Young Bok Song v. Kathryn Lehman and James C. Thornton ( 2011 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
ASSIGNED ON BRIEFS JULY 28, 2011
YOUNG BOK SONG v. KATHRYN LEHMAN and JAMES C. THORNTON
Direct Appeal from the Chancery Court for Johnson County
No. 6456 G. Richard Johnson, Chancellor
No. E2010-01650-COA-R3-CV-FILED-SEPTEMBER 16, 2011
Plaintiff was involved in a previous lawsuit in North Carolina in which he sued several police
officers. Plaintiff then instituted the present case against two North Carolina attorneys who
represented the police officers in the North Carolina litigation. The trial court granted the
attorneys’ motion to dismiss for lack of personal jurisdiction. It also denied Plaintiff’s
request for the appointment of an attorney and an interpreter. We affirm.
Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Chancery Court Affirmed
A LAN E. H IGHERS, P.J., W.S., delivered the opinion of the Court, in which D AVID R. F ARMER,
J., and H OLLY M. K IRBY, J., joined.
Young Bok Song, Mountain City, Tennessee, pro se
Christopher D. Owens, Johnson City, Tennessee, for the appellees, Kathryn Lehman and
James C. Thornton
OPINION
I. F ACTS & P ROCEDURAL H ISTORY
Young Bok Song (“Plaintiff”) is an inmate at the Northeast Correctional Complex in
Mountain City, Tennessee. In 2009, he filed a lawsuit in the United States District Court for
the Eastern District of North Carolina against several police officers with the City of
Fayetteville, North Carolina police department. One of the named defendants was Officer
Welch. Officer Welch was represented in the lawsuit by North Carolina attorneys Kathryn
Lehman and James Thornton.
In 2010, Plaintiff filed this lawsuit against Ms. Lehman and Mr. Thornton (“the
Attorneys”) in the chancery court of Johnson County, Tennessee. Plaintiff alleged that when
the Attorneys mailed a copy of a motion filed in the North Carolina lawsuit, and a related
letter, to him at the correctional complex, they failed to include a return address that indicated
a “Legal Identity” and failed to use a “Legal-Mail” stamp on the envelope.1 Plaintiff alleged
that, as a result of these omissions, his mail was opened by mail room officers without his
presence. Plaintiff further alleged that this resulted in an invasion of his federal privacy
rights and that he was suffering damages and retaliation due to the “exposure” of his federal
lawsuit. He sought declaratory relief and monetary damages.
Plaintiff attached to his complaint a “Motion for Appointment of Counsel,” in which
he requested that the chancery court appoint an attorney for him due to the fact that he is a
“foreigner [and] Korean National,” a non-lawyer, and indigent. The chancery court denied
the motion shortly after it was filed.
The Attorneys filed a motion to dismiss for lack of personal jurisdiction. They
attached to their motion their own affidavits, stating that they are North Carolina residents
who have never resided in Tennessee or owned any property interest in Tennessee. The
Attorneys further stated that they are licensed to practice law in North Carolina and that they
have never practiced law in Tennessee or appeared before any court in the State of
Tennessee. They stated that they represent police officers in the federal lawsuit filed by
Plaintiff in North Carolina, and that their only interaction with Plaintiff was serving him by
mail with documents that were filed in the North Carolina lawsuit as required by the Federal
Rules of Civil Procedure. According to the Attorneys’ affidavits, the North Carolina lawsuit
arose out of events that took place in North Carolina, and they do not represent any
Tennessee residents in the lawsuit. The Attorneys stated that they do not have a contractual
1
These documents were attached to Plaintiff’s complaint. They consist of a copy of a motion for
an extension of time and a letter in which Ms. Lehman inquired as to Plaintiff’s position on the motion.
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relationship with any entity that is a resident of Tennessee, nor do they have a contractual
relationship to provide any services in Tennessee.
