            IN THE COURT OF APPEALS OF TENNESSEE
                 AT JACKSON MAY 1999 SESSION



                                                      FILED
                                                        June 15, 1999

MARGARET PARKER,                  )     SHELBY CIRCUIT Crowson, Jr.
                                                    Cecil
                              )   (No. 95499 T.D.) Appellate Court Clerk
     Plaintiff/Appellant          )
                              )
v.                            )   APPEAL NO. 02A01-9812-CV-00373
                              )
THE KROGER COMPANY,           )
d/b/a KROGER COMPANY          )
FOOD STORES,                  )
                              )
     Defendant/Appellee       )




      APPEAL FROM THE CIRCUIT COURT OF SHELBY COUNTY
                        AT MEMPHIS
           THE HONORABLE JAMES F. RUSSELL, JUDGE




For the Appellant:
Marshall L. Gerber
Suite 2700
5100 Poplar Avenue
Memphis, TN 38137

For the Appellee:
Kenneth R. Rudstrom
Minton P. Mayer
80 Monroe Avenue, Suite 500
Memphis, TN 38103



REVERSED and
REMANDED
                                  WILLIAM H. INMAN, Senior Judge

CONCUR:

DAVID R. FARMER, JUDGE
ALAN E. HIGHERS, JUDGE

                                  OPINION

      The suit of the plaintiff was dismissed on the ground of forum non

conveniens. She appeals, and presents for review the propriety of the dismissal of

her case. The standard of review is whether there was an abuse of discretion.

Package Express Center v. Snider Foods, 788 S.W.2d 561 (Tenn. App. 1983).

      The plaintiff is a resident of Shelby County, Tennessee. On October 3,

1997, she was a customer in Kroger’s store in Flower Mound, Texas, accompanied

by her daughter. She alleged that she slipped and fell in the store, suffering a knee

injury, which she attributed to the negligence of the defendant. Her complaint was

filed on June 26, 1998, in the Circuit Court of Shelby County. The defendant

responded by filing a motion to dismiss on the ground of forum non conveniens,

alleging, inter alia, that since the witnesses resided in Texas, the taxpayers of

Shelby County and the State of Tennessee would benefit if the complaint was

dismissed.

      The defendant filed no affidavits in support of its motion, and we have no

transcript of the proceeding.

      The plaintiff filed an affidavit with her appellate brief, alleging that it was

attached to a memorandum brief tendered to the trial court. Be that as it may, the

affidavit is not included in the technical record and its inclusion in the brief confers

no probative value upon it. But this point is not crucial, since the burden of proof

was reposed on the defendant to support its motion.

       The trial judge found that a trial of this case would impose a hardship on

Kroger’s witnesses, that testimony by deposition is inferior to live testimony and

that it would be difficult for Kroger to compel witnesses in Texas to travel to


                                           2
Tennessee. The court also observed that this was a tort action which should be

tried where it occurred, and that Texas law would control.

      We infer that these findings were based on the complaint, arguments of

counsel, and otherwise inferred from the allegations of the motion to dismiss.

      Forum non conveniens is concerned with the discretionary power of the

court to decline to exercise a possessed jurisdiction whenever, because of varying

factors, it appears that the controversy may be more suitably or conveniently tried

elsewhere. Zurick v. Inman, 426 S.W.2d 767 (Tenn. 1968). The scope of review

of the application of the doctrine is whether or not the court has abused its

discretion, Package Express, 788 S.W.2d at 564, citing Zurick, supra. An

evidential hearing on the applicability of the doctrine is not required because to do

so would defeat the purpose of the doctrine. Id.

      If the doctrine is to be applied, there must be a showing, beyond mere

pleading assertions, of the factors involved: the relative ease of access to sources

of proof; availability of compulsory process for witnesses; the expenses for

obtaining the attendance of witnesses; the possibility of view of the premises, if

view would be appropriate; the likelihood that depositional testimony, as

contrasted to live testimony, will be presented; whether the forum is a

“substantially less convenient place for trial”; and perhaps other reasons which

directly affect the foundational issue of convenience. The fact that the law of

Texas may control is not a factor. Zurick, supra; Package Express, supra;

Shoney’s Inc. v. Chic Can Enterprises, 922 S.W.2d 530 (Tenn. App. 1995).

      As we have observed, the defendant presented no affidavits in support of its

motion, and thus failed to “sustain its burden of showing that the balance as to the

convenience of the witnesses was so strongly in favor of the defendant as to



                                         3
overcome the weight to be given to the plaintiff’s choice of forum.” See, Zurick,

supra; Rule 43.02, Tenn. R. Civ. P. There is “no affidavit proof,” Package

Express, supra, to analyze, and therefore none to support the findings. The

judgment is reversed and the case is remanded for further, appropriate proceedings.

Costs are assessed to the appellee.



                                       _______________________________
                                       William H. Inman, Senior Judge

CONCUR:



_______________________________
David R. Farmer, Judge



_______________________________
Alan E. Highers, Judge




                                        4
