author: HARBISON, Justice.

text:
    HOSPITAL MANAGEMENT ASSOCIATES, INC. and Coffee Hospital Management Associates, Inc., Plaintiffs-Appellees, v. COFFEE COUNTY, Tennessee and Don J. Darden, County Executive of Coffee County, Tennessee, Defendants-Appellants.
    Supreme Court of Tennessee, at Nashville.
    April 8, 1985.

      John W. Rollins, Manchester, G. Nelson Forrester, Doyle E. Richardson, Mary F. Bristow, Forrester & Richardson, Tullaho-ma, for defendants-appellants.
    Edward C. Blank, III, Nashville, for plaintiffs-appellees.
   OPINION

HARBISON, Justice.

Although other issues were extensively litigated in the trial court and Court of

Appeals, the only questions presented for review in this Court concern the right of Coffee County, Tennessee and its County Executive to cancel a hospital development agreement between the County and appel-lees executed on April 30, 1981. Both the trial court and the Court of Appeals held that this was a separate and independent agreement for the financing and construction of a new hospital facility and that appellants had not established either factually or legally any basis for its termination. We affirm that decision.

Insofar as there are any factual issues underlying the questions presented, there is a concurrent finding of fact by the trial court and Court of Appeals supported by material evidence, thereby foreclosing any review here of factual disputes. See T.C.A. § 27-1-113. Both courts have found that appellees diligently pursued their obligations under the development agreement insofar as the acquisition of a Certificate of Need from hospital regulatory authorities was concerned, and they secured from the Industrial Board of Coffee County, Tennessee the necessary “inducement contract” under which the Board agreed to issue revenue bonds to finance the construction of the hospital facility. This instrument was executed by the Board and by appellees in January and February 1982. The Certificate of Need was issued on April 6, 1982, having been approved on March 24. The Certificate provided for a timetable for the development of the project, including the submission of final plans nine months after the date of approval, securing of financing within fifteen months thereafter and commencement of construction within eighteen months.

There is no evidence in the record of failure by appellees to carry out their obligations under the development agreement. They were to obtain a suitable site for the project, and this they did by September 1981. They examined several commercial tracts of land, and ultimately elected to build the new building on a tract of some fourteen acres owned by Coffee County itself. On September 24, 1981 the County granted an option to appellees to purchase the site for $168,000 or to lease it at a fixed annual rental for a term coinciding with the term of the Industrial Revenue Bonds as provided for in the development agreement of April 30, 1981. This option was extended until September 23, 1982. The option to lease was exercised prior to that date. No lease has actually been executed because of this litigation, nor, insofar as the record discloses, have further steps been taken to implement the development agreement, because the County instituted an action to cancel both it and the real estate option by counterclaim filed in August 1982. Factually, however, there is a concurrent finding by the courts below that there has been no breach of the development agreement by appellees, nor was any such claim seriously asserted during the lengthy evidentiary hearings held in the trial court.

Essentially, appellants contend that they were entitled to cancel the development agreement and the subsequent option because these were a part of, or incidental to, an overall contractual plan between the County and appellees, under which appel-lees were to assume the operation of an existing county hospital until such time as a new facility could be authorized and constructed. Simultaneously with the execution of the development agreement on April 30, 1981, the County and appellees also executed a lease agreement, under which the County leased an existing hospital facility, previously operated by it, to appellees for a term of three years “or until the completion of a new replacement hospital facility, whichever first occurs.” Since the new facility was not completed within the three-year period, the lease would have expired by its terms at the end of April 1984 unless the parties agreed otherwise by further negotiation or unless it was cancelled prior to the fixed expiration date.

It has been the insistence of the appellants throughout the proceedings, however, that the lease and the development agreement constituted one contractual arrangement, so that cancellation or termination of the one automatically, as a matter of law, entitled appellants to terminate the other. The courts below held to the contrary, and we are of the opinion, after careful review of the extensive record in this case, that their decision was correct.

The lease agreement is a detailed document, dealing primarily with the assumption by appellees of the operation of an existing hospital facility which had been operated by the County for several years at a considerable financial loss. The agreement provided for $25,000 per month rent to be paid to the County. Insofar as the record reveals, that rent was paid from inception through the period involved in the litigation, and presumably until the lease expired in April 1984. Appellants sought to cancel the lease in April 1982, less than one year after it was executed, because of a default by appellees in making payments on a pharmacy contract, previously let by the County and assumed by appellees in the lease. The right of appellants to cancel was the subject of an original action commenced by appellees in July 1982. The trial court ultimately held that appellants had properly exercised their right of cancellation, and the Court of Appeals affirmed. This Court denied an application by appel-lees to review that issue. Appellees continued to operate the hospital, however, during the pendency of the appeal which has continued beyond the original expiration date. Upon remand it will be necessary for the trial court to take an accounting between the parties if there are any further financial obligations of either to the other as the result of the cancellation of the lease or of the continued operation of the facility by appellees.

As previously stated, the lease itself would have expired at the end of April 1984 in all events. Nothing in it suggests that the development agreement would also have expired at that time. In their brief in this Court appellants concede that they would have had no right to cancel the separate development agreement “if bonds had been issued and construction commenced on the new hospital....” Because those steps had not yet been taken, however, appellants seem to insist that they had a right to cancel the development contract at the stage which it had reached in April 1982, when the lease was cancelled.

This does not follow. Either the two agreements were one and inseparable throughout, or they were separate from the beginning. Nothing in them indicates that at some point in its performance the development agreement would have reached a state that rendered cancellation improper, whereas it could have been can-celled prior to that point. The development agreement contains no provisions for cancellation. Since there has been no breach of its terms either alleged or proved, the only arguable basis for its cancellation by appellants is that it was an integral part of the lease agreement.

The courts below found that it was not, and we agree with that conclusion. The two agreements are separate in form. The terms of the lease provide almost in their entirety for the assumption and operation of the existing hospital. Article 23 gives the lessor, appellants here, the right to terminate after thirty days’ notice of breach by the lessee. This occurred. The lessee fell behind in the payments of a pharmacy contract, previously let by the County and assumed by the lessee. Various reasons were given for this, including a claim that the pharmacy contract was unconscionable and inordinately profitable to the pharmacy company holding it. Appel-lees attempted to renegotiate it and withheld monthly payments accruing under it in an attempt to gain leverage to force such renegotiation. County officials became concerned after being notified of the situation by the pharmacy company, because the County had not been released from liability-

Despite the fact that appellees offered indemnification and assurances to the County, they did not settle the debt owed to the pharmacy company within thirty days after being notified to do so by the County. Accordingly the County cancelled the lease, and it has been established in this litigation that the County was legally entitled to do so. Appellees insist that the action of the County was not equitable, since there was no question of the ability of appellees to make the payment. In fact they did make a very substantial payment, in excess of $200,000, within a few days after the County had elected to terminate the lease. Most of the litigation in the trial court involved questions as to whether the County had agreed to further negotiations and as to whether there was anything more than a technical breach by the lessee. These questions have been resolved, however, and the County has made its election to cancel the lease.

The only reference in the lengthy lease agreement to the separate development contract for a new hospital facility is contained in Article 9. That article provides as follows:

“ARTICLE 9. DEVELOPMENT OF REPLACEMENT HOSPITAL FACILITY AND RENOVATION OF LEASED PREMISES.
“Simultaneously with the execution of this Lease, the parties shall execute a Development Contract for the construction and subsequent operation of a replacement hospital facility. It is the intent of the Lessee to finance construction of the replacement hospital facility with Industrial Revenue Bonds. At the expiration of the time period for the maturity of the Industrial Revenue Bonds Lessee will return the building to Lessor and negotiate with Lessor for the continued operation of the facility.
“Lessee, upon completion of the hospital replacement facility, shall provide for the renovation of the Leased Premises into a 100-120 bed nursing home facility and its subsequent operation by Lessee or a qualified sub-lease approved by Lessor, which approval shall not be unreasonable [sic] withheld.”

The article continues with provisions for the annual rental of the renovated leased premises after such renovations has been completed and then continues:

“The period of the Lease for the 100-120 bed nursing home facility shall be the same as the Lease period for the replacement hospital facility.
“After completion of the new hospital, Lessee will buy all of Lessor’s hospital equipment that Lessee needs from the Lessor at the Lessor’s Book Value.”

It is apparent both from this article and from the development agreement itself that the construction of the new replacement hospital was to be financed by Industrial Revenue Bonds. The issuance and the provisions of such bonds are governed by the terms of T.C.A. Title 7, Chapter 53. Ordinarily facilities constructed pursuant to these statutes are situated on premises owned by or leased to a county industrial board or commission and then leased to a project developer under terms by which rental payments are sufficient to retire the bonds.

