IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON MAY 1999 SESSION
FILED
June 15, 1999
MARGARET PARKER, ) SHELBY CIRCUIT Crowson, Jr.
Cecil
) (No. 95499 T.D.) Appellate Court Clerk
Plaintiff/Appellant )
)
v. ) APPEAL NO. 02A01-9812-CV-00373
)
THE KROGER COMPANY, )
d/b/a KROGER COMPANY )
FOOD STORES, )
)
Defendant/Appellee )
APPEAL FROM THE CIRCUIT COURT OF SHELBY COUNTY
AT MEMPHIS
THE HONORABLE JAMES F. RUSSELL, JUDGE
For the Appellant:
Marshall L. Gerber
Suite 2700
5100 Poplar Avenue
Memphis, TN 38137
For the Appellee:
Kenneth R. Rudstrom
Minton P. Mayer
80 Monroe Avenue, Suite 500
Memphis, TN 38103
REVERSED and
REMANDED
WILLIAM H. INMAN, Senior Judge
CONCUR:
DAVID R. FARMER, JUDGE
ALAN E. HIGHERS, JUDGE
OPINION
The suit of the plaintiff was dismissed on the ground of forum non
conveniens. She appeals, and presents for review the propriety of the dismissal of
her case. The standard of review is whether there was an abuse of discretion.
Package Express Center v. Snider Foods, 788 S.W.2d 561 (Tenn. App. 1983).
The plaintiff is a resident of Shelby County, Tennessee. On October 3,
1997, she was a customer in Kroger’s store in Flower Mound, Texas, accompanied
by her daughter. She alleged that she slipped and fell in the store, suffering a knee
injury, which she attributed to the negligence of the defendant. Her complaint was
filed on June 26, 1998, in the Circuit Court of Shelby County. The defendant
responded by filing a motion to dismiss on the ground of forum non conveniens,
alleging, inter alia, that since the witnesses resided in Texas, the taxpayers of
Shelby County and the State of Tennessee would benefit if the complaint was
dismissed.
The defendant filed no affidavits in support of its motion, and we have no
transcript of the proceeding.
The plaintiff filed an affidavit with her appellate brief, alleging that it was
attached to a memorandum brief tendered to the trial court. Be that as it may, the
affidavit is not included in the technical record and its inclusion in the brief confers
no probative value upon it. But this point is not crucial, since the burden of proof
was reposed on the defendant to support its motion.
The trial judge found that a trial of this case would impose a hardship on
Kroger’s witnesses, that testimony by deposition is inferior to live testimony and
that it would be difficult for Kroger to compel witnesses in Texas to travel to
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Tennessee. The court also observed that this was a tort action which should be
tried where it occurred, and that Texas law would control.
We infer that these findings were based on the complaint, arguments of
counsel, and otherwise inferred from the allegations of the motion to dismiss.
Forum non conveniens is concerned with the discretionary power of the
court to decline to exercise a possessed jurisdiction whenever, because of varying
factors, it appears that the controversy may be more suitably or conveniently tried
elsewhere. Zurick v. Inman, 426 S.W.2d 767 (Tenn. 1968). The scope of review
of the application of the doctrine is whether or not the court has abused its
discretion, Package Express, 788 S.W.2d at 564, citing Zurick, supra. An
evidential hearing on the applicability of the doctrine is not required because to do
so would defeat the purpose of the doctrine. Id.
If the doctrine is to be applied, there must be a showing, beyond mere
pleading assertions, of the factors involved: the relative ease of access to sources
of proof; availability of compulsory process for witnesses; the expenses for
obtaining the attendance of witnesses; the possibility of view of the premises, if
view would be appropriate; the likelihood that depositional testimony, as
contrasted to live testimony, will be presented; whether the forum is a
“substantially less convenient place for trial”; and perhaps other reasons which
directly affect the foundational issue of convenience. The fact that the law of
Texas may control is not a factor. Zurick, supra; Package Express, supra;
Shoney’s Inc. v. Chic Can Enterprises, 922 S.W.2d 530 (Tenn. App. 1995).
As we have observed, the defendant presented no affidavits in support of its
motion, and thus failed to “sustain its burden of showing that the balance as to the
convenience of the witnesses was so strongly in favor of the defendant as to
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overcome the weight to be given to the plaintiff’s choice of forum.” See, Zurick,
supra; Rule 43.02, Tenn. R. Civ. P. There is “no affidavit proof,” Package
Express, supra, to analyze, and therefore none to support the findings. The
judgment is reversed and the case is remanded for further, appropriate proceedings.
Costs are assessed to the appellee.
_______________________________
William H. Inman, Senior Judge
CONCUR:
_______________________________
David R. Farmer, Judge
_______________________________
Alan E. Highers, Judge
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Margaret Parker v. Kroger Co.
Combined Opinion