# FILED January 12, 1996 Cecil Crowson, Jr. Appellate Court Clerk IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION AT NASHVILLE

_______________________________________________ SUE MCGEE , Pl ain tiff-Appe ll ant, Vs. Maury County Circuit 6359 C.A. No. 01A0

1-9508-CV-0

0341 THE FIRST NATIONAL BANK and NEAL LOVLACE, JR., Defendants-Appe ll ees.

_________________________________________________________________________

FROM THE MAU RY COUNT Y CIRCUIT COURT THE HONORABLE JAMES L. WEATHERFORD, JU DGE

Wi nst on S. Ev an s o f N ash vi lle For App ellee, Lovlace Kev in S. Ca rr

of Sp ice r, Fly nn & Ru dst ro m of Na shv ille Fo r A pp ellee , Firs

t N at io na l Ba nk

of Ce nt erv ille Michael E. Gil mer of Columbia

For Appellant

AFFIRMED Opinion filed:

W. FRANK CRAWFORD, PRESIDING JUDGE, W.S. CONCUR: ALAN E. HIGHERS, JUDGE1 In this proceedin g, defendants have not raised anydefense concerning the viability of t

he causes

of action. Nothing in t his opinion should be construed as dealing with anything ot her than t

he question of venue. 2 HEWITT P. TOMLIN, JR., SENIOR JUDGE This appeal involves a venue dispute. Plaintiff, Sue McGee, appe als from the order of the Circ uit Court for the Twent

y-Second Judicial District in Maury County, Tenn esse e, that dismissed her suit against defendants, First Nat ional Bank and Neal Lovlace , for improper

venue. The recor

d in the case con sists of what was formerly call ed the technicalrecord an d a "tr anscript of pro ceedings" which has no testimony a nd contains only argument and statement

s of counsel and the co urt. A review

of the pleadings and affidavit s reveals that in 199

3, defendant First NationalBank, represented by defendant Lovlace, filed a suit in the Circuit Court for the Twent

y-First Judicial District

in Hickman County, Tennesse e, aga inst Jimmy McGee, husb and of p laintiff , Sue McGee, that

resul ted in a judgment against Jimmy M cGee in exc ess of $50,0 00.00 . Su bsequentl y, in the course of postjudgment

discover

y proce dures, def

end ants c aus

ed v ario us s

ubp oena s to be issued and served in Maury County on t he plaintiff, a res

iden t of Maury County, an d other witnesses. Pursuant t o the subpoenas, depositions were taken apparently to ascertain th e ex iste nce of as sets that m igh t be su bjec t to execution in paym ent of the judgment agains t Jimmy Mc Gee. Plaintiff all eges that each process issued fr om the Hickman Count y Circuit Court to be serve d in Maury C ount y was maliciously is sued and was "a calcul ated att

empt t o haras s and emb arrass [plaintiff] into pa ying the debt incurred by

her husba nd" and t

herefor e, const itut ed abuse o f proces

s. Both d efen dan ts

filed motions to dismiss on the gro und of improper

venue. 1 Bot

h part ies conc ede that a malicious prosecution action and an3

abuse o f process action are t ransitory act

ions. Venue of t

ransitory act

ions is governed by T.C.A. § 20-4-101 (1994) whi ch provides in pertinent part: 20-4-101. Transitory actions. - (a) In all civil actions of a tran sito ry nat

ure, unless venue is ot her wis e e xp res

sly provided for, the action may be brou ght in the co unty where the ca use of a ctionarose o r in t he co unt

y where t he defenda nt re sides or is found. The plaintiff con cedes that neither defe ndant is a resid ent of Maur y County, nor was either defendant found in MauryCounty as cont emplated by the statut

e. The trial court dismissed the act ion for improper venue, and th e o nly issue for review is whether t he tria l court er

red in so do ing. T

o decide this issue,

we must determine where the cause of action aros e. I f it ar ose in M aur

y Cou nty the trial judge erred; if it a rose in Hickman County, the tria l judge was corr ect

. In Donaldson v. Donaldson , 557 S.W.2d 60 (T enn. 1977), our Supreme Court stated: There are two t ort act ions that

ma y be b roug ht to obtain redress

for t he alleged misuse of

legal process byanot

her: ab use of pr ocess a nd m alicious prosecution. An action for abuse of process lies for the use of legal pro cess to obtain a result it was not intended to effect

