author: SHARON G. LEE, J.,

text:
    Freddie D. ALLEY v. McLAIN’S INC. LUMBER AND CONSTRUCTION, et al.
    Court of Appeals of Tennessee, at Knoxville.
    May 11, 2005 Session.
    June 10, 2005.
    Permission to Appeal Denied by Supreme Court Oct. 31, 2005.

      C. Christopher Raines, Jr., Mt. Carmel, Tennessee, for Appellants, Freddie D. Alley, Johnson-Johnson & Associates Real Estate and Auction Co., and Hugh Kyle Johnson.
    Phillip L. Boyd, Rogersville, for Appel-lees, McLain’s Inc. Lumber & Construction and James McLain.
   OPINION

SHARON G. LEE, J.,

delivered the opinion of the court,

in which D. MICHAEL SWINEY, J. and WILLIAM H. INMAN, Sr J., joined.

This case involves the wrongful cutting of timber on the plaintiffs property. Freddie D. Alley brought this action against McLain’s Inc. Lumber and Construction, which cut and harvested timber from his property after Defendant Stephen Snodgrass falsely represented to McLain’s that he owned the property and wanted to sell the timber. McLain’s filed a counter-complaint and a third-party complaint against the co-owners of the property, alleging their comparative fault in preparing and executing a contract for sale of the real estate to Mr. Snodgrass. The case was tried to a jury, which found the co-owners partially at fault, Mr. Snodgrass partially at fault, and no fault on the part of McLain’s. The issue presented is whether the trial court erred in failing to set aside the jury verdict and grant a new trial. We hold that based on stipulations prior to trial, there was no material evidence of negligence on the part of the co-owners. We also hold that the jury verdict is inconsistent. Therefore, we reverse the judgment in part, vacate in part and remand for a new trial.

I. Factual Background

In November of 2000, Plaintiff Freddie D. Alley and Defendant Stephen Snod-grass entered into negotiations for the sale of 157 acres of real estate in Hawkins County, Tennessee. The property was co-owned by Mr. Alley and Third-Party Defendant Johnson-Johnson & Associates Real Estate and Auction Company, Inc., each with an undivided one-half interest. Mr. Alley and Mr. Snodgrass settled on a $500,000 purchase price. On November 28, 2000, Mr. Alley and Mr. Snodgrass signed a document styled “Contract for sale of real estate” that had been drafted by Third-Party Defendant Hugh Kyle Johnson.

The document provides as follows in relevant part, with handwritten parts in italics:

1. $50,000 is hereby deposited by buyer with Johnson-Johnson & Associates Real Estate & Auction Company as earnest money and will apply to purchase price of $500,000.00.
2. Balance of $150,000.00 shall be paid as follows: 50,000.00 on or before December 30, 2001. $100,000 each year thereafter until paid in full with interest on balance at 7% per annum.
5. Sale shall be closed on or before January 2, 2001.
9. Possession on or before with delivery of deed, [sic]

After the parties signed the document, Mr. Snodgrass informed Mr. Johnson and Mr. Alley that he did not have the $50,000 down payment. Both Mr. Johnson and Mr. Alley testified that Mr. Johnson then wrote at the top of the document: “down payment of 50,000 shown below will not be paid until Jan. 2, 2001.” This handwritten addendum was neither initialed nor dated by either of the signatories.

Shortly thereafter, Mr. Snodgrass approached Defendant McLain’s Inc. Lumber and Construction (“McLain’s”) with an offer to sell the standing timber on the property. On December 12, 2000, McLain’s and Mr. Snodgrass executed a contract for sale of the timber which provided as follows in relevant part:

I, Steve Snodgrass, being the owner of timber located off Hwy 11W & New Canton Rd. Church Hill area of Hawkins Co., Tenn., have agreed to sell McLain Lumber Co., Inc. timber on this land for the amount of $14,500.00... All timber to be cut 16" and up.

It is undisputed that McLain’s did nothing to verify Mr. Snodgrass’ ownership of the property, relying solely upon his word that he owned it. James McLain, president of McLain’s, signed and delivered a check to Mr. Snodgrass in amount of $14,500. Mr. Snodgrass immediately cashed the check.

Mr. Snodgrass did not appear for the anticipated closing of the real estate sale on January 2, 2001. McLain’s began cutting timber on the property on or around January 15, 2001. Upon discovering the timber cutting operation, Mr. Johnson contacted McLain’s and requested they stop cutting trees, which they immediately did.

On June 20, 2001, Mr. Alley filed this action against McLain’s and Mr. Snod-grass. Mr. Alley sought compensation for the injuries to his property due to the allegedly wrongful and unauthorized cutting of timber, and further alleged the applicability of TenmCode Ann. § 43-28-312, which provides for civil liability for cutting timber from another’s property. McLain’s answered and filed a cross-complaint against Mr. Snodgrass. McLain’s subsequently amended its pleadings to include a counter-complaint against Mr. Alley and a third-party complaint against Johnson-Johnson & Associates Real Estate and Auction Company, Inc. and Mr. Johnson individually. McLain’s alleged comparative fault on the part of Mr. Alley, Mr. Johnson, and Johnson-Johnson, in negligently drafting the contract for sale of the real estate.

The case was tried before a jury on March 18, 19 and 22, 2004. The jury returned a special verdict form in which it found Mr. Alley 5% at fault; Mr. Johnson 5% at fault; Johnson-Johnson & Associates 10% at fault; Mr. Snodgrass 80% at fault; and McLain’s 0% at fault. The jury found that Mr. Alley was entitled to double the amount of the market value of the timber cut, pursuant to Tenn.Code Ann. § 43-28-312. The trial court reduced this amount by 20%, the amount of comparative fault on the landowners’ part, resulting in a verdict in the amount of $34,064.02 in favor of Mr. Alley. The jury found Mr. Snodgrass hable to McLain’s in the amount of $25,000.

The trial court entered a default judgment against Mr. Snodgrass, who did not enter an appearance in this action. That judgment has not been appealed and is final. Mr. Alley, Mr. Johnson and Johnson-Johnson & Associates moved for a new trial, which the trial court denied. This appeal followed.

II. Issue Presented and Standard of Review

The Appellants raise the issue, which we restate, of whether the trial court erred in failing to set aside the verdict and grant a new trial.

As the Tennessee Supreme Court has recently stated, “[a] trial court’s decision regarding whether to grant or deny a motion for a new trial is discretionary in nature, and we accord such rulings great deference. We will only disturb such a decision if it amounts to an abuse of discretion.” Ali v. Fisher, 145 S.W.3d 557, 564 (Tenn.2004). Further,

[w]hen jury trials are involved, our task is to determine whether there is any material evidence to support the jury’s verdict. See Harper v. Watkins, 670 S.W.2d 611, 631 (Tenn.Ct.App.1983); Lassetter v. Henson, 588 S.W.2d 315, 317 (Tenn.Ct.App.1979); see also Tenn.R.App.P. 13(d). Moreover, “we must take the strongest legitimate view of all the evidence to uphold the verdict, assume the truth of all that tends to support it and discard all to' the contrary. We are bound to allow all reasonable inferences to sustain the verdict, and, if there is any material evidence to support the verdict, we must affirm.” See Harper, 670 S.W.2d at 631. We do not reweigh the evidence. See Electric Power Bd. v. St. Joseph Valley Structural Steel Corp., 691 S.W.2d 522, 526 (Tenn.1985).

Dickey v. McCord, 63 S.W.3d 714, 719 (Tenn.Ct.App.2001).

III. Comparative Fault

We first address McLain’s counter- and third-party comparative fault claims against Mr. Alley, Mr. Johnson, and Johnson-Johnson & Associates. McLain’s alleged as follows in relevant part:

[Mr.] Alley along with ... Johnson and Johnson Real Estate and Auction Company and Hugh Kyle Johnson, as agent, were guilty of executing a contract for sale for the property in dispute which shows on its face that the defendant Snodgrass had paid $50,000 as a down payment for the purchase of the property in dispute. Defendants/counter-plaintiffs McLain further aver that by signing same when, in fact, there was no down payment was misleading to any innocent third party and was negligence on the part of the counter-defendant Alley and third-party Johnson and Johnson Real Estate and Auction Company.

Significantly, however, all parties made the stipulation, as held by the trial court, that “the McLains never saw the contract between Mr. Alley and Mr. Snodgrass; and therefore, there was never any reliance on that contract.” No claim for negligence can succeed if any one of the following elements is absent: (1) a duty of care owed by the defendant to the plaintiff; (2) conduct falling below the applicable standard of care amounting to a breach of that duty; (3) an injury or loss; (4) causation in fact; and (5) proximate, or legal cause. Bradshaw v. Daniel, 854 S.W.2d 865, 869 (Tenn.1993).

Thus, even assuming that the drafting and/or execution of the document fell below the applicable standard of care, as we must under our standard of review, the counter- and third-party claims of negligence must fail due to a complete absence of both factual and proximate causation. Becausé McLain’s was entirely unaware of the existence of the document prior to the filing of this action, reliance upon the document, whether or not negligently drafted, could not have been a cause of its injury. It is undisputed that McLain’s did not have, nor did it seek, any evidence that Mr. Snodgrass owned the property at issue, other than the word of Mr. Snodgrass. We hold there is no material evidence supporting the jury’s verdict finding Mr. Alley 5% at fault, Mr. Johnson 5% at fault, and Johnson-Johnson & Associates 10% at fault.