Plaintiff then filed a “Motion to Proceed,” in which he responded to the motion to
dismiss filed by the Attorneys. He argued that personal jurisdiction existed because the
Attorneys had “continuously and systematically” contacted him by serving him by mail with
various documents that were filed in the North Carolina lawsuit while he was incarcerated
in Tennessee.
Plaintiff subsequently filed a motion requesting that he be transported to chancery
court for the hearing, and the court granted Plaintiff’s motion. Thereafter, Plaintiff filed
another motion requesting that an interpreter be appointed for the hearing. The chancery
court denied Plaintiff’s request for an interpreter, stating in its order that Plaintiff had
demonstrated “perfect” English writing in the numerous documents and eleven written
motions that he had filed in the court, and finding “no evidence that the Plaintiff does not
understand the English language, either written or spoken.”
The chancery court ultimately granted the Attorneys’ motion to dismiss upon
concluding that it lacked jurisdiction over the Attorneys. Plaintiff timely filed a notice of
appeal.
II. I SSUES P RESENTED
Plaintiff presents the following issues, as we perceive them, for review:
1. Whether the trial court erred in concluding that it did not have personal jurisdiction
over the Attorneys;
2. Whether the trial court erred in failing to appoint an attorney and an interpreter for
Plaintiff; and
3. Whether the legislature and the United States and Tennessee Constitutions permit the
litigation of this case.
For the following reasons, we affirm the decision of the chancery court.
III. D ISCUSSION
A. Personal Jurisdiction
“The plaintiff bears the ultimate burden of demonstrating that the trial court may
properly exercise personal jurisdiction over a defendant.” Gordon v. Greenview Hosp., Inc.,
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300 S.W.3d 635, 643 (Tenn. 2009) (citing Chenault v. Walker, 36 S.W.3d 45, 56 (Tenn.
2001); Davis Kidd Booksellers, Inc. v. Day–Impex, Ltd., 832 S.W.2d 572, 577 (Tenn. Ct.
App. 1992)). Personal jurisdiction must be demonstrated by a preponderance of the
evidence. Id. If a defendant files a Rule 12.02(2) motion to dismiss for lack of personal
jurisdiction, “the defendant may, but is not required to, support the motion with affidavits or
other evidentiary materials.” Id. at 644 (citing Humphreys v. Selvey, 154 S.W.3d 544, 550
n.5 (Tenn. Ct. App. 2004)). However, a Rule 12.02(2) motion is not converted to a motion
for summary judgment when matters outside the pleadings are submitted either in support
of or in opposition to the motion. Id. at 643 (citing Chenault, 36 S.W.3d at 55). “[I]f a
defendant supports its motion with affidavits, the plaintiff must establish its prima facie
showing of personal jurisdiction over the defendant by filing its own affidavits or other
written evidence.” Id. at 644 (citing Chenault, 36 S.W.3d at 56; Mfrs. Consol. Serv., Inc. v.
Rodell, 42 S.W.3d 846, 854-55 (Tenn. Ct. App. 2000)). The trial court must take the
allegations in the plaintiff’s complaint as true and resolve all factual disputes in the plaintiff’s
favor. Id. “Dismissal is proper only if all the specific facts alleged by the plaintiff
collectively fail to establish a prima facie case for personal jurisdiction.” Id. (citing Rodell,
42 S.W.3d at 855). A decision regarding the exercise of personal jurisdiction involves a
question of law, and we review whether the plaintiff has made out a prima facie basis for the
exercise of personal jurisdiction over the defendant de novo with no presumption of
correctness. Id. at 645.
