Warren Hinckley v. Tummel & Carroll, a Professional Partnership, Harold K. Tummel, Individually, Kenneth S. Carroll, Individually, and Ray L. Rhymes, Individually

FILED
WARREN HINKLEY, ) Nov. 29, 1995
)
Plaintiff/Appellant, ) Cecil Crowson, Jr.
Appellate Court Clerk
) Dickson Circuit
) No. CV 368
VS. )
) Appeal No.
) 01-A-01-9504-CV-00174
TUMMEL & CARROLL, a )
Professional Partnership, HAROLD K. )
TUMMEL, Individually, KENNETH S. )
CARROLL, Individually, and RAY L. )
RHYMES, Individually, )
)
Defendants/Appellees. )

IN THE COURT OF APPEALS OF TENNESSEE

MIDDLE SECTION AT NASHVILLE

APPEAL FROM THE CIRCUIT COURT OF DICKSON COUNTY

AT CHARLOTTE, TENNESSEE

HONORABLE LEONARD MARTIN, JUDGE

L. ANTHONY DEAS
509 Lentz Drive
P.O. Box 608
Madison, Tennessee 37116-0608
ATTORNEY FOR PLAINTIFF/APPELLANT

James M. Doran, Jr.
Lela M. Hollabaugh
MANIER, HEROD, HOLLABAUGH & SMITH
First Union Tower, Suite 2200
150 Fourth Avenue, North
Nashville, Tennessee 37219-2494
ATTORNEYS FOR DEFENDANTS/APPELLEES

AFFIRMED AND REMANDED

HENRY F. TODD
PRESIDING JUDGE, MIDDLE SECTION

CONCUR:
BEN H. CANTRELL, JUDGE
WILLIAM C. KOCH, JR., JUDGE
WARREN HINKLEY, )
)
Plaintiff/Appellant, )
) Dickson Circuit
) No. CV 368
VS. )
) Appeal No.
) 01-A-01-9504-CV-00174
TUMMEL & CARROLL, a )
Professional Partnership, HAROLD K. )
TUMMEL, Individually, KENNETH S. )
CARROLL, Individually, and RAY L. )
RHYMES, Individually, )
)
Defendants/Appellees. )

OPINION

Plaintiff, a resident of Texas sued defendants, residents of Texas, for legal

malpractice by failing to timely file a claim against the State of Tennessee for damages

allegedly incurred in Dickson County, Tennessee. The Trial Court sustained defendants'

motion to dismiss on grounds of lack of personal jurisdiction and improper venue.

Plaintiff's brief contains no "Statement of the Issues for Review," as required by

T.R.A.P. Rule 27(a)(4). However, the written argument addresses two issues, (1) jurisdiction

of defendants and (2) venue.

The complaint states that plaintiff is a resident of Euless, Texas, and that the

defendants have law offices in Dallas, Texas. The uncontradicted affidavits supporting

defendants' motion state that they are residents of Texas. The complaint states that he

retained defendants to "start an action against the State of Tennessee for negligence in the

design and maintenance of . . . the ramp . . . where (he) was injured (in Dickson County,

Tennessee)." The "Agreement to Employ Counsel" exhibited to "Plaintiff's Response to

Defendants' Motion to Dismiss" contains the following pertinent provisions:

. . . The Client retains and employs the Attorney to
investigate, evaluate, sue for and recover all damages and
compensation to which the Client may be entitled on account

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 of, as well as to compromise and settle all claims arising out of,
an incident which occurred on or about June 14, 1991. . . .

....

This agreement shall be construed in accordance with the laws
of the State of Texas, and all obligations of the parties are
performable in Dallas County, Texas.

The brief of plaintiff states:

The Defendants did investigate the Plaintiff's claim as agreed.
T.58-60. They made several telephone calls to the Department
of Transportation prior to June 14, 1992. T.58. They did not,
however, file a claim with the Department of Transportation
until after the applicable one year period as required by Tenn.
Code Anno. §29-20-305. P.2.

The affidavits of two of the defendants state:

. . . 1. My name is Harold K. Tummel and I have personal
knowledge of the facts set forth in this Affidavit.

....

3. The plaintiff, Warren Hinkley, retained the services of
Tummel & Carroll, a Texas partnership, in Dallas County,
Texas.

4. At all times relevant to this litigation, Kenneth Carroll and
I were the only partners forming the partnership of Tummel &
Carroll.

....

6. I have not had any contact with the State of Tennessee. I
do not have an office in Tennessee or conduct any business in
Tennessee. I have never represented to anyone that I am
licensed to practice law or authorized to practice law in
Tennessee. Specifically in regard to this litigation, I did not file
the claim with the Tennessee Department of Transportation or
the Complaint with the Tennessee Claims Commission.

....

. . . 1. My name is Kenneth S. Carroll and I have personal
knowledge of the facts set forth in this Affidavit.

....

4. At all times relevant to this litigation, Harold Tummel and
I were the only partners forming the partnership of Tummel &
Carroll.

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 5. I have not had any contact with the State of Tennessee. I
do not have an office in Tennessee, and I do not conduct any
business in Tennessee. Specifically in regard to this litigation,
I did not file the claim with the Tennessee Department of
Transportation or the Complaint with the Tennessee Claims
Commission.

