Tennessee Jurisdiction – When can Tennessee courts exercise personal jurisdiction on out-of-state corporations?

Analysis:  The recent Court of Appeals decision of Precision Castings of Tennessee, Inc. v. H and H Manufacturing Co., Inc., No. M2012-00334-COA-R3-CV, 2012 WL 3608668, (Tenn. Ct. App. August 22, 2012) discussed when Tennessee courts can exercise jurisdiction over non-Tennessee entities.  In this case, the defendant, H and H, contacted a Tennessee company, Precision, and requested Precision to manufacture and deliver certain metal castings and molds.  H and H failed to pay for the product.  A lawsuit was filed in Tennessee and a judgment was entered against H and H.   

H and H contended the Tennessee court did not have jurisdiction over H and H.  H and H argued it never agreed to come to Tennessee, had never been in Tennessee, had no prior business relationships in Tennessee, had not derived any revenue from people or entities in Tennessee and does not conduct any business enterprise in Tennessee.  The court, however, determined the key facts as used to determine whether jurisdiction was appropriate was that H and H made electronic contact (email) with Precision in Tennessee and asked Precision to give H and H a quote to produce the products in question.  Pursuant to this request, Precision provided an electronic quote to H and H and Precision delivered the product to H and H. 

This case provides a good overview of when jurisdiction is appropriate in Tennessee.  There are two types of jurisdiction, “general jurisdiction”, and “specific jurisdiction”.  The court noted that general jurisdiction exists “when a defendant has ‘continuous and systematic contacts with the forum state sufficient to justify the state's exercise of judicial power with respect to any and all claims.”  Precision Castings. at footnote 1 (citing Aristech Chem Int’l Ltd. V. Acrylic Fabricators LTD., 138 F.3d 624, 627 (6^th Cir. 1998)).  Specific jurisdiction on the other hand “confers jurisdiction only on claims that arise out of or relate to a defendant’s contacts with the forum.”  Precision Castings at footnote 1.

The Tennessee long arm statute is found in T.C.A. § 20-2-214(a) and allows Tennessee Courts to...

Comparative fault - T.C.A. § 16-15-735 requires pre-trial notification to the plaintiff of possible additional parties at fault in a General Sessions case

Tennessee Premises Liability - When is liability imposed on a property owner in a premises liability case?

The recent Tennessee Court of Appeals decision of David G. Rogers v. Autozone Stores, Inc., No. M2011-02606-COA-R3-CV, 2012 WL 3594342 (Tenn. Ct. App. August 21, 2012) provides a good summary of Tennessee premises liability law.  Factually, this case concerns a plaintiff who alleged she slipped and fell in a puddle in an AutoZone store a few feet away from the front counter.  It was raining on the day of the incident.  The plaintiff initially entered the store and then exited to go outside while it was still raining.  The plaintiff then returned inside the store approximately 15 to 20 minutes after she first entered.  The plaintiff claims she then fell in a puddle that was the size of a plant pot.  She was the only person in the front of the store during the 15 to 20 minutes prior to the fall. 

The Court found that for a plaintiff to recover under a premises liability theory, the plaintiff must establish the standard elements of negligence and one of the two following elements:

(1) the condition was caused or created by the owner, operator, or his agent, or (2) if the condition was created by someone other than the owner, operator, or his agent, that the owner had actual or constructive notice that the condition existed prior to the accident.

Rogers at 6. (citing Blair v. West Town Mall, 130 S.W.3d 761, 764 (Tenn. 2004). 

The Tennessee Court of Appeals also discussed the fact that foreseeability is a key requirement in a premises liability action.  The Court stated, "for a plaintiff to prevail in a premises liability case, he or she must prove that the injury was a reasonably foreseeable probability and that some action within the defendant's power more probably than not would have prevented the injury."  Rogers at 6 (citing Dobson v. State, 23 S.W.3d 324, 330 (Tenn. Ct. App. 1999)).

Based on the facts in the

Res Judicata - Requirements for a case to be dismissed under doctrine of res judicata in Tennessee

Brief Summary:  In order to apply the doctrine of res judicata to bar a second cause of action filed by the plaintiff over the same issues in dispute, the first cause of action must be dismissed “on the merits”.  In other words, a procedural or technical dismissal of the first cause of action will not allow a second cause of action to be barred under the doctrine of res judicata.

