IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

February 13, 2008 Session

PROGRESS PRINTING COMPANY, INC. v. 

RELIABLE PRINTING & GRAPHIC DESIGN, INC.

Appeal from the Circuit Court for Sevier County

No. 2006-0667-IV O. Duane Slone, Judge

No. E2007-1492-COA-R3-CV - FILED APRIL 23, 2008

Progress Printing Company, Inc. (“Plaintiff”) filed a petition in the Circuit Court for Sevier County,

Tennessee (“Trial Court”) seeking to domesticate a foreign judgment obtained in Virginia against

Reliable Printing & Graphic Design, Inc. (“Defendant”). Defendant filed a motion to dismiss the

petition claiming, in part, that the Virginia court lacked personal jurisdiction over Defendant and,

therefore, the Virginia judgment is void. The Trial Court entered an order on June 7, 2007, inter

alia, denying Defendant’s motion to dismiss the petition, and granting Plaintiff’s petition to

domesticate the Virginia judgment. Defendant appeals to this Court. We affirm the denial of the

motion to dismiss the petition, vacate that portion of the Trial Court’s order granting Plaintiff’s

petition to domesticate the Virginia judgment, and remand to theTrial Courtfor further proceedings.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court 

Affirmed, in part; and Vacated, in part; Case Remanded

D.MICHAEL SWINEY,J., delivered the opinion of the court, in which HERSCHEL P.FRANKS, P.J. and

SHARON G. LEE, J., joined.

Dudley W. Taylor and Jonathan S. Taylor, Knoxville, Tennessee for the Appellant, Reliable Printing

& Graphic Design, Inc.

Preston A. Hawkins, Knoxville, Tennessee for the Appellee, Progress Printing Company, Inc.
-2-

OPINION

Background

In August of 2006, Plaintiff obtained a judgment (“the Judgment”) against Defendant

in the Circuit Court for Campbell County, Virginia for $62,245.41 plus pre- and post-judgment

interest, attorneys fees, and costs for damages related to a claimed breach of contract. As Defendant

can be found in Pigeon Forge, Tennessee, Plaintiff filed a petition (“the Petition”) in the Circuit

Court for Sevier County seeking to domesticate the Judgment. A certified copy of the Judgment

attached to the Petition shows that the Virginia court found that proper service of process was

obtained on Defendant, but that Defendant failed to file any responsive pleading in that case. 

Defendant responded to the Petition by filing a motion to dismiss alleging, among

other things, that the Virginia court lacked personal jurisdiction over Defendant and, therefore, the

Judgment was void and unenforceable. Defendant attached the affidavit of Charles R. Davis,

Defendant’s principal officer (“Davis Affidavit”), in support of its motion alleging, among other

things, that Defendant never had qualified to transact business in the state of Virginia and had not

transacted business in the state of Virginia. The Davis Affidavit admitted that Plaintiff and

Defendant had had business dealings, but alleged that these dealings arose out of a solicitation of

Defendant by one of Plaintiff’s employees, a Tennessee resident, and that “[m]ost of the business

transactions were arranged through e-mail, with occasional facsimile and USPO mail

communications...” with one of Plaintiff’s employees occasionally coming to Defendant’s place of

business in Tennessee. 

Plaintiff opposed Defendant’s motion to dismiss and filed, among other things, the

affidavit of Steve Pettyjohn, Plaintiff’s credit manager (“Pettyjohn Affidavit”), which alleged, among

other things, that in October of 2003 Plaintiff received a credit application filled out by a

representative of Defendant and opened a credit account for Defendant. The Pettyjohn Affidavit

further alleged that during the next two years, Plaintiff and Defendant conducted business “on at

least twenty eight (sic) (28) separate occasions, in an amount totaling more than $724,000.00.” A

copy of the credit application allegedly completed by Defendant was attached to the Pettyjohn

Affidavit and contains the following language:

The Purchaser waives any objection that it may now or hereinafter have to the laying

of jurisdiction and venue of any such suit, action, or proceeding brought in the

Circuit Court for the Count (sic) of Campbell, Virginia, and claim that any such suit,

action or proceeding has been brought in an inconvenient forum.

Copies of several invoices from Plaintiff to Defendant also were attached to the Pettyjohn Affidavit,

and each of these invoices contains the same forum selection clause as appears in the credit

application. 
-3-

Defendant then filed a response to Plaintiff’s response asserting, in part, that the credit

application attached to the Pettyjohn Affidavit was not signed by or on behalf of Defendant and,

further, that Defendant, a Tennessee corporation, was not in existence in October of 2003.

Defendant attached as an exhibit a copy of its charter showing that Defendant was incorporated in

September of 2004. Defendant also disputed Plaintiff’s assertion “that the invoices contained a

‘clear and unambiguous forum selection clause.’”