T.C.A. § 7-53-304 expressly provides for terms of such bonds and contains provisions governing default. The statute provides:

“The principal of and interest on any bonds issued by the corporation shall be secured by a pledge of the revenues and receipts out of which the same shall be payable, and may be secured by a mortgage or deed of trust covering all or any part of the projects from which the revenues or receipts so pledged may be derived, including any enlargements of and additions to such projects thereafter made, and/or by an assignment and pledge of all or any part of the corporation’s interest in and rights under the leases, sale contracts or loan agreements relating to such projects, or any thereof. The resolution under which the bonds were authorized to be issued and any such mortgage or deed of trust may contain any agreements and provisions respecting the maintenance of the projects covered thereby, the fixing and collection of rents or payments with respect to any projects or portions thereof covered by such resolution, mortgage or deed of trust, the creation and maintenance of special funds from such revenues and from the proceeds of such bonds, and the rights and remedies available in the event of default, all as the Board of Directors shall deem advisable not in conflict with the provisions hereof. Each pledge, agreement, mortgage and deed of trust made for the benefit or security of any of the bonds of the corporation shall continue effective until the principal of and interest on the bonds for the benefit of which the same were made shall have been fully paid. In the event of default in such payment or in any agreements of the corporation made as a part of the contract under which the bonds were issued, whether contained in the proceedings authorizing the bonds or in any mortgage and deed of trust executed as security therefor, such payment or agreement may be enforced by suit, mandamus, the appointment of a receiver in equity, or by foreclosure of any such mortgage and deed of trust, or any one or more of said remedies.” (Emphasis added.)

It is obvious that the ultimate terms of the bonds issued to implement the development contract and the terms upon which the project developer could be treated in default had to be agreed upon between appellees and the Coffee County Industrial Board. Those terms were not part of or even subject to the lease agreement governing the existing hospital. Insofar as the present record shows, those terms have not yet been agreed upon. The failure of the lessee under the lease agreement, however, to make a monthly payment of rent or to pay a third-party creditor has not been demonstrated in this record to constitute a default in Industrial Revenue Bonds issued under entirely separate contracts between the County Industrial Board and the project developer, appellees here. Conversely, default upon revenue bonds would not have terminated appellee's right to operate a nursing home in the renovated facility unless the future lease on that facility, contemplated by Article 9, should contain such a provision.

Whether appellees and the County Industrial Board will agree upon the terms of such bonds and carry out the construction of the new hospital is a question not involved in the present case. We simply hold, as did the courts below, that the right of the County to cancel the lease on the existing facilities did not carry with it any automatic right to terminate the development contract and the subsequent real estate option granted to appellees.

The parties could have drafted their contracts to effect such a result had that been their mutual intent. No reformation of those contracts has been sought or even suggested. The courts can only construe agreements as they are written. Those before us are not ambiguous. The two contracts were simply not made mutually dependent. It was entirely possible that the County might have to resume control and operation of the old hospital facility under the terms of the lease agreement. Not only was that contract terminable upon default; it expired at the end of thirty-six months. The Certificate of Need to authorize building of the new facility was not issued until eleven months of the lease had expired. Under the terms of the Certificate, appellees were not obligated to commence construction of the new facility until the twenty-ninth month of the lease would have expired. Whether the new building could be built and made operational within seven months is extremely problematical. At the expiration of the lease, a new agreement between the parties would have been necessary, or appellants could have then leased the old facility to others if they were dissatisfied with its operation by appellees. There was no right of renewal by the tenant, and the lease only suggested in broad outline the terms of a new and further lease that would have become necessary in connection with the renovation and subsequent operation of the old facility as a nursing home. The April 30, 1981 lease, at best, provided an interim arrangement for a maximum of three years. As drawn it did not govern the rights of the parties under the development contract, nor did the latter control their rights under the lease.

Although appellants argued in the trial court that the option granted in September 1981 to appellees was also integrated into the lease and development contract, that issue has not been seriously pursued on appeal. Indeed, the County Executive himself testified with respect to the option,

“That was not in the original agreement.”

As stated previously, the option was obtained on some commercial property owned by the County after appellees had investigated several other potential sites. The option has been exercised by appellees. It is an asset owned by and is assignable by them. In our opinion the termination of the lease on the original facilities did not and could not affect the rights of appellees under the real estate option.

The judgment of the Court of Appeals is affirmed and the cause is remanded to the trial court for any further proceedings which may be necessary. Costs incident to the appeal to this Court are taxed to appellants. All other costs will remain as taxed by the courts below.

COOPER, C.J., and FONES, BROCK and DROWOTA, JJ., concur.

      . See T.C.A. § 68-11-106. The Certificate was obtained by appellees after public hearings and administrative proceedings in which county officials supported and assisted the application by appellees.

      . The lease contained no renewal right by the lessee. In the event of holding over, the tenancy was to be month-to-month only.

      . It does contain contengencies, relieving the developer of further responsibility if the Certificate of Need or the Industrial Revenue Bonds could not be authorized and issued. Presumably had this occurred prior to April 1984 the development contract would have terminated, but the lease on the existing hospital would have continued until expiration unless the parties agreed otherwise after further negotiation.


source: Caselaw Access Project

author: DROWOTA, Justice.

license: Public Domain

text:
    Ralph PROST, Plaintiff-Appellee, v. CITY OF CLARKSVILLE, Tennessee, POLICE DEPARTMENT, Defendant-Appellant.
    Supreme Court of Tennessee, at Nashville.
    April 8, 1985.

      Mark A. Rassas, Clarksville, for plaintiff-appellee.
    Dan L. Nolan, Clarksville, for defendant-appellant.
   OPINION

DROWOTA, Justice.

In this worker’s compensation action the Plaintiff alleges that he suffered an accidental injury that resulted in permanent total disability. The trial court found that the accident did arise out of and within the scope of employment and that the employee was permanently and totally disabled as a result. On appeal the Defendant concedes that the accident was compensable but maintains that there is no material evidence to support the award of permanent total disability.

Plaintiff is a 54 year-old man who has been employed as a law enforcement officer in Montgomery County since 1975. Pri- or to that he served over 23 years in the military, doing military police work. His military experience included working extensively with K-9 dogs. From the date of his retirement from the military in 1974, Plaintiff worked as a criminal investigator and with the K-9 unit for Montgomery County. He subsequently became employed with the City of Clarksville Police Department, Defendant herein, and he organized the K-9 unit utilized by that department.

While investigating a robbery with one of the K-9 dogs on March 2, 1982, Plaintiff allegedly fell into a ditch and injured his back. He experienced some pain but did not seek immediate medical attention because he didn’t think the injury was serious. He eventually sought treatment when he continued to experience pain. In July of 1982, Plaintiff went to Memorial Hospital in Clarksville where he was placed under the care of Dr. Porter, an orthopedic surgeon. Dr. Porter performed surgery on the Plaintiff, whose condition was described as a herniated disc with compression of the nerve root. Dr. Porter estimated Plaintiff’s disability to be fifteen (15) percent to the body as a whole. Plaintiff was released by Dr. Porter to return to work in September of 1982. Plaintiff fell again in October of 1982 in a non-work related activity. He did not return to work until January, 1983, when Dr. Porter released him to go back to full duties except dog handling. Mr. Prost did in fact return to dog handling against his doctor’s orders until July of 1983, when he was relieved as a dog handler by the department. From that time until January of 1984, Mr. Prost has been working at a desk job in the police department. In January of 1984, he was placed on full time duty as a patrolman. He took the physical training test for the City of Clarksville Police Department and his performance was sufficient to allow him to remain on the police force, although it would not have been sufficient had he not already been a member of the department. In other words, had Mr. Prost been a new applicant, he would not have been hired because of his performance in the physical activities. Plaintiff’s supervisor testified that Plaintiff cannot lift anything heavy and that he occasionally walks with a limp.

Both of the physicians who testified at trial stated that they estimated Plaintiff’s disability to be fifteen (15) percent to the body as a whole. Both also acknowledged Plaintiff’s physical limitations. Plaintiff's treating physician, Dr. Porter, felt that Plaintiff was 100 percent disabled for the job of canine handling, but he believed that for other jobs in the police department Plaintiff might not have any disability at all. Both doctors acknowledged that Plaintiff should avoid running and heavy lifting but otherwise felt that Plaintiff was physically able to perform most other physical activities.

There is no question that Plaintiff has suffered a compensable injury that resulted in permanent disability. The issue is whether that permanent disability is total as found by the trial judge, or whether the disability is only partial. If there is material evidence to sustain the trial court’s finding of permanent total disability, that finding must be affirmed by this Court. T.C.A. § 50-6-225(e). See, e.g., Liberty Mutual Insurance Co. v. Taylor, 590 S.W.2d 920 (Tenn.1979); Trane Co. v. Morrison, 566 S.W.2d 849 (Tenn.1978). But while the Supreme Court is bound by the findings of a trial judge on questions of fact if there is material evidence to support those findings, it is not bound by conclusions drawn by the trial judge from undisputed facts and it may reach a different conclusion from the trial judge on the same findings of fact. Watson v. United States Fire Insurance co., 577 S.W.2d 668 (Tenn.1979); Gentry v. The Lilly Co., 225 Tenn. 708, 476 S.W.2d 252 (1971).

