FILED

January 12,

1996

Cecil Crowson, Jr.

Appellate Court Clerk

IN THE COURT OF APPEALS OF TENNESSEE

WESTERN SECTION AT NASHVILLE

 _______________________________________________

SUE MCGEE,

Plaintiff-Appellant,

Vs. Maury County Circuit 6359

C.A. No. 01A01-9508-CV-00341

THE FIRST NATIONAL BANK

and NEAL LOVLACE, JR., 

Defendants-Appellees. 

_________________________________________________________________________

FROM THE MAURY COUNTY CIRCUIT COURT

THE HONORABLE JAMES L. WEATHERFORD, JUDGE

Winston S. Evans of Nashville

For Appellee, Lovlace

Kevin S. Carr of Spicer, Flynn & Rudstrom of Nashville

For Appellee, First National Bank of Centerville

Michael E. Gilmer of Columbia

For Appellant

AFFIRMED

Opinion filed:

W. FRANK CRAWFORD, 

PRESIDING JUDGE, W.S.

CONCUR:

ALAN E. HIGHERS, JUDGE
1

In this proceeding, defendants have not raised any defense concerning

the viability of the causes of action. Nothing in this opinion should be construed

as dealing with anything other than the question of venue.

2

HEWITT P. TOMLIN, JR., SENIOR JUDGE

This appeal involves a venue dispute. Plaintiff, Sue McGee, appeals from

the order of the Circuit Court for the Twenty-Second Judicial District in Maury

County, Tennessee, that dismissed her suit against defendants, First National

Bank and Neal Lovlace, for improper venue. The record in the case consists of

what was formerly called the technical record and a "transcript of proceedings"

which has no testimony and contains only argument and statements of counsel

and the court.

A review of the pleadings and affidavits reveals that in 1993, defendant

First National Bank, represented by defendant Lovlace, filed a suit in the Circuit

Court for the Twenty-First Judicial District in Hickman County, Tennessee, against

Jimmy McGee, husband of plaintiff, Sue McGee, that resulted in a judgment

against Jimmy McGee in excess of $50,000.00. Subsequently, in the course of

postjudgment discovery procedures, defendants caused various subpoenas to

be issued and served in Maury County on the plaintiff, a resident of Maury

County, and other witnesses. Pursuant to the subpoenas, depositions were

taken apparently to ascertain the existence of assets that might be subject to

execution in payment of the judgment against Jimmy McGee. 

Plaintiff alleges that each process issued from the Hickman County Circuit

Court to be served in Maury County was maliciously issued and was "a

calculated attempt to harass and embarrass [plaintiff] into paying the debt

incurred by her husband" and therefore, constituted abuse of process.

Both defendants filed motions to dismiss on the ground of improper

venue.1 Both parties concede that a malicious prosecution action and an
3

abuse of process action are transitory actions. Venue of transitory actions is

governed by T.C.A. § 20-4-101 (1994) which provides in pertinent part: 

20-4-101. Transitory actions. - (a) In all civil actions of

a transitory nature, unless venue is otherwise expressly

provided for, the action may be brought in the county

where the cause of action arose or in the county

where the defendant resides or is found.

The plaintiff concedes that neither defendant is a resident of Maury

County, nor was either defendant found in Maury County as contemplated by

the statute. The trial court dismissed the action for improper venue, and the only

issue for review is whether the trial court erred in so doing. To decide this issue,

we must determine where the cause of action arose. If it arose in Maury County

the trial judge erred; if it arose in Hickman County, the trial judge was correct.

In Donaldson v. Donaldson, 557 S.W.2d 60 (Tenn. 1977), our Supreme Court

stated: 

 There are two tort actions that may be brought to

obtain redress for the alleged misuse of legal process

by another: abuse of process and malicious

prosecution. An action for abuse of process lies for the

use of legal process to obtain a result it was not

intended to effect, for a wrongful purpose. Priest v.

Union Agency, 174 Tenn. 304, 125 S.W.2d 142 (1939)

Malicious prosecution, or the malicious use of process,

is the employment of legal process for its ostensible

purpose, but without 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 gist of the tort or wrong consists of the unlawful

use of lawful process after its issuance. There must be

an actual abuse of the process by its perversion to

obtain a result which it was not intended by law to

effect. A legal and legitimate use of process, to effect

the result which such process is designed by law to
4

accomplish, cannot constitute abuse, even though

the user was actuated by a wrongful motive or intent

or by malice.

Plaintiff asserts that a cause of action for abuse of process arises when the

cause of action becomes complete, and in that case the cause of action

became complete in Hickman County. In support of this assertion plaintiff cites

Mid-South Milling Co., Inc. v. Loret Farms, Inc., 521 S.W.2d 586 (Tenn. 1975). From

our examination of this case, we do not reach the same conclusion. In MidSouth Milling the suit was for breach of warranty in a sales contract. The Court

looked to T.C.A. § 47-2-725, the statute of limitations in sales contracts, to

determine when and where the cause of action arose. The statute specifically

provides that the cause of action for breach of warranty accrues when the

breach occurs, and the breach occurs when the tender of delivery is made.

The court held that since the breach occurred at the time of delivery it also

occurred at the place of the tender of delivery. In the instant case there is no

corresponding statute to determine when and where an abuse of process

cause of action arises. 