IV. Inconsistent Verdict

The jury in this case returned a verdict that Mr. Alley was entitled to recover double the value of his timber. The special verdict form indicates the following finding by the jury:

3. Is Mr. Alley entitled to recover either the fair market value, the double value or the triple value of the timber? Fair market value_ Double val-ue_X_Triple value_

This verdict requires a finding of negligence on the part of the timber cutter based on the statute providing for civil liability for cutting timber from the property of another. TenmCode Ann. § 43-28-312 provides as follows:

(a)(1) Civil liability for the negligent cutting of timber from the property of another is in an amount double that of the cun'ent market value of the timber. (2) If the timber is negligently cut from the property of another because the landowner for whom the timber is being cut has marked or designated the boundary of such landowner’s property incorrectly, then such landowner is jointly liable for such double damages.
(b) Civil liability for knowingly and intentionally cutting timber from the property of another is in an amount treble that of the current market value of the timber.
(c) Nothing in this section precludes an owner of property on which timber has been cut by another from recovering damages for loss of value other than commercial timber value, if any, of the timber negligently or intentionally cut. [Emphasis added].

We are faced with the result that the jury found no negligence on the part of the timber cutter, but awarded the owner double the value of the timber based on a statute that requires a finding of negligence on the part of the timber cutter. Therefore, we have an inconsistent verdict.

Our Supreme Court has stated as follows regarding inconsistent verdicts:

Tennessee law is well-established that litigants are entitled to have their rights settled by a consistent and intelligible verdict and that verdicts that are inconsistent and irreconcilable cannot stand. See Milliken v. Smith, 218 Tenn. 665, 668, 405 S.W.2d 475, 476 (1966); Alabama Highway Express, Inc. v. Luster, 51 Tenn.App. 691, 696, 371 S.W.2d 182, 183 (1963); Penley v. Glover, 30 Tenn.App. 289, 292, 205 S.W.2d 757, 759 (1947). Where a judgment is based upon inconsistent findings by a jury it is the duty of the appellate court to reverse and remand the case for a new trial. See McInturff, 565 S.W.2d at 482; Berry v. Foster, 199 Tenn. 352, 356, 287 S.W.2d 16, 18 (1955); Penley, 30 Tenn.App. at 292, 205 S.W.2d at 759.
A new trial is also warranted when verdict forms are composed in such a faulty fashion that they do not address each of the plaintiffs’ theories of recovery and do not allow the jury to adequately respond to each claim. Well-settled law requires courts to construe the terms of a verdict in a manner that upholds the jury’s findings, if it is able to do so. See Briscoe v. Allison, 200 Tenn. 115, 125-26, 290 S.W.2d 864, 868 (1956). Even if a verdict is defective in form, it is to be enforced if it sufficiently defines an issue in such a way as to enable the court to intelligently articulate a judgment. See Arcata Graphics Co. v. Heidelberg Harris, Inc., 874 S.W.2d 15, 22, 27 (Tenn.App.1993).

Concrete Spaces, Inc. v. Sender, 2 S.W.3d 901, 911 (Tenn.1999).

Under the statute, the jury’s finding that Mr. Alley is entitled to double the market value of the timber cut requires a finding that there was a “negligent cutting of timber.” Tenn.Code Ann. § 43-28-312. But the jury also found McLain’s, the cutter of the timber, zero percent at fault. We further note that Mr. Snodgrass was not alleged to be guilty of negligence by any party, but rather of intentional fraud and misrepresentation. Under these circumstances, we are constrained to hold that the jury verdict was inconsistent, vacate the judgment, and remand for a new trial.

V. Doctrine of Equitable Conversion

One further issue remains to be addressed. The trial court ruled that if the document styled “Contract for sale of real estaté” and signed by Mr. Alley and Mr. Snodgrass was an enforceable execu-tory contract, then the doctrine of equitable conversion applied to shield McLain’s from liability to Mr. Alley. Appellants argue that the application of this doctrine was error, and that under the particular facts of this case, it should be held to be inapplicable. We agree.

This court stated the following as regards the doctrine of equitable conversion in the case of Campbell v. Miller, 562 S.W.2d 827 (Tenn.Ct.App.1977):

the general rule is stated that a contract for the sale of land operates as an equitable conversion and the vendee’s interest under the contract becomes realty and the vendor’s interest becomes personalty, and in equity the vendee is regarded as the owner, subject to liability for the unpaid price, and the vendor is regarded as holding only the legal title in trust for the vendee from the time a valid contract for the purchase of land is entered into. 77 Am.Jur.2d 478-479, “Vendor and Purchaser,” Sec. 317.

Campbell, 562 S.W.2d at 831-32.

In the case of Rackley v. DeKalb County Fire Dep’t., No. M2000-00885-COA-R3-CV, 2000 WL 1586464, 2000 Tenn.App.LEXIS 705 (Tenn.Ct.App.M.S., filed Oct. 25, 2000), the court applied the equitable conversion doctrine where the buyers (the Rowlands) had executed a contract to buy real estate, made a $1,000 down payment and taken possession of the property and “treat[ed] the property as their own.” Id., 2000 WL 1586464 at ⅜1. After the Row-lands requested the defendant DeKalb County Fire Department to burn down a structure on the property, they refused to follow through in purchasing the property. The sellers sued the fire department for trespass. The Rackley court, applying the equitable conversion doctrine, held as follows:

If the Fire Department had the permission of the equitable owner to enter on the land, such entry does not amount to a trespass, and the County cannot be . held liable for failing to discover that the equitable title and the legal title to the land were held by different parties.

Rackley, 2000 WL 1586464 at %2.

The Rackley decision is distinguishable from the present case in at least two regards. First, the buyers in Rackley actually made a down payment of earnest money on the property, whereas in this case it is undisputed that Mr. Snodgrass paid nothing in consideration supporting the contract. More importantly, there is no suggestion that it was the intention of the parties in the present case that Mr. Snod-grass have any right to take possession of the property prior to closing. The Rack-ley court emphasized the fact that the Rowlands had the right to possession in its rationale for applying the doctrine of equitable conversion:

■ There was no provision in the contract of sale that would have had the effect of postponing Mr. Rowland’s right to enter or possess the property until after closing. He was thus in rightful possession of the property at the time he gave Mr. Green permission to burn the house. The fact of Mr. Rowland’s possession is admitted in the plaintiffs’ sworn complaint, and can also be inferred from the plaintiffs’ letter of April 24, threatening to re-take possession if Mr. Rowland did not fulfill his side of the bargain.

Rackley, 2000 WL 1586464 at *2; see also Parker v. Tennessee Farmers Mut. Ins. Co., 1988 WL 138923 at *4, 1988 Tenn.App.LEXIS 865 (Tenn.App.E.S., filed Dec. 30, 1988)(stating “the purchasers, upon entering into the sale agreement and taking possession of the property, became the equitable owners of it.”) [Emphasis added].

In the present case, the document at issue provides for “[possession on or before with delivery of deed” [sic]. Although the “on or before” arguably makes this provision somewhat ambiguous, when the entirety of the circumstances is considered, it is clear that the would-be sellers in this case did not intend for Mr. Snodgrass to have the right of possession prior to closing and delivery of the deed. This is an important consideration is determining whether equitable conversion should be applied. Wayne v. Fouts, 108 Tenn. 145, 65 S.W. 471, 472 (1901)(“However made, to be effective as a conversion, the direction that the form of the property be actually changed must be imperative, in the sense of being positive and unmistakable.”)

There is yet another reason in our opinion to find the equitable conversion doctrine inapplicable, found in the following well-stated principle:

The doctrine of equitable conversion is the outgrowth of the old maxim that equity regards that as done which ought to have been done. It is not a fixed rule of law but proceeds upon equitable principles, so that its application will be somewhat affected by the connection in which it is invoked. It is entirely a creation of and depends wholly upon rules of equity. It is most frequently applied in solving questions concerning the validity and execution of trusts in determining the legal character of the interests of beneficiaries, the devolution of property as between real and personal representatives and for other similar purposes. But being altogether a doctrine of equity designed to promote justice by carrying out the purpose of a testator, vendor or other person, it should be admitted for the accomplishment of equitable results only and in its application constant watchfulness is required to guard against a tendency to make of it a formal rule de jure, regardless of its real purpose and necessity. Moreover, it should never be overlooked that there is no real conversion, for the purpose remains all the time in fact realty or personalty just as it was; but for the purpose of the will or other instrument so far as may be necessary and only so far, it is treated in contemplation of law as if it had been converted. [Emphasis added].

Fowler v. Plunk, 7 Tenn.App. 29, 34, 1928 WL 1991 at *4 (Tenn.Ct.App.1928).

Keeping the above in mind, we do not think it can be said that equity should operate as a complete bar to the possibility that McLain’s be held responsible for cutting the timber on Plaintiffs’ property. Whether or not the document is a valid and enforceable executory contract, it remains undisputed that McLain’s was not aware of its existence and in no way relied on any alleged equitable interest created thereby.