, for a wrongf

ul purpose. Priest v. Union Agency , 17 4 Tenn. 304, 125 S.W. 2d 142 (19 39) Malicious

prosecut

ion, o r the malicious use of process, is the employment of legal proces s fo r i ts os te nsi ble purpose, but wit

hout probable cause. Id. at 62. In 72 C.J.S. Process

§ 108 (1987), it is stated: b. Wrongful Use The unlawful use of process after its issuance is the gist of the wrong of abuse of process. The gis

t of the to rt or w rong consists of t he unlawful use of l awf

ul proc ess

after its issuance. There must be an actua l abuse of t he proce ss by it

s p erv ersion to obtain a re sul t whi ch i t was not in tend ed b y l aw to effe ct. A legal and legit imate us e of pr oce ss, to effect the r esult which such process is designed by lawt o4 accomplish, cannot const itute ab use, even though the user was actuated by a wrongful motive or intent or by malice. Plaintiff ass erts that a cause of action for abuse of process arises when the

cause of action beco mes complete, and in tha t c ase the cause of ac tion bec ame compl ete in Hickman County. In su pport of this assertio n plaintiff cites Mid-South Milling Co., Inc. v. Loret Farms, Inc. , 521 S.W.2d 586 (Tenn. 1975). From

our ex ami na tio n o f t

his c as e, we do no t

re ac h t he sa me c on clu sion . In Mi dSouth Milling the suit

was for b reach of warranty in a sales contract. The Court looked to T.C .A. § 47-2-725, the st atute o f lim itatio ns i n sa le s co ntrac ts, to determine when and where the caus e of ac tion ar

os e. Th e st at ut e sp ecifically provides

that the cause of act

ion for breach of warrant y accrues when the breach oc curs, and the b reach occ urs when t he ten der of delive ry is made

. T he court held that

since the breach occurred at the t ime of deliver

y i t a ls o occurred at t

he place of the tender of delivery. In the instant case t here is no corresponding sta tute t o dete rmine when an d where an a buse of p rocess cause of action aris

es. In Matti x v. Swepston , 1 27 T enn . 6 93, 155 S.W. 9 28 (191 3) , o ur S

upr eme Court was called upon to make a determinatio n as to whether an actio n was

a local action or a t

ransitory act

ion. The Court

, in defining the cause of act ion, stat ed: It may be safe ly said that no at tempt so fa r to give an acc ura te de fini tion o f the te rm s o as to meet

the exigencies

of all cases w hich may arise has been successfull y made, and, inde ed, such a general and inf lexi ble def

inition co uld serve no particular purpose, and should not

be at tempt ed. Wit h this qualification, it may be stat

ed gene ra ll y that the cause of action includes all the facts which toget he r co nstitut

e the plaintif fs'right to maintain the action. This defini tion has the approval of

suc h eminent authorit y as Mr. Justice Cooley in Post v. Campau , 42 Mich., 96, 3 N.W., 272, and Mr. Jus

tice Johnson in Marquat v. Marquat , 125 N. Y., 341. Mr. Pomeroy, in his workon Remedies, gives substantially the same definitio n at sectio n 521. Id . at 697

. In the insta nt case, the gravamen of plaintiff's act ion is stat

ed in her brief: Th e theory

of the Appellant's case below is that t he A pp ellee, Lovlace, and the Appellee, Bank, joined toget her to f orce the Appellant to pa y a judgment for which she was

no t le ga lly liab le by us ing oppressive and harassing discovery processes to wear down her resolv e until she capitulated an d paid up. The proc ess a bout w hic h pl ain tiff c omp la ins consists

of su bpoe nas

to obtain postjudgm ent discovery from vario us business enter prises an d individua ls. Ap pa ren tly

all of the subpoenas were pro perl y served and the discovery proc ess completed. The gist of p laintiff's case is that these processes were a form of extort

ion to compelplaintif f to pay t

he judgment

against her husba nd. It is undisputed that

all of the subpoenas were issued from the Circuit Co urt in Hickman County, and that if there was an improper motive or purpose behind the issuance of the subpoenas, that motive or improper purpose was t o have a judgment

in HickmanCount

y paid. We have been cited t o no Tennessee authority dealin g with the question before us, nor has our research revealed any such au thority. The few cases touchi ng on th e subject from ot her jurisdictions involve stat utes somewhat different from the Tennessee stat utes, or have factual situat ions not ent

irely like the case at bar. However, Harrison Community Hosp. v. Blustein , 76 Mich. App. 176, 255 N.W.2d 802

