Pickens v. Hess
| Decision Date | 10 April 1978 |
| Docket Number | No. 76-2098,76-2098 |
| Citation | 573 F.2d 380 |
| Parties | John Michael PICKENS, Plaintiff-Appellant, v. Richard and Patricia HESS, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Charles G. Black, Michael T. Hartsfield, Memphis, Tenn., for plaintiff-appellant.
Ed M. Hurley, Memphis, Tenn., for defendants-appellees.
Before PHILLIPS, Chief Judge, and EDWARDS and LIVELY, Circuit Judges.
The question in this case is whether the defendants were subject to the in personam jurisdiction of the United States District Court for the Western District of Tennessee. That court held that the acts of the defendants in relation to the subject of the law suit were "not substantial enough in the State of Tennessee to make the exercise of jurisdiction under the circumstances reasonable." We affirm the district court's dismissal of the action.
The plaintiff is a building contractor in Memphis, Tennessee, who entered into a contract to construct a residence for the defendants on property owned by them in Wynne, Arkansas. After the residence was about sixty percent completed the defendants requested the plaintiff to stop work and turn the project over to them for completion. After attempts to settle their dispute failed this action for breach of contract was brought in the district court. Jurisdiction was based on diversity of citizenship and the defendants were served with process pursuant to Tennessee's long arm statute, Tennessee Code Annotated § 20-235. 1
After hearing arguments on the defendants' motion to dismiss, the district court withheld ruling to permit the parties to develop the facts by depositions. It is uncontradicted that plaintiff learned of the intention of the defendants to construct a residence in Wynne, Arkansas through a notice which was posted at a Memphis lumber yard. The notice was a "Dodge report," familiar to the building industry as a source of information concerning planned construction projects. The information upon which a series of reports relating to the Hess residence was based had been given to a reporter for F. W. Dodge Co. by Robert Smith, a Memphis architect who was employed by the defendants to design their home. Smith testified that distribution of the Dodge reports relating to defendants' residence was not limited to Memphis; they were "probably" distributed to subscribers in several states. The architect also stated that plans and specifications were placed in three "plan rooms" in Memphis and at the defendants' place of business in Wynne, Arkansas.
Plaintiff testified that he had never done work involving Smith's architectural firm at the time he saw the Dodge report, but was interested in doing residential construction in Cross County, Arkansas and went to see Smith. He obtained a set of plans and specifications, with attached documents including "Instructions to Bidders." These instructions provided that sealed bids would be received by the "Owner" i. e., the defendants. Nevertheless, when plaintiff had prepared a bid he took it to Smith at his office in Memphis. Smith thought plaintiff was too low and would get "burned" on his proposed bid, and suggested that he rework it. Plaintiff then discovered he had overlooked an entire page of specifications and he refigured the job. This resulted in a new bid, some $15,000 higher than the previous one. This bid was addressed to the defendants in Wynne, Arkansas, but was delivered to the architect in Memphis.
Smith testified that he did not reject plaintiff's first proposal; that plaintiff was young and he, Smith, was just trying to give him some "fatherly" help. The architect also testified that he did not "receive" the written bid delivered to him by plaintiff after his oversight was discovered, but merely agreed to convey it to the defendants for their consideration. He stated that he was supervising several projects in the Wynne area and was required to go there at least once each week. At about this time the plaintiff began working on another construction job in Wynne and he talked with the defendants about their residence several times. The defendants made no decision until some six months after receiving plaintiff's bid, at which time plaintiff learned that they wanted to renegotiate. Plaintiff testified that he talked with the defendants in Arkansas and talked with Smith in both Tennessee and Arkansas about "alternates" and modifications to the plans and specifications that might be undertaken to reduce the cost. Plaintiff admitted that he never talked with the defendants in Tennessee. The defendants stated in affidavits that they were in Tennessee in connection with the building project only once a single trip to Memphis to look at brick after the job was well along.
Though it is undisputed that the defendants had no discussions with the plaintiff in Tennessee, the plaintiff contends that Smith was the agent of the defendants and that Smith and the plaintiff had numerous negotiating sessions in Memphis. Smith testified that he may have discussed the Hess job "superficially" with plaintiff in Tennessee, but all negotiating was done by the defendants themselves in Arkansas. Smith denied that he was the agent of the defendants or that he had any authority to negotiate for them. He testified that he had an oral contract with Mr. and Mrs. Hess by which he was to prepare plans and specifications and supervise the construction of their home. Smith also stated that all his contacts with the defendants were in Arkansas and he never discussed the plans with them in Memphis. Though plaintiff was the only builder who delivered a bid to Smith, the architect testified that several contractors contacted the defendants in Arkansas about the project. It was also Smith's testimony that after the plaintiff and defendants had agreed on modifications and the contract price at a meeting in Arkansas, he prepared a construction contract on a standard A.I.A. form and forwarded it to plaintiff with instructions for execution. Plaintiff testified that he signed the contract in Memphis and took it to Wynne where the defendants signed.
