Roger Baskin v. Pierce and Allred Construction, Inc. ( 2022 )

01/28/2022
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Submitted on Briefs August 2, 2021
ROGER BASKIN V. PIERCE & ALLRED CONSTRUCTION, INC.
Appeal from the Chancery Court for Davidson County
No. 20-872-IV Russell T. Perkins, Chancellor
No. M2021-00144-COA-R3-CV
Plaintiff Roger Baskin sued Pierce & Allred Construction, Inc. (“Defendant”) for breach
of contract and breach of warranty, alleging Defendant failed to construct a house in
Muscle Shoals, Alabama, in accordance with the parties’ contract. Plaintiff alleged that
although he “paid construction costs totaling more than $1,700,000, [Defendant] failed to
complete construction of the house and has left Plaintiff with a home riddled with
construction defects that affect every major system of the home.” Defendant moved to
dismiss the complaint under Tenn. R. Civ. P. 12.02(2) and (3), asserting that the trial court
lacked personal jurisdiction over it, and that venue was improper in Davidson County. The
trial court dismissed the complaint for lack of personal jurisdiction and improper venue.
We hold that Defendant’s contacts with Tennessee, including its purposeful applications
for a certificate of authority to transact business and for a contractor’s license in Tennessee,
are such that Defendant should reasonably anticipate being haled into court in this state.
Consequently, Tennessee courts may exercise personal jurisdiction over Defendant. We
further find that Davidson County is a proper venue for this action, and therefore reverse
the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Reversed;
Case Remanded
KRISTI M. DAVIS, J., delivered the opinion of the Court, in which D. MICHAEL SWINEY,
C.J., and CARMA DENNIS MCGEE, J., joined.
Paul J. Krog and Nicholas D. Bulso, Brentwood, Tennessee, for the appellant, Roger
Baskin.
Charles Michels, Nashville, Tennessee, for the appellee, Pierce & Allred Construction, Inc.
OPINION
I. BACKGROUND
In the fall of 2016, Plaintiff hired Defendant, a construction company incorporated
and based in Alabama, to demolish a structure and construct a lake house on real property
in Muscle Shoals, Alabama. The plans for the lake house were prepared in Tennessee and
provided by Quirk Designs, a Nashville-based company. The contract anticipated
completion of the house construction in about fifteen months, with an expected completion
date around January of 2018.
Plaintiff filed his complaint on September 3, 2020. He alleged that Defendant (1)
failed to construct the house in a good and workmanlike manner; (2) failed to complete
construction on time and within budget, and in fact “failed to complete the project at all”;
(3) “charged Plaintiff for services and materials never provided by. . . using the same
invoices for multiple draw requests”; and (4) “negligently allowed expensive audio
equipment delivered to the project site to be misappropriated from the site, resulting in a
loss to Plaintiff of more than $6,000.” Plaintiff alleged numerous construction defects in
many different systems and areas of the house. He eventually hired a replacement
contractor to finish construction and remedy the alleged defects.
Defendant moved for dismissal of the complaint for lack of personal jurisdiction
and improper venue. Defendant argued that it did not have the requisite minimum contacts
with the State of Tennessee to establish personal jurisdiction. In response, Plaintiff asserted
that Defendant, among other things, applied for a certificate of authority to transact
business in Tennessee in February of 2018. That same month, Defendant’s sole owner and
officer, Justin Allred, passed his Tennessee business and law management exam and
successfully applied for a Tennessee contractor’s license. Subsequently, Defendant
undertook two projects in Tennessee, one involving the removal and transport of a cabin
from Tennessee to Alabama, and the other construction of a nearly three million-dollar
house in Savannah, Tennessee. Plaintiff also pointed to Mr. Allred’s deposition testimony
in which he stated that he “absolutely” intends to maintain Defendant’s status “as a licensed
contractor in Tennessee for the foreseeable future.”
Defendant’s certificate of authority to conduct business was administratively
revoked in August of 2019. Its Tennessee contractor’s license expired on March 30, 2020.
Despite this, Mr. Allred testified on January 6, 2021, that Defendant had “just completed”
construction of the house in Savannah, Tennessee.
The trial court granted Defendant’s motion to dismiss, holding that it had no
personal jurisdiction and that venue was improper in Davidson County. Regarding
personal jurisdiction, the trial court found and held as follows, in pertinent part:
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All of the events giving rise to this cause of action occurred in Alabama. The
parties’ contract herein was signed in Florence, Alabama, with payments
made in Alabama and the work performed in Muscle Shoals, Alabama.
