### IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON
JOHN HERMAN HUTCHINGS, v . METHODIST HOSPITAL OF McKENZIE, ET AL


### . Interlocutory Appeal from the Circuit Court for Carroll County

No. 3545 Julian P. Guinn, Judge Interlocutory Appeal from the Circuit Court for Shelby County

No. 72824 Karen R. Williams, Judge

No. W1998-00901-COA-R9-CV - Decided June 2, 2000

This is a medical malpractice case in which the plaintiff filed two identical actions only days apart in Shelby County and Carroll County against the same defendants. The plaintiff non-suited and then re-filed the

Carroll County action. Amen

ded complaints

were filed in both actions seeking
to add a defendant. The plaintiff then asked the Shelby Cou nty trial court to transfer the action pen di ng in Shelby County to Carroll County for consolidation. The defendant who was added argued that the Shelby Count

y tria l cou rt should dismiss the case for improper venue and that the Carroll County trial court should gra nt h is motion for summary judgment based on the statute of limitations. The Shelby County trial court granted the plaintiff’s motionto tr ansfer to Carrol l County and the Carroll Cou nty tr ial court denied the defendant’s motion for summary judgment. The added defendan

t appealed. We r

everse the Ca

rroll Count y trial court’s denial of summary judgmentand its acceptan ce of the Shelby Cou

nty case for con

solidation and rem

and to the Carroll County trial court to determine whether the Shelby Cou nty am ended complaint w as intended to supplement

the original complaint

or to completely replace it, and whether a named Shelby County defendant was still a defendant in the Shelby County suit when the amended complaint was filed, in order to ascer

tain if venue was

proper as to the a

dded defendant.

Tenn. R. App. P. 9; Judgment of the Circuit Court is Affirmed in Par

t, Reversed in Par

t, and Remanded.

H OLLY K IRBY L ILLARD , J., delivered the opinion of the court, in which W. F RANK C RAWFORD , P.J., W.S., and D AVID R. F ARMER , J., joined.

Floyd S. Flippin, Humboldt, Tennessee, for the appellant, Sidney Ray, M.D.

Gary K. Smith

and William D. Domico, Memphis, Tennessee, for the appellees, Methodist Hospital of McKenzie and John Freeman, M.D.

A. Russell Willis

and Alan D. Johnson, Nashvil le, Tennessee, a

nd Edward M. Bear

man, Memphis, Tennessee, for

the appellee, Joh

n Herman Hutching

s.

### -2- OPINION

On September 25, 1994, Plaintiff/ Appellee John Hutchings (“Hutchings”), a Weakley Count y resident, was treated in the e mergency room at Defendant/Appe

llee Methodist Hosp

ital of McKenzie (“Methodist-McK enzie” ) in Carroll County, Tennessee, for pain and weakness in his right leg. Defendant/A

ppellee D r. John Freeman (“Dr. Freeman”), a Crockett County resident, examined Hutchings at Metho

dist-McKenzie a

nd determined tha

t he suffered fr

om vascular insuf

ficiency in his right leg. Dr. Freeman advised Hutchings to go home and schedule an appointment the following day with his family physician, Defendant/Appellant Dr. Sidney Ray (“Dr. Ray”), a Carroll County resident.

Hutchings was examined by Dr. Ray the following day. Dr. Ray concluded that Hutchings had a blockage of his femoral artery. He recommended that Hutchings see a specialist in Mem

phis, Tennessee. Dr. Ray’s office told Hutchings to re

turn home and wait

while they made arrangements for an evaluatio

n by the specialist

. Two days later, D

r. Ray’s office c

ontacted Hutchin

gs and told him t o go immediately to Methodist Hospital of Memphis (“Methodist-Memphis”), in Shelby County, Tennessee, to be evaluat e d by a specialist. Hutchings was subsequently admitted to the emergency room at Methodist- Memphi s. On October 3, 1994, his right leg was amputated at Methodist-Memphis.

