# FILED

March 9, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

______________________________________________ VANDERBILT UNIVERSITY Davidson Chancery No. 96-2566-I MEDICAL CENTER, The Honorable Irvin H. Kilcrease, Jr., Chancellor Plaintiff-Appellee, C.A. No. A01-9712-CH-00707 Vs. REVERSED AND DISMISSED THE COUNTY OF MACON, John B. Ingelson of N ashville LAFAYETTE, TENNESSEE, For Plaintiff-Appellee Defendant-App

ellant, James D. White of Celina for Defendant-Appellant

__________________________ _________________________________________________ _ TOMLIN, Sp. J.

Vanderbilt

University Medical Center (“Vanderbilt”) filed suit in the Chancery Court of Davidson County against Macon County (“County”) seeking a judgment against County in the

amount of $20,671.95 for medical services rendered by Vanderbilt in Nashville to an inmate who hadbeen in the custody of County an d who had been bro

ught to Vanderbilt f

or treatment.Both Vanderbilt

and County filed motions for summary judg ment, suppo rted by affidavi t or affidavits. Follow ing a hearing, the chancellor denied County’s summary judgment motion and granted summary judgment in favor of Vanderbilt. On appeal, County has raised two issues which are as follows: 1. Did the trial court err in ruling that venu e was proper in

Davidson County; 2. In granting Van

derbilt’s motion fo

r summary judgment. For the reasons hereinafter stated, we are of the opi nion that the actio

n of this Court in regard to County’s first issue is dispositive of this litigation, and thus we are not compelled to dispos e of C ounty’s second issue. As for County’s first issue, in its answer to Vanderbilt’s complaint, County contended that the venue of this suit in Davidson County is improper and that if Vanderbilt had a cause of action, venue would lie in Mac on County. For the reasons hereinafter set forth, we agree, and accordingly dismiss Vanderbilt’s suit against County. The basic facts are all that we need. One , James Denkoff(sp) was a prisoner in the Macon County jail in LaFayette. While a prisoner, he suffered injuries of a serious nature that resultedin his being transported from jail to the Macon County General Hospital for treatment. Because of the severity of his injuries, he was later moved by helicopte

r to Vanderbilt Un

iversity2

Medical Center. He died tw o days later, aft

er incurring med

ical expense s in the amount of $20,671.9 5. Su bsequently, Vanderbilt filed a complaint for a debt based upon sworn account in the Chancery Court of Davidson County. In its answer, County contended that venue did not lie in Davidson County. Following a

bench trial, the c

hancellor rende

red judgment in fa

vor of Vanderbil

tagainst County. The chanc

ellor ruled on the

defense of impro

per venue as fol

lows: Venue is proper in Nashville, Davidson County, Ten nessee, due to the fact that the treatment was render ed i n Davidson County, Tennessee, and the debt was incurred and due in Davidson County, Tennessee. As we have alread

y noted, the disposit

ive issue is

whether or not the chancellor erred in so ruling. Long ago, the courts of

this state recogn

ized that counti

es were pu blic corporation s, invested by positive law with express powers e

ssential t o their e xistence. Tennessee Code (1858), §§ 402-403; H. C. Beck v. Puckett, County Judge, et al , 2 Tenn. Cases 490, 2 Shannons 490 (1877). Stated another way, the heart of this issue is whether or not the action brought by Vanderbilt

against County was a

transi t ory or local acti

on. One of the ea

rly cases in our st

ate addressing this issue is that of Mayor, etc., of Nashville v. W ebb, et al , 85 S.W. 404 (Tenn. 1905). The facts were these: The complaint in Webb was filed in Davidson County to enjoin the execution of a judgment rendered against the City of Nashville in the Circuit Court of

Wilson County. Previously, Webb h ad filed su

it in the C ircuit Court of Wilson County against two railroads and the City of Nashville. One railroad was ser ved with process a

t its local office

in Wils on County wi th the counter-part being issued to Davidson County for the other two defendants. The mayor of the City of Nashville was served in this fashion. Nashville did n o t make an appear

ance or defens

e to the suit resulting in a default judgment against it in favor of Webb. Following the judgment, execution was issued to DavidsonCounty. While in the hands of the Davidson County Sheriff it was enjoined by the complaint in this cause. In support of the injunction, counsel for Nashville insisted that the Circuit Court of Wilson County acquired no jurisdiction by the service of the counter-part writ above referred to, thus the judgment was void.3

This conclusion was reached by the Chancery Court of Davidson County and also by the court of chancery ap

peals. In affirming two courts, our Supreme Court stated:

It is true, there is no st atute which makes an action brought against a municipal corporation a local action: nor could there ever be a necessity for such statute. Actions may be made by statute either transitory or loca l. Transitory actions are such as are said to follow the person of the defendant wherever he may be found. Carlisle v. Cowan, 85 Tenn. 165, 2 S.W. 26. Such, in general, are personal actions. Actions concerning realty may be regarded in a sense as personal, inasmuc h as the title

thereto rests in the owner, whoev

er he may be, yet

, in obedience to

a wis e public policy, such actions are usually made local by statute. But ac tions against municipal corporations are inhe rently local. Thes e bodies cannot change th

eir situs or their place of abode. They cannot remove from one p

lace to another,

and sojourn for a

time at this point or that. They remain stationary; hence they must be sued where they are

found - that is,

in the county of

their location. It is a misnomer, a misapplication of terms, to speak of an action against such a body as transitory, no matter what the ground may be on which the right of action re sts. Such actions ar

e not only inherently

local, but it is of

the greatest impor

tance to the welfare of such bodies, a nd of the citizens wh om they serve, tha

t their officers should b e p ermitted to remain at home and discharge their public duties,

instead of

being called hither and thither over different parts of the state to attend litigation brought against the city through the agency of counterpart writs. (citations omitted). Id. at 405. The Court noted that defendant’s counsel contended that service was properly had upon Nashville pursuant to the provisions of § 4526 of Shannon’s Code which provided in substance that where there were two or more defendants in a suit, plai ntiff could cause counterpart

summons to be iss ued in any county where an y of the defenda

nts were likely to f

ound, with counterpart

process issuing in the same suit. When returned, the ca se should be docke

ted as if only one process had been issued. To this argument, the Court stated:

It needs no argument to show that section 4526 has no application to local actions. It is pe rfectly o bvious that a local action could not be turned into a transitory one, or one in effect transitory, by the device of uniting another person in the action, andby serving process on that pers on in the c ounty in which it was desired to begin the litigation, and then issuing a counterpart writ to the locality of a de fendant who could not otherwise be affected, save by an action brought in the latter county. Actions are either transitory or local, and their nature cannot be changed by the form of the p

rocess used to inst

itute them. Id. at 405.4 In Piercy v. Johnson Cit

y , 169 S.W. 765 (Tenn. 1914), plaintiff f ile d suit against Johnson City in the Circuit Court o f Unicoi County see

kin g damages to his lands located in Unicoi County. City defendedon the groundthat it was not subje ct to be sued out of t

he county of its situs. The circuit court agreed and dismissed the suit. The circuit court’s judgment was reversed by the court of civil appeals. In reversing the court of civil appeals, the

Supreme Court said in part: While it must be admitted tha

t it is held in

a great majority of English and American cases that an action for damages to real p roperty is local, that doctrine was established over the opini o n of Lord Mansfield to the contrary (Mostyn e v. Fabrigas,

Cowp., 161) and the views of Ch ief Justice Marsh

all in Li vingston v. Jefferson, 1 Brock, 203, Fed. Cas. No. 8,411. In arguing against th e soundness of the rule Chief Justice Marshall ther e sai d touching the lack of reas

on to support it: “I h

ave yet to discern a reasonother than a tech nical one which c

an satisfy my judgment.” Id. at 766. The Piercy Court then concluded that its ruling was based on public policy. In Putnam County v. White Count y , 203 S.W. 334 (Tenn. 1918), the controversy in thi

s litigation evolved over a boundarydispute between Putnam County and White County. The suit was filed in

Putnam County. The c

hancellor’s dec

ree was not satisf

actory to either party, and bothparties appeale

d. In considering

th e issue relevant to the issue in the case herein under consideration, the Supreme Court stated:

White Co u nty demurred to the original bill filed by Putnam County in the chancery cou rt of Put nam County on the ground that a municipal corporation such as White county could only be sued in the county in which i t was located. Such is the general rule. Peircy v. Johnson City, 130 Tenn. 231, 16 9 S.W. 765, L.R. A. 1915F,1029; Nashville v. Webb, 114 Tenn. 432, 85 S.W. 404, 4 Ann. Cas. 1169. An apparent exce

ption is made to this rule

in the case of a suit by one county to recover dispu ted t erritory from an adjoining county or to prevent an encroachment under an invalid statute. Such suits have uniformly been brought and entertained in the courts of the complaining county. (citations omitted). Id. at 337. Basedupon the practice