Any award of permanent total disability must be in compliance with the statutory definition of total disability contained in T.C.A. § 50-6-207(4). The statute defines “permanent total disability” as follows:

When an injury not specifically provided for in this chapter as amended, totally incapacitates the employee from working at an occupation which brings him an income, such employee shall be considered “totally disabled,” and for such disability compensation shall be paid as provided in subdivision (4)(A)....

T.C.A. § 50-6-207(4)(B) (emphasis added). Therefore, the pertinent question in the case at bar is whether Plaintiffs injury “totally incapacitates the employee from working at an occupation which brings him an income.”

The medical testimony established that Mr. Prost was unable to perform activities requiring running and heavy lifting, and therefore he was no longer able to continue his job as dog handler. However the statutory definition makes no reference to present occupation only. Instead, the statute speaks of an income-producing occupation. The record establishes that Mr. Prost can do other jobs and has in fact satisfactorily performed duties other than dog handling since his injury. In determining whether an employee is permanently and totally disabled, many factors must be considered. In Federated Mut. Implement & Hardware Ins. Co. v. Cameron, 220 Tenn. 636, 422 S.W.2d 427 (1967), this Court emphasized that “the skills, education and training of the employee as well as job opportunities and other factors bearing on employability” should be considered. See also Hinson v. Wal-Mart Stores, Inc., 654 S.W.2d 675, 677 (Tenn.1983). In Hin-son, supra, relied upon by the trial court, the employee was a sales clerk with no formal education or training and who had no other job experience. Her accident caused her difficulty in sitting and standing and using her hands. Hinson is distinguishable from the case at bar. Mr. Prost has shown the ability to do desk jobs and to work as a patrolman as long as running and heavy lifting are not involved. Plaintiff has performed a number of duties since the injury which militate against a finding of permanent total disability. By his own testimony, Plaintiff feels that he is capable of carrying out other duties and of earning an income. In American Lava Corp. v. Savena, 493 S.W.2d 77 (Tenn.1973), an employee injured in an industrial accident who was subsequently employed as a service station attendant was held not to be permanently and totally disabled. To reiterate, the Plaintiff in the case at bar is capable of regular and gainful employment. The statute contemplates employment in the open labor market and not a return to the employee’s previous position. See Skipper v. Great Central Insurance Co., 474 S.W.2d 420 (Tenn.1971); see also Wormsley v. Consolidation Coal Co., 408 F.2d 85, 87 (6th Cir.1969).

Applying the statutory definition of permanent total disability heretofore discussed, we are unable to find support for the trial judge’s conclusion that Plaintiff is permanently and totally disabled. We are unable to say that Plaintiff is incapacitated to an extent that he is unable, considering his training and experience, to work “at an occupation which brings him an income.” T.C.A. § 50-6-207(4)(B). There is no question that Plaintiff is entitled to benefits for permanent partial disability. Since the case was tried principally on the theory of total disability, we are unable to determine the appropriate amount of benefits. The cause is therefore remanded for a determination of benefits for permanent partial disability. Medical testimony established the medical disability to be fifteen percent to the body as a whole. The trial court, of course, is not bound by that figure, but may consider other non-medical factors, such as skills and training, subsequent employment and job opportunities for the employee in his disabled condition. See Employers Ins. Co. of Alabama v. Heath, 536 S.W.2d 341 (Tenn.1976). The standard for compensation is not simply loss of earning capacity, but loss of the use of the body as a whole. See T.C.A. § 50-6-207(3)(F). Earning capacity after the injury is a factor to be considered in determining the degree of permanent partial disability, but it is not the only factor to be considered.

The judgment of the trial court is reversed and the cause is remanded for further proceedings consistent with this opinion. The costs on appeal are taxed to the Plaintiff. All other costs, including those incurred on remand, shall be taxed as the trial court shall direct.

COOPER, C.J., and FONES, BROCK and HARBISON, JJ., concur.


author: BROCK, Justice.

text:
    CITY OF CLARKSVILLE, et al., Plaintiff-Appellee, v. Wiley B. MOORE, Defendant-Appellant.
    Supreme Court of Tennessee, at Nashville.
    April 8, 1985.

      Charles L. Johnson, II, Clarksville, for defendant-appellant.
    Frank J. Runyon, Clarksville, for plaintiff-appellee.
   OPINION

BROCK, Justice.

The City Court of Clarksville found defendant guilty of violating Clarksville City Ordinance 56-1981-82, § 307.4, which prohibits the open storage of abandoned motor vehicles on residential property. Upon a de novo appeal to the Law and Equity Court for Montgomery County, the judgment was affirmed. Defendant appealed to the Court of Appeals. Because the sole determinative question concerns the constitutionality of the city ordinance, the Court of Appeals transferred the case to this Court for review. For the reasons set forth below, we affirm.

The automobile which the trial court found to be abandoned is kept by the defendant on his residential property in Clarksville. It is upside down and has no wheels or battery. Little, if any, of the windows and roof remains. The front and rear bumpers and other valuable parts have been removed from the car. Weeds and grass have grown up around and inside it. Defendant testified that he intended to have the car towed off and dumped.

Defendant received notice from the Clarksville Department of Building Inspections and Permits that he had thirty days within which to clean up his property and comply with Clarksville Ordinance 56-1981-82, § 307(4). Defendant failed to do so, and the housing inspector instituted this suit.

Defendant argues that the ordinance in question is unconstitutionally vague. Section 307.4 of the ordinance reads as follows:

“307.4 — CARE OF PREMISES

It shall be unlawful for the owner or occupant of a residential building, structure, or property to utilize the premises of such residential property for the open storage of any abandoned motor vehicle, ice box, refrigerator, stove, glass, building material, building rubbish or similar items. It shall be the duty and responsibility of every such owner or occupant to keep the premises of such residential property clean and to remove from the premises all such abandoned items as listed above, including but not limited to weeds, dead trees, trash, garbage, etc., upon notice from the Housing Official.”

An abandoned motor vehicle is defined as “one that is in a state of disrepair and incapable of being moved under its own power.” City Ordinance 56-1981-32, § 201.2.

A statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess as to its meaning and differ as to its application denies due process of law. State v. Hinsley, 627 S.W.2d 351, 354 (Tenn.1982), citing, Cramp v. Board of Public Instruction, 368 U.S. 278, 82 S.Ct. 275, 7 L.Ed.2d 285 (1961), and United States v. Spector, 343 U.S. 169, 72 S.Ct. 591, 96 L.Ed.2d 863 (1952). The words of a statute must be sufficiently precise to put an individual on reasonable notice concerning the conduct which is prohibited and must set out boundaries sufficiently distinct for the courts to fairly administer the law. Hinsley, supra, 627 S.W.2d at 354. Judged under the above standard, the ordinance in question is not unconstitutionally vague as applied to defendant’s conduct. It cannot be seriously questioned that defendant’s car is an abandoned vehicle as defined in § 201.2, in view of its condition, location, and position, and defendant’s admission that he intends to dispose of it. We also note that defendant was notified that he was in violation of the ordinance and given thirty days to come into compliance before any sanctions were imposed.

Defendant argues that the ordinance is unconstitutionally overbroad in its reach because it prohibits constitutionally protected conduct. He argues that he has standing to raise the issue of the vagueness of the ordinance as applied to other situations, even though the ordinance is properly applicable to his conduct, because overbroad laws deter privileged activity. The flaw in defendant’s argument is that the activity in question, unlike the exercise of the right of freedom of speech, for example, is not constitutionally protected from infringement by governmental authorities. Indeed, the doctrine of over-breadth is seldom applied in areas other than those relating to First Amendment rights. Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 168, 92 S.Ct. 1965, 1969, 32 L.Ed.2d 627, 1969 (1972). We see no compelling reason on the facts of this case to permit the defendant to raise the issue of the possible vagueness of the ordinance as applied to other factual situations. City of Chattanooga v. McCoy, 645 S.W.2d 400 (Tenn.1983).

Finally, defendant argues that the City of Clarksville has denied him the economically viable use of his property without just compensation in violation of Article 1, Section 21 of the Constitution of Tennessee. We disagree. The City has not attempted to take defendant’s property for a public or private use. It seeks only to have defendant’s abandoned vehicle moved from its current inappropriate location and to enforce its housing code. “Ordinances regulating the use and development of property are generally held to lie within the police power of municipal corporations, and their adoption, while frequently affecting property values and restricting use of property, has generally not been considered to amount to a taking under the power of eminent domain....” Draper v. Haynes, 567 S.W.2d 462, 465 (Tenn.1978). See also, Spencer-Sturla Co. v. City of Memphis, 155 Tenn. 70, 290 S.W. 608, 611 (1927). We find no merit in this issue.

The decree of the trial court is affirmed. Costs incurred upon appeal are taxed against the appellant.

COOPER, C.J., and FONES, HARBISON and DROWOTA, JJ., concur.

