J. ALEXANDER'S HOLDINGS, LLC
REPUBLIC SERVICES, INC.
February 21, 2017 Session
from the Circuit Court for Davidson County No. 16C1099 Thomas
W. Brothers, Judge.
Tennessee company brought an action in the Davidson County
General Sessions Court against an Arizona company for breach
of contract and negligence, seeking recovery for damage to
plaintiff's restaurant, which was located in Michigan.
The case was dismissed on the ground of improper venue.
Plaintiff appealed to the circuit court, which granted
summary judgment to defendants on the basis of improper
venue, lack of personal jurisdiction, and forum non
conveniens. Plaintiff appeals. We reverse the holdings
that the trial court lacked personal jurisdiction over the
defendant and that venue was improper; we affirm the
dismissal on the ground of forum non conveniens and
vacate the denial of the motion to amend the complaint.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Court Reversed in Part, Vacated in Part, and Affirmed in Part
Timothy L. Warnock and D. Andrew Curtis, Nashville,
Tennessee, for the appellant, J. Alexander's Holdings,
H. Harwell, Chattanooga, Tennessee; and Jordan T. Puryear,
Nashville, Tennessee, for the appellee, Republic Services,
Richard H. Dinkins, J., delivered the opinion of the court,
in which Frank G. Clement, Jr., P. J., M. S., and Andy D.
Bennett, J., joined.
RICHARD H. DINKINS, JUDGE.
Factual and Procedural History
case arises from an incident in which a driver for Republic
Services Inc. ("Republic"), in the process of
retrieving the dumpster at a J. Alexander's restaurant in
Livonia, Michigan in November 2014, allegedly hit the
restaurant, causing damage. J. Alexander's Holdings, LLC
("J. Alexander's") notified Republic of the
damage and requested payment but Republic did not pay. J.
Alexander's filed suit against Republic in Davidson
County General Sessions Court for "[b]reach of contract
and negligence for property damage to Plaintiff's
restaurant in the amount of $13, 800, plus attorney's
fees and costs." Republic moved to dismiss the case for
improper venue and, following a hearing, the court granted
the motion and dismissed the case with
Alexander's appealed to the circuit court and moved to
amend the complaint to seek a declaratory judgment and to add
a claim for punitive damages. Republic filed a "Motion
for Summary Judgment and Response to Plaintiff's Motion
for Leave to Amend Complaint, " in which it asked the
court to deny J. Alexander's motion to amend due to
futility "because venue is improper under Tenn. Code
Ann. § 20-4-104" and because dismissal was
warranted pursuant to the doctrine of forum non
conveniens. Republic moved that summary judgment be
granted on the same grounds, supporting the motion with a
statement of undisputed facts and the affidavit of Matthew
Marquis, Republic's Director of Operations for the Great
Lakes area of Michigan. In answer to the motion for summary
judgment, J. Alexander's filed a response to the
statement of undisputed facts, two declarations of Mark
Parkey, Executive Vice-President and Chief Financial Officer
of J. Alexander's, and the declaration of Cassie Madden,
its counsel. In due course, the court entered an order
granting Republic's motion and dismissing the case
without prejudice; the court denied J. Alexander's motion
to amend "on account of futility."
Alexander's filed a timely notice of appeal and
articulates the following issues for our review:
1. Did the Trial Court err in granting summary judgment for
lack of personal jurisdiction when Republic never raised the
defense and actively participated in the litigation?
2. Did the Trial Court err in granting summary judgment for
improper venue when J. Alexander's presented proof that
Republic transacts business in Tennessee but does not have a
registered agent in Tennessee and, thus, established that
venue in Davidson County was proper pursuant to Tenn. Code
Ann. §§ 20-4-104(3) and 48-15-104 and Republic
presented no competent proof otherwise?
3. Did the Trial Court err in granting summary judgment
pursuant to the doctrine of forum non conveniens
when Republic presented no competent proof whatsoever related
to the pertinent private or public factors and, as such, the
Trial Court did not consider the private or public factors?
4. Did the Trial Court err in denying Plaintiff's Motion
to Amend as futile?
order being appealed, the court granted Republic's motion
for summary judgment, holding that it did not have personal
jurisdiction over Republic under the long-arm statute,
Tennessee Code Annotated section 20-2-214; that venue in
Davidson County was improper under Tennessee Code Annotated
section 20-4-104; and that dismissal was appropriate pursuant
to the doctrine of forum non conveniens.
such as venue and personal jurisdiction, however, are
threshold issues and therefore should be raised and decided
using the procedures applicable to Rules 12.02(2) and
12.02(3) of the Tennessee Rules of Civil Procedure rather
than in a motion for summary judgment under Rule 56. See
Gordon v. Greenview Hosp., Inc., 300 S.W.3d 635, 643
(Tenn. 2009);  State v. NV Sumatra Tobacco Trading
Co., 403 S.W.3d 726, 739 (Tenn. 2013). Consistent with
the instruction that motions should be construed based on
their substance rather than their title, Gordon, 300
S.W.3d at 643, we resolve Republic's motion as one to
dismiss for lack of personal jurisdiction in accordance with
Rule 12.02(2) and for improper venue in accordance with Rule
trial court's decisions on motions to dismiss for lack of
personal jurisdiction and venue are questions of law, which
are reviewed de novo. S. Constructors, Inc. v.
