Isaacson v. Fenton ( 1998 )

IN THE COURT OF APPEALS
AT KNOXVILLE FILED
July 30, 1998
IN THE MATTER OF: ) C/A NO. 03A01-9804-JV-00119
Cecil Crowson, Jr.
DESTINI JANE ISAACSON, ) Appellate C ourt Clerk
)
A minor under 18 years of age, )
)
)
)
STACEY L. ISAACSON, )
) APPEAL AS OF RIGHT FROM THE
Petitioner-Appellant, ) LOUDON COUNTY JUVENILE COURT
)
)
v. )
)
)
)
MARK L. FENTON, )
) HONORABLE JOHN O. GIBSON,
Respondent-Appellee. ) JUDGE
For Appellant For Appellee
STANLEY F. LADUKE RONALD J. ATTANASIO
Knoxville, Tennessee Hurley, Sharp & Attanasio
Knoxville, Tennessee
O P I N IO N
AFFIRMED AND REMANDED Susano, J.
1
In this paternity case, the trial court granted the
putative father’s motion to dismiss. In so doing, the court
stated that it “[did] not feel that a visit of ten...days by the
[respondent] to [Tennessee] would give this state the power to
require him to stand trial in this cause,” where service of
process was effected on him pursuant to T.C.A. § 20-2-214,1 the
Tennessee Long Arm Statute. The petitioner appealed, contending
that the trial court erred in finding that it did not have in
personam jurisdiction over the respondent.
In connection with this appeal, the petitioner-
appellant, Stacey L. Isaacson, filed a “Statement of the Evidence
and Proceedings” (“Statement”), apparently based upon a perceived
need to comply with Rule 24, T.R.A.P.2 That Statement contains
this introductory sentence:
On October 8, 1997, there was a hearing upon
the record: (1) Petitioner’s sworn Petition
for Paternity, (2) issued Summons returned
served, (3) Petitioner’s Return of Service
Affidavit, (4) Respondent’s Motion to Dismiss
for lack of personal jurisdiction, supporting
Affidavit, and Brief.
1
T.C.A. § 20-2-214 provides, in pertinent part, as follows:
(a) Persons who are nonresidents of Tennessee and
residents of Tennessee who are outside the state and
cannot be personally served with process within the
state are subject to the jurisdiction of the courts of
this state as to any action or claim for relief
arising from:
* * *
(6) Any basis not inconsistent with the constitution
of this state or of the United States;
* * *
2
Since this case was disposed of “on the papers,” i.e., pursuant to the
summary judgment procedure, there was no need to file a transcript or
statement of the evidence.
2
It is clear from Ms. Isaacson’s Statement that the trial court
did not hear any oral testimony. The Statement is basically a
recitation of counsel’s arguments; however, it does contain the
following comments describing the material considered by the
trial court:
The [trial judge] listened to the statements
and arguments from both attorneys and
interrogated both attorneys. He referred to
the Petition for Paternity and attached
Paternity testing results, which were
considered as evidence; the geographical
history of the Petitioner, Respondent, and
child; that the Petitioner, Respondent, and
child lived in North Carolina; that the
laboratory results indicated Respondent was
the father of the child; and that Respondent
spent ten (10) days in Tennessee when he
visited the child.
In ruling on the respondent’s motion, the trial court
obviously considered “matters outside the pleadings.” See Rule
12.03, Tenn.R.Civ.P. Thus, we treat the decree below as one for
summary judgment. Id. The issue before us is the same as the
issue before the trial court: Does the record reflect undisputed
material facts conclusively establishing the respondent’s defense
that the trial court lacked in personam jurisdiction over him?
See Byrd v. Hall, 847 S.W.2d 208, 215 n.5 (Tenn. 1993). The
respondent, as the moving party, had the burden of presenting
facts, admissible in evidence,3 to make out the ground of his
motion. Id.
3
The facts do not have to be in admissible form. See Byrd v. Hall, 847
S.W.2d 208, 215-16 (Tenn. 1993). Thus, while a verified petition and
affidavit are not admissible as such, the material set forth in those
documents can be considered on summary judgment if the person testifying under
oath, in each instance, is competent to testify to those facts in court.
3
The child in question -- Destini Jane Isaacson (DOB:
March 25, 1987) -- was conceived outside the State of Tennessee.
She was born in Denver, Colorado. After that, she lived with her
mother -- the petitioner -- in the following states, in the order
shown: in Arizona, Alaska, North Carolina, Texas, again in
Alaska, and finally in Loudon County, Tennessee. She moved to
the last location in February, 1996.
In the April/May, 1996, time frame, the parties and
their child submitted to tests, apparently in the State of North
Carolina, that led to the issuance of a Paternity Evaluation
Report by Genetic Design, Inc., of Greensboro, North Carolina.