      . The trial court held that the City failed to carry its burden of proof that two other cars stored in defendant's yard were abandoned ve-hides. The City has not appealed from that decision.


text:
    Tanya Jo SCHAEFER, a Minor, by Natural Father and Next Friend, Michael SCHAEFER, Individually, Plaintiffs-Appellants, v. David M. LARSEN; James T. Swindle; Family Practice Unit, A Department of the University of Tennessee Center for the Health Sciences; and the University of Tennessee Center for the Health Sciences, Defendants-Appellees.
    Court of Appeals of Tennessee, Western Section, at Jackson.
    Dec. 6, 1984.
    Rehearing Denied Jan. 10 and 25,1985.
    Rehearing Denied Jan. 10, 1985.
    Application for Permission to Appeal Denied by Supreme Court April 1, 1985.

      Ben Todd and Lloyd C. McDougal, III, Memphis, for plaintiffs-appellants.
    Thomas H. Rainey, Jackson, for David M. Larsen, M.D. and James T. Swindle, M.D.
    Fred P. Wilson, Memphis, for Family Practice Unit, a Department of the University of Tennessee Center for the Health Sciences and The University of Tennessee Center for the Health Sciences.
   NEARN, Presiding Judge, Western Section.

This is an appeal from the order of the Trial Court which granted summary judgment for the defendants in a medical malpractice case.

Tanya Jo Schaefer was born with a limb reduction of her right lower extremity; that is to say, she was born without a femur in her right leg. Suit was filed on her behalf by her parents against the defendant doctors and against others on the basis of vicarious liability. The suit was also brought by the parents individually for expenses incurred and for those to be incurred in the future.

The gist of the complaint is that the defendant doctors of Jackson, Tennessee, negligently caused the drug Provera to be prescribed for Mrs. Schaefer at a critical period of her pregnancy and that the use of Provera caused the birth defect in Tanya Jo Schaefer.

We have the matter before us on the technical record only and it reveals that on December 3, 1982, the defendants moved for summary judgment with supporting affidavits of Dr. Preston V. Dilts, Jr., and Dr. Robert T. Tucker, both licensed to practice medicine in Tennessee. On the same day, the deposition of Dr. Dilts was also filed. On June 22, 1983, plaintiffs responded to the motion with the affidavit of a Dr. Dudley Webber, duly licensed to practice medicine in the state of New York. There next appears in the record the affidavit of counsel for plaintiffs filed July 15, 1979, to the effect that counsel had been actively searching for but had been unable to locate an obstetrician from a contiguous state who would support their theory of the case. On July 18, 1983, the Trial Judge sustained the defendants’ motion for summary judgment. On July 26,1983, the plaintiffs filed a motion to amend or alter that judgment and submitted the affidavit of Dr. James R. Dingfelder, an obstetrician from the state of North Carolina. On April 5, 1984, the Trial Judge entered an order denying the motion to amend the judgment, which is as follows:

ORDER OVERRULING MOTION TO ALTER OR VACATE JUDGMENT .
This cause came on to be heard before the Honorable Andrew T. Taylor, Circuit Judge, upon plaintiffs’ motion to alter or vacate the court’s prior order sustaining defendants’ motion for summary judgment, and the court being of the opinion that the motion is without merit.
IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that the plaintiffs’ motion to alter or vacate the judgment is hereby overruled.
All costs of this cause are taxed against the plaintiffs and the sureties on their bond, for which execution may issue, if necessary.

In order for a plaintiff in a medical malpractice case to recover it is indispensable for that plaintiff to show that the defendant has fallen below the standard of care recognized and accepted by those in the profession and specialty in the community in which the defendant practices or by those in a similar community. T.C.A. § 29-26-115(a) (1980). See also Alessio v. Crook, (1982 Tenn.App.M.S.) 633 S.W.2d 770. Of course, if such a breach of duty is shown, the plaintiff must also show that that breach was the cause of the injuries sustained. See Alessio, 633 S.W.2d at 776. However, summary judgment procedure is not a substitute for a trial. Jones v. Home Indemnity Insurance Co., (1983 Tenn.) 651 S.W.2d 213, 214. In order to withstand a defendant’s motion for summary judgment, the plaintiff does not have to “show” breach and causation in the sense of proving those elements, but must simply establish by competent means that there is a dispute over those material issues of fact raised by the record. See Jones, 651 S.W.2d at 214.

From our examination of the record before us, we must conclude that as of July 18, 1983, the plaintiffs’ case was susceptible to summary judgment. The defendants had, by that time, produced medical affidavits and depositions opining that the defendants had conducted themselves within the recognized standard of care of the medical community and that there was no causal connection between the administration of Provera and the complained of injury. The affidavit of Dr. Webber, furnished by the plaintiffs to counter the defendants’ affidavit and deposition, was not competent to raise any issue over whether the defendant doctors had fallen below the standards of the medical community of Jackson, Tennessee. Dr. Webber was not licensed to practice in the State of Tennessee or in any contiguous state. Therefore, any opinion he had regarding the medical standards of this community was inadmissible. See T.C.A. § 29-26-115(b) (1980). However, that does not make his affidavit totally inadmissible. Dr. Webber’s affidavit also opined that the cause of the plaintiff’s birth defect was the administration of the drug Provera. Such an opinion has nothing to do with the medical standards of the Jackson community and was admissible. See McCay v. Mitchell, (1970 Tenn.App.W.S.) 62 Tenn.App. 424, 440, 463 S.W.2d 710, 718. Therefore, although the plaintiff’s doctor’s affidavit did raise a disputed issue as to causation, as defendants’ medical affidavits opined that there was no causal connection between Provera and plaintiff’s birth defect, it failed to counter the affidavits of defendants insofar as they showed that defendants had met community standards. Ergo, as of July 18, 1983, the Trial Judge was correct in granting the motion for summary judgment.

We next address the propriety of the action of the Trial Court on April 5, 1984, when plaintiff’s timely motion to alter or amend the judgment was denied. Counsel for defendants insist that because the sole basis for the motion was the affidavit of Dr. Dingfelder and since it was filed subsequent to the first adverse ruling of the Court, we should apply the same rules in this instance as when reviewing the action of a Trial Judge in ruling on a motion based on newly discovered evidence. Those rules, among other things, require the moving party to show that the evidence has been discovered since trial and that it could not have been discovered prior to trial through the exercise of due diligence. The facts constituting due diligence must be set forth with particularity. Seay v. City of Knoxville, (1983 Tenn.App.E.S.) 654 S.W.2d 397. Counsel for defendants argues that since no facts constituting due diligence accompanied the motion, “(T)he trial court was entirely justified — in refusing to consider the affidavit of Dr. Dingfelder." (emphasis ours)

The argument of counsel for appel-lees is not supported by the record. The order of the Trial Court which we have previously set forth in its entirety does not state that the affidavit of Dr. Dingfelder was not considered by the Court. The order simply states that the Trial Court found the plaintiffs’ motion to be “without merit.” Logic impels us to the conclusion that in order to find something without merit one had first to consider the merit alleged. From the record before us we cannot say that the Trial Judge refused to consider the affidavit of Dr. Dingfelder. On the contrary, we must assume that he did, but found it lacking. Even if this required assumption on our part be incorrect, we are not at all satisfied that the strict requirement of rules regarding newly discovered evidence should be applied to the matter of summary judgments. In matters of newly discovered evidence, the parties have already had a trial. The parties are entitled to one trial. The basic purpose of courts and judges is to afford the citizenry a public forum to air disputes. Therefore, in newly discovered evidence circumstances, the parties have already received that which they are basically entitled to receive and one or the other, after a full trial, is seeking a new trial or decision on the issues. In short, a party is seeking a second trial. Courts should be cautious in granting a new trial on the grounds of allegedly newly discovered evidence. However, in the matter of the reconsideration of the granting of a summary judgment motion, the party is only seeking that which he is basically entitled to — a first trial. We are of the opinion that when a summary judgment has been granted because the case at that point presents no facts upon which a plaintiff can recover, but prior to that judgment becoming final, the plaintiff is able to produce by motion facts which are material and are in dispute, the motion to alter or amend the judgment should be looked upon with favor, as the purpose of the summary judgment procedure is not to abate the trial docket of the Trial Court, but only to weed out cases for trial in which there is no genuine issue of fact. See Brookins v. The Round Table, Inc., (1981 Tenn.) 624 S.W.2d 547, 550. However, for reasons previously stated, we are not called upon to review the action of a Trial Court in failing to consider plaintiff’s “late” filed affidavit as the record indicates that the affidavit was considered but found insufficient.