established by the

above-noted ca

ses, the court resolved th is assignment of error in favor of Putnam County. Courts from other jurisd i ctions have likewise recognized that, absent compelling5

circumstances,

a suit against a

count y must be brought in that county. In Babylon Assoc. v. Co unty of Suf

folk , App. Div., 454 N.W.2d 713 (1992), Babylon sued Suffolk for breach of

contract in New York County, wher e Babylon had their

principal place of business. This was done, notwithstanding the existence of a New York statute, CPLR No. 504, which provides that

a county must only be sued in that county. The Babylon court noted that “the purpose of the

venue requirement of CPLR § 504, Subd. 1, is to protect a county and its offici als from inconvenience. In the absenceof compelling circ umstances, venue

should remain in the coun

ty that is sued.” While the court noted that under New York law if it is shown that an impartial trial might

notbe had in a parti

cular county, t hen a court has discretion to change venue under another statute. The New York Supreme Court held that Babylon failed to show that an impartial trial could not be had in Suffolk, thereby reversing the order of the trial court and transferring venue to Suffolk. While

the issue in Babylon

involved a state st

atute, nonethele

ss, it reflects

that the rationale of such a ruling, be it statute or common law, is the same. While one might contend th

at the term “munic

ipality” would app

ly only toa

city and not

to a county, the cas

e law of this state

reveals that in ou

r statu tes and in our common law

treatment of this issue the terms “county,” “municipality,” and “city” are treated alike as far as the localization of th

e cause s of

action. In Chapman v. Sullivan County , 608 S.W.2d 580 (Tenn. 1980), the issue presented there involved the construction of the term “municipality” as it appears in T.C.A. § 23-3314, better known as the GovernmentalTort Liability Act. In the first paragraph of § 23-3314, the st

atute refers to “a claim against governmental entity . . . .” In the secondparagraph of the same section, the statute refers to an incident “where the

municipality has been reasonably apprised of the occurrence of the incident. . . .” Sullivan County moved for summary judgment, because plaintiff had failed to file notice withthe chief administrative office of the county within

120 days as required by the first paragraph of the aforesaid statute. Both the trial court and the Court of Appeals held that plaintiff could not rel y upon the second paragraph of the statute, holding that since the word “county” is not synonymous with the word “mun icipality,” paragraph two did not apply to Sullivan County. In reversing the C ourt o f Appeals, the Supreme Court found that there is not an ordinary meaning for this term. It stated: We find it signi ficant that the te rm “municipality”

is6 defineddifferently in different parts of the Code. In some places the legislation’s definition coincides with Webster’s and that it is confinedto citie s o r towns (citations omitted). In other parts of the Code, “municipalit

y” is defined so as

to inclu de counties as well. (citations omitted). As used in this statute, then, it cannot be said tha t the legislature i ntended one or the

other of these definitions to apply. Even if we were to assume that there is an ordinary meani ng of this term, it is clear that when used in our Code it means different things in different context. Chapman at 582. The Court then turned to

the legislative history of the statute for guidance. It noted “that the act was passed in an attempt to avoid theconfusion exper ienced by states t

hat had judicially revoked the doctrine of sovereign immunity. It was intended to apply to uniformly to cities and counties, but not to the State of Tennessee.” Id. The Court then concluded that the term “municipality” as used in the second paragraph of § 23-3314 includ

es all government

al entities cover

ed by the Act. A case very near

ly in point is that of O’Neal v. DeKalb County , 531 S.W.2d 296 (Tenn. 1975). In O’Neal , a resident of Ha milton County filed su

it in the Circuit

Court of that county against DeKalb County, the

county sheriff, deputy sheriff, and surety on personal bonds of the sheriff and deputy for false arrest, fal se imprisonment, battery, and outrageous conduct. The gravamenof the action is that a deputy sheriff of DeKalb County

arrested plaintiff, a resident of Hamilton County, in Hamilton County under an arrest warrant issued for another named party. It was further alleged that the deputy acted under color of office, in the scope of his employment by the sheriff of DeKalb County, and that defendant, Aetna Insurance, was the surety upon the personal bonds of the deputy and the sheriff for any wrongs, etc., committed by the deputy. The trial court sustained the motion to d ismiss of defendant, Aetna, pursuant to the provisions of T.C.A. § 56-1412, holding that the venue provisions thereof were mandatory and that “venue in an act

ion against a fore

ign corporation a

s surety on a count

y official’s bond

, is exclusively in the county where the bond was made.” The Supreme Court appl ied the follo

wing rat ionale in considering the motion of defendant DeKalb County:

The trial court s

u stained the motion to dismiss filed by defendant DeKalb County on the

basis of the common

-law rule that venue i n actions against counties and municipalities lies exclusively

in the county w hich is the situs of the defendant governmental entity. See Nashville v. Webb , 114 Tenn. 432, 857 S.W. 805 (1904). Plaintiff argues that this common-law rule has been changed by st

atute i n Tennessee. Specifically, plaintiff insists that Tennessee Code Annotat e d Sections 8--833 and 20--401 support the propos it ion that venue in thi s action is properly in Hamilton Co

unty wh ere the cause of action arose. Section 8--833 pr

ovides as follows: 'Anyon e incurring any wrong, injury, los s, damage or expen se resulting from any act

or failure to act on the part of an y de puty appointedby the sheriff may bring suit ag a inst the county in which the sheriff serves ; provided that the deputy is , at the time of such occurrence, acting by virtue of, or under color of his office.' Section 20--401 pr

ovides in pertinen

t part as follows: 'In all civil

act ions of a transitory natur e, Unless venue is oth erwise e xpressly provided for, the act

io n may be brought in the coun t y where the cause of action arose or in the co unty where defendant resides or is found. . . .' (Emphasis added.) Plaintiff argues that since her complaint all eges a transitory cause of action ( fals e arr est, false impriso nment, battery, and outrageous conduct) and since a specific venue provision is not included in section 8--833, the gene ral venue provisions of section 20--40 1 allow this suit to b e brought in Hamilton County where the cause of action arose. We cannot accept this argument since the fai lure to incl ude a specific venue provision in sectio

n 8--833 does no t necessarily

indicate a legislative intent to depart from the common-law rule that counties and muni c ipalities may be sued only in the county of the ir situs regardle

ss of th e n ature of the cause of action. Section 8--833 sanc tions suits against counties for the misconduct of deputies represents a waiver of governmental immunity. See Tenn essee Code Annotated Section 8--8 34. Thus, section 8--833 is analogous to the mor e comprehensive provisions of the Governmenta l Tort Liability Act, Tennessee Co

de An notated Sections 23--3301 to 3331. In actions brought pursuant to that act, venue lies exclusively in the county which is the situs of the defendant governmental entity. TennesseeCode Annotated Section 23--332 0. This provision represents

the legislature's specific adoption of the common-law ruleof venue with res

pect to a county or

a munic ipality . To accept plaintiff's argument would thus estab lis h two separate venue rules applicable to actions brought against counties. In actions for the misconduct of deputies under section 8--833, the application of the general venue provisions of section 20--401 would allow proper venue in any county in which the cau se of action arises or where defendant resides or is found. On the other hand, in actions for negligence bro u ght under the provisions of8 the Governmental Tort

Liability Act, section 23-- 3320 would fix venue exclusively in the

defendant count

y. We do not d

isc ern any significant distinction between the two types of actions which warrants the application of different rules of venue. While we recog nize th at the rule locali zing suits against a county is judicial rather thanlegislative in origin, the legislature has now adopted that r

ule in actions against a county from which the Governmental Tort Liability Act h as removed the de

fense of governmental immunity. Accordin gly, we are const

rained to avoid a construction of Tennessee Code Annotated Section 8--83 3, i tself a limited revocation of governmental immunity, whi c h would result in the application of inconsistent rules of venue in actions brought a gainst a county. We hold

therefore that in suits against a county for the misconduct of dep uties u nder Tennessee Code AnnotatedSection 8--833 the common-law ru le applies to fix venue exclusively in t he situs of the defendant county. We therefore a ffirm t he trial court's dismissal a s to defendant DeKalb County on the ground of improper venue. For the above reason s, th is Court is of the opin ion that the chanc

ellor was in erro

r in finding that Davidson County was the proper venue and not ruling that plaintiff’s complaint should have been filed

in Macon County. Ina

smuch as the judgment o btained in the wrong county is void, and inasmuch as our ruling as to this i ssue results in

a dismissal of Vanderbilt’s suit, we pretermit the second issue raised by Macon. The judgment of the cha

ncellor is reversed, and the complaint is dismissed. Costs of this

cause on appeal are taxed to Vanderbilt, for which execution may issue,if necessary. This cause in remanded to the

Chancery Court of

Davidson County

for suchother proceedings as may be necessary.

_______ ________________

__________

_ HEWITT P. TOMLIN, JR. SPECIAL JUDGE CONCUR:

__________________________________ W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.

__________________________________ DAVID R. FARMER,

JUDGE