In Mattix v. Swepston, 127 Tenn. 693, 155 S.W. 928 (1913), our Supreme

Court was called upon to make a determination as to whether an action was

a local action or a transitory action. The Court, in defining the cause of action,

stated:

 It may be safely said that no attempt so far to give

an accurate definition of the term so as to meet the

exigencies of all cases which may arise has been

successfully made, and, indeed, such a general and

inflexible definition could serve no particular purpose,

and should not be attempted. With this qualification,

it may be stated generally that the cause of action

includes all the facts which together constitute the

plaintiffs' right to maintain the action. This definition

has the approval of such eminent authority as Mr.

Justice Cooley in Post v. Campau, 42 Mich., 96, 3 N.W.,

272, and Mr. Justice Johnson in Marquat v. Marquat, 12
5

N. Y., 341. Mr. Pomeroy, in his work on Remedies, gives

substantially the same definition at section 521.

Id. at 697.

In the instant case, the gravamen of plaintiff's action is stated in her brief:

The theory of the Appellant's case below is that the

Appellee, Lovlace, and the Appellee, Bank, joined

together to force the Appellant to pay a judgment for

which she was not legally liable by using oppressive

and harassing discovery processes to wear down her

resolve until she capitulated and paid up. 

The process about which plaintiff complains consists of subpoenas to

obtain postjudgmentdiscovery from various business enterprises and individuals.

Apparently all of the subpoenas were properly served and the discovery

process completed. The gist of plaintiff's case is that these processes were a

form of extortion to compel plaintiff to pay the judgment against her husband.

It is undisputed that all of the subpoenas were issued from the Circuit Court 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 to have a

judgment in Hickman County paid.

We have been cited to no Tennessee authority dealing with the question

before us, nor has our research revealed any such authority. The few cases

touching on the subject from other jurisdictions involve statutes somewhat

different from the Tennessee statutes, or have factual situations not entirely like

the case at bar. However, Harrison Community Hosp. v. Blustein, 76 Mich. App.

176, 255 N.W.2d 802 (Mich. Ct. App. 1977) is somewhat analogous. In Harrison,

a judgment debtor brought an action against a judgment creditor to recover

damages for an unlawful garnishment which the creditor obtained in an

attempt to collect a judgment. The judgment was entered in the Circuit Court

of Wayne County, and the garnishments were issued from that court. The
6

judgment debtor brought the action against the judgment creditor in Macomb

County where the garnishments were served. Michigan law provides that the

proper county in which to commence and try an action is the county in which

all or part of the cause of action arose. Mich. Comp. Laws Ann. § 600.1627;

Mich. Stat. Ann. § 27A.1627. The question before the court was whether any

part of the plaintiff's cause of action arise in Macomb County.

In reversing the trial court's denial of defendants' request for change of

venue, the court said: 

 In the case at bar, the wrong, if any, was

garnishment in Wayne County and the incidental

damages that occurred in Macomb County were not

part of plaintiff's cause of action, except as elements

of damages. Venue in Macomb County was

improperly laid, and it was error not to grant

defendants' request for change of venue.

Id. at 179.

In Cacciaguidi v. Superior Court, 226 Cal.App.3d 181, 276 Cal.Rptr. 465

(Cal. Ct. App. 1990), the Court held that the venue of an action for abuse of

process may not be brought in the county of the plaintiff's residence on the

theory that this is where the process was served and where the injury occurred.

The California venue statute allows suit for injuries to the person to be brought

in the county where the injury occurs or the 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), the

applicable venue statute, Mo. Rev. Stat. § 508.010 (6) (1986) provided:

Suits instituted by summons shall, except as otherwise

provided by law, be brought:

. . .

(6) In all tort actions the suit may be brought in the

county where the cause of action accrued regardless

of the residence of the parties . . . .
7

Plaintiff, the son of the defendant, sued his father in the Circuit Court of St.

Louis County alleging, among other things, abuse of process in connection with

a proceeding filed by the father, a resident of Mississippi County, in the Circuit

Court of Mississippi County. In the underlying suit, writs were issued from the

Mississippi County Circuit Court and served in St. Louis County effecting the son's

confinement in mental institutions. The court noted that all of the father's

conduct occurred in Mississippi County pursuant to his appointment as guardian

in Mississippi County and held that "it is the place of defendant's wrongful

conduct, not the place where the effect of that conduct is ultimately felt or

realized that is controlling for venue purposes." Id. at 376.

In the case at bar, plaintiff does not assert that the process from the

Circuit Court of Hickman County was not served in a lawful manner. Each

process was utilized for its intended purpose, that is, to obtain lawfully authorized

discovery. Plaintiff's claim rests solely on her assertion that the discovery

proceedings were for the purpose of harassing the plaintiff and coercing her

into paying the Hickman County judgment against her husband. Plaintiff argues

that a cause of action for abuse of process arises when and where process is

served, because that is when the cause of action becomes complete.

Therefore, plaintiff argues that her cause of action arose in Maury County. We

do not agree.

Under plaintiff's theory in the case at bar, if plaintiff has a cause of action

for abuse of process, then that cause of action arose in Hickman County where

the process was issued. If defendants committed a wrongful act in connection

with the process, then they committed that act in Hickman County by virtue of

having the process issued in the first place. The fact that the effects of that

wrongful act were felt in Maury County through the allegedly harassing
8

discovery procedures does not cause plaintiff's abuse of process action to arise

in Maury County.

Accordingly, the order of the trial court dismissing plaintiff's suit for

improper venue is affirmed. Costs of appeal are assessed against the appellant.

____________________________________

W. FRANK CRAWFORD, 

PRESIDING JUDGE, W.S.

____________________________________

ALAN E. HIGHERS, JUDGE

____________________________________

HEWITT P. TOMLIN, JR., 

SENIOR JUDGE