We do not express any opinion on the question of whether McLain’s should be held hable for cutting the timber; that is an issue for the jury to decide upon remand. We merely hold that the equitable conversion doctrine should not operate to preclude recovery under the particular facts of this case, should the trier of fact find McLain’s liable.

For the aforementioned reasons, the judgment of the trial court holding Mr. Alley 5% at fault, Mr. Johnson 5% at fault, and Johnson-Johnson & Associates Real Estate and Auction Company, Inc. 10% at fault is reversed, and the counter-complaint and third-party complaint is dismissed. Pursuant to our holding the jury verdict inconsistent, the trial court’s entry of judgment therefrom is vacated, and the case remanded for a new trial, consistent with this opinion. Costs on appeal are assessed against the Appellee, McLain’s Inc. Lumber and Construction.

      . It appears that the precise relationship between Hugh Kyle Johnson and Johnson-Johnson & Associates Real Estate and Auction Co., Inc. is not revealed by the record. Mr. Johnson is simply referred to as an agent of Johnson-Johnson & Associates, and this characterization is undisputed.


source: Caselaw Access Project

author: SHARON G. LEE, J„

license: Public Domain

text:
    Ed Thomas BRUMMITTE, Jr. v. Anthony LAWSON, et al.
    Court of Appeals of Tennessee, Eastern Section, at Knoxville.
    May 12, 2005 Session.
    July 12, 2005.
    Permission to Appeal Denied by Supreme Court Dec. 5, 2005.

      Douglas T. Jenkins, Rogersville, Tennessee, for Appellants, Anthony Lawson and Kathy Lawson.
    Joseph E. May, Mount Carmel, Tennessee, for Appellee, Ed Thomas Brummitte.
   OPINION

SHARON G. LEE, J„

delivered the opinion of the court,

in which CHARLES D. SUSANO, JR., and D. MICHAEL SWINEY, JJ., joined.

This appeal arises out of a dispute over the proper location of the boundary line between property of the plaintiff and property of the defendants. The trial court held that the boundary line was as established by the plaintiffs surveyor. On appeal, the defendants argue that the trial court’s judgment should be vacated for failure to join necessary parties or reversed because the evidence preponderates against the trial court’s findings as to the proper location of the disputed boundary line. It is our determination that only the plaintiffs and the defendants’ property rights were affected by the trial court’s ruling and, therefore, we hold that there was no failure to join any necessary parties in the case. We further hold that the evidence does not preponderate against the trial court’s conclusion as to the proper location of the boundary line. The judgment of the trial court is affirmed and the cause is remanded.

The plaintiff/appellee, Ed Thomas Brummitte, Jr., and the defendants/appellants, Anthony and Kathy Lawson, are the fee simple owners of adjoining tracts of real property located in Hawkins County, Tennessee. In 1999, a dispute arose between the plaintiff and the defendants with regard to the proper location of the boundary line between the two tracts. In an attempt to resolve the dispute, the plaintiff and the defendants each hired their own surveyor to determine the boundary’s location; however, their surveys did not agree and the boundary dispute remained unresolved. Thereafter, the plaintiff filed a complaint in the Hawkins County Chancery Court requesting that the trial court establish the boundary line between the parties’ properties and enjoin the defendants from coming onto his property. The defendants filed an answer and counterclaim requesting that the boundary lines be established as determined by their surveyor and that the plaintiff be restrained from further interfering with the quiet enjoyment of their property. The case came on for trial after which the trial court entered its judgment and memorandum opinion decreeing that the boundary line at issue be located as determined by the plaintiffs surveyor and that each party be enjoined from interfering with the quiet enjoyment of the property of the other. The defendants now appeal the trial court’s judgment.

The two issues presented for our review in this case are restated as follows:

1. Should the judgment of the trial court be vacated and a new trial granted because of failure to join necessary parties?

2. Does the evidence presented in this case preponderate against the conclusions of the trial court?

This is a non-jury case and, accordingly, our review is de novo upon the record of the trial court without any presumption of correctness attaching to the trial court’s conclusions of law. Campbell v. Florida Steel Corp., 919 S.W.2d 26, 35 (Tenn.1996) and Tenn. R.App. P. 13(d). We must, however, presume the trial court’s factual findings to be correct absent evidence preponderating to the contrary. Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn.1993). “On an issue which hinges on the credibility of witnesses, the trial court will not be reversed unless there is found in the record clear, concrete, and convincing evidence other than the oral testimony of witnesses which contradict the trial court’s findings.” Galbreath v. Harris, 811 S.W.2d 88, 91 (Tenn.Ct.App.1990), citing Tennessee Valley Kaolin Corp. v. Perry, 526 S.W.2d 488, 490 (Tenn.Ct.App.1974).

The first issue we address is whether the trial court’s judgment must be vacated for failure to join parties necessary to the suit to establish the boundary line.

After the trial court entered its judgment accepting the boundary line as established by the survey of the plaintiffs surveyor, Randall Orr, the defendants filed an unsuccessful motion to alter or amend the judgment based in part upon the following stated grounds:

The Court’s ruling has the effect of “stirring up” three more boundary line disputes and the survey adopted by the Court very adversely effects [sic] the property rights of other property owners not parties to this action. Those property owners are necessary parties in this matter, and the instant judgment should be vacated and the issues joined with all necessary parties. The affidavit of Anthony Lawson is attached.

In the referenced affidavit, Anthony Lawson attests as follows:

“I am Anthony Lawson, one of the Defendants in this action. The survey by Randall Orr which was adopted by the Court pushes my western boundaries further than I believe they actually extend. Mr. Orr did this in an effort to show that I still had my proper amount of acreage after he surveyed off a good portion of my property to Tom Brum-mitte.”
My neighbors to the west — Mallorys, Baileys, and others — have informed me that they will not accept Orr’s survey and will sue me and Tom Brummitte to straighten the fines out correctly. Then I could be left with very little land after living at this location and knowing my boundaries for about 30 years.”

In their appellate brief, the defendants reiterate this argument asserting that “adoption of Randall Orr’s survey potentially affects the property rights of Bailey, Mallory, and perhaps others to the west.” The defendants cite Roberts v. England, No. M1999-02688-COA-R3-CV, 2001 WL 575560, (Tenn. Ct.App. M.S., filed May 30, 2001), for the proposition that persons whose real property interests are potentially affected by the outcome of a boundary line suit are necessary parties and must be joined pursuant to the requirements of Tenn. R. Civ. P. 19.01. The defendants contend that the record supports a finding that “Bailey, Mallory and others to the west” are necessary parties to this case and that the trial court’s judgment should be vacated for failure to join them. We disagree.

Tenn. R. Civ. P. 19.01 provides as follows:

A person who is subject to the jurisdiction of the court shall be joined as a party if (1) in the person’s absence complete relief cannot be accorded among those already parties, or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person’s absence may (i) as a practical matter impair or impede the person’s ability to protect that interest, or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reasons of the claimed interest. If the person has not been so joined, the court shall order that the person be made a party. If the person properly should join as a plaintiff but refuses to do so, he or she may be made a defendant, or in a proper case, an involuntary plaintiff.

Although the defendants do not so specify, it does not appear that they argue for joinder of the indicated parties based upon section (1) of the Rule which requires join-der if in “the person’s absence complete relief cannot be accorded among those already parties.” The defendants present no grounds for a finding that relief cannot be accorded in this case absent joinder of their “neighbors to the west — Bailey, Mallory and others” and our review of the record discloses no basis for joining those parties under section (1). Rather, it appears that the defendants contend that joinder is required pursuant to section (2) of the Rule upon grounds that the trial court’s decree in this matter either impairs or impedes the excluded parties’ ability to protect property interests they may have or exposes the defendants to a risk of inconsistent obligations to these parties.

In addressing this argument, we are compelled to note that the defendants’ brief fails to adequately identify those parties described as “Mallory and others to the west.” The defendants do not state the complete name of “Mallory” and fail to identify any of those parties which are simply designated “others to the west.” The defendants further fail to provide any information as to the location of the property of Mallory and the “others” referi'ed to other than indicating that their property is “to the west” of the defendants’ property and there is no reference to the record showing how the trial court’s ruling affects these parties’ properties. Rule 6(b) of the Rules of the Court of Appeals provides in pertinent part that “[n]o assertion of fact will be considered on appeal unless the argument contains a reference to the page or pages of the record where evidence of such fact is recorded.” As we have previously stated, “this Court is under no duty to blindly search the record in order to find proof to substantiate the factual allegations of the parties or any other evidence to support a party’s contentions.” Pearman v. Pearman, 781 S.W.2d 585, 588 (Tenn.Ct.App.1989). Failure to comply with the Rules of this Court results in a waiver of the issue raised. Bean v. Bean, 40 S.W.3d 52, 55 (Tenn.Ct.App.2000).

