                IN THE COURT OF APPEALS OF TENNESSEE
                             AT JACKSON
                                 January 26, 2011 Session

  DARRYL SUGGS AS ADMINISTRATOR OF THE ESTATE OF BILLY
    RAY SUGGS v. GALLAWAY HEALTH CARE CENTER, ET AL.

               Direct Appeal from the Circuit Court for Fayette County
                        No. 4757    J. Weber McCraw, Judge


                 No. W2010-01116-COA-R3-CV - Filed April 18, 2011


This appeal arises out of a complaint filed against various healthcare providers. Before the
trial court, Plaintiff filed a motion to consolidate this case with an identical lawsuit he had
filed against the same defendants in another county. The motion to consolidate was denied.
The trial court later dismissed the Plaintiff’s claim against one of the defendant physicians
for improper venue, and the other defendants were dismissed for various reasons not relevant
to this appeal. Plaintiff appeals the dismissal of his claim against the physician for improper
venue, and he argues that the trial court erred in denying his motion to consolidate. We
affirm.


  Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Circuit Court Affirmed

A LAN E. H IGHERS, P.J., W.S., delivered the opinion of the Court, in which D AVID R. F ARMER,
J., and H OLLY M. K IRBY, J., joined.

A. Wilson Wages, Millington, Tennessee, for the appellant, Darryl Suggs

Kevin Baskette, Memphis, Tennessee, for the appellee, Mukesh Jain, M.D.
                                                OPINION

                               I.   F ACTS & P ROCEDURAL H ISTORY

        This case began with the filing of a complaint in Fayette County Circuit Court by
Darryl Suggs, as Administrator of the Estate of Billy Ray Suggs, deceased. Plaintiff Darryl
Suggs named as defendants two nursing homes, one hospital, two medical doctors, and three
“Jane Doe” defendants, who were nurses or other healthcare providers at the defendant
facilities. According to Plaintiff’s complaint, the Decedent, Billy Ray Suggs, had initially
been admitted to a defendant nursing home located in Shelby County, then he was transferred
to the defendant hospital, also in Shelby County, and finally, he was transferred to the other
defendant nursing home, located in Fayette County. He alleged that the Decedent received
improper care at each of these facilities.

       On the same day that Plaintiff filed this action in Fayette County Circuit Court, he
filed a virtually identical complaint in Shelby County Circuit Court against the same
defendants.1 In the Fayette County suit, Plaintiff filed a “Motion for Consolidation,”
requesting that the court enter “an Order, pursuant to Rule 42.01, consolidating Fayette
County Circuit Court Civil Action No. 4757 with Shelby County Circuit Court Civil Action
No. Ct-000179-06, Div. V[.]” Plaintiff claimed that he had filed lawsuits in both counties
against the same defendants “to protect Plaintiff’s rights.” The trial court denied Plaintiff’s
motion for consolidation.

       All of the defendants were eventually dismissed from the Fayette County lawsuit for
various reasons by various orders. However, Plaintiff appealed only from the trial court’s
order granting a dismissal as to one of the defendants: Dr. Mukesh Jain. Plaintiff’s claim
against Dr. Jain was dismissed for improper venue.

       Dr. Jain is a resident of Shelby County, and he is the medical director of the defendant
nursing home that is located in Shelby County. Dr. Jain allegedly cared for the Decedent
during his stay at the nursing home in Shelby County. According to the complaint, Plaintiff
Darryl Suggs, the Administrator of the Decedent’s estate, is a resident of Shelby County. In
addition, the complaint states that the Decedent “was at all times relevant herein, a resident
of Shelby County[.]” The Fayette County Circuit Court granted Dr. Jain’s motion to dismiss
for improper venue upon concluding that “Shelby County is the only proper venue for the
action against [Dr. Jain]” pursuant to Tennessee Code Annotated section 20-4-101(b).



        1
         This appeal arises out of the Fayette County proceedings, and the record before us is limited to that
produced in the Fayette County case.

                                                     -2-
                                  II.    I SSUES P RESENTED

       Plaintiff presents the following issues, slightly restated, for review:

1.     Whether the trial court erred in denying Plaintiff’s motion to consolidate; and
2.     Whether the trial court erred in granting Dr. Jain’s motion to dismiss for improper
       venue.

For the following reasons, we affirm the decision of the circuit court.