On September 22, 1995, Hut chings filed a med ical malpractic

e action in Shelby Co

unty against Methodist-McKenzie, Methodist-Memphis, Dr. Freem an, Dr. Charles Kanos, Dr . E. J. Chauvin, Dr. Jerry Gooch, Dr. Alan Hammond, and Dr. Martin Croce. Three days later, Hutchings f iled an identical action against the same defendants in Carroll County. In bot h complaints
, Hutchings allegedthat

the defendants’ failure to fully examine him, to recognize the seriousness of his condition, to refer him to another physician more competen t to diagnose his con dition, and to provide appropriate

medical treatment was theproximate cause of the amputation of his leg. Dr. Ray

was not named as a defendant in either the Shelby County lawsuit or the Carroll County lawsuit

. Only Methodist -McKenzie and Dr. Freeman treated Hutchings in Carroll County; all of the other defendants named in Hutchings’ lawsuits treated Hutchings in Shelby County.

On January 29, 1996, Hutchings filed a m otion asking the Car

roll County trial co

urt to transfer the action pending

in Carroll County to

Shelby County, as well as a motion asking that the Shelby County trial court accept the Carroll County case for consolidation with the action already pending in Shelby County. At the same time, Hu tchings filed a moti

on to amend his

Carroll County complaint by deleting from

the caption the defendants Methodist-Memphis, Dr. Charles Kanos, Dr. E. J. Chauvin, Dr. Jer

ry Gooch, Dr. Ala

n Hammond, and Dr.

Martin Croce. In t

h e motio n to transfer, Hutchings stated that, “although [he] believed the filing of the initial complaint in Shelby County tolled the statute of limitations, [he] f

iled his second com

plaint in Carroll Cou

nty for the sole purpose of insuring that the statute of limitations was tolled as to defen dants Methodist of M

cKenzie and [Dr. Freeman.]” The record does not include an order on Hutching’s motion to transfer; however, the Carroll

County trial court

apparently denied the motion. On June 25, 1996, Hutchings non-suited his Carroll County action.

### -3-

From March 1996 to A ugus t 1996, a series of agreed orders

in Hutchings’ Shelb

y County action dismissed without prejudice Dr. Charles Kanos, Dr. Martin Croce, Dr. E. J. Chauvin, and Dr. Jerry Gooch from the case. On October 28, 1996, the Shelby County trial court entered a brief order granting summary judgment in f avor of Methodist-

Memphis. Foll owing th is order, Dr. Alan Hammond was the only Shelby C ounty resident nam

ed as a defenda

nt in Hutchings’ Shelby County complaint who had not been di

smissed from the sui

t. In his brief befo

re this Court, Dr. Ray asse rts that Dr. Hammond was ne

ver served in th

e Sh elby County suit; however, that fact cannot be confirmed from the record on appeal.

On June 14, 1997, within one ye ar after enter

ing a non-suit in his o

riginal Carroll Cou

nty action, Hutchings fil

ed a second l awsuit in Carroll Co unty. The second Ca

rroll County lawsuit named as defendants

only Methodist-McKenzie and Dr. Freeman. On September 22, 1997, in the Shelby County lawsuit, Methodist-McKenzie and Dr. Freeman filed an amended answer in which they identified Dr. Ray and D r. Alan Hammond as other potentially

liable parties. Me

thodistMcKenzie

and Dr. Freeman filed a similar amended answer in C arroll County on September 24, 1997. The amended answers stated:

These Defendants would aver that if any causal relationship between the Plaintiff’s injuries a

nd/or losses and an

y act or ac

ts set forth in the Co

mplaint is deemed to exist, which is denie

d, then said

causal relationship is the result of the act

or acts of parties and/or non-parties yet unnamed in the Complaint, including, but not li mite d to, Sidney Ray, M.D. and D. Alan Hammond, M.D., and there fore, apportionment of fault is appropriate and should be made.