We further note that the plaintiffs complaint in this matter specifically requests that “the boundary line between Plaintiff’s and Defendants’ properties be established.” (Emphasis added.) Neither the plaintiffs complaint nor the defendants’ counter-complaint contains a request that any boundary lines be established other than the one between the plaintiffs and the defendants’ properties. Complying with this request in its judgment, the trial court decrees “the common boundary between the property owned by the parties to be as described on the attached ‘PLAN OF BRUMMITTE-LAWSON BOUNDARY’ prepared by C. Randall Orr, RLS, pursuant to the Memorandum Opinion.” (Emphasis added.) The judgment holds nothing with respect to any other boundaries or survey results. The trial court’s memorandum opinion also contains no finding or holding as to any matter related to the parties’ properties other than the location of the line at which the two properties are adjoined.

The defendants’ assertion that “Bailey, Mallory and their neighbors to the west” are persons whose real property interests are potentially affected by the outcome of this case is belied by the specificity of the trial court’s ruling which pertains solely to the boundary line dividing the properties of the plaintiff from that of the defendants. If the trial court had adopted a general survey of the parties’ properties including the survey of other boundaries defining those properties, joinder of additional parties might have been required. However, a wholesale adoption of that sort did not occur in this case and the trial court’s recognition of the boundary as established by the plaintiffs surveyor had no effect on property belonging to Bailey, Mallory or any of the defendants’ “neighbors to the west.” In Roberts, id., the opinion cited by the defendants in support of their argument, landowners disputed the proper placement of a marker that marked a corner of the plaintiffs property and a corner of the defendant’s property. The marker’s placement had the potential to affect all land owners whose property was adjacent to, or described by, reference to that point. There is no proof in the case before us that the common boundary between the defendants and the plaintiff affects or has the potential to affect, any other parties and the defendants’ argument to the contrary is without merit. No other property rights are determined by reference to the common boundary between the property of the plaintiff and that of the defendants which was established in this case.

Our determination that there was no failure to join necessary parties in the instant case is also consistent with our recent decision in Arnold v. Bowman, No. E2004-01151-COA-R3-CV, 2005 WL 1488679 (Tenn. Ct.App. E.S. filed June 23, 2005). In Arnold, the defendant land owner argued that he was entitled to summary judgment upon grounds of res judicata and collateral estoppel as to a property line dispute with the plaintiff because in a separate property line dispute between the defendant and a third party the trial court had adopted a survey containing a metes and bounds description of the boundary between the properties of plaintiff and defendant. We disagreed with the land owner’s argument because the survey adopted by the trial court in the earlier matter was only adopted as to the line shared by the defendant and the third party, that being the only line then at issue. In the instant case, as in Arnold, the judgment of the trial court only established the location of the particular property line in question and the rights of no other property owners were affected by the court’s decision.

The next issue we address is whether the evidence preponderates against the trial court’s judgment.

In its memorandum opinion, the trial court states as follows:

In resolving a boundary line dispute, the trial court often must determine the location after having considered the testimony and evidence attendant to competing surveys, Edward v. Heckmann, 2003 LEXIS 453 (Tenn.App.2003). According to the testimony of [the defendants’ surveyor] Mr. Gary Weems, R.L.S., based upon the public records, recorded deeds and his field work, the location of the common boundary line between Plaintiff and the Defendants is depicted by his survey dated February 4,1999. According to the testimony of Mr. C. Randall Orr, R.L.S., all instruments of public record, aerial photographs and his field work support a finding that the common boundary line between the parties is depicted by survey dated October 17, 1999.
Having considered the testimony of all witnesses and parties, as well as the exhibits introduced, this Court concludes that the common boundary line between the adjoining properties of the Plaintiff and the Defendants is located according to the survey of Mr. Randall Orr, R.L.S., dated October 17,1999.

Absent a description particularizing the boundary’s location, the parties were relegated to proving the boundary’s location by other evidence. Mr. Orr testified that his conclusion as to the proper location of the boundary was based on information contained in a 1919 deed which describes twenty-one acres constituting the property of the parties herein. Other evidence presented in the case shows that subsequently those twenty-one acres were orally partitioned between the plaintiff’s and defendants’ predecessors in title with the defendants’ predecessors receiving one third of the twenty-one acres and the plaintiff’s predecessor receiving two thirds. Mr. Orr’s testimony at trial indicates that his establishment of the location of the boundary is consistent with this one third/two third partition. Mr. Orr’s testimony further indicates that his location of the boundary follows a fence line visible in aerial photographs that were admitted into evidence in the case. Mr. Orr also testified that his identification of the boundary with this fence line was in accord with Hawkins County tax maps that were also admitted into evidence in the case.

The defendants concede that fencing can be a very decisive element of proof in determining claims of ownership; however, they insist that the line in the aerial photograph relied upon by Mr. Orr is “a dim line which arguably cannot be seen with the naked eye.” The defendants also assert that “almost everyone who testified at trial spoke of different fences that had one [sic] been on this property ... and it is impossible to determine which fence the one in the photograph might be if there is even a fence on the photograph.” (Emphasis in original.)

Even if the defendants’ assertion that the line relied on by Mr. Orr is not visible to the naked eye is true, that fact is inconsequential as long as the line is in any sense discernible and the defendants’ description of the line as “dim” precludes the possibility that it is not discernible. Furthermore, Mr. Orr’s testimony at trial indicates that he used a stereoscope to examine the photograph and, therefore, did not rely solely on his “naked eye.” The defendants’ assertion that almost all of the trial witnesses in this case testified as to the existence of fences on the property is not supported by any reference to the record and therefore fails to comply with Rule 6(b) of the Rules of the Court of Appeals. Notwithstanding that deficiency, even if it is true there was testimony at trial regarding various fences on the property and that it is not possible to determine which, if any, of these is the subject fence that does not constitute evidence that the subject fence did not represent the boundary at issue.

Based upon our review of the record we do not find that the evidence preponderates against the trial court’s conclusion that the common boundary between the parties’ property is as established by the plaintiffs surveyor.

For the foregoing reasons, we affirm the judgment of the trial court and remand for collection of costs. Costs of appeal are adjudged against Anthony Lawson and Kathy Lawson.


author: SHARON G. LEE, J., D. MICHAEL SWINEY, J.,

text:
    LAW OFFICES OF HUGO HARMATZ v. Steve DORROUGH, et al.
    Court of Appeals of Tennessee, Eastern Section, at Knoxville.
    July 13, 2005 Session.
    July 20, 2005.
    Permission to Appeal Denied by Supreme Court Dec. 5, 2005.

      Michael W. Fortune, Knoxville, Tennessee, for the Appellant, Law Offices of Hugo Harmatz.
    John O. Threadgill, Knoxville, Tennessee, for the Appellee, Steve Dorrough, Jayme Dorrough, and Nomad Investment Group, Inc.
   OPINION

SHARON G. LEE, J.,

delivered the opinion of the court,

in which HERSCHEL P. FRANKS, P.J., joined. D. MICHAEL SWINEY, J„ filed a separate dissenting opinion.

This is an action to enforce a foreign judgment. The trial court granted the Defendants’ motion to dismiss due to lack of personal jurisdiction, subject matter jurisdiction and improper venue. Because the Plaintiff failed to establish a prima facie case that personal jurisdiction over any of the Defendants was proper, we affirm the judgment of the trial court as modified to clarify that the dismissal is without prejudice.

On February 14, 2003, the Plaintiff, Law Offices of Hugo Harmatz, filed its complaint to enforce a foreign judgment entered in New Jersey. The complaint states in relevant part as follows:

That the Plaintiff, Law Offices of Hugo Harmatz, is a company which operates in the State of New Jersey and is located at P.O. Box 500, Colts Neck, NJ 07722-0500.
That the Defendants, Steve Dorrough and Jayme Dorrough, can be served at the above address of their attorney of record, Lynn Tarpy, who represented the Defendants against the Plaintiff in the Circuit Court for Knox County, Tennessee, Docket No. 1-633-01. That the Defendant, Nomad Investment Group, Inc., is not listed as a corporation with the Secretary of State for the State of Tennessee and therefore, does not have a specific process server identified, and can be served at the above address of its attorney of record, Lynn Tarpy, who represented the Defendant against the Plaintiff in the Circuit Court for Knox County, Tennessee, Docket No. 1-633-01.
That on the 17th day of July, 2001, in the Superior Court for New Jersey, Law Division, Monmouth County, Docket Number MON-L-552-Ol, the Plaintiff recovered a judgment against the Defendants in the amount of Forty Three Thousand Five Hundred Twenty One and 50/100 ($43,521.50) Dollars plus costs. A certified copy of the judgment is attached hereto as Exhibit “A”.
That this judgment is still in full force and effect, and no part of the judgment has been paid and satisfied.
[Numbering in original omitted].

The Defendants responded with a motion to dismiss pursuant to Tenn. R. Civ. P. 12.02, on the grounds that the court “lacks subject matter jurisdiction, personal jurisdiction and venue is improper[.]” A hearing was held on the matter, but no transcript was made of the hearing and no party has filed a statement of the proceedings. On July 24, 2004, the trial court entered an order that states in its entirety, “[u]pon Motion of Defendants and for good cause shown, this case is hereby dismissed with costs taxed to the Plaintiff.”