Tennessee’s long-arm statute permits the courts of this state to exercise personal
jurisdiction upon, among other things, “[a]ny basis not inconsistent with the constitution of
this state or of the United States.” Rodell, 42 S.W.3d at 855 (quoting Tenn. Code Ann. §§
20-2-214(a)(6), 20-2-225(2)). Thus, when the issue of personal jurisdiction arises,
considerations of due process require us to determine “whether it is ‘fair and substantially
just to both parties to have the case tried in the state where the plaintiff has chosen to bring
the action.’” Gordon, 300 S.W.3d at 646 (quoting Masada Inv. Corp. v. Allen, 697 S.W.2d
332, 335 (Tenn. 1985)). Personal jurisdiction can be exercised over a nonresident defendant
“only if the defendant has ‘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.’” Id. (quoting Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). When
determining whether the defendant has the requisite minimum contacts with the forum state,
“the court will primarily examine the quantity of the contacts, their nature and quality, and
the relationship between the contacts and the cause of action.” Id. at 647 (citing Masada Inv.
Corp., 697 S.W.2d at 334). When considering the fairness of exercising jurisdiction, the
court must consider the burden on the defendant, the plaintiff's interest in obtaining relief,
the interests of the forum state, the interstate judicial system’s interest in obtaining the most
efficient resolution of controversies, and the shared interest of the several states in furthering
fundamental substantive social policies. Id. (citing Asahi Metal Indus. Co. v. Superior Court,
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480 U.S. 102, 113 (1987)).
If the plaintiff’s cause of action arises from or is related to the nonresident defendant’s
activities in or contacts with the forum state,2 specific jurisdiction may be invoked if the
plaintiff shows “(1) that the nonresident defendant has purposely established significant
contact with the forum state and (2) that the plaintiff's cause of action arises out of or is
related to these activities or contacts.” Gordon, 300 S.W.3d at 647 (citing Burger King
Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985)). “The nonresident defendant’s contacts with
the forum state must be sufficient to enable a court to conclude that the defendant ‘should
reasonably anticipate being haled into court [in the forum state].’” Id. (quoting Lindsey v.
Trinity Commc'ns, Inc., 275 S.W.3d 411, 418 (Tenn. 2009)). If the plaintiff makes that
showing, then the defendant must demonstrate that exercising specific jurisdiction would be
unfair. Id.
In the case at bar, Plaintiff contends that it is appropriate to exercise personal
jurisdiction over the Attorneys because, in the course of representing Officer Welch in the
North Carolina lawsuit, the Attorneys mailed a letter and at least one copy of a motion to him
in Tennessee.3
In Masada Inv. Corp. v. Allen, 697 S.W.2d 332, 333 (Tenn. 1985), our Supreme
Court considered whether it was appropriate to exercise personal jurisdiction over a Texas
lawyer based upon the Texas lawyer’s preparation of a deed for a real estate transaction
involving property located in Tennessee and being sold by a Tennessee entity. Although the
Texas lawyer did not physically travel to Tennessee, he conversed with another attorney in
Knoxville on several occasions, drafted the documents in accordance with Tennessee law to
be recorded in Tennessee, and sent the completed documents to Tennessee for execution.
Id. at 335. The Court concluded that the Texas lawyer had sufficient minimum contacts with
Tennessee to justify personal jurisdiction here. Id. “By wilfully and knowingly choosing to
prepare legal documents which would be filed in Tennessee and be of great consequence
here, [the lawyer] purposely availed himself of the privilege of doing business within this
state.” Id. The Court also found that the lawyer “should have reasonably anticipated having
2
Specific jurisdiction applies when a plaintiff's cause of action is based on the defendant's activities
in or contacts with the forum state, while general jurisdiction is appropriate when the plaintiff's cause of
action does not arise from and is not related to the defendant's contacts with the forum state. Gordon, 300
S.W.3d at 648. Because Plaintiff’s cause of action in this case is related to the Attorneys’ contact with
Tennessee, we will only consider the issue of specific jurisdiction.
3
Although Plaintiff’s complaint only mentions the two documents mailed to him in March of 2010,
in the motion he filed in response to the Attorneys’ motion to dismiss, he claimed that he had received
approximately six documents from the Attorneys between March and May of 2010.