On September

23, 1997, the Shelby County trial court entered an agreed order granting Hutchings permission to amend his complaint. The order stated:

It appearing to the Court, as evidenced by the signat ures of counsel below, that the parties have agreed that the Plaintiff John Herman Hutchings may amend his Complaint. It is therefore [ordered] that the Plaintiff s hall be allowed to a

mend his Complaint in this action.

A virtually identical agreed order was entered in Carroll County on September 24, 1997. Hutchings filed an amended complaint in Shelby County on September 24, 1997, and an amended complaint in Carroll County

the ne xt day naming Methodist-McKenzie, Dr. Freeman, and Dr. Ray as defendants. All of the defendants named in the amended complaints are Ca

rroll County reside

nts and all of the negligent conduct alleged occurred in Carroll County.

Dr. Ray alleges on app

eal that he was no

t served with

the Shelby County

amended complaint until January 21, 1998; this cannot be confirmed from the record on appeal. Hutchings also filed a motion to t rans fer in the Shelby Co unty trial court, se

eking transfer o

f the Shelby County la

wsuit to Carroll County for consolidation with his Carroll County action.

### -4-

On November 20, 1997, Dr. Ray answered the Carroll County

amended complaint. Dr. Ray later filed a motion for s

ummary judgment in th

e Carroll County ca

se , asserting that the Carroll County action was barred by the statute of limitations. In Shelby County, Dr. Ray filed a motion
to dismiss forimproper venue. The Carroll County trial court heard argument on Dr. Ray’s motion for summary judgment and then issued an order staying any action on Dr. Ray’s summary judgment motion pending the Sh

elby County

trial court’s decision on Hutchings’ motion to transfer and Dr. Ray’s motion to dismiss

.

On Apr il 3, 1999, the Shelby County trial court held a hearing to consider both Dr. Ray’s motion to dismiss and Hutchings’ motion to transfer. The Shelby County trial court then issued a written order

holding that venue in Shelby County was proper when Hutchings or

iginally filed his action there, tha t Dr. Ra

y was properly added as a defendant in the case, and that the case was transfera ble to Carroll County. Con sequently, the She

lby County trial cour

t denied Dr. Ray’s

motio n to dismiss and granted Hutchings’ motion to transfer the Shelby County lawsuit to Carroll County.

The p arti es then informed the Carroll County trial court by telephone conference of the Shelby County trial court’s order. The Carroll County trial court issued an order accepting transfer of Hutchings’ Shelby County action for consolidation with the lawsuit pending in Carroll County. In its order, the Car

roll County court st

ate d that, had Hutchings’ Shelby County action not been transferred, Dr. Ray’s motion for summary judgment asserting the statute of limitatio ns would have been granted, becau

se Tennessee Cod

e Annotated § 20-1 -119 does not apply to actions previou

sly non-suited. However, the Car roll County trial co

urt found that Hutc

hings had properl

y and timely amended his complaint under Section 20-1-119 to add Dr . Ray as a defend

ant to his Shelby County action and that

the case was transferrable to Carroll County. Consequently, the Carroll County trial court denied Dr.

Ray’s motion for sum

mary judgment.

On April 9, 1998, Dr. Ra y filed a motion in the

Shelb y County t rial court requesting interlocutory appeal of its gra nt of Hutchin

gs’ motion to transfer and consolidate, as well as the denial of Dr. Ray’s motion to dismiss for improper venue. The Shelby County trial court granted Dr. Ray’ s m otion for interlocutory appeal. The Shelby County trial court’s order granting interlocutory appeal was later withdrawn by consent order, and the Carroll County trial court issued

an order granting interlocutory appeal of its denial of Dr. Ray’s motion for summary judgment. On September 8, 1998,

this Court granted D

r. Ray’s applica

tion for interlocu

tory appeal.