Plaintiff argues on appeal that the trial court dismissed its action on grounds that service of process was insufficient, and its appellate brief is devoted entirely to arguing that its service of process upon Defendants in Florida was sufficient. However, Defendants’ motion does not raise as a ground for dismissal insufficiency of service of process, which is specifically and individually enumerated as a separate ground in Rule 12.02. Tenn. R. Civ. P. 12.02(5). Moreover, there is nothing in the trial court’s judgment, or in the remainder of the record, that mentions sufficiency (or lack thereof) of service of process. The determinative issue, as we perceive it, is whether the action was correctly dismissed for lack of personal jurisdiction over the Defendants.

In the case of Chenault v. Walker, 36 S.W.3d 45 (Tenn.2001), the Supreme Court provided guidelines for consideration of a motion to dismiss for lack of personal jurisdiction, addressing the question of “[w]ith what certainty must the facts be established in the record for a judge to determine that personal jurisdiction exists over the defendants?” Id. at 55. The Court stated as follows:

Under the Tennessee Rules of Civil Procedure a motion to dismiss may be based on one or more of eight grounds, including lack of personal jurisdiction and failure to state a claim on which relief can be granted. See Tenn. R. Civ. P. 12.02. A court either decides this motion based on the allegations contained in the pleadings or, if matters outside the pleadings — such as affidavits — are presented, the court will treat the motion as one for summary judgment as provided in Tenn. R. Civ. P. 56. See Tenn. R. Civ. P. 12.03. As we have stated in the past, however, Rule 12.03 does not apply to a motion to dismiss for lack of personal jurisdiction, unless the evidence brought to the court is so conclusive that the motion may be fully and finally resolved on the merits. See Nicholstone Book Bindery, Inc. v. Chelsea House Publishers, 621 S.W.2d 560, 561 n. 1 (Tenn.1981) (“[SJummary judgment procedure does not properly apply to jurisdictional issues.”) (quoting 6 Moore, Federal Practice (Part 2) § 56.17(36) at 913 (1980)).
* * *
Regardless of the theory on which personal jurisdiction is based, though, the necessity of adopting a middle-ground solution—between relying merely on the pleadings and postponing a decision on jurisdiction until discovery has been completed—is apparent. Many federal courts have dealt with this issue, and there appears to be considerable agreement on several aspects of the procedure necessary to determine whether the evidence in favor of finding jurisdiction is sufficient to allow the case to proceed ... If the defendant challenges jurisdiction by filing affidavits, the plaintiff must establish a prima facie showing of jurisdiction by responding with its own affidavits and, if useful, other written evidence. See Posner v. Essex Ins. Co. Ltd., 178 F.3d 1209, 1214 (11th Cir.1999); Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez, 171 F.3d 779, 784 (2nd Cir.1999); OMI Holdings, Inc. v. Royal Ins. Co. of Canada, 149 F.3d 1086, 1091 (10th Cir.1998). A court will take as true the allegations of the nonmoving party and resolve all factual disputes in its favor, see Posner, 178 F.3d at 1215; IMO Industries, Inc. v. Kiekert AG, 155 F.3d 254, 257 (3rd Cir.1998), but it should not credit conclusory allegations or draw farfetched inferences, see Massachusetts School of Law, 142 F.3d at 34.

Chenault v. Walker, 36 S.W.3d at 55-56 (Tenn.2001)[footnote omitted].

Tennessee’s long-arm statute, Tenn.Code Ann. § 20-2-214, allows Tennessee courts to exercise jurisdiction to the extent the Fourteenth Amendment to the United States Constitution permits. Id. at 52-53; Humphreys v. Selvey, 154 S.W.3d 544, 550 (Tenn.Ct.App.2004). The long-arm statute provides:

(а) 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:
(1) The transaction of any business within the state;
(2) Any tortious act or omission within this state;
(3) The ownership or possession of any interest in property located within this state;
(4) Entering into any contract of insurance, indemnity, or guaranty covering any person, property, or risk located within this state at the time of contracting;
(5) Entering into a contract for services to be rendered or for materials to be furnished in this state;
(б) Any basis not inconsistent with the constitution of this state or of the United States;
(7)Any action of divorce, annulment or separate maintenance where the parties lived in the marital relationship within this state, notwithstanding one party’s subsequent departure from this state, as to all obligations arising for alimony, custody, child support, or marital dissolution agreement, if the other party to the marital relationship continues to reside in this state.
(b) “Person,” as used herein, includes corporations and all other entities which would be subject to service of process if present in this state.
(c) Any such person shall be deemed to have submitted to the jurisdiction of this state who acts in the manner above described through an agent or personal representative.

Tenn.Code Ann. § 20-2-214.

Due process requires that an out-of-state defendant can be subject to personal jurisdiction only if the defendant has such minimum contacts with the forum state that the maintenance of the action does not offend traditional notions of fair play and substantial justice. Chenault, 36 S.W.3d at 53; J.I. Case Corp. v. Williams, 832 S.W.2d 530, 531-33 (Tenn.1992)(citing International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945)); see also Burger King Corp. v. Rudzewicz, 471 U.S. 462, 471-78, 105 S.Ct. 2174, 2181-84, 85 L.Ed.2d 528 (1985); World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291-94, 100 S.Ct. 559, 564-66, 62 L.Ed.2d 490 (1980).

Courts recognize two types of personal jurisdiction: general jurisdiction and specific jurisdiction. United Agricultural Services, Inc. v. Scherer, 17 S.W.3d 252, 256 (Tenn.Ct.App.1999). When a state exercises personal jurisdiction over a defendant in a lawsuit not arising out of or related to the defendant’s contacts with the forum, the state is exercising general jurisdiction over the defendant. Id.; Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 n. 9, 104 S.Ct. 1868, 1872 n. 9, 80 L.Ed.2d 404 (1984). When a state exercises personal jurisdiction over a defendant in a lawsuit arising out of or related to the defendant’s contacts with the forum, the state is exercising specific jurisdiction over the defendant. Id; Helicopteros, 466 U.S. at 414 n. 8, 104 S.Ct. at 1872 n. 8.

For a court to exercise personal jurisdiction of a general nature over a nonresident defendant, the proof must show that the defendant maintains “continuous and systematic” contacts with the foreign state. Scherer, 17 S.W.3d at 256; International Shoe Co. v. Washington, 326 U.S. 310, 317, 66 S.Ct. 154, 159, 90 L.Ed. 95 (1945). However, in the absence of general jurisdiction resulting from continuous and systematic contacts with the forum state, specific personal jurisdiction exists when a commercial actor purposely directs his activities toward citizens of the forum state and litigation results from injuries arising out of or relating to those activities. Chenault, 36 S.W.3d at 53; Scherer, 17 S.W.3d at 256. In such a case, “the defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.” Id. “In addition to an evaluation of the defendant’s contacts and their connection to the plaintiffs cause of action, courts consider two lesser factors: the forum state’s interest in exercising jurisdiction and the convenience to the parties.” Chenault, 36 S.W.3d at 53.

In the present case, construing the allegations of the complaint in a light most favorable to the Plaintiff, the complaint contains nothing to demonstrate that Defendants have maintained continuous and systematic contacts with Tennessee, that the subject matter of this cause of action bears any relation with Tennessee, or that the Defendants are residents of Tennessee. The record shows that Plaintiff unsuccessfully attempted to serve process on Defendants in Tennessee several times, before serving process on them in Jensen Beach, Florida.

Defendants’ motion to dismiss was unsupported by accompanying affidavits or any other proof. The question thus arises: was the unsupported motion sufficient for the court to dismiss the action based on lack of personal jurisdiction? Under the circumstances of the present case, we believe it was. Importantly, the complaint makes no allegation tending to establish jurisdiction other than the allegation, which we accept as true, that the parties were at some earlier time involved in litigation in Knox County, Tennessee. This court has on numerous occasions reiterated the Supreme Court’s ruling that “[i]t is clear that the plaintiff bears the ultimate burden of demonstrating that jurisdiction exists.” Chenault, 36 S.W.3d at 56; Humphreys v. Selvey, 154 S.W.3d 544, 548 (“The plaintiff has the burden of establishing a prima facie case that personal jurisdiction over a defendant is proper.”); Manufacturers Consolidation Serv., Inc. v. Rodell, 42 S.W.3d 846, 854 (Tenn.Ct.App.2000); Lucite International, Inc. v. Runciman, C/A No. W2004-00314-COA-R3-CV, 2005 WL 394775 at *2, 2005 Tenn.App. LEXIS 104 (Tenn. Ct.App. W.S., filed Feb. 18, 2005); Davis Kidd Booksellers, Inc. v. Day-Impex, Ltd., 832 S.W.2d 572, 577 (Tenn.Ct.App.1992)(holding plaintiffs faded to carry burden of establishing prima facie case of personal jurisdiction).