                               III.     S TANDARD OF R EVIEW

       We review a trial court’s conclusions of law under a de novo standard upon the record
with no presumption of correctness. Union Carbide Corp. v. Huddleston, 854 S.W.2d 87,
91 (Tenn. 1993) (citing Estate of Adkins v. White Consol. Indus., Inc., 788 S.W.2d 815, 817
(Tenn. Ct. App. 1989)).

                                        IV.   D ISCUSSION

                          A.    Plaintiff’s Motion to Consolidate

       On appeal, Plaintiff argues that the trial court erred in denying his “Motion for
Consolidation,” in which he requested that the court enter “an Order, pursuant to Rule 42.01,
consolidating Fayette County Circuit Court Civil Action No. 4757 with Shelby County
Circuit Court Civil Action No. Ct-000179-06, Div. V[.]” Tennessee Rule of Civil Procedure
42.01 provides:

       When actions involving a common question of law or fact are pending before
       a court, the court may order all the actions consolidated or heard jointly, and
       may make such orders concerning proceedings therein as may tend to avoid
       unnecessary costs or delay.

“Consolidation of separate actions under Tenn. R. Civ. P. 42.01 does not create one action
or make those who are parties in one suit parties in the other. Consolidation simply allows
a single trial of common issues and permits joint discovery for purposes of judicial
economy.” McMillin v. Cracker Barrel Old Country Store, Inc., No. E2008-00342-COA-
R3-CV, 2009 WL 749214, at *3 (Tenn. Ct. App. Mar. 23, 2009) (citing City of Johnsonville
v. Handley, No. M2003-00549-COA-R3-CV, 2005 WL 1981810 at *9 (Tenn. Ct. App. Aug.
16, 2005), Webb v. Poynter, No. 02A01-9707-CV-00168, 1999 WL 145257 at *4 (Tenn. Ct.
App. Mar. 18, 1999); Robert Banks, Jr. & June F. Entman, Tennessee Civil Procedure §

                                               -3-
6-12(b) (1999); Tenn. R. Civ. P. 42.01).

       “By its own terms, T.R.C.P. 42.01 requires both actions to be pending before the court
ordering consolidation.” Quarry v. Quarry, No. 02A01-9111-CH-00262, 1992 WL 141796,
at *7 (Tenn. Ct. App. W.S. Jun. 25, 1992); see Tenn. R. Civ. P. 42.01 (“When actions
involving a common question of law or fact are pending before a court . . . .) (emphasis
added). In Quarry, this Court considered whether it was proper for a chancery court to enter
an order consolidating the case before it with a case pending in general sessions court. Id.
We vacated the trial court’s order consolidating the two cases, stating, “our research has
revealed no cases involving the consolidation of actions pending before different courts.”
Id. Similarly, in Van Zandt v. Dance, 827 S.W.2d 785, 786 (Tenn. Ct. App. 1991), this
Court explained that a judge had no authority to consolidate a case pending before him with
one pending in another court. The judge only had jurisdiction over the case before him. Id.

        Keeping these principles in mind, we find that the trial judge did not err in denying
Plaintiff’s motion to consolidate the Shelby County suit with the Fayette County action.

                                B.    Dismissal for Improper Venue

        “Tennessee’s venue rules are largely statutory and are intended to provide the criteria
for determining where a lawsuit may or should be filed.” Mays v. Henderson, No. 01-A-
019103-CV-00115, 1992 WL 117058, at *2 (Tenn. Ct. App. M.S. Jun. 3, 1992) (citing
Metro. Dev. & Hous. Agency v. Brown Stove Works, Inc., 637 S.W.2d 876, 880 (Tenn. Ct.
App. 1982)). “They provide a defendant a personal privilege to be sued in the particular
county or counties designated by statute.” Id. (citing Turpin v. Conner Bros. Excavating Co.,
761 S.W.2d 296, 297 (Tenn. 1988); Corby v. Matthews, 541 S.W.2d 789, 791 (Tenn. 1976)).
When venue is possible in only one county, the localization of venue creates subject matter
jurisdiction restrictions. Pack v. Ross, 288 S.W.3d 870, 873 (Tenn. Ct. App. 2008). “‘[T]he
Courts of our State have no jurisdiction of local actions brought in the wrong county[.]’” Id.
(quoting Curtis v. Garrison, 364 S.W.2d 933, 936 (Tenn. 1963)).