That report reflects that the probability of respondent’s
paternity is 99.98%.4
The verified paternity petition filed by Ms. Isaacson
indicates that the respondent’s “last known address
[was]...Shelton, Washington.” The petition also states that the
respondent “spent ten...days in Loudon County, Tennessee, during
May and June of 1997, during his visitation with the child.”
The respondent submitted his affidavit in support of
his motion. That affidavit contains the following statements:
That I am over eighteen (18) years of age and
have personal knowledge of all matters stated
herein.
That I have visited the State of Tennessee on
one (1) occasion, that being in May/June of
4
Since the Paternity Evaluation Report is admissible, see T.C.A. § 24-7-
112(b)(2)(A), we have considered it to the extent that it is relevant to the
question now before us.
4
1997 for a period of approximately eight (8)
days.
That during my stay I also visited Atlanta,
Georgia for approximately two (2) days.
Other than the single brief visit set forth
above, I have not had any contact with the
State of Tennessee.
The petitioner did not file any further material in response to
the respondent’s affidavit.
We must decide if the respondent’s one visit to
Tennessee is sufficient to permit a Tennessee court to exercise
personal jurisdiction over him in this paternity case.
The petitioner contends that the respondent’s one visit
is a sufficient contact with the State of Tennessee to permit the
Loudon County Juvenile Court to exercise in personam jurisdiction
over him. She relies upon that portion of the Tennessee Long Arm
Statute that authorizes a court of this state to exercise
personal jurisdiction over a defendant “as to any action or claim
for relief arising from:...(6) [a]ny basis not inconsistent with
the constitution of this state or of the United States;...”,
T.C.A. § 20-2-214(a)(6). She also relies upon the following
language of T.C.A. § 36-2-307(b), which is a part of the
paternity statutes:
Any minimum contact relevant to a child being
born out of wedlock that meets constitutional
standards shall be sufficient to establish
the jurisdiction of the courts of Tennessee
over the parents for an action under this
chapter.
5
The law regarding personal jurisdiction is stated in
capsule form in the Supreme Court case of Landers v. Jones, 872
S.W.2d 674 (Tenn. 1994):
Personal jurisdiction of non-resident
defendants may be obtained by service of
process under the Tennessee Long Arm Statute
(Tenn.Code Ann. § 20-2-214(a)) if, and only
if, the non-resident defendant has such
minimum contacts with this state that
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, 66 S. Ct.
154, 158, 90 L. Ed. 95 (1945); J.I. Case Corp.
v. Williams, 832 S.W.2d 530, 531 (Tenn.
1992).
Landers, at 675. While T.C.A. § 36-2-307(b), as quoted in
pertinent portion above, was enacted subsequent to the Landers
case, it is clear that it does not, and could not, expand the in
personam jurisdiction of our courts beyond the constitutional
boundary set forth in Landers.
The requirement that there be minimum contacts between
a defendant and the forum protects an individual’s liberty
interest in not being subjected to the binding judgment of a
forum with which he or she has established no meaningful
contacts, ties, or relations. Burger King Corp. v. Rudzewicz,
471 U.S. 462, 471-72, 105 S. Ct. 2174, 2181-82 (1985).
As previously indicated, the petitioner in this case
relied upon T.C.A. § 20-2-214(a)(6) to obtain service of process
on the respondent. This code section expands the jurisdiction of
Tennessee’s courts to the full extent permitted by the due
6
process requirements of Article I, Section 8 of the Constitution
of Tennessee and the Fourteenth Amendment to the United States
Constitution. Shelby Mutual Insurance Co. v. Moore, 645 S.W.2d
242, 244-45 (Tenn.App. 1981).
The adequacy of a nonresident’s contacts with the forum
must be assessed on a case-by-case basis to determine whether the
requisite circumstances are present. Kulko v. Superior Court,
436 U.S. 84, 92, 98 S. Ct. 1690, 1697 (1978) and Smith v. Smith,
254 Ga. 450, 330 S.E.2d 706, 709 (1985). This analysis is not to
be undertaken in a mechanical fashion; rather, it must focus
primarily on the defendant, the forum, and the nature of the
litigation. Helicopteros Nacionales de Columbia, S.A. v. Hall,
466 U.S. 408, 414, 104 S. Ct. 1868, 1872 (1984); Calder v. Jones,
465 U.S. 783, 788, 104 S. Ct. 1482, 1486 (1984); and Shaffer v.
Heitner, 433 U.S. 186, 204, 97 S. Ct. 2569, 2580 (1977).
It is the quality and nature of a defendant’s contacts
with the forum that are important, not the latter’s contacts with
the plaintiff or the plaintiff’s contacts with the forum.
International Shoe Co. v. Washington, 326 U.S. 310, 319, 66 S. Ct.