On appeal, Dr. Ray argues that the Shelby County trial court erred in denying his motion to dismiss for improper venue and in granting Hutchings’ motion to transfer the Sh

elby County lawsuit to Carroll County. He argue s, as well, that the Carroll County trial court erred in accepting the transfer. Dr. Ra

y contends that venue was not proper in Shelby County because he was not personally

subject to

suit in Shelby County and because all of the defendants who were subject to suit in Shelby County were dismissed fr om the Shelby County a

ction before Dr

. Ray was added to the case. Dr. Ray contends in the alternative that, under the doctrine of former suit pending, venue in Shelby County was improper because he was served with the Carroll County amended complaint prior to service of the Shelby County amended complaint. Hutchings responds that venue in Shelby County was proper when Dr. Ray was added as a d efenda nt. Hutchings asserts that the Shelby

### -5-

County trial court’s transfe r of Hutchings’ action to Carroll County was appropriate once all of the Shelby County defendants were dismissed from the Shelby Coun

ty action. Hutchings maintains that the doctrine of former suit pen ding does not place

exclusive jurisdic

tion in the Carroll Co

unty court.

This appeal presents questions of law. Consequently, the scope of revi ew is d e novo with

no presumption of correctness in the trial court’s decision. See State v. Levandowski , 955 S.W.2d 603, 604 (Tenn. 199

7); Ridings v. Ralph M. Parsons Co., 914 S.W.2d 79, 80 (Tenn. 1996).

Venue is the personal pr

ivilege of a defe

ndant to be sued in

particular counties. See Turpin

v. Conner Bros. Ex

cavating Co., Inc. , 761 S.W.2d 296, 297 (Tenn. 1988). It i

s generally not a condition precedent to a c ourt’s power, but

relates instead t

o the appropriateness of the location of the action. See Meighan v. U.S. Sprint Communications Co. , 924 S.W.2d 632, 639 (Tenn. 1996). Improper venue is a matter which is waived unless contested in the first pleading. See Tenn.R.Civ.P. 12.08.

For

purposes of venue, medical malpractice actions involving alleged injury to a perso n, such

as this case, are considered “transitory actions.” See Bing v. Baptist Memorial Hospital - Union
, 937 S.W.2d 922, 924 (Tenn. Ct. App. 1996). Transitory actions are those actions in which the injury occurred to a subject not having an immovable location, s uch as an action sounding in tort or contract. See Five Star Exp. v. Davis , 866 S.W.2d 944, 945, n. 1 (Tenn. 1993). In transitory actions, venue is governed by Tennessee Code Annotated § 20-4-101. This statute states that “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.” Tenn. Code Ann. § 20-4- 101(a) (1994). Thus,

Dr. Ray could be sued in Carroll County, where he resides, or in t

he county where the cause of action arose.

Rule 20.01 of the TennesseeRules of Civil Procedure a

llows a plaintiff to

join all defendan

ts in one act ion if there is asse rted against them a

ny right to relief j ointly, severally , or in th e alternative, in respect of or arising out of the same transaction or occurrence, or series of transactions

or occurrences,

and if any question

of law or fact co

mmon to all defendants will arise in the action. Tenn.R.Civ.P. 20.01. Additionally, Rule19 of the Tennessee Rules of Civil Procedure provides that “a person who is subje

ct t o jurisdiction shall be joined as a party if (1) in the person’s absence complete relief cannot be accorded among those already parties . .

. .” Tenn.R.Civ.P. 19.01. The Tennessee Supreme Court noted in Samuelson v. McMurtry , 962 S.W.2d 473 (Te nn. 1998), th

a t complete relief in actions involving comparative fault cannot be accorded all parties unless

persons potentially

bearing some fault in the tort committed aga inst the plaintiff are joined as parties. Id. at 475. Consequently, under comparative fault principles, where the separate, independent negligent
acts of more than one tortfeasor combine to cause a single, indivisible injury, all tortfeasors must be joined in the same action, unless joinder is prohibited by law. See Samuelson , 962 S.W.2d at 476.

In this case, Hutchin

gs’ original Shelby

County complaint contained allegations of negligent conduc t occ urring in both Shelby County and Carroll County. Therefore, for purposes of determining venue, his cause of action arose in Shelby County and in Carroll County. The original Shelby County complaint named defendants residing i n both Shelby County and Carroll County.