The Trial Court heard only argument from counsel for both sides on Defendant’s

motion on the issue of whether the Virginia court had personal jurisdiction over Defendant. The

Trial Court then entered an order on June 7, 2007, inter alia, denying Defendant’s motion to dismiss

the Petition, and granting the Petition to domesticate the Virginia judgment. Defendant appeals to

this Court. 

Discussion

Although not stated exactly as such, Defendant raises two issues on appeal: 1)

whether the Trial Court erred in denying Defendant’s motion to dismiss the Petition; and, 2) whether

the Trial Court erred in granting the Petition to domesticate the Virginia judgment.

We first consider whether the Trial Court erred in denying Defendant’s motion to

dismiss the Petition. Since Defendant presented “matters outside the pleadings” to the Trial Court

in support of its motion to dismiss, the Trial Court correctly treated the motion as one for summary

judgment. Tenn. R. Civ. P. 12.03. In Blair v. West Town Mall, our Supreme Court reiterated the

standards applicable when appellate courts are reviewing a motion for summary judgment. Blair v.

West Town Mall, 130 S.W.3d 761 (Tenn. 2004). In Blair, the Court stated: 

The standards governing an appellate court’s review of a motion for summary

judgment are well settled. Since our inquiry involves purely a question of law, no

presumption of correctness attaches to the lower court’s judgment, and our task is

confined to reviewing the record to determine whether the requirements of Tennessee

Rule of Civil Procedure 56 have been met. See Staples v. CBL & Assoc., Inc., 15

S.W.3d 83, 88 (Tenn. 2000); Hunter v. Brown, 955 S.W.2d 49, 50-51 (Tenn. 1997);

Cowden v. Sovran Bank/Central South, 816 S.W.2d 741, 744 (Tenn. 1991).

Tennessee Rule of Civil Procedure 56.04 provides that summary judgment is

appropriate where: 1) there is no genuine issue with regard to the material facts

relevant to the claim or defense contained in the motion, and 2) the moving party is

entitled to a judgment as a matter of law on the undisputed facts. Staples, 15 S.W.3d

at 88.

* * *

When the party seeking summary judgment makes a properly

supported motion, the burden shifts to the nonmoving party to set
-4-

forth specific facts establishing the existence of disputed, material

facts which must be resolved by the trier of fact. 

To properly support its motion, the moving party must either

affirmatively negate an essential element of the non-moving party’s

claim or conclusively establish an affirmative defense. If the moving

party fails to negate a claimed basis for the suit, the non-moving

party’s burden to produce evidence establishing the existence of a

genuine issue for trial is not triggered and the motion for summary

judgment must fail. If the moving party successfully negates a

claimed basis for the action, the non-moving party may not simply

rest upon the pleadings, but must offer proof to establish the existence

of the essential elements of the claim. 

Blair, 130 S.W.3d at 763, 767 (quoting Staples, 15 S.W. 3d at 88-89) (citations omitted)).

Our Supreme Court also has provided instruction regarding assessing the evidence

when dealing with a motion for summary judgment stating:

The standards governing the assessment of evidence in the summary

judgment context are also well established. Courts must view the evidence in the

light most favorable to the nonmoving party and must also draw all reasonable

inferences in the nonmoving party’s favor. See Robinson v. Omer, 952 S.W.2d at

426; Byrd v. Hall, 847 S.W.2d at 210-11. Courts should grant a summary judgment

only when both the facts and the inferences to be drawn from the facts permit a

reasonable person to reach only one conclusion. See McCall v. Wilder, 913 S.W.2d

150, 153 (Tenn. 1995); Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn. 1995).

Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 89 (Tenn. 2000).

Defendant moved for judgment based on its assertion that the Virginia court lacked

personal jurisdiction over Defendant, which, if true, would render the Judgment void. In Hart v.

Tourte, this Court discussed foreign judgments stating:

Foreign judgments ordinarily are entitled to full faith and credit in the courts

of this state. Biogen Distributors, Inc. v. Tanner, 842 S.W.2d 253, 256 (Tenn. App.

1992). We have previously stated that “[t]here are a limited number of circumstances

where a foreign judgment may be denied full faith and credit.” Benham v. Fisher,

650 S.W.2d 759, 760 (Tenn. App. 1983). T.C.A. § 26-6-104(c) provides that foreign

judgments are “subject to the same procedures, defenses and proceedings for

reopening, vacating, or staying as a judgment of a court of record of this state and

may be enforced or satisfied in like manner.” Id.; see also Biogen Distributors, 842

S.W.2d at 256. Thus, “the grounds and proceduresfor vacating or reopening foreign
-5-

judgments are those contained in Tenn. R. Civ. P. 60.02.” Id. A party seeking to

attack the validity of a foreign judgment bears a “stern and heavy” burden. Id.;

Dement v. Kitts, 777 S.W.2d 33, 36 (Tenn. App. 1989). Issues of fact underlying the

foreign judgment may not form the basis of such an attack, Benham, 650 S.W.2d at

760; but the judgment will not be afforded full faith and credit where the foreign

court lacked jurisdiction. Id.; see also Dement, 777 S.W.2d at 36.