We now consider the sufficiency of Dr. Dingfelder’s affidavit. Since Dr. Ding-felder is a licensed physician of a state contiguous to the state of Tennessee, his opinion evidence regarding the standards of the Jackson medical community is admissible. See T.C.A. § 29-26-115(b) (1980). Dr. Dingfelder swore as follows:

1. I am a physician, licensed to practice medicine in the state of North Carolina. I am currently in private practice in North Carolina and for the past two years have also been an assistant professor in clinical obstetrics and gynecology at Duke University School of Medicine at Durham, North Carolina. Prom 1972 until 1980 I was an associate professor of obstetrics and gynecology at the University of North Carolina in Chapel Hill, North Carolina.
2. I am familiar with the standard of care practiced by physicians with respect to the administration of medications to women who present a clinical picture similar to that presented by Sheila Schae-fer. In addition to the Jackson-Madison County General Hospital records for the admission of Sheila Schaefer in December, 1976 and the records pertaining to the birth of Tanya Schaefer in September, 1977, I have also reviewed the deposition testimony of Drs. Larsen and Swindle and a genetic consultation by Dr. Wilroy.
3. It is my opinion the standard of care followed by physicians in university affiliated programs such as the one employing the physicians who are defendants in this case in 1976 was virtually the same in Tennessee and North Carolina based upon my personal contact with other health care professionals.
4. It is my opinion the defendants in this case departed from and fell below the accepted standard of medical care which patients such as the plaintiffs herein had reason to expect. The professional awareness of potential complications from medications such as provera in 1976 was such that physicians had ceased to prescribe or administer medications of that type to patients with Sheila Schaefer’s symptoms in December 1976 because of the potential harm to the unborn child.

We are of the opinion that the affidavit does raise an issue of fact as to the possible negligence of the defendants. It must be admitted that proof of negligence, standing alone, is insufficient to warrant recovery. German v. Nichopoulos, (1978 Tenn.App.W.S.) 577 S.W.2d 197, 201. However, when this issue of fact is added to the factual issue of causal connection presented by Dr. Webber’s affidavit and coupled with allegations of injury, the criteria of necessary elements to maintain an action for medical malpractice have been presented. See German v. Nichopoulos, 577 S.W.2d at 201. Accordingly, disputed issues of material fact have been presented by the record and the motion to reconsider should have been granted.

The result is that the judgment of the Trial Court is reversed and the cause remanded for further proceedings. Costs of appeal are adjudged against the appellee.

Done at Jackson in the two hundred and ninth year of our Independence and in the one hundred and eighty-ninth year of our Statehood.

TOMLIN and CRAWFORD, JJ., concur.

ORDER ON PETITION TO REHEAR

A petition to rehear has been late filed by the Appellees. Consequently, it will not be considered by the Court. See Rule 39(b) T.R.A.P.

/s/ Nearn

NEARN, P.J., W.S.

/s/ Tomlin TOMLIN, J.

/s/ Crawford CRAWFORD, J.

ORDER

The motion of Family Practice Unit, Department of the University of Tennessee Center for the Health Sciences, and the University of Tennessee Center for the Health Sciences to join in the petition to rehear filed on behalf of David M. Larsen, M.D., and James T. Swindle, M.D., is denied.

/s/ Nearn NEARN, P.J., W.S.

ORDER

The Petition to Reconsider of Dr. David M. Larsen and Dr. James T. Swindle the Order of this Court denying the Petition to Rehear is granted. Having granted same, the Petition to Rehear in this cause, having been considered, is respectfully denied.

/s/ Nearn

CHARLES E. NEARN, PRESIDING JUDGE

/s/ Tomlin

HEWITT P. TOMLIN, JR., JUDGE

/s/ Crawford

W. FRANK CRAWFORD, JUDGE

ORDER

The Petition to Reconsider of the Defendants, Family Practice Unit, Department of the University of Tennessee Center for the Health Sciences and the University of Tennessee Center for the Health Sciences, is respectfully denied.

/s/ Nearn

CHARLES E. NEARN, PRESIDING JUDGE

/s/ Tomlin

HEWITT P. TOMLIN, JR., JUDGE

/s/ Crawford

W. FRANK CRAWFORD, JUDGE


author: CRAWFORD, Judge.

text:
    S.B. FRANKS and Ovid L. Cossey and wife Linda A. Cossey, Plaintiffs-Appellees, v. Oscar BURKS and wife Kathy Burks, Defendants-Appellants.
    Court of Appeals of Tennessee, Western Section, at Jackson.
    Dec. 19, 1984.
    Application for Permission to Appeal Denied April 1, 1985.

      James A. Hopper, Savannah, for plaintiffs-appellees.
    Charles C. Peterson, Waynesboro, for defendants-appellants.
   CRAWFORD, Judge.

The plaintiffs, S.B. Franks, Ovid L. Cos-sey and wife, Linda A. Cossey, sued defendants Oscar Burks and wife Kathy Burks pursuant to T.C.A. § 16-11-106 to establish boundary lines and for damages. The Franks’ land adjoins the Burks’ property on the south and the Cossey land adjoins the Burks’ land on the north. From an adverse decree, Burks appeals presenting two issues for review by this court: (1) whether the court erred in establishing the boundary lines and (2) whether the court erred in awarding Cossey punitive damages.

In addition to testimony of the parties and lay witnesses, the evidence includes testimony of three surveyors — two, Cagle and Baker, for the plaintiff, and one, Coleman, for the defendant. We will briefly review their testimony.

Cagle, the first to testify, established that he had twenty years of experience surveying and that in 1980 or 1981 he had been called to survey what is now the defendant’s land and to determine the acreage contained within that plot of land. He stated that he had determined that there were 42.47 acres therein and that he had prepared a map of his tracings establishing both the Burks’ northern and southern boundaries. He testified that the boundaries had already been marked on the ground when he did the survey and that he had observed points and blazed lines and corners established by an iron pin and a pine knot. He also stated that he had access to a survey previously prepared by Baker, that he had read all of the surrounding property deed descriptions, and that he had used the natural and artificial markers as well as the previous survey and deed descriptions to draw his plat.

Baker, the second surveyor to testify, stated that he had first surveyed the area involving the Burks northern boundary in 1976 at which time he had found “blazed lines” that had been painted by a previous surveyor. He testified that at that time the then owners of the property agreed as to the boundary lines. He stated further that he had prepared a survey for Cossey when he bought the 17 acres that he (Cos-sey) now owns and had established the same Burks northern boundary at that time. Continuing his testimony, Baker stated that in 1979 he had surveyed the 42 acres now owned by defendant Burks at which time he had marked and re-marked all the boundaries of that plot of land by following fences, and observing the pine knot and the iron pin noted previously. He described how in 1982 he had gone out again to mark the southern boundary prior to defendant Burks conveying a small part of his land to his brother Travis Burks. Baker stated that he had established the southern boundary again and had remarked and repainted lines at that time. Finally, in 1983, Baker resurveyed the land for plaintiff Franks and found the Burks southern boundary to be in the same place it had been previously. Baker’s testimony concluded with the following questions and answers:

Q. Did you have any trouble either time you’ve been out there surveying this property to find the Burks’ property, the Franks’ property and the Cossey property as far as the evidence on the ground?
A. No, sir, I didn’t think so at the time.
Q. To you it was clear?
A. Yes, sir. As I have stated the first time I surveyed the property I talked to the owners and they agreed on the line and the line was painted and I didn’t even anticipate a lawsuit or anything four or 5 years later.
Q. Likewise as to Mr. Burks when you did the Travis Burks’ deed this last year you again showed the same line as being the south boundary line of the Travis Burks tract?
A. Yes, sir.

The third surveyor, Coleman, testified as the defendants’ witness. He went into great detail concerning the location of various lines bounding the Burks’ property and described markings and monuments located on the land. He pointed out discrepancies in the deeds affecting the properties in controversy, but the inconclusiveness of his testimony is best illustrated during his cross-examination:

Q. You don’t know what [sic] your testifying here today is the correct line of Burks, do you?
A. I haven’t testified to where the correct line of Burks is located at. Q. Do you know where it is?
A. I know where I think it may be.

Mr. Coleman also conceded that the description in the Cossey deed established the Burks’ northern boundary line as presented by surveyors Baker and Cagle.

At the conclusion of the proof the court found that the correct boundary lines were those shown by the surveys of Cagle and Baker as established by agreement of the former owners, by reference to physical and artificial monuments and by painting, marking and blazing of trees.

In a suit brought pursuant to T.C.A. § 16-11-106, the complainant is not required to prove a complete deraignment of title from the state- nor to prove a common source of title but is required to prove clearly that he is the true owner of the property described in the complaint. As pointed out in Carr v. Wilbanks, 45 Tenn. App. 372, 386, 324 S.W.2d 786, 792 (1958), this simply means

[t]hat the complainant must prove that he is the true owner or that he had become entitled to the possession of land adjacent to the boundary which he undertakes to have established....

Since this case was tried by the court sitting without a jury, we review the case de novo upon the record with a presumption of correctness of the findings of fact by the trial court. Unless the evidence preponderates against the findings, we must affirm, absent error of law. T.R.A.P. 13(d).

Any conflict of testimony requiring a determination of the credibility of witnesses rests in the first instance with the trial court and will be given great weight by the appellate court, unless other real evidence compels a contrary conclusion. See State ex rel. Balsinger v. Town of Madisonville, 222 Tenn. 272, 282, 435 S.W.2d 803, 807 (1968); Linder v. Little, 490 S.W.2d 717, 723 (Tenn.App.1972).