In Humphreys v. Selvey, this court was presented with a situation similar to the present case, in that the defendants filed an unsupported motion to dismiss based on lack of personal jurisdiction. The Hum-phreys court stated:

Humphreys contends that Selvey’s motion to dismiss “was not ‘properly supported’ because [defendant] failed to submit any evidence in the form of affidavits, sworn statements, declarations, testimony, or otherwise in support of his motion.” (emphasis in original). In Manufacturers Consolidation Serv., Inc. v. Rodell, 42 S.W.3d 846, 854 (Tenn.Ct.App.2000), the court noted that where “the defendant challenges the trial court’s personal jurisdiction over him by filing a properly supported motion to dismiss, ‘the plaintiff may not stand on his pleadings but must, by affidavit or otherwise, set forth specific facts showing that the court has jurisdiction.’ ” (quoting Theunissen v. Matthews, 935 F.2d 1454, 1458 (6th Cir.1991); accord Serras v. First Tennessee Bank Nat’l Ass’n, 875 F.2d 1212, 1214 (6th Cir.1989)). The above-cited authority does not stand for the position that a movant is required to file affidavits or evidentia-ry documents in support of their motion, but rather provides that where a movant files affidavits or similar evidentiary documents in support of a motion to dismiss, a plaintiff “must, by affidavit or otherwise, set forth specific facts showing that the court has jurisdiction.” See id.

Humphreys, 154 S.W.3d at 550 n. 5 (Tenn.Ct.App.2004).

In response to Defendants’ motion to dismiss, Plaintiff had the options of amending its complaint to include sufficient jurisdictional allegations, filing affidavits to establish personal jurisdiction, or making an offer of proof to the trial court at the hearing. Plaintiff took none of these actions, and we find therefore that it failed to meet its burden to establish a prima facie case that personal jurisdiction over the Defendants was proper.

In its judgment dismissing the case, the trial court did not state whether it was dismissing the action with prejudice. In Rodell, 42 S.W.3d 846, 855 n. 5 (Tenn.Ct.App.2000), the court noted that “dismissal for lack of personal jurisdiction should be without prejudice.” We modify the trial court’s judgment to clarify that Plaintiffs action is dismissed without prejudice, and for the aforementioned reasons, we affirm the trial court’s judgment as modified. Costs on appeal are assessed to the Appellant, Law Offices of Hugo Har-matz, and its surety.

D. MICHAEL SWINEY, J., filed a separate dissenting opinion.

D. MICHAEL SWINEY, J.,

dissenting.

I respectfully dissent from the majority’s decision to affirm the Trial Court’s dismissal of this case. I have very little dispute, if any, with the law as set forth in the majority’s Opinion. Likewise, I have no dispute with the majority’s statement that “[t]he determinative issue, as we perceive it, is whether the action was correctly dismissed for lack of personal jurisdiction over the Defendants.” I, however, respectfully disagree with the majority’s application of the law to the facts of this case.

I believe the decision of our Supreme Court in Chenault v. Walker, 36 S.W.3d 45 (Tenn.2001), and particularly the language quoted by the majority from that Opinion, when applied to the facts of this case, mandates a reversal of the Trial Court’s decision. Clearly, Plaintiffs allegations contained in the Complaint must be taken as true and all factual disputes must be resolved in Plaintiffs favor at this motion to dismiss stage. Chenault v. Walker, 36 S.W.3d at 56. This being so, for purposes of Defendants’ motion, it is taken as true that Plaintiff is a company which operates in the State of New Jersey and is located in New Jersey. Plaintiff also alleges in his Complaint that Defendants previously filed a lawsuit in Knox County Circuit Court. Where I disagree with the majority is that the majority then states that they accept as true only “that the parties were at some earlier time involved in litigation in Knox County, Tennessee.” Plaintiffs Complaint clearly alleges that this was not just a lawsuit filed by Defendants in Knox County, Tennessee, but rather that it was a lawsuit filed in the Circuit Court of Knox County, Tennessee against. Plaintiff, an out-of-state defendant. Was that earlier lawsuit against Plaintiff filed by Defendants in Knox County Circuit Court related to the present suit in some way? We have no way of knowing that one way or the other from the record before us, but we do know from the allegations in the Complaint that these Defendants sued the Plaintiff, a non-Tennessee resident, in Knox County Circuit Court, the same court in which the present suit is filed.

The majority apparently assumes that Defendants are out of state Defendants solely because Plaintiff was unable to serve them in Tennessee and eventually served them in Florida. I believe that is an assumption we cannot make from the record before us. The fact that Plaintiff was unable to serve Defendants in the State of Tennessee but was able to serve them in Florida does not mean necessarily that they are nonresidents of this state, and instead means nothing other than Plaintiff found Defendants in Florida and served them there. Likewise, this does not demonstrate that Defendants do not have property located in Tennessee. See Tenn.Code Ann. § 20-2-214(a)(3).

I believe we do not know from the record before us, and neither did the Trial Court, whether Defendants are or are not residents of the State of Tennessee. For the majority to hold otherwise is, I believe, an assumption on its part rather than fact. Is personal jurisdiction over these Defendants present? Again, I do not know. I do know, however, that the record is insufficient at this time for us to hold, given the heavy burden on Defendants under the motion to dismiss standard, that an absence of personal jurisdiction has been shown.

Defendants certainly have the option to file affidavits in the Trial Court showing that they are nonresidents of Tennessee and showing their lack of contact with the State of Tennessee. Right now, however, the only “facts” we have before us are that Defendants sued Plaintiff in Knox County Circuit Court in a separate lawsuit, and that Plaintiff was unable to serve Defendants in the State of Tennessee but was able to serve them in Florida. While Plaintiff has “the ultimate burden of demonstrating that jurisdiction exists”, Che-nault, 36 S.W.3d at 56, the initial burden at this motion to dismiss stage was on Defendants, and they simply faded to meet this burden. “If the defendant challenges jurisdiction by fifing affidavits, the plaintiff must establish a prima facia showing of jurisdiction by responding with its own affidavits and, if useful, other written evidence.” Chenault, 36 S.W.3d at 56. Here, Defendants did not challenge jurisdiction by filing affidavits, but rather relied solely upon the allegations contained in the Complaint which are, I believe, sufficient to defeat the motion to dismiss on the ground of lack of personal jurisdiction. I also note as held by our Supreme Court, “[i]n deciding whether the plaintiff has met its burden a court may find it necessary to permit limited discovery or conduct an evi-dentiary hearing to resolve any apparent factual questions.” Chenault, 36 S.W.3d at 56 n. 3.

I would hold that, based on the record before us, Plaintiff has met its burden of establishing a prima facia case that personal jurisdiction over these Defendants is proper. See Manufacturers Consolidation Serv., Inc. v. Rodell, 42 S.W.3d, 846 (Tenn.Ct.App.2000). Plaintiffs achieved this by the allegations in the Complaint that these Defendants previously sued it, a New Jersey company, in the Circuit Court for Knox County, the same Circuit Court for Knox County in which the present suit was filed. In the alternative, I would reverse the Trial Court’s dismissal and remand the case to the Trial Court to “permit limited discovery or conduct an evidentiary hearing to resolve any apparent factual questions” on the personal jurisdiction issue. See Chenault, 36 S.W.3d at 56 n. 3.

Respectfully, I disagree with the majority, and I would reverse the decision of the Trial Court based not on any holding that there is personal jurisdiction over Defendants but only on the basis that Defendants failed to meet, at this time with the record before us, their motion to dismiss burden of showing that personal jurisdiction was lacking.


author: WILLIAM C. KOCH, JR., P.J., M.S.,

text:
    ALLIANCE FOR NATIVE AMERICAN INDIAN RIGHTS IN TENNESSEE, INC. et al. v. Gerald F. NICELY et al.
    Court of Appeals of Tennessee, at Nashville.
    Oct. 8, 2003 Session.
    May 10, 2005.
    Permission to Appeal Denied by Supreme Court Oct. 17, 2005.

      Joseph H. Johnston, Nashville, Tennessee, for the appellants, Alliance for Native American Indian Rights in Tennessee, Inc., Patrick Cummins, Sandi Perry, Toye Heape, and Marion Dunn.
    Paul G. Summers, Attorney General and Reporter, Michael E. Moore, Solicitor General, and John H. Sinclair, Jr., Assistant Attorney General, for the appellees, Gerald F. Nicely, Commissioner of the Tennessee Department of Transportation, and the State of Tennessee.
   OPINION

WILLIAM C. KOCH, JR., P.J., M.S.,

delivered the opinion of the court,

in which PATRICIA J. COTTRELL and FRANK G. CLEMENT, JR., JJ., joined.

This appeal involves the effect of a highway improvement project on ancient Native American graves. After discovering the graves during construction, the Tennessee Department of Transportation filed petitions in the Chancery Courts for Williamson and Davidson Counties seeking permission to disinter the remains and reinter them in another location. Despite prevailing in protracted litigation with Native American organizations and individuals, the Department voluntarily dismissed both petitions after deciding to bury the remains in place, to encapsulate them in reinforced concrete, and to continue construction on top of the encapsulated graves. A Native American organization and several Native American individuals filed this suit in the Chancery Court for Davidson County asserting that the Department’s actions violated their equal protection and due process rights under the Fourteenth Amendment to the United States Constitution. The trial court dismissed the complaint on the ground that it failed to state a claim upon which relief could be granted, and the Native American parties appealed. Construction continued while the appeal was pending because the Native American parties failed to request the trial court or this court to stay the construction during the appeal. Before oral argument in this appeal, the Department completed the construction project, including the reinterment of the remains and encapsulation of the graves in concrete. In light of these later developments, we have determined that this appeal is now moot and should be dismissed.

I.