Hart v. Tourte, 10 S.W.3d 263, 269 (Tenn. Ct. App. 1999). To determine if a foreign court had

jurisdiction, we must look to the law of the state where the judgment was obtained. See Biogen

Distribs., Inc. v. Tanner, 842 S.W.2d 253, 256 (Tenn. Ct. App. 1992). 

Plaintiff opposed Defendant’s motion for summary judgment alleging, in part, that

the Virginia court had obtained jurisdiction over Defendant by virtue of forum selection clauses

contained in the credit application and invoices. In order to determine if the Virginia court had

jurisdiction under the forum selection clauses, we look to Virginia law. See id. With regard to

forum selection clauses, the Supreme Court of Virginia has stated:

According to the modern view, which we now embrace, contractual

provisions limiting the place or court where potential actions between the parties may

be brought are prima facie valid and should be enforced, unless the party challenging

enforcement establishes that such provisions are unfair or unreasonable, or are

affected by fraud or unequal bargaining power. 

Paul Bus. Sys., Inc. v. Canon U.S.A., Inc., 397 S.E.2d 804, 807 (Va. 1990). 

The Pettyjohn Affidavit alleged that Plaintiff received a credit application in October

of 2003 completed by Defendant, that Plaintiff then opened a credit account for Defendant, that the

two parties commenced doing business with one another, and that theycontinued to do business over

the next two years. Copies of the referenced credit application and several invoices were attached

to the Pettyjohn Affidavit and each contains a forum selection clause selecting the Circuit Court for

the County of Campbell, Virginia as a proper jurisdiction for suit to be filed.

Plaintiff also opposed Defendant’s motion for summary judgment by alleging that the

Virginia court had obtained jurisdiction over Defendant by virtue of sufficient minimum contacts

by Defendant to satisfy the Virginia long-arm statute. As pertinent to this case, Va. Code Ann. §

8.01-328.1 provides:

A. A court may exercise personal jurisdiction over a person, who acts directly or by

an agent, as to a cause of action arising from the person’s:

1. Transacting any business in this Commonwealth;....

Va. Code Ann. § 8.01-328.1 (2005). The Virginia Supreme Court has instructed: 
-6-

According to the long-arm statute, a Virginia court “may exercise personal

jurisdiction over a person, who acts directly or by an agent, as to a cause of action

arising from the person’s ... [t]ransacting any business in this Commonwealth.”

Code § 8.01-328.1(A)(1). A “person,” as used in the foregoing statute, includes a

corporation “whether or not a citizen or domiciliary of this State and whether or not

organized under the laws of this State.” Code § 8.01-328.

The function of our long-arm statute is to assert jurisdiction over nonresidents

who engage in some purposeful activity in Virginia, to the extent permissible under

the Due Process Clause of the Constitution of the United States. Danville Plywood

Corp. v. Plain and Fancy Kitchens, Inc., 218 Va. 533, 534, 238 S.E.2d 800, 802

(1977). The Due Process Clause, however, protects a person’s liberty interest in not

being subject to the binding judgments of a forum unless he has “certain minimum

contacts” within the territory of the forum so that maintenance of the action does not

offend “traditional notions of fair play and substantial justice.” International Shoe

Co. v. Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 158, 90 L. Ed. 95 (1945). See

Burger King Corp. v. Rudzewicz, 471 U.S. 462, 471-72, 105 S. Ct. 2174, 2181, 85

L. Ed. 2d 528 (1985).

And, an examination of the history of litigation involving the limits placed

by the Due Process Clause on the power of state courts to enter binding judgments

against persons not served within their boundaries shows a “clearly discernible” trend

“toward expanding the permissible scope of state jurisdiction over foreign

corporations and other nonresidents.” McGee v. International Life Ins. Co., 355 U.S.

220, 222, 78 S. Ct. 199, 200, 2 L. Ed. 2d 223 (1957).

“In part this is attributable to the fundamental transformation

of our national economy over the years. Today many commercial

transactions touch two or more States and may involve parties

separated by the full continent. With this increasing nationalization

of commerce has come a great increase in the amount of business

conducted by mail across state lines. At the same time modern

transportation and communication have made it much less

burdensome for a party sued to defend himself in a State where he

engages in economic activity.” Id. at 222-23, 78 S. Ct. at 200-01.