154, 160 (1945); Smith v. Smith, 254 Ga. 450, 330 S.E.2d 706, 709
(1985); Basler v. Nelson, 633 S.W.2d 491, 493 (Tenn.App. 1982).
Considerations such as (a) the burden on the nonresident
defendant, (b) the interest of the forum state in applying its
own law, (c) the plaintiff’s interest in obtaining convenient and
effective relief, (d) the interstate judicial system’s interest
in obtaining the most efficient resolution of controversies, and
(e) the various states’ shared interest in furthering substantive
7
social policies are secondary. World-Wide Volkswagen Corp. v.
Woodson, 444 U.S. 286, 292-94, 100 S. Ct. 559, 564-65 (1980) and
Schilz v. Superior Court, 144 Ariz. 65, 695 P.2d 1103, 1107
(1985).
While a plaintiff’s residence in the forum state may
enhance the defendant’s own contacts, Keeton v. Hustler Magazine,
Inc., 465 U.S. 770, 780, 104 S. Ct. 1473, 1481 (1984), the
plaintiff’s actions alone will never be sufficient to establish
minimum contacts between the defendant and the forum state.
Thus, a plaintiff cannot, by some unilateral action, confer
jurisdiction over a nonresident defendant when minimum contacts
between the defendant and the forum are absent. Kulko v.
Superior Court, 436 U.S. 84, 93-94, 98 S. Ct. 1690, 1697-1698
(1978); Hansen v. Denckla, 357 U.S. 235, 253, 78 S. Ct. 1228,
1239-40 (1958); Schilz v. Superior Court, 144 Ariz. 65, 695 P.2d
1103, 1107 (1985); Goldenhersh v. Febrey, 711 P.2d 717, 719
(Colo.App. 1985); and Barnhart v. Madvig, 526 S.W.2d 106, 108-09
(Tenn. 1975).
A single act by a nonresident defendant may be
sufficient to create a substantial connection between the
defendant and the forum state. McGee v. International Life
Insurance Co., 355 U.S. 220, 223, 78 S. Ct. 199, 201 (1957).
However, a single or occasional act will not suffice as a minimum
contact if the nature of the act and the circumstances
surrounding its commission create only an attenuated affiliation
8
with the forum state. Burger King Corp. v. Rudzewicz, 471 U.S.
462, 475 n. 18, 105 S. Ct. 2174, 2184 n. 18 (1985).
In this case, we are dealing with a solitary visit to
Tennessee. As the petitioner points out, it is a reasonable
inference from the facts before us that when the respondent
visited this state, he knew that there was a strong probability
that the petitioner’s child was his; but this does not change the
fact that we are dealing with only one visit.
We have held that visits to this state to exercise
visitation are not sufficient to vest a court with in personam
jurisdiction over a nonresident defendant in a situation where a
plaintiff is attempting to domesticate and/or enforce a foreign
divorce judgment in this state. See Miller v. Miller, 1987 WL
15143 (Tenn.App. at Nashville, August 5, 1987); Turner v. Turner,
1994 WL 677592 (Tenn.App. at Jackson, December 6, 1994). This is
somewhat analogous to a paternity case in that both actions seek
to impose personal obligations on a parent.
We find and hold that the respondent’s one short visit
to Tennessee, standing alone, does not satisfy the constitutional
requirement of minimum contacts. We accept as true -- because it
is not controverted in the record -- that this is the only
contact that the respondent had with this state. Obviously, the
underlying basis for this paternity action -- the alleged
fathering of the child in question -- did not arise out of this
solitary, post-birth contact. As far as we know, there was
nothing more to the visit than appears on the face of the record,
9
i.e., the respondent came to this state, visited the subject
child to an extent not shown in the record, and then visited
Atlanta for two days as a part of the trip to Tennessee. If
there was more to the respondent’s visit to Tennessee than
appears from the verified petition and the respondent’s
affidavit, it was the petitioner’s responsibility to come forth
with these facts once the respondent presented verified facts to
support his claim that the trial court lacked in personam
jurisdiction over him. Byrd, 847 S.W.2d at 215.
We believe that the respondent’s contact with Tennessee
is an “attenuated affiliation” with this state. See Burger King
Corp., 471 U.S. 462, 475 n. 18. We cannot say that the
respondent’s contact is such that this Washington State resident
could have or should have “reasonably anticipate[d] being haled
into court” in Tennessee. See World-Wide Volkswagen Corp. v.
Woodson, 444 U.S. at 297.
We find no error in the grant of summary judgment in
this case.
Accordingly, the judgment of the trial court is
affirmed with costs on appeal taxed to the appellant. This case
is remanded to the trial court for collection of costs assessed
below, pursuant to applicable law.
__________________________
Charles D. Susano, Jr., J.
10
CONCUR:
________________________
Houston M. Goddard, P.J.
________________________
William H. Inman, Sr.J.
11