Analysis:  The recent Tennessee Court of Appeals decision of J. M. Hanner Construction Company,, Inc. v. Thomas Brothers Construction Company, Inc., E2011-01641-COA-R9-CV, 2012 WL 3012639 (Tenn. Ct. App. July 24, 2012) discussed the requirements to obtain a dismissal of a case based on the doctrine of res judicata in Tennessee.  Res judicata is a doctrine that is defined as “a final judgment on the merits by a court having jurisdiction is conclusive between the parties to a suit as to all matters that were litigated or that could have been litigated in that suit.” (Quote from The Free Dictionary).  The Hanner case dealt with a situation where the plaintiff filed an initial complaint that was dismissed due to the failure of the plaintiff to meet signing requirements set forth in Rule 11.01 of the Tennessee Rules of Civil Procedure.  A second complaint was later filed and the defendant requested a dismissal of that case based on the doctrine of res judicata. 

The Tennessee Court of Appeals noted the required elements that must be established by a party asserting a res judicata defense as follows:

(1) a court of competent jurisdiction rendered the prior judgment, (2) the prior judgment was final, (3) the same parties or their privies were involved in both proceedings, and (4) both proceedings involved the same cause of action.

Hanner at p. 3.  The most important element that was pertinent in this case was the r...

Whitewater Activity Immunity - T.C.A. § 70-7-201 et al. provides immunity to companies and individuals for certain Whitewater activities

Construction Defect – Four year statute of repose from date of substantial completion

has a four year statute of repose for construction defect claims, with some exceptions.  A statute of repose bars a claim after a date certain and is different from a statute of limitations.  A statute of limitations generally bars a claim a certain amount of time after the cause of action accrues.  A statute of repose, however, generally bars a claim after a certain time period passes from an event other then the time the cause of action accrues. (See Wyatt v. A-Best Products Co., 924 S.W.2d 98, 102 (Tenn. Ct. App 1995) for a good discussion on the differences between the two).  The Tennessee Court of Appeals has stated that “because a statute of repose sets the triggering event as something other than accrual, it can have the effect of barring a plaintiff's claim before it accrues, most typically before the plaintiff becomes aware of his or her injury.”  Wyatt at 102. 

The statute of repose for construction defect claims is found in T.C.A. § 28-3-201 – T.C.A. § 28-3-205.  This statute has some nuances that need to be considered in all cases involving construction defects.  T.C.A. § 28-3-202 is the operative statute and provides as follows:

All actions to recover damages for any deficiency in the design, planning, supervision, observation of construction, or construction of an improvement to real property, for injury to property, real or personal, arising out of any such deficiency, or for injury to the person or for wrongful death arising out of any such deficiency, shall be brought against any person performing or furnishing the design, planning, supervision, observation of construction, construction of, or land surveying in connection with, such an improvement within four (4) years after substantial completion of such an improvement.

(emphasis added).  As a result, there is a four year statute of repose which prevents a lawsuit for construction defect claims (as defined in the statute) unless the cause of action is commenced within four years after substantial completion of the improvement.  

As a result, the definition of “substantial completion” is very important to determine when the four year time period begins to run. 

Tennessee Consumer Protection Act – The “catch all” provision (T.C.A. § 47-18-107(b)(27)) found in the Tennessee Consumer Protection Act has been eliminated

The Tennessee tort reform bill of 2011 eliminated the “catch all” provision previously found in the Tennessee Consumer Protection Act (The Tennessee Consumer Protection Act is found in T.C.A. § 47-18-101 – T.C.A. § 47-18-130).  This change went into effect with the adoption of Public Chapter No. 510 (the Tennessee tort reform bill) and applies to all actions that accrue on or after October 1, 2011. 

The key operative portion of the Tennessee Consumer Protection Act is T.C.A. § 47-18-104(b) which provides a long detailed listing of "unfair or deceptive acts or practices" that are forbidden under Tennessee law.  Currently there are a total of forty-seven acts or practices that are listed and each of these is considered to be a Class B misdemeanor.  T.C.A. § 47-18-109(a)(1) creates a private cause of action for any person who suffers a loss as a result of one of the listed “unfair or deceptive acts or practices” found in T.C.A. § 47-18-104(b).  T.C.A. § 47-18-109(a)(1) provides as follows:

(a)(1) Any person who suffers an ascertainable loss of money or property, real, personal, or mixed, or any other article, commodity, or thing of value wherever situated, as a result of the use or employment by another person of an unfair or deceptive act or practice described in § 47-18-104(b) and declared to be unlawful by this part, may bring an action individually to recover actual damages.

(emphasis added).  Prior to the Tennessee tort reform bill of 2011, the Tennessee Consumer Protection Act had a “catch all” provision that provided a private cause of action for “engaging in any other act or practice which is deceptive to the consumer or to any other person.” (See T.C.A. § 47-18-107(b)(27)).  This “catch all” provided for a significant expansion of the Tennessee Consumer Protection Act beyond the specifically listed “unfair or deceptive acts or practices”.  This “catch all” provided the Court with great discretion to find violations of the Tennessee Consumer Protection Act even if the unfair or deceptive act was not explicitly listed in the statute.

The amendment to the statute found in Public...