Further, Defendant maintains its principal place of business in Alabama, and
all subcontractors and people who worked on the project are located in
Alabama.
Defendant’s contacts with Tennessee do not meet the minimum contacts test.
See International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945).
Defendant’s contacts with Tennessee are not so continuous or systematic as
to render it at home in Tennessee. See Goodyear Dunlop Tires Operations,
S.A. v. Brown, 564 U.S. 915, 919 (2011). All of Defendant’s current
construction projects are in Alabama. . . .
Defendant has had two construction projects in Tennessee since its formation
in 2013. One was the construction of a lake house in Savannah, Hardin
County, Tennessee, for which it obtained its Tennessee construction license,
and the other project involved moving a cabin from Tennessee to Alabama.
Although Defendant obtained some materials in Tennessee for the Hardin
County construction project, all subcontractors on that project, as well as on
the relocation project, were brought in from Alabama.
* * *
Defendant’s other contacts with Tennessee, such as its now-expired
Tennessee business certificate and contractor’s license, are unrelated to
Plaintiff’s cause of action and do not rise to the level of sufficiently
continuous and systematic as to render Defendant at home in Tennessee. The
quantity and quality of Defendant’s contacts with Tennessee are irregular at
best. . . . The minor and attenuated contacts Defendant had with Tennessee
during the Project and otherwise are insufficient to cause Defendant to
reasonably anticipate being haled into court in Tennessee.
(Citations to record omitted; parties’ names in original changed to “Defendant” and
“Plaintiff” throughout).
The trial court ruled as follows regarding venue:
In determining venue, an important consideration is whether the cause of
action is transitory or local. “A transitory action is based on a cause of action
of a type that can arise anywhere.” Curtis v. Garrison, 364 S.W.2d 933, 936
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(Tenn. 1963). “[A] local action is based on a cause of action that can only
arise in a particular locality, because ‘the subject of the action’ (meaning that
which has sustained the injury complained of) is local, ‘and cannot be injured
at any other place.’” Kampert v. Valley Farmers Coop., No. M2009-02360-
COA-R10-CV, 2010 WL 4117146, at *2 (Tenn. Ct. App. Oct. 19, 2010)
(quoting Burger v. Parker, 290 S.W. 22, 23 (Tenn. 1926)). Unlike a
transitory action, a local action may only be brought in the county where the
subject matter of the dispute is located; however, “not every action that
involves a specific tract of land is considered a local action.” Id.While real property is necessarily implicated in a building project, no injuries
to the real property are alleged here. Rather, the [c]omplaint focuses on the
alleged breach of contract and breach of warranty and seeks damages for the
breach. Accordingly, this suit may be properly characterized as a contract
action.
Both breach of contract and breach of warranty claims are of a type that could
arise anywhere; thus, this action is transitory in nature. See Jonesboro
Drywall & Plaster Co., Inc. v. Kirby, No. 03A01-9508-CH-00276, 1995 WL
697901, at *1 (Tenn. Ct. App. Nov. 28, 1995). As such, it can be brought in
the county where the cause of action arose or, because Pierce & Allred is not
a natural defendant, either in the county where all or a substantial part of the
events or omissions giving rise to the cause of action accrued or in the county
where Defendant’s registered agent for service of process is located. See
Tenn. Code Ann. §§ 20-4-101(a); 20-4-104(1), (3).
At one time, [Defendant] maintained a registered agent for service of process
in Davidson County, Tennessee. However, [Defendant] was dissolved as a
foreign corporation in Tennessee on August 6, 2019. Additionally,
[Defendant]’s Tennessee contractor’s license expired on March 30, 2020. As
such, [Defendant] does not maintain a registered agent for service of process
in Tennessee. For these reasons and the reasons stated above, the Court
determines that venue is proper in Alabama.
(Citations to record in original omitted).
II. ISSUES
Plaintiff raises these issues on appeal: (1) did the trial court err in dismissing the
complaint for lack of personal jurisdiction? (2) did the trial court err in dismissing the
complaint for improper venue?
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III. STANDARD OF REVIEW
As recently stated by our Supreme Court:
A defendant may challenge the existence of personal jurisdiction by filing a
motion to dismiss the complaint under Rule 12.02(2) of the Tennessee Rules
of Civil Procedure. The defendant may choose to support the motion with
affidavits or other evidentiary materials. If a defendant does so, the plaintiff
must respond with its own affidavits or other evidentiary materials. First
Cmty. Bank, N.A. v. First Tenn. Bank, N.A., 489 S.W.3d 369, 382 (Tenn.
