 17 Mark A. Filosa 18 Truth or Consequences, NM 19 for Appellant 20 Cervantes Law Firm, P.C. 21 Joseph Cervantes 22 Las Cruces, NM 23 for Appellee Michael Black and Oasis Landscapes and Pools, Inc. 242 Holt, Babington, Mynatt, P.C. 1 Blaine T. Mynatt 2 Las Cruces, NM 3 for Appellee Oasis Landscape and Pools, Inc. 4 Modrall, Sperling, Roehl, Harris & Sisk, P.A. 5 Martha G. Brown 6 Julia Broggi 7 Albuquerque, NM 8 for Appellee San Juan Products 9 MEMORANDUM OPINION 10 WECHSLER, Judge. 11 Plaintiff appeals the determination th at New Mexico has no jurisdiction over 12 Defendant San Juan Products (San Juan). We proposed to affirm in a calendar notice, 13 and we have received both a memorandum in opposition and a memorandum in 14 support of the proposed disposition in our calendar notice. After due consideration 15 of the parties’ arguments, we affirm the district court’s decision. 16 We review legal conclusions de novo, and we uphold factual conclusions unless 17 they are clearlyerroneous. See Campos Enters., Inc. v. Edwin K. Williams & Co. , 18 1998-NMCA-131, ¶ 5, 125 N.M. 691, 964 P.2d 855. As San Juan points out, Plaintiff 19 does not contend that the district court’ s findings of fact are clearly erroneous. 20 However, Plaintiff continues to challenge th e district court’s legal conclusions leading 213 to dismissal for lack of jurisdiction. 1 In order to establish jurisdiction, Plaintiff was required to show that: (1) San 2 Juan committed an act under our long-arm statute, (2) Plaintiff’s cause of action arose 3 out of the act, and (3) San Juan had mini mum contacts with Ne w Mexico sufficient 4 to satisfy due process concerns. Campos , 1998-NMCA-131, ¶ 7. To satisfy the 5 minimum contacts requirement, San Juan mu st have committed some act by which it 6 purposefully availed itself of the priv ilege of conducting ac tivities within New 7 Mexico, such that it could reasonably foresee being sued in our state. See DeVenzeio 8 v. Rucker, Clarkson & McCashin , 1996-NMCA-064, ¶¶ 9, 21, 121 N.M. 807, 918 9 P.2d 723. Submission to our state’s jurisdic tion occurs for causes of action that arise 10 from the transaction of any business withinthe state or the co mmission of a tortious 11 act within the state. NMSA 1978, § 38-1- 16(A) (1971). Plaintiff continues to argue 12 that the two or three telephone contacts between San Juan and Plaintiff, the website 13 maintained by San Juan, or the dealer’s re lationship with San Juan can be relied upon 14 to establish jurisdiction over San Juan. 15 Plaintiff claims that, during two to three telephone conversations, San Juan’s 16 representative “touted, convinced, persuade d, and assured” Pl aintiff to conduct 17 business with the New Mexico dealer, th ereby satisfying the “transaction of any 184 business” requirement under our statute. [MIO 2, 5] Telephone communications do 1 not ordinarily constitute the type of purposef ul act that meets the test for jurisdiction. 2 See Sanchez v. Church of Scientology , 115 N.M. 660, 664, 857 P.2d 771, 775 (1993). 3 In this case, Plaintiff would have to s how that communicating by telephone was an act 4 by which San Juan had purposefully availe d itself of the privilege of conducting 5 business in our state to the extent that San Juan would foresee being included in a 6 lawsuit here. See id. (stating that a purposeful activity would not include random or 7 attenuated contacts, and the use of a telephone does not qualif y as the type of 8 purposeful activity that would invoke jurisdiction). We are unpersuaded that two or 9 three telephone conversations between Pl aintiff and San Juan’s representative, 10 involving general discussions of a product manufactured in Arizona, would lead to a 11 determination that San Juan had purposef ully availed itself of the privilege of 12 conducting business in New Mexico or woul d allow San Juan to foresee being sued 13 in New Mexico. 14 Plaintiff claims that the tort of misrepresentation occurred when, during one 15 telephone conversation, San Juan’s repres entative claimed that he had never had 16 problems with the dealer, even though Plainti ff’s counsel states that the representative 17 was personally aware of a prior case involvi ng the dealer and San Juan. [MIO 2, 5] 185 As DeVenzeio discusses, when a tortious act is alleged in an attempt to invoke 1 jurisdiction over a party, we equate the alleged tortious act with minimum contacts 2 when determining whether due process has been satisfied. 1996-NMCA-064, ¶ 10. 3 As discussed above, a comment during a random telephone call woul d not satisfy the 4 purposeful activity requirement under a minimu m contacts analysis. We hold that the 5 two or three telephone conversations relied upon by Plaintiff do not satisfy our 6 requirements for personal juri sdiction under either a “trans action of any business” or 7 “commission of a tortious act” analysis. 8 Plaintiff continues to argue that San Juan’s website was not a passive website 9 and, therefore, subjects San Juan to jurisdiction in New Mexico. According to 10 Plaintiff, the website offers such services as links to dealers, press releases indicating 11 support for dealers, and solicitation of new dealers, and is designed in a way to “lull” 12 consumers into believing that San Juan stands behind its dealers. As discussed in our 13 calendar notice, websites on oneend of the spectrum are i nvolved in active solicitation 14 of business, allowing visitors to enter into contracts and knowingly and repeatedly 15 transmit information via the computer, and websites on the other end of the spectrum 16 passively provide information to interested visitors. See Sublett v. Wallin , 2004- 17 NMCA-089, ¶ 27, 136 N.M. 102, 94 P.3d 845. San Juan’s website does not allow 186 visitors to contract with the manufacturerand does not allow visitors to purchase 1 products from the manufacturer. [RP 316] Th e website merely provides information 2 about San Juan’s products and includes a f eature that assists visitors in finding a 3 dealer for the products. The district court was correct in determining that the website 4 was a passive website and not a basis for jurisdiction. 5 Plaintiff also claims that the dealer-manufacturer relationship in this case allows 6 New Mexico courts to exercise jurisdiction over San Juan. As explained in Campos , 7 Plaintiff must allege that his claims aros e out of the agreement between San Juan and 8 the dealer. 1998-NMCA-131, ¶ 16 (observing that, “unless a plaintiff can factually 9 demonstrate a relationship between a franc hisor and a franchise that connects the 10 franchisor to the tortious act, whether that fact be an agency or otherwise, the [long11 arm] statute is not satisfied”) . Plaintiff has not made su ch an allegation. Moreover, 12 San Juan’s website includes a disclaimer stating that all dealers for its products are 13 independent contractors and not agents of San Juan. [RP 317] 14 As discussed in this opinion and in our calendar notice, Plaintiff has not met his 15 burden of establishing that his claims against San Juan arose from San Juan’s 16 activities in connection with New Mexico and thus has failed to establish personal 17 jurisdiction over San Juan. Weaffirm the district court’s decision to dismiss the 187 claims against San Juan for lack of personal jurisdiction. 1

IT IS SO ORDERED. 2

_______________________________ 3 JAMES J. WECHSLER, Judge 4 WE CONCUR: 5

_______________________________ 6 CYNTHIA A. FRY, Chief Judge 7

_______________________________ 8 CELIA FOY CASTILLO, Judge 9