The district court made a finding that all negotiations between the plaintiff and the defendants took place in Arkansas. The plaintiff attacks this finding by reference to his own testimony. He ignores the uncontradicted evidence that the defendants were never in Tennessee in connection with the construction and that all of their contacts with the plaintiff took place in Arkansas. Further, to the extent the plaintiff seeks to rely on the alleged agency of the architect Smith, his position is undercut by Smith's positive testimony that he never negotiated with the plaintiff on behalf of the defendants. It is noteworthy that the Dodge reports from which plaintiff learned of the project provided that the owner would negotiate. The district court was required to resolve all conflicts in the evidence, and it is clear that this conflict was resolved against the plaintiff. The finding is supported by substantial evidence and is not clearly erroneous. Rule 52(a), Fed.R.Civ.P.
The plaintiff also charges that the district court erred in finding that Smith was not the agent of the defendants, asserting it is uncontradicted that Smith was authorized to receive bids at his office in Memphis. The instructions to bidders provided that the owner would receive bids. Smith testified that he merely transmitted the plaintiff's bid to the defendants. Pickens also relies on a standardized addendum to his contract with the defendants to establish his claim that Smith was the agent of Mr. and Mrs. Hess. The contract between plaintiff and defendants included the terms of AIA Document A201, General Conditions of the Contract for Construction. Article 7.1.1 of that document provides that it shall be governed by the law of the place where the project is located Arkansas in the present case. Arkansas follows the "general rule" that an architect is not a general agent of the owner, but is an agent whose authority is limited to that expressly granted by the owner. In Bono v. Universal Tank & Iron Works, Inc., 239 Ark. 924, 395 S.W.2d 330, 332-33 (1965), the Supreme Court of Arkansas adopted the following statement from 5 Am.Jur.2d, p. 668:
When engaged in supervising the construction of a building as an agent of an owner, an architect's ordinary authority is a limited one. He has no authority * * * to bind his principal by a contract respecting the erection of a building or the performance of work upon it, or to modify the existing contract between the owner and the builder. . . .
The testimony of Smith is consistent with such limited authority. He stated that he had virtually no contact with the parties from the time plaintiff submitted his bid and the attempt seven months later to find ways of reducing it. He testified that his only act involving plaintiff when he "entered the picture" again after seven months was to attend a meeting at the defendants' place of business in Arkansas. His role at that meeting, he said, was to approve or disapprove, from an architectural point of view, proposed changes agreed to by the plaintiff and the defendants. He testified that prior to the meeting in Wynne the plaintiff prepared a list of revisions to the plans and specifications and submitted them at the meeting. According to Smith, all he could do was recommend for or against proposed modifications; he had no authority to bind the defendants. The witness also stated that his role after the dispute arose between plaintiff and defendants was likewise limited to one of advising the defendants that in his opinion there had been a breach of the contract. We find nothing in AIA Document A201 which is inconsistent with Smith's testimony concerning his authority.
It is not necessary that we determine the precise legal relationship between the architect and owner under the facts of this case....
To continue reading
Request your trial
-
Hooks v. Hooks
...under the Tennessee long-arm statute goes to the limits of due process. Tenn.Code Ann. Sec. 20-2-214(a)(6) (1980); Pickens v. Hess, 573 F.2d 380, 385 (6th Cir.1978).10 Local Rule 12(b), Eastern District of Tennessee, allows respondent five days after service of movant's motion and brief to ......
-
United States v. Obaid
...the system of in rem jurisdiction in admiralty have been critically shaken...." 552 F.2d 1148, 1152 (5th Cir. 1977).• Pickens v. Hess , 573 F.2d 380, 387 (6th Cir. 1978) - a case addressing in personam jurisdiction. Cites Shaffer in a see also citation, without analysis, to support the prop......
-
Mitchell v. White Motor Credit Corp.
...federal district court in a diversity case is determined by the law of the state where the court is located. See, e.g., Pickens v. Hess, 573 F.2d 380, 385 (6th Cir.1978); Southern Machine Co. v. Mohasco Industries, Inc., 401 F.2d 374, 376 n. 2 (6th Cir.1968); Milan Express, Inc. v. Missie, ......
-
S & S Screw Mach. Co. v. Cosa Corp.
...a federal court's in personam jurisdictional reach is determined by the law of the state in which the court is located. Pickens v. Hess, 573 F.2d 380, 385 (6th Cir.1978). When a state's long-arm statute has been interpreted by its courts to be as broad as the limits of due process allow, th......