2015); Gordon [v. Greenview Hosp., Inc.], 300 S.W.3d [635], 644 [Tenn.
2009]. However, a Rule 12.02(2) motion is not converted to one for
summary judgment when the parties submit matters outside the pleadings.
State v. NV Sumatra Tobacco Trading Co., 403 S.W.3d 726, 739 (Tenn.
2013); Gordon, 300 S.W.3d at 644.
The plaintiff bears the burden—albeit not a heavy one—of establishing that
the trial court may properly exercise personal jurisdiction over a defendant.
First Cmty. Bank, 489 S.W.3d at 382; Gordon, 300 S.W.3d at 643. When a
defendant supports its Rule 12.02(2) motion with affidavits or other
evidentiary materials, the burden is on the plaintiff to make a prima facie
showing of personal jurisdiction over the defendant through its complaint
and affidavits or other evidentiary materials. To make a prima facie showing
of personal jurisdiction under Tennessee law, the factual allegations in the
plaintiff’s complaint, affidavits, and other evidentiary materials must
establish sufficient contacts between the defendant and Tennessee with
reasonable particularity. First Cmty. Bank, 489 S.W.3d at 383.
In evaluating whether the plaintiff has made a prima facie showing, the trial
court must accept as true the allegations in the plaintiff’s complaint and
supporting papers and must resolve all factual disputes in the plaintiff’s
favor. Sumatra, 403 S.W.3d at 739. However, the court is not obligated to
accept as true allegations that are controverted by more reliable evidence and
plainly lack credibility, conclusory allegations, or farfetched inferences.
First Cmty. Bank, 489 S.W.3d at 382. Nevertheless, the court should proceed
carefully and cautiously to avoid improperly depriving the plaintiff of its
right to have its claim adjudicated on the merits. Gordon, 300 S.W.3d at 644.
A trial court’s decision regarding the validity of personal jurisdiction over a
defendant presents a question of law. We therefore conduct a de novo review
of the trial court’s decision with no presumption of correctness. First Cmty.
Bank, 489 S.W.3d at 382; Gordon, 300 S.W.3d at 645. In other words, in
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this appeal, we conduct the same evaluation of [the] complaint and the
parties’ affidavits and supporting papers relating to [the] Rule 12.02(2)
motion as the trial court.
Crouch Ry. Consulting, Inc. v. LS Energy Fabrication, Inc., 610 S.W.3d 460, 470-71
(Tenn. 2020).
The issue of whether venue is proper in the trial court is likewise a question of law
subject to our de novo review. Kampert, 2010 WL 4117146, at *2; Cohn Law Firm v. YP
Se. Advertising & Publishing, 2015 WL 3883242, at *3 (Tenn. Ct. App. June 24, 2015)
(“The procedural analysis and standards applied in deciding a motion to dismiss for
improper venue are generally the same as in deciding a motion to dismiss for lack of
personal jurisdiction.”) (quoting 32A Am.Jur.2d Federal Courts § 1202).
IV. ANALYSIS
A. Personal Jurisdiction
A court must have jurisdiction over the person of a nonresident defendant in order
to enter a valid judgment. Crouch, 610 S.W.3d at 469. Tennessee Code Annotated section
20-2-214(a) provides in pertinent part that
[p]ersons who are nonresidents of this state . . . are subject to the jurisdiction
of the courts of this state as to any action or claim for relief arising from: (1)
The transaction of any business within this state; . . . (5) Entering into a
contract for services to be rendered or for materials to be furnished in this
state; [or] (6) Any basis not inconsistent with the constitution of this state or
of the United States[.]
Tennessee’s other long-arm jurisdiction statute, Tenn. Code Ann. § 20-2-225,
permits our courts to exercise jurisdiction “(1) On any other basis authorized by law; or (2)
On any basis not inconsistent with the constitution of this state or of the United States.”
Our Supreme Court has recognized that “Tennessee’s long-arm statutes expand the
jurisdictional reach of Tennessee courts ‘as far as constitutionally permissible.’” Crouch,
460 S.W.3d at 471 (quoting First Cmty. Bank, 489 S.W.3d at 384); Sumatra, 403 S.W.3d
at 740. Consequently, “[t]he constitutional limits of that jurisdiction are ‘set by the Due
Process Clause of the Fourteenth Amendment to the United States Constitution.’” Id.