Because our statute speaks of transacting any business, it is a single-act

statute requiring only one transaction in Virginia to confer jurisdiction on our courts.

Kolbe, Inc. v. Chromodern, Inc., 211 Va. 736, 740, 180 S. Ct. 2d 664, 667 (1971).

Nan Ya Plastics Corp. U.S.A. v. DeSantis, 377 S.E.2d 388, 391 (Va. 1989). 
-7-

The Pettyjohn Affidavit alleged, in part, that Defendant submitted a credit application

to Plaintiff, that Plaintiff opened a credit account for Defendant, that over a two year period Plaintiff

and Defendant transacted business on at least twenty-eight separate occasions in an amount totaling

over $724,000.00, and that the primary sales person responsible for working with Defendant was

based in Plaintiff’s Lynchburg, Virginia office.

Viewing the evidence in the light most favorable to Plaintiff, the nonmoving party,

and drawing all reasonable inferences in Plaintiff’s favor, as we must, we find that Plaintiff has, at

a minimum, raised a genuine material issue of fact regarding whether the Virginia court had personal

jurisdiction over Defendant by virtue of the forum selection clauses and also by virtue of minimum

contacts sufficient to satisfy the Virginia long-arm statute. See Staples, 15 S.W.3d at 89. As such,

Defendant was not entitled to summary judgment as a matter of law, and the Trial Court correctly

denied Defendant’s motion. 

We next consider whether the Trial Court erred in granting the Petition to domesticate

the Virginia judgment. Plaintiff never moved for summary judgment. Instead, Plaintiff simply

opposed Defendant’s motion. 

A situation factually and procedurally similar to the issue at hand arose in Witt v.

Tennessee Farmers Mut. Ins. Co. where a trial court denied a motion for summary judgment in a

case involving domestication of a foreign judgment and then granted the petition to domesticate the

foreign judgment without allowing further response or a hearing on the merits. Witt v. Tennessee

Farmers Mut. Ins. Co., No. 03A01-9709-CH-00400, 1998 Tenn. App. LEXIS 156 (Tenn. Ct. App.

Feb. 27, 1998), no appl. perm. appeal filed. In Witt, this Court explained that this procedure:

[was] irregular and inconsistent with the provisions of the Rules of Civil

Procedure....By summarily granting the [petition to domesticate the foreign

judgment] and thereby denying the defendant the right to plead further and put on

proof with respect to its defenses, the trial court committed error.

It is clear that the Rules of Civil Procedure apply to a proceeding under

T.C.A. § 26-6-101, et seq. See Rule 1, Tenn. R. Civ. P., (“Subject to such exceptions

as are stated in them, these rules shall govern the procedure in the circuit and

chancery courts of Tennessee..., in all civil actions, whether at law or in equity, ...).

See also Rule 2, Tenn. R. Civ. P., (“All actions in law or equity shall be known as

‘civil actions.’”) While we find no conflict between the procedures outlined in

T.C.A. § 26-6-101, et seq., and the provisions of the Rules of Civil Procedure

pertaining to the right of a defendant to file an answer and its further right to a trial

on the merits of all issues properly raised in that answer, any such conflict must be

resolved in favor of the Rules. See Lock v. Nat. Union Fire Ins. Co. of Pa., 809

S.W.2d 483, 489 (Tenn. 1991). It is clear that a defendant has the right to contest the

validity of a foreign judgment by a trial on the merits if issues are properly raised in

its answer. See Four Seasons Gardening & Landscaping, Inc. v. Crouch, 688
-8-

S.W.2d 439, 441-42 (Tenn. App. 1984) (“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.”) (Emphasis added).

Witt, 1998 Tenn. App. LEXIS 156, at **5-7. 

Defendant is entitled either to a resolution by a motion for summary judgment, if

Plaintiff files such a motion and the granting of that motion is proper under the record then before

the Trial Court, or to a trial on the merits of all issues properly raised. We, therefore, vacate that

portion of the Trial Court’s order granting the Petition to domesticate the Virginia judgment and

remand for further proceedings.

Conclusion

That portion of the Trial Court’s judgment denying Defendant’s motion to dismiss

the Petition, a motion properly treated by the Trial Court as a motion for summary judgment, is

affirmed. That portion of the Trial Court’s judgment granting Plaintiff’s Petition to domesticate the

Virginia judgment is vacated. This cause is remanded to the Trial Court for further proceedings

consistent with this Opinion and for collection of the costs below. The costs on appeal are assessed

one-half against the Appellant, Reliable Printing & Graphic Design, Inc., and one-half against the

Appellee, Progress Printing Company, Inc. 

___________________________________ 

D. MICHAEL SWINEY, JUDGE