# FILED December 15, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF APPEALS OF TENNESSEE,

AT JACKSON

_______________________________________________________ ) JAMES ROBERT FERG USON , ) Lake County Chancery Court No. 4243A ) Petitioner/Appell

ant, )

) VS. ) C.A. No. W1999-02058-COA-R3-CV ) DEBBIE DEE WARREN, ) ) Respondent/Appellee. ) )

______________________________________________________________________________ From the Chancery Court of Lake County at Tiptonville. Honorable J. Steven Stafford, Chancellor
James Robert Ferguson, Pro Se

OPINION FIL

ED: REVERSED AND REMAN DED FARMER, J. CRAWFORD, P.

J., W.S. : (Concurs) LILLARD, J. : (Concurs)1 This court takes judicial notice of the fact that Martin, Tennessee, is located in Weakley

County, and w

e assume that the tr

ial court likewise

noted this fact. Petitioner James Robert Fergus

on appeals

the trial court’s

judgment dismissing

his action for lack of venue. We revers e the trial court’s judgment because Respondent Debbie Dee Warren has not ra

ised the defense

of improper venue

in this lawsuit.
Ferguson instituted these proceedings by filing in the Chancery

Court for Lake Cou nty, T ennessee, a pleading styled “Motion for Communication Between Petitioner and Petitioner’s Minor Child.” In his petition, Ferguson indicated that he currently was in the custody of the Tennessee Department of C orrection at the Northwest Correctional Center at Tiptonville, Tennessee. The petition alleged that Ferguson was the father of Er ic Michael Ferguson; that Respondent

Debbie Dee Warr

en was the child’ s mother; that the c hild was born out of

wedlock; that Warren and the child resided in Martin, Tennessee; 1 and that Warren would not allow any communication between Ferguson and the child. According to the petition, Ferguson and Warren lived together from 1982 until 1994, and Ferguson resided in the home from the child’s birth until January 1994, a short time before Ferguson’s incarceration. Ferguson alleged that he maintained a strong, loving r

elationship with the

child until

his incarceration

, at which time Warr

en stopped all communication between Ferguson and the c hild. In an affidavit, Ferguson indicated that he was incarcerated after being

convictedof two counts of aggravated sexual battery but that the offe nses did no t invol ve the minor child. In another affidavit, Ferguson stated that he was “the legitimate, biological father of said minor child” and that

“[l]egitimacy

was established o

n August 10, 1989,

in Weakley County, Tennessee.” The relief sought by Ferguson’s petition was that he be allowed written and/or verbal communication with the minor child.

The trial court en ter ed a scheduling order wherein it instructed Ferguson to file an affidavit advising the cour

t of the sente nce Ferguson

currently was serving and

his anticipated re

lease date. The trial court’s order also instructed Warren to file an answer or other appropriate pleading within thirty days of entry of the order.
Ferguson responded by

filing an affid

avit in which he sta

ted that he wa s serving consecutive sentences of ten years and eight years, re spectively, and that his

release eligi

bility datewas May 8, 1998. In a subsequent affidavit, however, Ferguson stated that he wa s denied parole at
a hearing held on

June 1 7, 1998. Ferguson’s affidavit indicated that he had a review and reconsiderationdate of June 2003 but thathis sentence did not expire until December 2006. Warren failed to respond to the trial court’s order.

Ferguson also filed a motion for defa ult judgment, a motion

for summary

judgment, and a motion to set a hearing on this matter. Following the filing of the aforesaid motions, the trial court entered an

order requiring Warren to file an answer or other responsive pleading no later than September

18, 1998, and indic

ating that, in the

event Warren fa

iled to file a responsive pleading, the court might, in i ts discret ion, gr ant the re lief requested by Ferguson. Again Warr en filed no response.
Although the record before this court does not contain process served upon Warren in Weakley County, the trial court’s order dismissing this action for la ck of venue indicates that the
summons reflected that Warren was served at her residence in Weakley County, Tennessee. The trial court’s order further indicates that Warren has filed no pleadings of any type in this action.
Although Ferguson’s petition indicated that he was not seeking visitation, but simply the right to communicate with the child, we interpret the relief sought as a form of visitation.

Since it is undisputed that both Warren and the child reside in Weakley County, we conclude that proper venue is in Weakley County. I n transitory actions, ven

ue is a privilege of a defendant to be sued in a par

ticular county

or counties. The d

efendant may

waive th is privileg e, ho weve r, by failing to assert it in a timely manner. See Turpin v. Conner Bros. Excavating Co. , 761 S.W.2d 296, 297 (Tenn. 1988), overruled on other grounds by Five Star Express, Inc. v. Davis , 866 S.W.2d 944, 950 (Tenn. 1993); Corby v. Matthews , 541 S.W.2d 789, 791 (Tenn. 1976). In this regard, Tennessee’s venue statutes provide that an action brought in t he w rong county may be prosecuted

“unless abated by plea of the defendant.” T.C.A. § 20-4-105 (1994). Under rule 12 of the Tennessee Rul es of Civil Procedure, a defendant waives the defense of improper venue if she fails to raise it in either her answer or a motion to dismiss. T.R.C.P. 12.02(3), 12.08.In the present case, Warren fa

iled to respond to the original pleading served upon her, and she failed to respond to t he trial cour t’s subsequent ord ers. At this point in th

e proceedings , therefore, Warren has not ra ised the defense

of improper venue. Inasmuch as Warren has not raised this defense, wereverse the trial court’s judgment dismissing this cause sua sponte for lack of venue, and we remand the cause for further proceedings consistent with this opinion.

In cases such as this , the ultimate issue to be determined b

y the court i

s the best interest of the minor child.

Accordingly

, it is unfortun ate that Warren f ailed to respond e

ither to Ferguson’s pet ition or to the trial cour t’s subsequent ord

ers. On remand, t

he trial court may

wish to consider appointing a guardian ad litem to represent the interests of the minor child.

___________________________ __ _________

_ FARMER

, J.

______________________________ CRAWFORD, P.J., W.S.

______________________________ LIL LARD, J.