Loudon Cnty. Bd. Of Educ., 58 S.W.3d 706, 710 (Tenn.
2001) (venue); First Cmty. Bank, N.A. v. First Tennessee
Bank, N.A., 489 S.W.3d 369, 382 (Tenn. 2015), cert.
denied sub nom. Fitch Ratings, Inc. v. First Cmty. Bank,
N.A., 136 S.Ct. 2511, 195 L.Ed.2d 841 (2016) (personal
jurisdiction). In considering such motions, a trial court is
not limited to the pleadings, but may consider affidavits and
other evidence filed in support of or in opposition to the
motion. NV Sumatra Tobacco Trading Co., 403 S.W.3d
at 739; Thomas v. Mayfield, No.
M2000-02533-COA-R3-CV, 2004 WL 904080, at *7 (Tenn. Ct. App.
Apr. 27, 2004); Humphreys v. Selvey, 154 S.W.3d 544,
550 (Tenn. Ct. App. 2004); Manufacturers Consolidation
Serv., Inc. v. Rodell, 42 S.W.3d 846, 854-55 (Tenn. Ct.
App. 2000)). The allegations of the nonmoving party's
affidavits are taken as true and all factual disputes are
resolved in its favor. Humphreys, 154 S.W.3d at
548-49 (venue); NV Sumatra Tobacco Trading Co., 403
S.W.3d at 739 (personal jurisdiction). The court must
determine "that the [plaintiff] has shown, by a
preponderance of the evidence, that Tennessee courts may
properly exercise jurisdiction over [the defendant]."
NV Sumatra Tobacco Trading Co., 403 S.W.3d at 739.
Similarly, when venue is challenged, it is the
plaintiff's ultimate burden to demonstrate that venue is
proper. Cohn Law Firm v. YP Se. Advert. &
Publ'g, LLC, No. W2014-01871-COA-R3-CV, 2015 WL
3883242, at *3 (Tenn. Ct. App. June 24, 2015).
of the doctrine of forum non conveniens is a matter
of discretion, and we review a trial court's decision in
that regard under the abuse of discretion standard.
Zurick v. Inman, 426 S.W.2d 767, 772 (Tenn. 1968);
Pantuso v. Wright Med. Tech. Inc., 485 S.W.3d 883,
888 (Tenn. Ct. App. 2015), perm. app. denied (Jan.
14, 2016). A court abuses its discretion when it causes an
injustice to the party challenging the decision by (1)
applying an incorrect legal standard, (2) reaching an
illogical or unreasonable decision, or (3) basing its
decision on a clearly erroneous assessment of the evidence.
Konvalinka v. Chattanooga-Hamilton Cnty. Hosp.
Auth., 249 S.W.3d 346, 358 (Tenn. 2008).
initial matter, we address J. Alexander's argument that
the court erred in considering the issue of personal
jurisdiction sua sponte because Republic did not
assert it as a defense. The record belies this assertion. In
the motion to dismiss filed in the general sessions court,
Republic cited Tennessee Code Annotated section 20-2-214,
Tennessee long-arm statute, in support of its argument that
Republic was not subject to the jurisdiction of Tennessee
courts because the claim did not arise under the
circumstances specified at section 20-2-214(a)(1) and (2); it
reiterated this argument in the memorandum in support of the
motion for summary judgment it filed in the circuit court. In
its oral ruling on that motion, the court noted that J.
Alexander's had not responded to Republic's argument
in that regard. Thus, the record shows that the court did not
raise the issue of personal jurisdiction sua sponte;
consequently, we proceed to address the question of whether
the court had personal jurisdiction over
jurisdiction "refers to the court's authority to
adjudicate the claim as to the person, " Landers v.
Jones, 872 S.W.2d 674, 675 (Tenn. 1994) (citing
Cooper v. Reynolds, 77 U.S. 308 (1870); Turpin
v. Conner Bros. Excavating Co., Inc., 761 S.W.2d 296,
297 (Tenn.1988). Personal jurisdiction 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 nonresident defendant has such minimum contacts with this
state that maintenance of the suit does not offend
"traditional notions of fair play and substantial
justice." Landers, 872 S.W.2d at 675 (citing
Int'l Shoe Co. v. Washington, 326 U.S. 310, 316
(1945); J.I. Case Corp. v. Williams, 832 S.W.2d 530,
531 (Tenn. 1992)).
burden to show personal jurisdiction "is ordinarily not
a heavy one, because personal jurisdiction need only be
demonstrated by a preponderance of the evidence."
Id. "When the issue of personal jurisdiction
arises, due process obligates the courts to ascertain 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 ...