(Mic h. Ct

. A pp . 1 97 7)is

so mewha t

an alo go us

. In Harrison , a judgment debtor bro ught an act ion against a j udgment creditor

to recover dam ag es

for an unlawful garnishment which the creditor obt ained in an attempt to colle ct a judgment. The judgment was entered in the Circuit Court of Wayne Count

y, and the ga rnishments were issued from that court . The6

judgment

debtor brought

the action against the judgmen t creditor in Ma comb County where the garnishments were served. Michigan law provides that t he proper county in which to commence and try an action is the count

y in which allor part of the cause of action arose. M ich. C omp. Laws Ann. § 600.1627; Mich. Stat. Ann. § 27A.16 27. The questio n before the court was whether any part of the plaintiff's cau se of action arise in Macomb County. In reversing the t

rial court's denia l of defen dants' reques t for change of venue, the court said:

In th e case at

bar, the wr

ong, if any, was garnishment

in Wayne C o unty and t he incidental damages

that occurred in Macom b County were not part of plaint

iff's cause of

actio n, ex cep t as el em ents of dama ges

. V enu e in Maco mb Co unty was impr op erly laid, and it was error not t o grant defendants' request fo r change of venue. Id. at 179. In Cacciaguidi v. Superior Court , 226 Cal.App.3d 181, 276 Cal.Rptr. 465 (C al. Ct. A p p. 1990), the Court held that the venue of an action for abu se of process may not be b ro ught in t he county of t

he plaintiff's residence on the theory that this is where the p rocess was s erved and where t

he injury occurred. The California venue stat ute allows suit for injuries to t he p erson to be brought in the cou nty

wh ere the injury occurs or t he county in which the defendant resides. Cal. Code Civ . Pro. § 395. In State ex rel. Banta v. Wiesman , 864 S.W.2d 374 (Mo. Ct. App. 1993), t he applicable venu e sta tut e, Mo. Re v. St

at. § 508. 010 (6) (1986)provide d: Sui ts institut ed by summons shall , except as ot herwise prov ide d by l aw, be br ough t:

. . . (6)In all t

ort act ions the suit may be brought in t he cou ntywhere the cause of actio n accrued re gardless of the residenc e of the parties . . . .7 Plaintiff, the son of the defendant , sued his father in t

he Circuit Court

of St. Louis Coun tyall eging, among other things, abuse of proc ess in c onne ction with

a proceeding filed bythe fat her, a resident of Mississippi Count y, in the Circuit C ourt of Mississippi County. In the underlying suit, writs were issued fr om th e MississippiCount

y Circui t Co urt a nd served i n St. Louis Co unty effect ing t he son's confinement

in mental institut

ions. The c ou rt no ted t hat a ll of the fa ther's conduct

occurred in Mississippi County pursuant t o his appointment

as guardian in Mississippi

Count y and held t

hat "i t is t

he place of defendant 's wrongf

ul

con duc t, not the place whe re the effect of that conduct is ul timately fel t or realized t

hat is cont

rolling for venue purp oses." Id. at 376. In the ca se a t bar, pl aintiff does not assert t hat t he process from the Circuit Co urt of Hickm an Co unt

y wa s no t s

erved i n a la wful manner. Each process was utilized for its int

ended purpose, that

is, to ob tain lawful ly authorized discovery. Plaintiff's claim rests solely on her assertion that the discovery pr oceeding s

were for the purpose o f harassing the plaintif f and coercing her into paying the H ickman County judgment aga inst her husband. Plaintiff argues that a cause of action for abuse o f pro cess arises when and where process is served, because that is whe n the cause of action bec ome s complete. Therefore, plaintiff argues tha t her cause of

acti on a ros

e in Ma ury Cou nty. We do not agree. Under plaintiff's theory

in the case at bar, if

plaintiff has

a cause of action for abuse of process, t

hen that cause of action aro se in Hickman County where the process was

is su ed . If defendants com mitted a wrongful act in connection with the process, t

hen they

committ

ed tha t act

in HickmanCount

y by v irtue of ha vin g the process issued in the f irst place. The fact

that the effect

s of that wrongfulact were felt in Maury Count y through t

he allegedl y harassing8

discoveryprocedures does not ca use pl ain tiff' s abu se of proc ess actio n to arise in Maury Cou nty. Accordin gly, the order of t he trial court dismissing p laintif f's suit for improper

venue is affirmed . Costs of

appe al are a sse sse d ag ain st the a ppel la nt.

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

____________________________________ ALAN E. HIGHERS, JUDGE

____________________________________ HEWITT P. TOMLIN, JR., SENIOR JUDGE