T.C.A. Section 20-2-214(a)(5) reads as follows:

Jurisdiction of persons unavailable to personal service in
state - Classes of actions to which applicable. - (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:

---

(5) Entering into a contract for services to be rendered
or for materials to be furnished in this state; . . . .

Plaintiff asserts that, "The Plaintiff entered into a contract with the Defendants to

provide legal services by pursuing his claim against the State of Tennessee . . . ." The

written contract exhibited to the record does not refer to the State of Tennessee or any locality

therein. The complaint states that the damages were sustained in Tennessee, but no evidence

in the record sustains this assertion.

Plaintiff relies upon "Exhibit B" to plaintiff's memorandum in response to the motion

to dismiss. The exhibit is not identified by any sworn document and may not be considered

as evidence merely by being attached to a pleading. Even if admissible, Exhibit B contains

only a record of a telephone call to "D.O.T." and the following:

Notice is hereby given that Warren Hinkley, Plaintiff above
named, hereby appeals to the Court of Appeals, Middle Section
at Nashville, from the final judgment entered in this action on
the 3rd day of January, 1995.

At most, the three entries on Exhibit B reflect some activity in Texas in respect to some affair

related to Tennessee, but do not contradict the quoted provision of the contract that it was to

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be performed in Texas and the affidavits of defendants that they performed no services in

Tennessee.

Even though the statute, quoted above, asserts jurisdiction over persons contracting to

furnish services in Tennessee, the evidence shows that defendants contracted to render

services only in Texas, and the uncontradicted evidence shows that services were rendered

only in Texas. For this reason, the quoted statute is inapplicable to the facts of the present

case.

General jurisdiction over a defendant is created by his sufficient purposeful,

continuous and systematic contacts with the forum state. Third National Bank v. Wedge

Group, Inc., (6th Cir. 1989), 882 F.2d 1087. Such contacts are denied by the affidavits of

defendants, without contradictory evidence from plaintiff. Therefore, general jurisdiction

may not be imposed upon defendants.

Specific jurisdiction may be exercised in a particular case where the suit arises out of

or is related to defendants' contacts with the forum state. Third National Bank v. Wedge

Group, Inc., supra. Such contacts are shown by evidence that (1) the defendant purposefully

exercised the privilege of acting or causing a consequence in the forum state and (2) the cause

of action arises from such activity or consequences thereof in the forum state and (3) such

acts or consequences are sufficiently connected with the forum state to render reasonable the

exercise of jurisdiction over the defendant by the forum state. Southern Machine Co. v.

Mohasco Industries, Inc. (6th Cir. 1968), 401 F.2d 374; Masada Investment Corp. v. Allen,

Tenn. (1985), 697 S.W.2d 332; Cummins v. K-Mart, Inc. (E.D. Tenn.), 635 F. Supp. 122.

Specific jurisdiction must be based upon activities directed toward citizens of the

forum state and injury resulting therefrom. Davis Kidd Booksellers, Inc. v. Day Impex, Ltd.,

Tenn. App. 1992, 832 S.W.2d 572.

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 No Tennessee authority is found upon the specific question presented by this case.

The only one out of state authority which has been found is Yates v. Muir, Ill. 1986, 492

N.E.2d 1267 wherein a resident of Illinois employed a Kentucky lawyer to assert a disability

retirement under the Federal Civil Service Act. The claim was rejected by a Washington

D.C. official. Federal regulations provided for an appeal to be filed within twenty (20) days

with the appropriate office in Chicago, Illinois. The Kentucky lawyer failed to timely file the

appeal in Chicago. The Illinois Supreme Court held that where all the legal services were

performed in Kentucky, the failure to file the appeal in Illinois was not such a tortious act

within the State of Illinois as would confer jurisdiction upon Illinois Courts under the Illinois

long arm statute which conferred such jurisdiction where a non-resident transacted business

or committed a tortious act within the State of Illinois.

In the present case, all of the evidence indicates that defendants' "activities" involved

dealings in Texas with a resident of Texas about a claim or suit which is not identified as

relating to Tennessee. If, however, there should be competent evidence to support the

allegations of plaintiff's complaint or brief, and contradict the affidavits of defendant, this

Court is of the opinion that a telephone call to Tennessee or a claim mailed or not mailed to

Tennessee would not confer jurisdiction upon Tennessee Courts to adjudicate a dispute

between non-residents arising out of a contract made in another state and providing for

performance in that state.

The Trial Court correctly dismissed the suit for lack of personal jurisdiction of the

defendants.

The foregoing renders unnecessary any consideration of the plaintiff's second issue.

The judgment of the Trial Court is affirmed. Costs of this appeal are taxed against the

appellant. The cause is remanded to the Trial Court for any necessary further proceedings.

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 Affirmed and Remanded.

_______________________________________
HENRY F. TODD
PRESIDING JUDGE, MIDDLE SECTION

CONCUR:

_____________________________________
BEN H. CANTRELL, JUDGE

_____________________________________
WILLIAM C. KOCH, JR., JUDGE

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