In determining disputed boundaries, resort is to be had first to natural objects or landmarks because of their permanent character, next to artificial marks or monuments, then to boundary lines of adjacent land owners, and then to courses and distances. Thornburg v. Chase, 606 S.W.2d 672 (Tenn.App.1980).

An unascertained or disputed boundary line dividing the lands of adjoining property owners may be established by a parol agreement between the land owners, and the agreement does not fall within the prohibition of the statute of frauds. Thornburg v. Chase, supra; Webb v. Harris, 44 Tenn.App. 492, 315 S.W.2d 274 (1958). Such an agreement may be shown as well by circumstances and recognition as by direct evidence of a formal agreement where the parties have acted thereon. Galbraith v. Lunsford, 87 Tenn. 89, 99, 9 S.W. 365 (1888).

As heretofore noted, three surveyors testified in this case, and the Chancellor had the benefit of observing the surveyors as they testified concerning their activity in locating the boundary lines on occasions prior to the dispute between the present parties. We must consider the weight to be given to the Chancellor’s determination concerning the credibility of these witnesses. Cagle’s and Baker’s surveys relied most heavily on natural landmarks and artificial monuments. Based upon the proof, the court found that a line had been established by virtue of activity among the former owners and that the proof from the surveyors in this regard sufficiently established the true boundaries by a preponderance of the evidence. From our review of the record we cannot say that the evidence preponderates against the finding of the Chancellor. Accordingly, the decree of the Chancellor establishing the boundary lines is affirmed.

We will now consider the second issue presented for review—whether the court properly awarded punitive damages.

Burks asserts that at most the timber was cut inadvertently and there was no intention on his part to cause any damage or trouble to any one else. The record leaves little doubt that there were discrepancies in the deed descriptions, some confusion as to monuments and blazings, and in general some difficulty in pinpointing the boundaries on the land itself. Burks testified that he knew of problems concerning his northern boundary line and for that reason told the timber cutters to stay out of the disputed area. Nevertheless, the timber cutters apparently wandered into this area causing the damage for which compensatory and punitive damages were awarded.

Punitive damages are awarded in cases involving fraud, malice, gross negligence or oppression, or where a wrongful act is done with bad motive or so recklessly as to imply a disregard of social obligation, or where there is such willful misconduct or entire want of care as to raise a presumption of conscious indifference to the consequences. Underwood v. State, 529 S.W.2d 45 (Tenn.1975).

We have examined the record and find nothing therein to indicate the presence of the essential elements necessary to justify an award of punitive damages.

Accordingly, we affirm the decree of the trial court establishing the boundaries and awarding compensatory damages and reverse the decree as to punitive damages. The case is remanded to the trial court for such further proceedings as are necessary and costs are assessed against the appellant and the appellee equally.

NEARN, P.J. (W.S.), and HIGHERS, J., concur.


author: KOCH, Judge.

text:
    FOUR SEASONS GARDENING & LANDSCAPING, INC., Plaintiff-Appellant, v. W.M. CROUCH, d/b/a Crisp Springs Nursery, Defendant-Appellee.
    Court of Appeals of Tennessee, Middle Section, at Nashville.
    Dec. 19, 1984.
    Application for Permission to Appeal Denied by Supreme Court April 1, 1985.

      Harold N. Roney, Camp & Roney, McMinnville, for plaintiff-appellant.
    B. Timothy Pirtle, McMinnville, for defendant-appellee.
   OPINION

KOCH, Judge.

Four Seasons Gardening & Landscaping, Inc., a Georgia corporation, filed this action in the Circuit Court for Warren County pursuant to Tenn.Code Ann. § 26-6-101 et seq. to enforce a default judgment obtained in the Superior Court of Columbia County, Georgia against W.M. Crouch, a resident of Morrison, Tennessee. The trial court declined to give the Georgia judgment full faith and credit on the basis that the Georgia trial court did not acquire personal jurisdiction over Mr. Crouch. Four Seasons Gardening & Landscaping, Inc. has perfected this appeal. For the reasons stated herein, we reverse the judgment of the trial court.

W.M. Crouch owns and operates a wholesale nursery business in Morrison, Tennessee known as the Crisp Springs Nursery. He has customers in at least twelve states including Georgia. Every year he mails out a wholesale price list to selected customers offering to sell his nursery stock. As part of his solicitation, Mr. Crouch also offers to deliver his nursery stock to the purchaser for an additional fee.

In late 1981 or early 1982, Mr. Crouch received a telephone call from George Fuller, Jr., the president of Four Seasons Gardening & Landscaping, Inc. Mr. Fuller had done business with Mr. Crouch before and was calling to inquire whether Mr. Crouch could find him a number of bald cypress trees. Mr. Crouch found these trees at a neighboring nursery and placed a call to Mr. Fuller in Georgia to inform him that the trees had been located.

As a result of these two telephone conversations, Mr. Fuller traveled to Tennessee to select the trees he wished to purchase. Mr. Fuller and Mr. Crouch went to the nursery where the trees were growing and selected and trimmed the trees Mr. Fuller wanted to buy. Then they returned to Mr. Crouch’s office where they drew up their contract. After Mr. Fuller had agreed to purchase the cypress trees, he and Mr. Crouch agreed that they would be transported to Mr. Fuller’s place of business in Georgia in Mr. Crouch’s trucks.

When Mr. Fuller returned to Georgia, he began to call Mr. Crouch frequently to ask him to deliver the trees. Mr. Crouch was delayed in making the delivery because of the inclement weather. However, he finally drove his truck to Georgia himself to make the delivery. While he was in Georgia, Mr. Fuller wrote him a check to pay him in full for the trees and the delivery charges.

In September or October, 1982, Mr. Fuller called Mr. Crouch to place another order. During this telephone conversation, Mr. Fuller informed Mr. Crouch that all the nursery stock he had delivered previously had died and requested that Mr.. Crouch refund his money and reimburse him for the losses. Mr. Crouch refused.

On November 15, 1982, Four Seasons Gardening & Landscaping, Inc. filed an action in the Superior Court of Columbia County, Georgia seeking damages resulting from Mr. Crouch’s conduct. Mr. Crouch was personally served with process in this action on November 22, 1982. He consulted his attorney immediately. In his words, his lawyer advised him that he “was not liable in the State of Georgia” and told him that he would take care of the matter. Mr. Crouch sent all other correspondence concerning this dispute to his counsel.

No answer or other pleading was filed on Mr. Crouch’s behalf in the Georgia proceeding. Thus, on February 2, 1983, the Superior Court of Columbia County, Georgia, after hearing the testimony of Mr. Fuller and making detailed findings of fact and conclusions of law, entered a default judgment against Mr. Crouch in the amount of $12,046.40 plus interest. When Mr. Crouch received a copy of this judgment, he gave it to his attorney and told him to do what he thought was best. Counsel made no attempt to seek a reconsideration of this decision by the Georgia trial court nor was an appeal ever taken from the judgment.

Four Seasons Gardening & Landscaping, Inc. filed this action in the Circuit Court for Warren County on March 16, 1983, pursuant to Tenn.Code Ann. § 26-6-101 et seq., the Uniform Enforcement of Foreign Judgments Act. The trial court heard this case on December 2, 1983, without a jury and entered a judgment on December 19, 1983, dismissing the complaint on the basis that the Georgia court did not have personal jurisdiction over Mr. Crouch.

Four Seasons Gardening & Landscaping, Inc. perfected this appeal and now raises two issues in this Court: first, whether W.M. Crouch maintained sufficient ties with the State of Georgia to subject him to the jurisdiction of the Georgia courts for causes of action arising out of the conduct of business in Georgia and second, whether the judgment of the Superior Court of Columbia County, Georgia is entitled to full faith and credit in Tennessee pursuant to Tenn.Code Ann. § 26-6-101 et seq. In his brief filed in this Court, Mr. Crouch also raises the issue that enforcement of this judgment would be contrary to the public policy of Tennessee.

Under the terms of the Uniform Enforcement of Foreign Judgments Act, the courts of this State will presume, absent proper proof to the contrary, that the decrees of the courts of record of any sister states are valid. Thus, the burden is placed on the party seeking to attack the validity of a foreign judgment to prove that it should not be given full faith and credit in this State as required by Article 4, Section 1 of the United States Constitution. Slidell v. Valentine, 298 N.W.2d 599, 602 (Iowa 1980); Riggs v. Coplon, 636 S.W.2d 750, 755 (Tex.App.1982); and Diners Club, Inc. v. Makoujy, 110 Misc.2d 870, 443 N.Y. S.2d 116, 117 (1981). Although final judgments entered by courts of other states are ordinarily conclusive, Article 4, Section 1 of the United States Constitution does not compel other states to grant these judgments full faith and credit when it is shown that the court entering the judgment did not have personal jurisdiction over the party against whom the judgment is sought to be enforced. Topham v. L.L.B. Corp., 493 S.W.2d 461, 462 (Tenn.1973) and Benham v. Fisher, 650 S.W.2d 759, 760 (Tenn.App.1983).