In the mid-1990s, the Department of Transportation decided to widen and improve Hillsboro Road because of increased traffic. In January 1999, after construction had commenced near the intersection of Hillsboro Road and Old Hickory Boulevard, the Department’s archeological crew discovered two unmarked ancient Native American graves on a portion of the project located in Williamson County. Four months later, a third ancient Native American grave was discovered on a portion of the project in Davidson County.

After its engineers determined that the planned construction would disturb all three grave sites, the Department filed petitions in the Chancery Courts of Williamson and Davidson Counties seeking judicial approval to disinter the remains and reinter them in another location. At this point, the Tennessee Commission on Indian Affairs and sixteen Native American individuals sought permission to join the Williamson County lawsuit as “interested persons.” The Chancery Court for Williamson County granted the Commission and the Native American individuals “interested person” status notwithstanding their concessions that they had no ownership interest in the property and that they could not prove any blood relationship to the persons whose remains had been discovered. This court thereafter granted the Department’s Tenn. R.App. P. 10 application for an extraordinary appeal to review the Chancery Court for Williamson County’s decision to grant “interested person” status to the Commission and the Native American individuals, as well as other procedural decisions the court had made.

The proceeding in the Chancery Court for Davidson County slowed after this court granted the Department’s Tenn. R.App. P. 10 application in the Williamson County proceeding. By that time, the Alliance for Native American Indian Rights of Tennessee (“ANAIRT”) and three Native American individuals had moved to join the Davidson County lawsuit as “interested persons” on the strength of the Williamson County chancellor’s decision. Shortly after we granted the Department’s Tenn. R.App. P. 10 application, these same Native American parties filed a counter-petition in the Davidson County proceeding asserting that the Department’s proposed relocation of the Native American remains would violate their rights of conscience and free exercise of religion under the First Amendment to the United States Constitution and Article I, § 3 of the Tennessee Constitution and their rights under the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution. The Davidson County chancellor decided to postpone acting on the Department’s motion to dismiss the counter-petition pending the outcome of the Department’s extraordinary appeal from the Williamson County chancellor’s decision.

In 2001, this court held that the Williamson County chancellor had erred by granting the Tennessee Commission on Indian Affairs and the sixteen Native American individuals “interested person” status with regard to the Department’s petition to relocate the Native American remains. We also held that neither the denial of “interested person” status nor the relocation of the Native American remains violated the rights of conscience or free exercise of religion protected by the First Amendment to the United States Constitution and Article I, § 3 of the Tennessee Constitution. However, we pointed out that the trial court could, in its discretion, permit the Native American parties to participate in the case as amici curiae. State ex rel. Comm’r of Transp. v. Medicine Bird Black Bear White Eagle, 63 S.W.3d 734, 757-67 (Tenn.Ct.App.2001).

The Department renewed its motion to dismiss the Native American parties’ counter-petition in the Davidson County proceeding after the Tennessee Supreme Court declined to review this court’s opinion in the Williamson County proceeding. In March 2002, the Davidson County chancellor dismissed the Native American parties’ counter-petition in its entirety, although it permitted the Native American parties to continue to participate in the Davidson County proceeding as amici curiae.

Nine days after the entry of the Davidson County chancellor’s order, the Department filed a notice under Tenn. R. Civ. P. 41.01 that it was voluntarily dismissing its petition. The Department took this step because it had decided not to disinter and relocate the Native American remains, but rather to reinter them in place and encapsulate the graves in reinforced concrete. The Department believed that this course of action would assuage the Native Americans’ concerns about disturbing the graves. On April 1, 2002, the Davidson County chancellor dismissed the Department’s petition.

Later in April 2002, ANAIRT and four Native American individuals filed a 42 U.S.C. § 1983 lawsuit against the Commissioner of Transportation in the Chancery Court for Davidson County asserting that the Department’s plans to reinter the Native American remains violated their rights under the Due Process and Equal Protection Clauses of the United States Constitution. While the Native American parties did not request damages, they requested the court to issue a temporary injunction preventing the Department from encapsulating and paving over the remains and a permanent injunction preventing the disinterment of the remains.

In May 2002, the Davidson County chancellor denied the Native American parties’ petition for a preliminary injunction. Several months later, the court dismissed their lawsuit as well. The court held that the Native American parties lacked standing to bring the action and that they had failed to allege a legally cognizable violation of their due process and equal protection rights. While the Native American parties filed a timely notice of appeal, they did not request the trial court or this court to stay construction of the project pending the outcome of this appeal. Accordingly, before the appellate briefs had even been prepared, the Department reinterred the remains, encapsulated the graves in reinforced concrete, and continued the improvements to Hillsboro Road over the top of the encapsulated graves. In January 2003, the Department completed the disputed construction project.

II.

Before we can reach the merits of the Native American parties’ constitutional claims, we must first resolve a threshold jurisdictional issue. The requirements for litigation to continue are essentially the same as the requirements for litigation to begin. Charter Lakeside Behavioral Health Sys. v. Tennessee Health Facilities Comm’n, No. M1998-00985-COA-R3-CV, 2001 WL 72342, at *5 (Tenn.Ct.App. Jan.30, 2001 (No Tenn.R.App. P. 11 application filed). A case must remain justiciable through the entire course of litigation, including any appeal. State v. Ely, 48 S.W.3d 710, 716 n. 3 (Tenn.2001); Cashion v. Robertson, 955 S.W.2d 60, 62-63 (Tenn.Ct.App.1997). A case is not justiciable if it does not involve a genuine, existing controversy requiring the adjudication of presently existing rights. State v. Brown & Williamson Tobacco Corp., 18 S.W.3d 186, 193 (Tenn.2000); Ford Consumer Fin. Co. v. Clay, 984 S.W.2d 615, 616 (Tenn.Ct.App.1998).

A moot case is one that has lost its justiciability because it no longer involves a present, ongoing controversy. McCanless v. Klein, 182 Tenn. 631, 637, 188 S.W.2d 745, 747 (1945); County of Shelby v. McWherter, 936 S.W.2d 923, 931 (Tenn.Ct.App.1996). A case will be considered moot if it no longer serves as a means to provide some sort of judicial relief to the prevailing party. Knott v. Stewart County, 185 Tenn. 623, 626, 207 S.W.2d 337, 338-39 (1948); Ford Consumer Fin. Co. v. Clay, 984 S.W.2d at 616. Determining whether a case is moot is a question of law. Charter Lakeside Behavioral Health Sys. v. Tennessee Health Facilities Comm’n, 2001 WL 72342, at *5; Orlando Residence, Ltd. v. Nashville Lodging Co., No. M1999-00943-COA-R3-CV, 1999 WL 1040544, at *3 (Tenn.Ct.App. Nov.17, 1999) (No Tenn. R.App. P. 11 application filed). Where a case on appeal is determined to be moot and does not fit into one of the recognized exceptions to the mootness doctrine, the appellate court will ordinarily vacate the judgment below and remand the case to the trial court with directions that it be dismissed. Ford Consumer Fin. Co. v. Clay, 984 S.W.2d at 617; McIntyre v. Traughber, 884 S.W.2d 134, 138 (Tenn.Ct.App.1994). However, if the case falls within one of the recognized exceptions to the mootness doctrine, the appellate court has the discretion to reach the merits of the appeal in spite of the fact that the case has become moot.

After the Native American parties filed their notice of appeal, but several months before the briefs on appeal were prepared, the Department completed the construction project that the Native American parties had sought to halt by the filing of this lawsuit. The Native American parties acknowledged during oral argument that the project had been completed and that the remains at issue had been rein-terred, encapsulated in concrete, and paved over — the very acts they had sought to prevent. It is well established that a suit brought to enjoin a particular act becomes moot once the act sought to be enjoined takes place. Miller v. Miller, No. M2002-02775-COA-R3-CV, 2003 WL 22994305, at *4 (Tenn.Ct.App. Dec.17, 2003) (No Tenn. R.App. P. 11 application filed) (citing Badgett v. Broome, 219 Tenn. 264, 268, 409 S.W.2d 354, 356 (1966); Malone v. Peay, 157 Tenn. 429, 433, 7 S.W.2d 40, 41 (1928)).

The primary relief sought by the Native American parties was injunctive relief. While they also requested declaratory relief and attorney’s fees, these requests were merely incidental to the primary relief they sought. Requests for incidental relief of this nature are insufficient to render a case justiciable if it is otherwise moot. LaRouche v. Crowell, 709 S.W.2d 585, 587 (Tenn.Ct.App.1985) (request for declaratory judgment); McIntyre v. Traughber, 884 S.W.2d at 138 (request for attorneys’ fees); see also Carson v. DaimlerChrysler Corp., No. W2001-03088-COA-R3-CV, 2003 WL 1618076, at *4 (Tenn.Ct.App. Mar.19, 2003) (No Tenn. R.App. P. 11 application filed) (request for prejudgment interest). Accordingly, this case has become moot, and the only remaining question on appeal is whether it fits within one of the established exceptions to the mootness doctrine.

III.

The Native American parties conceded at oral argument that the courts could not provide them with the relief they sought with regard to the three graves discovered near the intersection of Hills-boro Road and Old Hickory Boulevard. Nevertheless, they insisted during oral argument that this court should reach the merits of their constitutional claims because the Department’s actions in this case are capable of repetition and that these actions, if repeated, will evade judicial review. While Tennessee courts recognize the “capable of repetition yet evading review” exception to the mootness doctrine, State ex rel. McCormick v. Burson, 894 S.W.2d 739, 742 (Tenn.Ct.App.1994), we have determined that it is not applicable to this case.