      Tennessee Code Annotated section 20-4-101 addresses transitory actions 2 and
provides, in relevant part:

        (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


        2
           “A transitory cause of action is one that could have occurred anywhere.” Mays, 1992 WL 117058,
at *2 n.1 (citing Curtis, 364 S.W.2d at 934). Thus, a personal injury action is considered a transitory cause
of action. Id.

                                                    -4-
        cause of action arose or in the county where the defendant resides or is found.

        (b) If, however, the plaintiff and defendant both reside in the same county in
        this state, then the action shall be brought either in the county where the cause
        of action arose or in the county of their residence.

Thus, pursuant to subsection (b), “Tennessee’s common county rule limits venue in transitory
actions if ‘the plaintiff and defendant both reside in the same county in this state.’” 3
Freeman v. CSX Transp., Inc., No. M2009-02403-COA-R3-CV, 2010 WL 4366080, at *3
(Tenn. Ct. App. Nov. 3, 2010) (quoting Tenn. Code Ann. § 20-4-101(b)). “If that is the case,
then ‘the action shall be brought either in the county where the cause of action arose or in the
county of their residence.’” Id. (quoting Tenn. Code Ann. § 20-4-101(b)). The language of
subsection (b) is mandatory. Mills v. Wong, 39 S.W.3d 188, 190 (Tenn. Ct. App. 2000).

       Here, the complaint states that Plaintiff Darryl Suggs, the Administrator of the
Decedent’s estate, is a resident of Shelby County.4 Dr. Jain, who is a material defendant, is
also a resident of Shelby County. Because “the plaintiff and defendant both reside in the
same county in this state, . . . the action shall be brought either in the county where the cause
of action arose or in the county of their residence.” Tenn. Code Ann. § 20-4-101(b). The
cause of action against Dr. Jain arises out of medical treatment provided in Shelby County.
Consequently, Tennessee Code Annotated section 20-4-101(b) localizes venue in only one
county: Shelby County. See Pack, 288 S.W.3d at 873. Thus, we affirm the trial court’s
conclusion that venue for this action did not lie in Fayette County, and the claim against Dr.
Jain was properly dismissed.5


        3
          Although subsection (b) does not expressly address situations involving multiple parties, “‘our
Supreme Court has applied it in cases where the plaintiff and one of several defendants reside in the same
county and the cause of action arose there.’” Freeman, 2010 WL 4366080, at *4 (quoting Winters v.
Healthtrust, Inc., 836 S.W.2d 584, 585 (Tenn. Ct. App. 1992)). Thus, the common county rule applies “in
cases involving multiple defendants if the plaintiff and at least one material defendant reside in the same
county and that county is where the cause of action accrued.” Id. (citing Tims v. Carter, 241 S.W.2d 501,
503 (Tenn. 1951); Ward v. Nat’l Healthcare Corp., No. M2007-00231-COA-R9-CV, 2007 WL 3446340, at
*2 (Tenn. Ct. App. Nov. 15, 2007); Winters, 836 S.W.2d at 585).
        4
          The complaint also stated that the Decedent was at all times relevant a resident of Shelby County.
However, “[r]esidence, as a venue influencing criterion, refers not to [one's] residence when the cause of
action occurs but rather to [one's] residence when the plaintiff files suit.” Mays, 1992 WL 117058, at *2
(citing Northcott v. Holloway, 464 S.W.2d 551, 553 (Tenn. 1971)).
        5
          We note that Plaintiff did not argue before the trial court or on appeal that transfer was proper
pursuant to Tennessee Code Annotated section 16-1-116. Transfers under this statute are discretionary,
                                                                                              (continued...)

                                                    -5-
                                           V.    C ONCLUSION

        For the aforementioned reasons, we affirm the decision of the circuit court. The court
did not err in denying Plaintiff’s motion to consolidate. In addition, because the plaintiff and
a material defendant, Dr. Jain, reside in Shelby County, and the cause of action arose in
Shelby County, it is mandatory that the action be maintained in a court of competent
jurisdiction in Shelby County. Costs of this appeal are taxed to the appellant, Darryl Suggs,
Administrator of the Estate of Billy Ray Suggs, and his surety, for which execution may issue
if necessary.

                                                          _________________________________
                                                          ALAN E. HIGHERS, P.J., W.S.




        5
        (...continued)
Pack, 288 S.W.3d at 874, and we will not find the trial court in error for failing to grant a motion that was
never made.

                                                    -6-