Based upon our review of this record, we have determined that Mr. Crouch failed to carry his burden of proving that under the law of the State of Georgia the Superior Court of Columbia County, Georgia did not acquire personal jurisdiction over him in the action commenced by Four Seasons Gardening & Landscaping, Inc.

Both parties rely heavily upon our courts’ decisions construing Tenn.Code Ann. § 20-2-214 (Tennessee’s long arm statute) to support their respective positions. However, neither Tennessee’s long arm statute nor our decisions construing it are apposite because it is not Tennessee law that determines whether the Georgia trial court had personal jurisdiction over Mr. Crouch. The courts of this State must look to the jurisdictional statutes of the state in which the judgment sought to be enforced was entered when determining whether that court had obtained personal jurisdiction over the non-resident defendant. Diners Club, Inc. v. Makoujy, 110 Misc.2d 870, 443 N.Y.S.2d 116, 118 (1981) and McGinnis v. McGinnis, 44 N.C.App. 381, 261 S.E.2d 491, 496 (1980). Thus, our inquiry should be limited to Georgia’s long arm statute and the cases construing it to determine whether the Superior Court of Columbia County, Georgia had properly acquired personal jurisdiction over Mr. Crouch in the action filed by Four Seasons Gardening & Landscaping, Inc.

The Superior Court in Georgia acquired jurisdiction over Mr. Crouch in accordance with Georgia’s long arm statute, Ga.Code Ann. § 24-113.1(1), which provides, in pertinent part:

A court of this state may exercise personal jurisdiction over any non-resident or his executor or administrator, as to a cause of action arising from any of the acts, omissions, ownership, use, or possession enumerated in this Code section, in the same manner as if he were a resident of the state, if in person or through an agent, he:
(1) Transacts any business within this state;

The language of this statute is patterned after that originally enacted in Illinois. Its purpose is to extend the jurisdiction of Georgia courts to all cases in which the non-resident defendant has engaged in some purposeful activity in Georgia in connection with the matter forming the subject of the lawsuit and not just to those cases in which the contract was made in Georgia. Coe & Payne Co. v. Wood-Mosaic Corp., 125 Ga.App. 845, 189 S.E.2d 459, 466-67 (1972), rev’d on other grounds 230 Ga. 58, 195 S.E.2d 399 (1973) and Lurie v. Rupe, 51 Ill.App.2d 164, 201 N.E.2d 158, 161-62 (1964), cert. denied 380 U.S. 964, 85 S.Ct. 1108, 14 L.Ed.2d 154 (1965). See also Longines-Wittnauer Watch Co. v. Barnes & Reinecke, Inc., 15 N.Y.2d 8, 261 N.Y.S.2d 8, 18, 209 N.E.2d 68, 75, cert. denied 382 U.S. 905, 86 S.Ct. 241, 15 L.Ed.2d 158 (1965).

Courts called upon to construe the scope of Ga.Code Ann. § 24-113.1 have determined that it should be applied as broadly as the Due Process Clause of the Fourteenth Amendment to the United States Constitution will permit. Warren v. Warren, 249 Ga. 130, 287 S.E.2d 524, 525 (1982); Davis Metals, Inc. v. Allen, 230 Ga. 623, 198 S.E.2d 285, 287-88 (1973); and Brooks Shoe Manufacturing, Inc. v. Byrd, 144 Ga.App. 431, 241 S.E.2d 299, 300 (1977). See also Interstate Paper Corp. v. Air-O-Flex Equipment Co., 426 F.Supp. 1323, 1324-25 (S.D.Ga.1977). After reviewing the pertinent decisions of the United States Supreme Court, the Court of Appeals of Georgia has fashioned a three-part test to determine whether it is proper to subject a non-resident defendant to the jurisdiction of Georgia’s courts based upon actions that amount to transacting business in Georgia. While each case must be decided on its own particular facts, a Georgia court will assume personal jurisdiction over a non-resident defendant only after it has been determined: (1) that the non-resident defendant purposely availed himself of the privilege of doing business in Georgia; (2) that the plaintiff has some cause of action against the non-resident defendant which arises out of activities within Georgia; and (3) that the non-resident defendant has sufficient, albeit minimum, contacts with Georgia to render the exercise of jurisdiction by the Georgia courts reasonable. Shellenberger v. Tanner, 138 Ga.App. 399, 227 S.E.2d 266, 272 (1976).

Applying these Georgia precedents to the facts in this case, we think that under Georgia law there is ample basis to conclude that Mr. Crouch had sufficient contacts with the State of Georgia to be “transacting business” there and that the Georgia court’s assumption of personal jurisdiction over him in this case does not offend the traditional notions of fair play and substantial justice.

The record shows, without contradiction, that Mr. Crouch has sold nursery stock to customers in Georgia for the past eight to ten years and that he had had prior dealings with Four Seasons Gardening & Landscaping, Inc. He has also routinely mailed offers to sell nursery stock to Georgia residents. In fact, Four Seasons Gardening & Landscaping, Inc. received these solocitations in Georgia. With particular reference to the transaction involved in this case, Mr. Crouch initiated at least one telephone call to his customer in Georgia and actually traveled to the customer’s place of business in Georgia to deliver the nursery stock and to obtain payment. ' He also made certain warranties to his customer in Georgia that his nursery stock was of merchantable quality.

Under Georgia law these facts are sufficient to support a finding that Mr. Crouch had purposely taken actions to avail himself of the privilege of doing business in Georgia and that Four Seasons Gardening & Landscaping, Inc.’s causes of action against Mr. Crouch arose from his activities in Georgia.

This decision is in accord with those of other courts construing long arm statutes similar to Georgia where goods were shipped into the forum state after solicitations and contracts had been made through the mail or by telephone. Marshall Construction Co. v. M. Berger Co., 533 F.Supp. 793, 796 (W.D.Ark.1982); Moore v. Graves, 99 N.M. 129, 654 P.2d 582, 585 (1982); Kiefer v. May, 46 Mich.App. 566, 208 N.W.2d 539, 541 (1973); State v. Colorado State Christian College of the Church of Inner Power, Inc., 76 Misc.2d 50, 346 N.Y.S.2d 482, 485-86 (1973); and Willis v. West Kentucky Feeder Pig Co., 132 Ill.App.2d 266, 265 N.E.2d 899, 900 (1971).

Based upon our determination that Mr. Crouch’s activities in Georgia rendered him subject to the jurisdiction of Georgia’s courts pursuant to Ga.Code Ann. § 24-113.-1, we find that the trial court erred by declining to give the judgment of the Superior Court of Columbia County, Georgia full faith and credit in this state pursuant to Tenn.Code Ann. § 26-6-101 et seq.

Mr. Crouch argues that even if we find that the Georgia trial court acquired personal jurisdiction over him, we should still decline to give full faith and credit to its judgment because to do so would be contrary to this State’s public policy. Specifically, he asserts that this contract is governed by the law of Tennessee. Therefore, he concludes that the Georgia trial court erroneously applied remedies recognized only under Georgia law and that these remedies are “... enigma[s] to the Uniform Commercial Code which has been adopted by the State of Tennessee ...” We find this argument untenable.

First, we do not agree that the Georgia trial court erred by applying the law of Georgia in this case. The contract involved herein was not just a contract for the sale of goods. It was a contract for the sale and delivery of nursery stock to the purchaser at his place of business in Georgia. The record is silent concerning whether the parties intended that the law of Tennessee or the law of Georgia would govern this contract. In absence of such proof, we look to the general principle of law contained in the Restatement (Second) of Conflicts of Law § 191 (1969) which provides:

The validity of a contract for the sale of an interest in a chattel and the rights created thereby are determined, in the absence of an effective choice of law by the parties, by the local law of the state where under the terms of the contract the seller is to deliver the chattel unless, with respect to the particular issue, some other state has a more significant relationship under the principles stated in § 6 to the transaction and the parties, in which event the local law of the other state will be applied.

Both Georgia’s and Tennessee’s version of the Uniform Commercial Code provide that Mr. Crouch’s place of delivery of the nursery stock is Georgia because it is at Four Seasons Gardening & Landscaping, Inc.’s place of business that he completed his performance with reference to the physical delivery of the goods. Thus, based upon the Restatement’s rule, the law of Georgia governed this contract.

Second, we do not agree with Mr. Crouch that the remedies available under the Georgia law to Four Seasons Gardening & Landscaping, Inc. fatally conflict with the public policy of this State.