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to defend his actions in a Tennessee court.” Id.
This Court considered the issue of personal jurisdiction over out-of-state attorneys in
Shelby County Health Care Corp. v. Allstate Ins. Co., No. W2002-01439-COA-R9-CV,
2003 WL 22071464 (Tenn. Ct. App. Aug. 28, 2003). The attorneys were from Arkansas and
represented an Arkansas plaintiff in an Arkansas lawsuit arising out of an automobile
accident that occurred in Arkansas. Id. at *1. During the course of that representation, the
Arkansas attorneys sent two letters to a Memphis hospital and trauma center requesting
information regarding treatment the plaintiff had received there. Id. The hospital later sued
an insurance company in a Tennessee court regarding its hospital lien for the medical
services received by the plaintiff, and the insurer filed a third-party complaint against the
Arkansas attorneys. Id. When considering whether it was appropriate for a Tennessee court
to exercise personal jurisdiction over the Arkansas attorneys, we explained that “[t]he Due
Process Clause requires ‘fair warning that a particular activity may subject [the defendant]
to the jurisdiction of a foreign sovereign.’” Id. at *2 (quoting Burger King Corp., 471 U.S.
at 472). We quoted the following explanation from Burger King Corp.:
Where a forum seeks to assert specific jurisdiction over an out-of-state
defendant who has not consented to suit there, this “fair warning” requirement
is satisfied if the defendant has “purposefully directed” his activities at
residents of the forum, and the litigation results from alleged injuries that
“arise out of or relate to” those activities[.] And with respect to interstate
contractual obligations, we have emphasized that parties who “reach out
beyond one state and create continuing relationships and obligations with
citizens of another state” are subject to regulation and sanctions in the other
State for the consequences of their activities.
....
In defining when it is that a potential defendant should “reasonably
anticipate” out-of-state litigation, the Court frequently has drawn from the
reasoning of Hanson v. Denckla, 357 U.S. 235, 253, 78 S. Ct. 1228, 1239-1240,
2 L. Ed. 2d 1283 (1958):
“The unilateral activity of those who claim some relationship
with a nonresident defendant cannot satisfy the requirement of
contact with the forum State. The application of that rule will
vary with the quality and nature of the defendant's activity, but
it is essential in each case that there be some act 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.”
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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[.]” Jurisdiction is proper, however, where the contacts proximately
result from actions by the defendant himself that create a “substantial
connection” with the forum State. Thus where the defendant “deliberately”
has engaged in significant activities within a State, or has created “continuing
obligations” between himself and residents of the forum, he manifestly has
availed himself of the privilege of conducting business there, and because his
activities are shielded by “the benefits and protections” of the forum's laws it
is presumptively not unreasonable to require him to submit to the burdens of
litigation in that forum as well.
Id. at *4-5 (quoting Burger King Corp., 471 U.S. at 472-76) (internal citations omitted).
Applying those principles to the Arkansas attorneys, we concluded that their contacts with
Tennessee were insufficient to justify exercising specific personal jurisdiction. Id. at *6.
They did not conduct business or advertise in Tennessee, and their only contacts with
Tennessee were the two letters they sent to the hospital and trauma center in the course of
representing the plaintiff. Id. “These mailings alone [did] not constitute sufficient contact
with Tennessee to find that the Attorneys ha[d] ‘purposefully availed’ themselves of
conducting activities in Tennessee.” Id. We noted that the letters were written in furtherance
of representing the Arkansas plaintiff against the driver “and not to conduct business in
Tennessee ‘invoking the benefits and protections of its laws.’” Id. (quoting Hanson, 357 U.S.
at 253).