(quoting Sumatra, 403 S.W.3d at 741). The decisions of the U.S. Supreme Court regarding
the interpretation of the jurisdictional limits imposed by the Due Process Clause are binding
on Tennessee courts, and the decisions of lower federal courts in this regard can be
instructive or persuasive authority. Id.
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The Due Process Clause requires a showing of “reasonable notice to the defendant
that an action has been brought and a sufficient connection between the defendant and the
forum State to make it fair to require defense of the action in the forum.” Id. at 470 (quoting
Kulko v. Super. Ct., 436 U.S. 84, 91 (1978); internal quotation marks and brackets omitted).
As the Crouch Court observed,
[D]ue process requires only that in order to subject a defendant
to a judgment in personam, if he be not present within the
territory of the forum, he have certain minimum contacts with
it 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, 316, (1945)].
International Shoe’s “minimum contacts” paradigm has been the touchstone
of personal jurisdiction for seventy-five years.
[T]he analysis “cannot be simply mechanical or quantitative.” Id. at 319, 66
S.Ct. 154. Instead, “[w]hether due process is satisfied must depend rather
upon the quality and nature” of the defendant’s activities. Id. Thus, in the
wake of International Shoe, the relationship among the defendant, the forum,
and the litigation became the central concern of the inquiry into personal
jurisdiction. Daimler AG v. Bauman, 571 U.S. 117, 126, 134 S.Ct. 746, 187
L.Ed.2d 624 (2014).
* * *
As to the question of the existence of minimum contacts, the Court has stated
that contacts are sufficiently meaningful when they demonstrate that the
defendant has purposefully directed activities at or availed itself of the forum
state in such a way that the defendant should reasonably anticipate being
haled into court there. Burger King, 471 U.S. at 472-74, 105 S.Ct. 2174.
This “ ‘purposeful availment’ requirement ensures that a defendant will not
be haled into a jurisdiction solely as a result of ‘random,’ ‘fortuitous,’ or
‘attenuated’ contacts, or of the ‘unilateral activity of another party or a third
person.’ ” Id. at 475, 105 S.Ct. 2174 (citations omitted).
Crouch, 610 S.W.3d at 471-72.
In the present case, Defendant is incorporated in Alabama and has its principal place
of business there. According to Mr. Allred, most of Defendant’s construction projects have
been in Alabama. As the trial court correctly held, Defendant’s “contacts with Tennessee
are not so continuous or systematic as to render it at home in Tennessee.” Thus, the issue
7
we deal with here is one of specific, not general, personal jurisdiction. See First Cmty.
Bank, 489 S.W.3d at 384-85; Crouch, 610 S.W.3d at 472 n.11 (explaining difference
between specific personal jurisdiction and general personal jurisdiction, which requires a
showing that “a defendant’s affiliations with a forum state are so continuous and systematic
as to render it essentially at home there”).
In Crouch, our Supreme Court recently addressed a situation with some similarities
to the present case. Crouch presented a breach of contract action involving a single
agreement signed in another state, Texas, and involving a construction project in Texas.
The Crouch defendant Lonestar, arguing no personal jurisdiction, asserted that
among other facts, that it was not registered to do business in Tennessee, that
it had no registered agent in Tennessee, that it had never visited Tennessee
for any business purpose related to the contract, that it had no property or
operations in Tennessee, that it did not direct specific advertising to
Tennessee, that it did not routinely sell anything to Tennessee customers, and
that it did not routinely make purchases in Tennessee. Lonestar further
asserted that it did not solicit Crouch in Tennessee, that the work performed
under the contract was related to a facility that Lonestar proposed to build in
Baytown, Texas, and that all in-person meetings associated with the contract
took place in Texas.
Crouch, 610 S.W.3d at 468. The plaintiff Crouch responded by pointing out that “Lonestar
elected to commence a business relationship with Crouch, knowing that Crouch was a
Tennessee company and would be performing work in Tennessee. Crouch further asserted
that although Lonestar did not travel to Tennessee, Lonestar regularly communicated with
Crouch in Tennessee and sent partial payment to Crouch in Tennessee.” The Supreme
Court found that Lonestar’s knowledge that Crouch was a Tennessee company and that
Crouch’s custom design and engineering services for the construction project would be
provided from Tennessee, along with “Lonestar’s communications directed to Crouch in
Tennessee during the parties’ course of dealing, and Lonestar’s mailing of a check to
Tennessee in partial payment on the contract,” provided sufficient minimum contacts to
establish personal jurisdiction. Id. at 481.