### -6-

These defendants wer

e properly joined

in the same action

in Shelby County

as joint tortfeasors. See Tenn.R.Civ.P. 20.01 and 19.01, and s ee S amuelson , 962 S.W.2d at 476. Therefore, under Tennessee Code Annotated § 20-4-101 and Rules 20.01 and 19.01 of the Tennessee Rules of Civil Procedure, venue was proper at the outset of Hutchings’ action in either Shelby County or Car

roll County.

Hutchings filed his amended Shelby County

complaint, pursuant to the trial court’s agreed order, to add Dr. Ray as a defendant under Tennessee Code Annotated § 20-1-119. See Tenn.R.Civ.P. 15.01. In the amended Shelby Cou nty compla int, Hutchings name

d as defendants Dr. Ray, Methodist-M cKenzie and Dr. F reeman, all Carroll County residents. The negligent conduct al leged against these def

endants in the ame

nded complaint occ

urred in Carroll Co

unty. As note d above, Tennessee Code Annotated § 20-4-101 provides that venue is proper “in the county where the cause of action arose or in the county where the defendant resides or is found.” Id. Consequently, venue in Shelby County was improper as to Dr. Ray if based only on the amended complaint because the amended

complaint did not name a Shelby County resident as a defendant nor didit all ege neg ligent conduct against the defendants named in the amended complaint occurring in Shelby County.

In his o riginal Shelby County complaint, Hutchings named Dr. Alan Hammond, a Shel b y County resident, as a defendant. The record contains no order dismissing Dr. Hammond from the suit; however, he is no

t named as a defe

ndant in the Shelby Co

unty amended complain

t. As noted above, Dr. Ray asserts that Dr. Hammond was never served in the Shelby C ounty suit; but this

can notbe confirmed from the record on appeal. If the amended complaint was intended t o supplement

the original compla

int inst ead of com pletely replacin g it, and if Dr. Ham

mond was a defendant in the case when the amended complaint was filed, venue in Shelby County was proper

as to Dr. Ray when the amended complaint was filed. See Tenn.R.Civ.P. 20.01 and 19.01, and see Samuelson , 962 S.W.2d at 476.

The am ended Shelby County compla int could be constr

ued as a substitute

, intended to replace the original complaint. Howeve r, the amended complaint was filed pursuant to the trial court’s order granting leave to amend. This order does not gr ant leave to file an amended or substitute complaint; rather, it states that Hutchings was “allowed to amend” his origi

nal complaint, i.e. to change or supplement the original complaint. As noted above, whether venue was proper as to Dr. Ray at the time

the amended complaint was filed hinges on whether Dr. Hammond, the lone remaining named Shelb y County defendant, was a defendant when the amended complaint was filed. This depends on whether Dr. Hammond was ever served, and whether the amended complaint was intended to replace or supplement the original complaint. Neither of these issues can be ascertained from the record before this Court. Consequently, we rem and the case to the Carroll County trial
court for a determina

tion of whe ther the amended Shelby County compla

int was intended to supplement

or replace the o

riginal complaint,

as well as whethe

r Dr. Hammond was

a defendant in the case when the amended complaint was filed.

Dr. Ray also argues that venue was improper in Shelby County because he was served with Hutchings’ Carroll County am ended comp laint before he w as served with Hut

chings’ Shelby

County

### -7-

amended complaint. He cla

ims that, under the doctrine of former suit pending, the prior service of the Carroll County amended complaint gave the Carroll County trial court exclusive jurisdiction over Dr. Ray. Hutchings argues that the Shelby County trial court

had exclusive jurisdiction over Dr. Ray because Hutchin

gs filed his Shelby

County amend

ed complaint befo

re he filed his Car

roll County amended complain

t.