Turning now to the present case, we similarly conclude that the nature and quality of
the Attorneys’ contacts with Tennessee cannot support the assertion of personal jurisdiction
over them in this case. They did not purposely establish significant contact with Tennessee
or purposefully avail themselves of the privilege of conducting activities here in order to
invoke the benefits and protections of our laws. Rather, the Attorneys had isolated and
random contact with Plaintiff in Tennessee by virtue of their representation of North Carolina
clients in a lawsuit pending in North Carolina concerning activities that occurred in North
Carolina. The Attorneys’ fortuitous contacts with Plaintiff in Tennessee are simply not
sufficient to enable us to conclude that they should have reasonably anticipated being haled
into court in Tennessee. Gordon, 300 S.W.3d at 647. Therefore, the Attorneys lacked
sufficient minimum contacts with the State of Tennessee to justify the exercise of personal
jurisdiction. Because Plaintiff failed to establish a prima facie case for personal jurisdiction,
the chancery court’s decision to grant the Attorneys’ motion to dismiss is affirmed.
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B. Appointment of an Attorney and Interpreter
Next, we will address Plaintiff’s argument that the trial court erred in failing to
appoint an attorney and an interpreter for him. “There is no absolute right to appointed
counsel in a civil case.” Joiner v. Carter, No. M2003-02248-COA-R3-CV, 2007 WL
1860706, at *1 n.1 (Tenn. Ct. App. Jun. 27, 2007) (citing Memphis Bd. of Realtors v. Cohen,
786 S.W.2d 951, 953 (Tenn. Ct. App. 1989)). In fact, “[i]n most civil proceedings, a litigant
has no constitutional right to appointed counsel.” Lyon v. King, No. M2007-01156-COA-
R3-PT, 2008 WL 490657, at *4 (Tenn. Ct. App. Feb. 22, 2008). A decision regarding
whether to appoint counsel is well within the discretion of the trial court and may only be
overturned upon a showing of an abuse of discretion. White v. Bacon, No. M2004-02110-
COA-R3-CV, 2006 WL 211810, at *4 (Tenn. Ct. App. Jan. 26, 2006) (citing State v. Rubio,
746 S.W.2d 732, 737 (Tenn. Crim. App. 1987)). Plaintiff does not point to any fact or
authority that would lead us to conclude that the chancellor abused his discretion in failing
to appoint an attorney for him.
Likewise, “[a]ppointing an interpreter is a matter of judicial discretion.” Tenn. Sup.
Ct. R. 42, § 3(a). “It is the responsibility of the court to determine whether a participant in
a legal proceeding has a limited ability to understand and communicate in English.” Id. In
this case, the trial court denied Plaintiff’s request for an interpreter to be appointed for the
hearing upon finding “no evidence that the Plaintiff does not understand the English
language, either written or spoken.” We find no abuse of discretion in this decision. Plaintiff
had filed a separate motion in the trial court regarding his work assignments at the prison,
and, in an apparent attempt to demonstrate his ability to perform such assignments, he filed
numerous affidavits in which his former supervisors stated that Plaintiff “communicates
well” and “understand[s] English.” One supervisor stated, “I . . . have no problem
understanding [Plaintiff] nor have I ever had to repeat anything for him.” Another officer
who worked with Plaintiff in the prison law library stated, “[Plaintiff] is well versed in legal
affairs and has explained legal situations to me using the English language in a way I could
easily understand.” Considering these affidavits, submitted to the trial court by Plaintiff
himself, in addition to the clarity of his filings in this case, we find no abuse of the trial
court’s discretion in denying Plaintiff’s request for an interpreter.
C. Other Arguments
Finally, Plaintiff argues that the legislature and the United States and Tennessee
Constitutions “clearly intended” to permit the litigation in this case. Plaintiff’s brief does not
further explain this argument, but it states that he intended to amend his brief at a later date.
We find no merit in this issue as presented.
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IV. C ONCLUSION
For the aforementioned reasons, we affirm the decision of the chancery court. Costs
of this appeal are taxed to the appellant, Young Bok Song, for which execution may issue if
necessary.
_________________________________
ALAN E. HIGHERS, P.J., W.S.
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