The contacts and connections of Defendant to Tennessee in this case are
significantly more substantial than those of the defendant in Crouch. The construction
plans given to Defendant by Plaintiff for his Muscle Shoals house were created in
Tennessee by a Nashville-based firm. It is undisputed that Plaintiff purchased lumber and
tile in Tennessee and had those materials delivered to the construction site. Plaintiff
testified by affidavit that Defendant “submitted invoices requesting payment of its twelve
percent (12%) contractor’s fees as applied to the costs of materials I purchased in
8
Tennessee.” Defendant directed communications to Plaintiff in Tennessee, including
emails and text messages providing invoices and requesting payment.
Defendant’s direct, purposeful attempts to solicit and conduct its business in
Tennessee are also significant. As already noted, Defendant successfully applied for
certificate of authority to transact business in Tennessee and for a Tennessee contractor’s
license. Mr. Allred also requested early review of his application and a hardship license
that would enable Defendant to begin construction work on the Savannah, Tennessee house
earlier than usual, supported by a letter from Tennessee residents urging the approval of
the hardship license, which the state granted. Defendant then proceeded to construct the
multimillion-dollar house in Savannah. Defendant reached out to Tennessee residents
through its website, which stated that it was “licensed in Alabama and Tennessee.” Thus,
Plaintiff has shown “some act or acts by which [Defendant] purposefully availed itself of
the privilege of conducting activities within Tennessee, or stated another way, deliberately
engaged in activities directed at Tennessee.” Crouch, 610 S.W.3d at 477-78. As our
Supreme Court has stated, “[w]hen a corporation ‘purposefully avails itself of the privilege
of conducting activities within the forum State,’ it has clear notice that it is subject to suit
there[.]” Sumatra, 403 S.W.3d at 743 (quoting World-Wide Volkswagen Corp. v.
Woodson, 444 U.S. 286, 297 (1980)).
In his deposition, Mr. Allred testified as follows regarding Defendant’s efforts to
conduct business in Tennessee:
Q. Do you currently anticipate, Mr. Allred, that Pierce & Allred Construction
will have future contracting projects in the State of Tennessee?
A. I hope so.
Q. Do you have any projects under development right now?
A. In the State of Tennessee?
Q. Yes.
A. No.
* * *
Q. Is [Defendant] still actively licensed as a contractor here in Tennessee?
A. That is correct, yes, sir.
Q. And the information that we have, Mr. Allred, indicates that [Defendant]
became licensed as a contractor in Tennessee in March of 2018. Is that
consistent with your recollection?
A. That sounds ̶ that sounds correct.
Q. Is it accurate to say that [Defendant] has been continuously licensed as a
contractor in Tennessee from March of 2018 to the present?
A. Yes.
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Q. It’s also accurate to say that you intend to maintain [Defendant] as a
licensed contractor in Tennessee for the foreseeable future?
A. Absolutely.
* * *
Q. What is David Pierce Builders?
A. David Pierce Builders is the company that Pierce & Allred purchased in
2013.
Q. Does Pierce & Allred still own David Pierce Builders?
A. Pierce & Allred is David Pierce Builders.
Q. Is it your testimony that David Pierce Builders is simply another name for
Pierce & Allred Construction, Inc.?
A. There you go. Yes.
Q. Are you aware that David Pierce Builders maintains a website on the
Internet?
A. That’s Pierce & Allred’s website.
Q. What is the URL address for that website?
A. Davidpiercebuilders.com.
Q. Are you aware that on that website, that David Pierce Builders advertises
itself as a licensed contractor in the State of Tennessee?
A. Pierce & Allred is a licensed contractor in the State of Tennessee.
Although Mr. Allred stated that Defendant’s contractor’s license was active and in
good standing at the time of his deposition, shortly thereafter he filed an affidavit in which
he testified as follows:
After my deposition in this action I learned that Pierce & Allred
Construction, Inc., was dissolved as a for profit corporation ̶ foreign, in
Tennessee on August 6th 2019.
Had I been aware that Pierce & Allred Construction, Inc., was no longer in
good standing in Tennessee, I would have testified that Pierce & Allred
Construction, Inc., is not in good standing and is not seeking to have its status
as an active Tennessee corporation renewed.
After my deposition in this action I further learned that Pierce & Allred
Construction, Inc., no longer has a valid license to act as a contractor in the
State of Tennessee, as its license expired on March 30, 2020.
Had I been aware that Pierce & Allred Construction, Inc., no longer had a
valid license to act as a contractor in the State of Tennessee, I would have
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testified as such and noted that Pierce & Allred Construction, Inc., is not
seeking to have its contractor’s license renewed.
