Frumkin v. First Union National Bank of Florida

874 S.W.2d 40, 1993 Tenn. App. LEXIS 691
CourtCourt of Appeals of Tennessee
DecidedNovember 2, 1993
StatusPublished
Cited by1 cases

This text of 874 S.W.2d 40 (Frumkin v. First Union National Bank of Florida) is published on Counsel Stack Legal Research, covering Court of Appeals of Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Frumkin v. First Union National Bank of Florida, 874 S.W.2d 40, 1993 Tenn. App. LEXIS 691 (Tenn. Ct. App. 1993).

Opinion

OPINION

SANDERS, Presiding Judge (Eastern Section).

Petitioner appeals from a chancery decree dismissing his petition for removal of a trustee and appointment of a successor.

Mrs. Rose Frumkin, mother of Petitioner-Appellant Alfred Frumkin, died testate in the State of Florida in 1989. As pertinent here, her will created a spendthrift trust for the benefit of the Petitioner with him as the sole income beneficiary of the trust during his lifetime. The residue of the trust, upon the death of Petitioner, is to go “to my then living children.” The National City Trust Company (an Ohio bank) was named as trustee under the will.

The Respondent-Appellee, First Union National Bank of Florida (a Florida bank) became the successor trustee of the trust. Mrs. Rose Frumkin was a resident of Florida at the time of her death and her will was admitted to probate in the Florida courts.

It appears the Petitioner was also a resident of the State of Florida at the time of his mother’s death but is now a resident of Tennessee. One of the remainder beneficiaries is a resident of the State of Florida and the other remainder beneficiary is a resident of New Jersey.

In 1992 the Petitioner filed a petition in the chancery court pursuant to T.C.A § 35-1-106 to have Respondent First Union National Bank of Florida (First Union) removed as trustee and First Tennessee Bank National Association, Knoxville, Tennessee (First Tennessee) appointed as successor trustee. Petitioner also asked the court to transfer [41]*41the situs of the trust from Florida to Tennessee. Petitioner alleged First Union violated its fiduciary duty by failing to timely account for income and expenses, to timely disburse income, and to communicate and cooperate with Petitioner. Petitioner did not allege he had been damaged by Respondent’s nonfea-sance nor did he allege he was entitled to an accounting.

First Union responded to the complaint by entering a limited appearance to file a motion to dismiss pursuant to Rule 12.02, TRGP. In its motion, First Union alleged it is a Florida corporation doing business in the State of Florida; it is not registered to do business in the State of Tennessee. It said it serves as trustee of the trust created by the will of Rose Frumkin which is governed by the laws of the State of Florida. It maintained First Union has not had sufficient minimum contact with the State of Tennessee in its administration as trustee of the trust or in any other business activity to give the courts of Tennessee personal jurisdiction over it as trustee. In support of its motion, First Union filed the affidavit of Robert G. Albright, Vice-president and Senior Trust Officer. His affidavit confirmed all the allegations in the motion. Attached to the affidavit was a list of checks written to the Petitioner by the trust for the years 1990 through 1992. Of these checks, five had been mailed to Mr. Frumkin in Tennessee and the rest of the checks had been mailed to his bank in Cincinnati, Ohio. Also attached to the affidavit was a copy of all correspondence to or from Mr. Frumkin regarding the trust. Only five of these letters were addressed to Tennessee. They covered the period of 1990 to 1992 and concerned such routine matters as transmittal letters for checks and showing the amount of income from the trust. Mr. Frumkin testified upon the hearing of the motion to dismiss.

The chancellor sustained the motion to .dismiss. In doing so, as pertinent here, the chancellor said: “Based upon the pleadings, the testimony of Alfred Frumkin, the argument of counsel and the record as a whole, the Court is of the opinion that the State of Tennessee does not have in personam jurisdiction over First Union in its capacity as Trustee of the Alfred Frumkin Trust. The Court is particularly mindful in reaching this decision of Hanson v. Denckla, 357 U.S. 285, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958), and specifically relies upon the case in reaching its decision.”

The Petitioner has appealed, saying the court was in error. We cannot agree, and affirm for the reasons hereinafter stated.

We do not have a verbatim transcript of the testimony of Mr. Frumkin before the chancellor. The Appellant, however, filed a statement of the evidence pursuant to Rule 24(c), TRAP. It states the testimony of Mr. Frumkin to be as follows: “Mr. Frumkin was sworn and testified that he was a citizen and resident of Tennessee at the time First Union merged with Southeast Bank (the original substitute trustee to National City Trust Company, Cleveland, Ohio) and, as successor trustee to Southeast Bank, undertook administration of the trust. Mr. Frumkin continues to reside in Tennessee. He testified that all of his contacts and communications with First Union had been to or from his residence in Tennessee and that First Union furnished accountings and, from time to time, trust income checks to him in Tennessee.”

T.C.A. § 20-2-214(a)(6) is the Tennessee long-arm statute which is controlling in the case at bar. As pertinent here, it gives Tennessee jurisdiction over nonresidents “as to any action or claim for relief arising from ... (6) any basis not inconsistent with the constitution of this state or of the United States.” Accordingly, Tennessee courts may exercise jurisdiction over First Union if it would not violate its constitutional due process protections.

In the case of Masada Investment Corp. v. Allen, 697 S.W.2d 332, 334 (Tenn.1985) the court provided the framework for analyzing the boundaries of due process under T.C.A. § 20-2-214(a)(6) as follows:

T.C.A. § 20-2-214 was considered a ‘single act’ statute, one in which jurisdiction was assumed only over causes of action arising out of the defendant’s activities in the state, until the addition of subsection (6) in 1972.... Subsection (6) changed the long-arm statute from a ‘single act’ statute [42]*42to a ‘minimum contacts’ statute which expanded the jurisdiction of Tennessee courts to the full limit allowed by due process ... three primary factors are to be considered in determining whether the requisite minimum contacts were present: the quantity of the contacts, their nature and quality, and the source and connection of the cause of action with those contacts.

The general formulation of the minimum contacts rule is that a nonresident defendant must have “minimum contacts” with Tennessee such that exercising jurisdiction would not offend “traditional notions of fair play and substantial justice.” International Shoe Co. v. State of Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945).

We concur with the holding of the chancellor that Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958) is controlling in the case at bar. The facts in Hanson are very analogous to the case at bar. In 1935 Dora Donner, whose domicile was the State of Pennsylvania, created a trust in the State of Delaware. She named Wilmington Trust Co., a Delaware corporation, as trustee.

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Related

Frumkin v. First Union National Bank of Florida
912 S.W.2d 138 (Court of Appeals of Tennessee, 1995)

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Bluebook (online)
874 S.W.2d 40, 1993 Tenn. App. LEXIS 691, Counsel Stack Legal Research, https://law.counselstack.com/opinion/frumkin-v-first-union-national-bank-of-florida-tennctapp-1993.