Tennessee is one of those states following the rule that Article 4, Section 1 of the United States Constitution does not require that full faith and credit be given to foreign judgments when to do so would violate the strong public policy of the state in which the judgment is sought to be enforced. See Hyde v. Hyde, 562 S.W.2d 194, 196 (Tenn.1978) and In re Riggs, 612 S.W.2d 461, 465 (Tenn.App.1980). However, the judgment of the court of another state does not necessarily violate the public policy of this State merely because the law upon which it is based is different from our law. Hunt v. BP Exploration Company (Libya) Ltd., 492 F.Supp. 885, 900 (N.D.Tex.1980) (allowance of prejudgment interest) and Toronto-Dominion Bank v. Hall, 367 F.Supp. 1009, 1016 (E.D.Ark.1973).

Under Georgia law, a successful plaintiff in an action for breach of contract who has proved that the defendant acted in bad faith is entitled to receive prejudgment interest, reasonable attorneys fees, and exemplary damages. While Tennessee law does not provide identical remedies to similarly situated plaintiffs who bring their actions in Tennessee’s courts, Mr. Crouch has been unable to point to any portion of Tennessee’s Constitution, its laws, or the decisions of its courts that prohibit such relief or that reasonably can be construed to state that such relief would be against this State’s public policy. In fact, the General Assembly has chosen to provide similar remedies in other circumstances. Therefore, it would not be proper to conclude that these remedies run afoul of the public policy of this state.

Finally, we find that Mr. Crouch’s reliance on Mid-South Milling Co. v. Loret Farms, Inc., 521 S.W.2d 586 (Tenn.1975) is misplaced. This case, by its own terms, relates to the venue of a transitory cause of action brought in Tennessee. Mr. Justice Henry makes it clear in this decision that questions relating to venue bear little connection with questions relating to the application of long arm statutes. Mid-South Milling Co. v. Loret Farms, Inc., 521 S.W.2d 586, 590 (Tenn.1975).

Ga.Code Ann. § 24-116 provides that actions commenced under Georgia’s long arm statute should be brought where the business was transacted. There is no evidence in this record that this was not done or that Mr. Crouch raised this in the Georgia proceeding. He has, therefore, waived, his opportunity to raise this issue. Corby v. Matthews, 541 S.W.2d 789, 791 (Tenn.1976).

For the reasons stated herein, the judgment of the trial court is reversed, and the cause is remanded for the purpose of entering an order pursuant to Tenn.Code Ann. § 26-6-101 et seq. giving full faith and credit to the judgment obtained by Four Seasons Gardening & Landscaping, Inc. against Mr. Crouch on February 2, 1983, in the Superior Court for Columbia County, Georgia.

The costs of this appeal are adjudged against Mr. Crouch and his surety for which execution, if necessary, may issue.

TODD, P.J. (M.S.), and CANTRELL, J., concur.

      . Mr. Crouch has served approximately twelve customers in Georgia during the past eight to ten years. This business amounts to several thousand dollars each year.

      . The solicitation used by Mr. Crouch contained the following offer: "We have access to local Trailers and trucks for delivery services. We can arrange pool shipments, and pre rate [sic] the freight to each customers [sic]." Elsewhere, the solicitation states: “We have our own trucks. Ton truck will be .75 cents per mile. Tractor and trailer will be $1.25 a mile."

      .The record filed in this Court does not contain a copy of this contract.

      . This judgment consists of $5,800 in compensatory damages [$3,520 representing the actual cost of the trees and their delivery plus $2,280 in direct incidental and consequential damages authorized by Ga.Code Ann. § 109A-2-715 (1984)] and $246.40 of interest compounded in accordance with Ga.Code Ann. § 57-110 (1984). It also includes $1,000 in attorneys fees pursuant to Ga.Code Ann. § 20-1404 (1984) and $5,000 in exemplary damages pursuant to Ga. Code Ann. § 105-2002 (1984) based upon the Superior Court’s determination that Mr. Crouch had acted in bad faith and had willfully committed a wrong without any just reason.

      . Default judgments entered in accordance with the laws of the jurisdiction in which they are entered are entitled to full faith and credit under the Uniform Enforcement of Foreign Judgments Act. Riehle v. Margolies, 279 U.S. 218, 225, 49 S.Ct. 310, 313, 73 L.Ed. 669 (1929). See also Riggs v. Coplon, 636 S.W.2d 750 (Tex.App.1982).

      . The trial court made no findings of fact in this case; therefore, there is nothing in this record to which the presumption of correctness pursuant to Tenn.R.App.P. 13(d) can attach.

      . In determining whether the Georgia court properly assumed jurisdiction over Mr. Crouch, we are not required to consider the merits of the allegations made by Four Seasons Gardening & Landscaping, Inc. Indeed, the merit or lack of merit of this claim will not establish or defeat personal jurisdiction. Patron Aviation, Inc. v. Teledyne Industries, Inc., 154 Ga.App. 13, 267 S.E.2d 274, 277 (1980).

      . See Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958); McGee v. International Life Insurance Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957); and International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945).

      . See Kulko v. Superior Court of California in and for the City and County of San Francisco, 436 U.S. 84, 92, 98 S.Ct. 1690, 1697, 56 L.Ed.2d 132 (1978) and Mergenthaler Linotype Co. v. Lenoard Storch Enterprises, Inc., 66 Ill.App.3d 789, 23 Ill.Dec. 352, 383 N.E.2d 1379, 1385 (1978). See also Annot., 27 A.L.R.3d 428, § 5 n. 10 (1969).

      . Not coincidentally, this test is substantially similar to that employed by courts construing Tennessee's long arm statute. Southern Machine Co. v. Mohasco Industries, Inc., 401 F.2d 374, 381 (6th Cir.1968) and Basler v. Nelson, 633 S.W.2d 491, 493 (Tenn.App.1982).

      . The fact that the terms of the contract provided for delivery F.O.B. Mr. Crouch’s nursery in Tennessee is not controlling. Electro-Craft

        Corp. v. Maxwell Electronics Corp., 417 F.2d 365, 369 (8th Cir.1969).

      .This case stems from a factual situation wherein the acts giving rise to the cause of action occurred within the state where the action was brought unlike Gillis v. Clark Equipment Co., 579 S.W.2d 869 (Tenn.App.1978) which dealt with an action brought in Tennessee against a non-resident defendant arising out of an injury occurring in Massachusetts. In that case, this Court held that Tenn.Code Ann. §§ 20-2-201 and 20-2-214 would not permit maintaining an action in Tennessee against a non-resident defendant for claims arising wholly outside of Tennessee and having no connection with this State. Mr. Crouch's acts forming the basis for Four Seasons Gardening & Landscaping, Inc.’s action took place in Georgia.

      . In light of Mr. Crouch’s additional obligation to deliver the nursery stock to Four Seasons Gardening & Landscaping, Inc. in Georgia, the delivery terms providing for delivery F.O.B. at Mr. Crouch’s place of business in Tennessee carry little weight. This term was meant to apply in situations where a carrier other than Mr. Crouch delivered the goods.

      . See Ga.Code Ann. § 109A-2-401(2)(b) and Tenn.Code Ann. § 47-2-401(2)(b).

      . However, even if the Georgia trial court’s judgment was in error, this is not a sufficient basis to deny giving the Georgia judgment full faith and credit in Tennessee. Restatement (Second) of Conflicts of Law § 106 (1969). See also United States v. Stephens, 472 F.Supp. 14, 16 (E.D.Tenn.1979), aff'd, 659 F.2d 1083 (6th Cir.1981); McGinnis v. McGinnis, 44 N.C.App. 381, 261 S.E.2d 491, 497 (1980); and People v. Barrow, 70 A.D.2d 916, 417 N.Y.S.2d 289, 290 (1979).

      . Our courts have followed this rule with respect to both foreign judgments [In re Riggs, 612 S.W.2d 461 (Tenn.App.1980) ] and rights or defenses created by foreign statutes sought to be asserted in Tennessee courts [Paper Products Co. v. Doggrell, 195 Tenn. 581, 586, 261 S.W.2d 127, 129 (1953) ]. The more well-reasoned rule, embodied in the Restatement (Second) of Conflicts of Law § 117 (1969), is that a valid judgment rendered in one state should be recognized and enforced in another state even though the latter state’s strong public policy would have precluded recovery if the action had been filed originally in the courts of that state. Fauntleroy v. Lum, 210 U.S. 230, 237, 28 S.Ct. 641, 643, 52 L.Ed. 1039 (1908); Cannon v. Cannon, 244 Ga. 199, 260 S.E.2d 19, 20 (1979); Conquistador Hotel Corp. v. Fortino, 99 Wis.2d 16, 298 N.W.2d 236, 238 (1980); and Rich v. Con-Stan Industries, 449 S.W.2d 323, 327 (Tex.Civ.App.1969).

      .Tenn.Code Ann. § 47-14-123 permits prejudgment interest. Tenn.Code Ann. § 47-50-109 permits exemplary damages in cases involving procurement of a breach of contract. Attorneys fees are permitted in divorce cases, and Tenn.Code Ann. § 8-30-327 permits attorneys fees in civil service appeals; Tenn.Code Ann. § 29-37-104 permits attorneys fees in cases involving erroneous governmental action; and Tenn.Code Ann. § 47-17-103 permits attorneys fees in cases involving discrimination in the extension of credit.