Pierce & Allred Construction, Inc., will be updating its website to reflect that
it is only licensed in the State of Alabama.
(Numbering in original omitted). The trial court, picking up on the last assertion made
above, found that Defendant “will be updating its website to reflect that it is only licensed
in Alabama.” However, as of the date of the filing of this opinion, Defendant’s website
still prominently displays the words “Licensed in Alabama and Tennessee.”
Defendant argues that its contacts with Tennessee are insufficiently connected to
Plaintiff’s cause of action to provide grounds for personal jurisdiction. Defendant points
out that there is not a direct causal relation between its contracting and construction
business in Tennessee and the breach of contract and warranty actions arising from the
Muscle Shoals construction. The United States Supreme Court recently addressed and
rejected a similar argument in Ford Motor Co. v. Montana Eighth Judicial Dist. Ct., 141
S.Ct. 1017, 1024-25 (2021), reiterating and clarifying the due process requirements as
follows:
The contacts needed for [specific personal] jurisdiction often go by the name
“purposeful availment.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475,
105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). The defendant, we have said, must
take “some act by which [it] purposefully avails itself of the privilege of
conducting activities within the forum State.” Hanson v. Denckla, 357 U.S.
235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958). The contacts must be the
defendant’s own choice and not “random, isolated, or fortuitous.” Keeton v.
Hustler Magazine, Inc., 465 U.S. 770, 774, 104 S.Ct. 1473, 79 L.Ed.2d 790(1984). They must show that the defendant deliberately “reached out
beyond” its home—by, for example, “exploi[ting] a market” in the forum
State or entering a contractual relationship centered there. Walden v. Fiore,
571 U.S. 277, 285, 134 S.Ct. 1115, 188 L.Ed.2d 12 (2014) (internal quotation
marks and alterations omitted). Yet even then—because the defendant is not
“at home”—the forum State may exercise jurisdiction in only certain cases.
The plaintiff’s claims, we have often stated, “must arise out of or relate to
the defendant’s contacts” with the forum. Or put just a bit differently, “there
must be ‘an affiliation between the forum and the underlying controversy,
principally, [an] activity or an occurrence that takes place in the forum State
and is therefore subject to the State’s regulation.’ ”
* * *
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Our decision in International Shoe founded specific jurisdiction on an idea
of reciprocity between a defendant and a State: When (but only when) a
company “exercises the privilege of conducting activities within a state”—
thus “enjoy[ing] the benefits and protection of [its] laws”—the State may
hold the company to account for related misconduct.
(Internal citations omitted). The Ford Motor Co. Court described the defendant Ford’s
argument: “In Ford’s view, the needed link must be causal in nature: Jurisdiction attaches
“only if the defendant’s forum conduct gave rise to the plaintiff’s claims.” Id. at 1026
(emphasis in original). The High Court responded to this argument as follows:
But Ford’s causation-only approach finds no support in this Court’s
requirement of a “connection” between a plaintiff’s suit and a defendant’s
activities. Bristol-Myers, 582 U.S., at ––––, 137 S.Ct., at 1776. That rule
indeed serves to narrow the class of claims over which a state court may
exercise specific jurisdiction. But not quite so far as Ford wants. None of
our precedents has suggested that only a strict causal relationship between
the defendant’s in-state activity and the litigation will do. As just noted, our
most common formulation of the rule demands that the suit “arise out of or
relate to the defendant’s contacts with the forum.” Id., at ––––, 137 S.Ct., at
1780 (quoting Daimler, 571 U.S., at 127, 134 S.Ct. 746; emphasis added;
alterations omitted); see supra, at 1025. The first half of that standard asks
about causation; but the back half, after the “or,” contemplates that some
relationships will support jurisdiction without a causal showing. That does
not mean anything goes. In the sphere of specific jurisdiction, the phrase
“relate to” incorporates real limits, as it must to adequately protect
defendants foreign to a forum. But again, we have never framed the specific
jurisdiction inquiry as always requiring proof of causation—i.e., proof that
the plaintiff’s claim came about because of the defendant’s in-state conduct.