The courts invoke the “capable of repetition yet evading review” exception to the mootness doctrine only in exceptional cases. Parties requesting a court to invoke the exception must demonstrate (1) a reasonable expectation that the official acts that provoked the litigation will occur again, (2) a risk that effective judicial remedies cannot be provided in the event that the official acts reoccur, and (3) that the same complaining party will be prejudiced by the official act when it reoccurs. A mere theoretical possibility that an act might reoccur is not sufficient to invoke the “capable of repetition yet evading review” exception. Rather, “there must be a ‘reasonable expectation’ or a ‘demonstrated probability’ that the same controversy will recur involving the same complaining party.” Murphy v. Hunt, 455 U.S. 478, 482, 102 S.Ct. 1181, 1184, 71 L.Ed.2d 353 (1982); 1 Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law § 2.13, at 37 (3d ed. Supp.2005).

The Native American parties assert that the court should invoke the “capable of repetition yet evading review” exception because the Department has adopted a policy designed to avoid judicial entanglements whenever it encounters ancient Native American remains. Based on the Department’s voluntary dismissal of its Tenn. Code Ann. § 46-4-103 petitions regarding this project, they assert that the Department has decided to discontinue seeking judicial authorization to remove and rein-ter Native American remains when discovered during construction and to simply reinter the remains in place, encapsulate them in concrete, and then continue construction. We find no evidentiary foundation for these assertions.

The Department has repeatedly emphasized that its actions in this case were based on its mistaken belief that reinter-ring the remains and encapsulating them in concrete would fully alleviate the Tennessee Native American community’s concerns regarding the treatment of their potential ancestors’ remains. This litigation has put the Department on notice, as its lawyer conceded during oral argument, that reinterring the remains and encapsulating them in concrete does not fully alleviate the concerns of many members of the Native American community. Accordingly, the Department now has a clearer, more accurate understanding of the Tennessee Native American community’s reaction to this practice.

In addition, the Department repeatedly conceded during oral argument that it understood that it could not avoid filing a TenmCode Ann. § 46-4-103 petition by simply reinterring remains and encapsulating them in cement. This court specifically questioned the Department’s lawyer about the Department’s official position with regard to filing a Tenn.Code Ann. § 46-4-103 petition in circumstances similar to those encountered during the construction of the improvements at the intersection of Hillsboro Road and Old Hickory Boulevard. The Department’s lawyer expressly and repeatedly conceded that the Department would be required to file a TenmCode Ann. § 46^-103 petition in future cases.

The answers of the Department’s lawyer at oral argument are consistent with our understanding of the application of the statutes governing the termination of the use of real property as a cemetery. These statutes require court approval not only for the disinterment and reburial of remains, but also to “terminate the use of, and all rights and easements to use, ... ground as a burial ground, and all rights and easements incident or appurtenant to the ground as a burial ground.” Tenn. Code Ann. § 46-4-103(a)(2). It would seem ill-advised, to say the least, for the Department to construct costly improvements on land known to contain human graves without first seeking an order terminating the legal rights incident to those graves. Such a policy would leave the Department and the State open to the risk that individuals related to the persons buried in the graves would someday demand the destruction or reconfiguration of the improvements to allow them access to the graves or to remove the remains and give them a proper reburial.

In short, we credit the Department’s representations at oral argument (1) that it has no policy requiring or even favoring reburial in place, encapsulation, and paving over of Native American remains discovered in the course of construction projects and (2) that it would first seek court approval under Tenn.Code Ann. § 46-4-103 before pursuing such a course of action with respect to a specific project in the future. Based on these assertions, we have concluded that the Native American parties’ anticipation of the Department’s actions in the future is, at best, speculative.

Important constitutional issues such as the ones raised by the Native American parties should be left for determination in a case that presents an actual, ongoing controversy. Three Affiliated Tribes of the Fort Berthold Reservation v. Wold Eng’g, P.C., 467 U.S. 138, 157, 104 S.Ct. 2267, 2279, 81 L.Ed.2d 113 (1984); State v. Taylor, 70 S.W.3d 717, 720 (Tenn.2002). There is presently no actual controversy between the parties regarding the subject matter of this litigation, and the Native American parties have not shown that there is a demonstrable probability that the same controversy involving the same parties will reoccur. Accordingly, this is not a proper case for invoking the “capable of repetition yet evading review” exception to the mootness doctrine.

IV.

Throughout these proceedings, the Native American parties have made it clear that one of the rights they are seeking to vindicate is the right of Native Americans to play a meaningful role in the decision-making process when ancient human remains are discovered. While the Native American parties appear to believe that the courts provide the only access to this process, other federal and state statutes and regulations beyond Tenn.Code Ann. § 46-4-103 encourage and require Native American involvement in decisions regarding Native American remains and funerary objects.

For all the foregoing reasons, we conclude that this case is moot and does not fall under the “capable of repetition yet evading review” exception to the mootness doctrine. Accordingly, we vacate the order dismissing the Native American parties’ petition for failure to state a claim for which relief can be granted and remand the case with directions to enter an order dismissing the petition as moot. We tax the costs of this appeal to the State of Tennessee.

      . These petitions were filed under Tenn.Code Ann. §§ 46-4-101 to -104 (2000) which authorizes the filing of suits in chancery court to terminate the use of land as a cemetery and the disinterment and reinterment of the human remains in another location.

      . Tenn.Code Ann. § 46-4-102 defines "interested persons" as: any and all persons who have any right or easement or other right in, or incident or appurtenant to, a burial ground as such, including the surviving spouse and children, or if no surviving spouse or children, the nearest relative or relatives by consanguinity of any one (1) or more deceased persons whose remains are buried in any burial ground.

      . Although the record on appeal is silent regarding the date, at some point, the Department filed a similar notice of voluntary dismissal in the Williamson County proceeding.

      . This court affirmed the Davidson County chancellor’s decision to deny the Native American parties’ petition to intervene as "interested parties,” as well as its decision to permit the Department to voluntarily dismiss its petition. State ex. rel. Comm’r of Dep't of Transp. v. Any and All Parties with an Interest in Property Identified as Tax Map 158, Parcel 34, No. M2002-01137-COA-R3-CV, 2003 WL 21439038 (Tenn.Ct.App. June 23.2003), perm. app. denied (Tenn. Dec. 22, 2003) (Not for Citation).

      . In accordance with Tenn. R.App. P 19(c), Commissioner Gerald F. Nicely has been substituted as a party defendant in the place of former Commissioner J. Bruce Saltsman.

      . The Native American parties clearly recognized that their claims might become moot once the remains were encapsulated and paved over. They noted in their petition for a preliminary injunction that if an injunction was not forthcoming, “the issue ... of this unusually callous treatment of Native American Indian grave sites by the Defendants may become moot.”

      . 13A Charles Alan Wright et al, Federal Practice and Procedure § 3533.8, at 370-71 (2d ed.1984).

      . City of Los Angeles v. Lyons, 461 U.S. 95, 109, 103 S.Ct. 1660, 1669, 75 L.Ed.2d 675 (1983); Gannett Co. v. DePasquale, 443 U.S. 368, 377, 99 S.Ct. 2898, 2904, 61 L.Ed.2d 608 (1979); State v. Montgomery, 929 S.W.2d 409, 414 (Tenn.Crim.App.1996).

      . The Native American parties in this case have acknowledged the differences of opinion among Native Americans regarding the appropriate course of action to take when Native American remains are discovered during the course of a construction project. Their motion to consider post-judgment facts states: Native American Indians view the disturbance of the remains of the dead as tremendously more inconsistent with due and proper reverence for their memory than ... the existence of nearby buildings. Some Southeastern Indian Nations indigenous to Middle Tennessee, such as the Eastern Band of Cherokee, and the Chickasaw Nation, have even expressed a preference for leaving the remains intact and in place, with roads being constructed over them, rather than moving the remains to another location. (The Townsend site in East Tennessee and the Kelly site in Davidson County-)

      . Consider, for example, the following exchange between Judge Cottrell and the Department’s lawyer:
      Judge Cottrell: So are you saying that if in fact the state decided with regard to a cemetery ... to just pave it over and not go through the disinterment they wouldn’t have to notify anybody, because the ... disinterment statute would not apply?
      Answer: No, it would apply.
      To ensure that the Department's lawyer had correctly understood Judge Cottrell's question, Judge Koch followed up on the point in the following exchange:
      Judge Koch: The short ... question is whether the statute we’re referring to would also apply to paving over a cemetery, not just disinterring the bodies in there.
      Answer: Well, that’s correct, your honor.
      Later, the following exchange occurred:
      Judge Koch: But Judge Cottrell [is] asking you about the procedure in general, and the answer is, “yes, if we’re going to pave over a cemetery, we have to follow the statutory procedures for notifying the property owners and relatives of those in the graves.”
      Judge Cottrell: So it’s not your position that the disinterment statute doesn't apply?
      Answer: No, your honor.