Under the doctrine of former suit pending, when two courts have concurrent jurisdiction over the subject matter an

d over the partie

s, the court which f

irst acquires jurisdiction acquires exclusive jurisdiction. See Young v. Ki ttrell , 833 S.W .2d 505, 508 (Tenn. Ct. App. 1992); see also Metro. Dev. & Hous. Agency v . Brown Stove Works, Inc. , 637 S.W.2d 876, 878-882 (Tenn. Ct. App. 1982). The exclusive jurisdiction of the first court contin ues until the matters at issue are disposed of and no court of coordinate authority is at liberty to interfere with its action. See Bro wn Stove Works
, 637 S. W.2 d at 878-87 9 (citing American Lava Corp. v. Savena , 476 S.W.2d 639, 640 (Tenn. 1972)). The doctr

ine applies if

(1) two suits involve the identical subje ct matter, (2) the

suits

are be twee n the same parties, (3) the former suit is still pending, and (4) the court in which the former suit is pending is a cour t in the state having jurisdiction over the subject matter and the parties. See Young , 833 S.W.2d at 508-509; see also Brown Stove Works , 637 S.W.2d at 878-879. In Young v. Kittrell

, the court noted:

Jurisdiction is the lawful autho rity of a co

urt to adj udicate a controversy brought before it. This authority consists of two components: Jurisdiction of the parties and jurisdiction of the subject matter. Jurisdiction of the parties is premised on th eir being properly subject to service of process, i.e., to being haled into the giv en court. Jurisdiction of the subject matter relates to the nature of the controversy and the type of relief sough

t.

Id. , 833 S.W.2d at 507 (citations omitted).

In this case, it is undisputed that the Shelby County and C arro ll C oun ty trial courts had general jurisdiction over the subject matter of Hutchings’ claims, see Tenn. Code Ann. § 16-10-101 (1994), and that the original and amende d complaints filed in Shelby County

and Carroll County invol ve d identical subject matters and named the same defendants. It is also undisputed that the original and amended complaints in Shelby County were filed be for e the o riginal and amended complaints

in Carroll County were

filed. Dr. Ray

asserts that the Ca

rroll County trial court obtained exclusive jurisdiction as to Dr. Ray because he was served in the Carroll County suit first. However, Dr. Ray cites no law for the proposition that the doctrine of form

er suit pending is

keyed to time of service for a particula

r defendant. Hutchings filed his amended complaint in Shelby County one day before filing his amended complaint in Carroll County. Consequently, Dr. Ray wa s “subj ect to service of process ” firs t in Shelby County, and the Shelby County trial court obtained exclusive jurisdiction over Dr. Ray. Young , 833 S.W.2d at 507.

D r. Ra y also argues that the Carroll County trial court erred in denying his summary judgmentmotion based on the statute of limitations, asserting that he was added as a defendant after

### -8-

the one-year statute of limitations had elapsed, and that the “savings period” provided by Tennessee Code Annotated § 20-1- 119 does not apply be cause the first Carroll Co

unty lawsuit

was non-suited. This issue is pretermitted by our holding in this case.

In summary, we reject

Dr. Ray’s argument that the Carroll County trial court

had exclusive jurisdiction over Dr. R

ay bas ed on the d

octrine o f former suit pendi

ng. We reverse the Ca

rroll County trial court ’s de nial of Dr. Ray’s motion for summary judgment a nd its acceptance of Hutchings’ Shelby

County case and

remand this case to the Carroll County trial court to determine whether the Shelby

County amended complaint wasintended to supplement the original complaint

or to completely replace it, and whether Dr. Hammond was a defendant in the

Shelby County

suit when the amended complaint was filed.

This case is affirmed

in part, reverse

d in part, and remanded to the circuit court for further proceedings consistent with this Opinion. Costs are a

ssessed equally a

gainst Appellant,

Sidney Ray, M.D., and Appellee, John Herman Hutchings, for which execution may issue if necessary.

HOLLY KIRBY LILL

ARD, J. W. FRANK CRAWFORD, P. J., W.S. DAVID R. FARMER, J.