See also Bristol-Myers, 582 U. S., at ––––, ––––, 137 S.Ct., at 1779–1780,
1780–1781 (quoting Goodyear, 564 U.S., at 919, 131 S.Ct. 2846) (asking
whether there is “an affiliation between the forum and the underlying
controversy,” without demanding that the inquiry focus on cause). So the
case is not over even if, as Ford argues, a causal test would put jurisdiction
in only the States of first sale, manufacture, and design. A different State’s
courts may yet have jurisdiction, because of another “activity [or]
occurrence” involving the defendant that takes place in the State. Bristol-
Myers, 582 U. S., at ––––, ––––, 137 S.Ct., 1780, 1780–1781 (quoting
Goodyear, 564 U.S., at 919, 131 S.Ct. 2846).
Id.12
Applying this analysis, we hold that Defendant’s contacts in purposefully exercising
the privilege of conducting activities within Tennessee are sufficiently related to the claims
presented here to provide specific personal jurisdiction. Given that Defendant’s
contracting and residential construction activities in Tennessee are of the same nature as
those that occurred in Muscle Shoals, it cannot be said that it is an unfair surprise to
Defendant that it would be haled into court to answer and be accountable for the claims of
a Tennessee citizen such as these.
Even “if minimum contacts exist” as in this case, there is another analytical step:
“the court should then determine whether, even with the requisite minimum contacts, the
exercise of jurisdiction would nonetheless be unfair or unreasonable.” Crouch, 610 S.W.3d
at 472. As the Crouch Court stated:
As to the question of whether, if sufficient minimum contacts between the
defendant and the forum state exist, the exercise of jurisdiction would
nonetheless be unfair or unreasonable, the Court has identified several factors
to consider: (1) the burden on the defendant, (2) the interests of the forum
state, (3) the plaintiff’s interest in obtaining relief, (4) the judicial system’s
interest in obtaining the most efficient resolution of controversies, and (5)
the shared interests of the several states in furthering fundamental substantive
social policies. [Burger King, 471 U.S.] at 476-77, 105 S.Ct. 2174 (citing
World-Wide Volkswagen, 444 U.S. at 292, 100 S.Ct. 580). However, given
the existence of minimum contacts, a defendant “must present a compelling
case that the presence of some other considerations would render jurisdiction
unreasonable.” Id. at 477, 105 S.Ct. 2174.
Id. at 472-73. Our Supreme Court, analyzing these considerations in Crouch, stated:
As for the burden and expense for Lonestar to litigate this dispute in
Tennessee, the same advancements in transportation and communications
that have transformed modern business transactions—and personal
jurisdiction analysis—tend to lessen any unfair burden associated with a
defendant having to litigate a dispute in another state. See Burger King, 471
U.S. at 474, 105 S.Ct. 2174. We can glean no special or unusual burden from
the limited record before us. We also do not believe that the mere fact that
Lonestar would have to travel from Texas to Tennessee amounts to a
constitutionally significant burden.
As for the second and third considerations, we do not doubt that Crouch has
a substantial interest in obtaining relief in Tennessee, and Tennessee has a
corresponding manifest interest in providing residents with a convenient
forum for redressing injuries inflicted by out-of-state actors. See Burger
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King, 471 U.S. at 473, 105 S.Ct. 2174; Nicholstone, 621 S.W.2d at 564
(“Tennessee clearly has an interest in protecting its residents against a breach
of contract by nonresidents....”).
Id. at 485-86. We note that Muscle Shoals, Alabama is only about a two and a half hour
trip via automobile to Nashville, much closer than the distance from Texas considered by
the Court in Crouch. As in Crouch, we likewise conclude that Defendant “has not carried
the burden of establishing that the exercise of personal jurisdiction in this particular case
would be unreasonable or unfair,” and that “the exercise of specific personal jurisdiction
over [Defendant] in Tennessee in this case does not offend traditional notions of fair play
and substantial justice and is, therefore, constitutionally permissible.” Id. at 486.
B. Venue
The trial court also held that venue was improper in Davidson County. As this Court
has observed,
the term “venue” refers to the county, district, subdivision or geographical
area in which a case may be tried. “Venue” is not synonymous with
“jurisdiction,” which refers to the power or authority of the court to decide
certain cases. Venue is the specific place where a court with jurisdiction may
hear a complaint or other pleading. Proper venue is grounded in fairness or
convenience to the litigants or “other commanding policy considerations.”
See, generally, 77 AM.JUR. 2d Venue § 1.
Kampert v. Valley Farmers Co-op, No. M2009-02360-COA-R10-CV, 2010 WL 4117146,
at *2 (Tenn. Ct. App. Oct. 19, 2010). “[V]enue is today largely regulated by statute.” Id.
at *3. Tenn. Code Ann. § 20-4-101(a) provides that “[i]n all civil actions of a transitory
nature, unless venue is otherwise expressly provided for, the action may be brought in the
county where the cause of action arose or in the county where the individual defendant
resides.” The trial court correctly held that Plaintiff’s action for breach of contract and
warranty is a transitory action. “A transitory action is based on a cause of action of a type
that can arise anywhere.” Id. at *2 (quoting Curtis v. Garrison, 211 Tenn. 339, 364 S.W.2d
933, 936 (Tenn. 1963)).
As we stated in Kampert,
a local action is based on a cause of action that can only arise in a particular
locality, because “the subject of the action” (meaning that which has
sustained the injury complained of) is local, “and cannot be injured at any
other place.” Burger v. Parker, 290 S.W. at 23. Local actions generally
involve land. Examples include an action to quiet title to land, a trespass, or
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an injury to real estate. However, not every action that involves a specific
tract of land is considered a local action. For example, in Mattix v. Swepston,
127 Tenn. 693, 155 S.W. 928 (Tenn. 1913), a suit that arose from obstruction
of an easement was determined to be a transitory action, because the damages
complained of were to the plaintiff’s timber business, not to the land itself
nor to the plaintiff’s title to that land.
* * *
[A]lthough the plaintiffs cited a variety of possible claims against the
defendants in their complaint, they did not even mention injury to the land. .
. . [T]he alleged negligence in the present case involved faulty construction
of new buildings on the plaintiffs’ land. If we were to hold this to be a local
action, it would effectively make all actions on construction contracts local,
and it would render void any forum selection clause in a construction contract
that designates venue in a county other than the one where the construction
takes place.
Such a deviation from current well-established law would not only overturn
settled precedent, it would contradict the statutory implication that contracts
for improvement to real estate may include choice of venue provisions.
2010 WL 4117146, at *2, *4.
The trial court’s ruling of improper venue was primarily grounded in its finding that
Defendant “does not maintain a registered agent for service of process in Tennessee.”
Tenn. Code Ann. § 20-4-104 governs venue for corporate defendants, providing that
For all civil actions, if the defendant is not a natural person, the action shall
be brought in:
(1) The county where all or a substantial part of the events or omissions
giving rise to the cause of action accrued;
(2) The county where any defendant organized under the laws of this state
maintains its principal office; or
(3)(A) If the defendant is not organized under the laws of this state, the
county where the defendant’s registered agent for service of process is
located; or
(B) If the defendant does not maintain a registered agent within this state, the
county where the person designated by statute as the defendant’s agent for
service of process is located.
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In the course of applying for Defendant’s contractor’s license, Mr. Allred designated
Will Andrews, a Davidson County resident, as its registered agent for service of process in
Tennessee, using Mr. Andrews’ Nashville business address as the registered address for
the corporation. Although, as already noted, Mr. Allred allowed Defendant’s certificate of
authority to be revoked and its contractor’s license to expire, Tenn. Code Ann. § 48-25-
302 provides in pertinent part:
(a) If the secretary of state determines that one (1) or more grounds exist
under § 48-25-301 for revocation of a certificate of authority, the secretary
of state shall serve the foreign corporation with notice of the secretary of
state’s determination under § 48-25-110 . . .
(b) If the foreign corporation does not correct each ground for revocation . .
. the secretary of state may revoke the foreign corporation’s certificate of
authority by signing a certificate of revocation that recites the ground or
grounds for revocation and its effective date. . . .
(c) The authority of a foreign corporation to transact business in this state
ceases on the date shown on the certificate revoking its certificate of
authority.
(d) The secretary of state’s revocation of a foreign corporation’s certificate
of authority appoints the secretary of state the foreign corporation’s agent for
service of process in any proceeding based on a cause of action which arose
during the time the foreign corporation was authorized to transact business
in this state. Service of process on the secretary of state under this subsection
(d) is service on the foreign corporation. . . .
(e) Revocation of a foreign corporation’s certificate of authority does not
terminate the authority of the registered agent of the corporation.
In this case, Plaintiff served process on both Defendant’s registered agent and the
Tennessee Secretary of State. Service of process was therefore sufficient, and Defendant
did not argue otherwise to the trial court. Defendant does not identify any other valid
reason why venue would be improper in Davidson County.
V. CONCLUSION
The judgment of the trial court is reversed, and the case is remanded to the trial court
for such further action as may be necessary, consistent with this opinion. Costs on appeal
are assessed to Appellee, Pierce & Allred Construction, Inc., for which execution may
issue, if necessary.
______________________________________
KRISTI M. DAVIS, JUDGE
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