                     IN THE COURT OF APPEALS OF TENNESSEE
                                  AT NASHVILLE
                  ______________________________________________

VANDERBILT UNIVERSITY                                 Davidson Chancery No. 96-2566-I
MEDICAL CENTER,

       Plaintiff-Appellee,
                                 FILED                The Honorable Irvin H. Kilcrease,
                                                      Jr., Chancellor

                                    March 9, 1999 C.A. No. A01-9712-CH-00707
Vs.                                               REVERSED AND DISMISSED
                     Cecil Crowson, Jr.
THE COUNTY OF MACON,
                   Appellate Court Clerk B. Ingelson of Nashville
                                      John
LAFAYETTE, TENNESSEE,                 For Plaintiff-Appellee

       Defendant-Appellant,          James D. White of Celina
                                           for Defendant-Appellant
____________________________________________________________________________

TOMLIN, Sp. J.


       Vanderbilt University Medical Center (“Vanderbilt”) filed suit in the Chancery Court of

Davidson County against Macon County (“County”) seeking a judgment against County in the

amount of $20,671.95 for medical services rendered by Vanderbilt in Nashville to an inmate who

had been in the custody of County and who had been brought to Vanderbilt for treatment. Both

Vanderbilt and County filed motions for summary judgment, supported by affidavit or affidavits.

Following a hearing, the chancellor denied County’s summary judgment motion and granted

summary judgment in favor of Vanderbilt. On appeal, County has raised two issues which are

as follows:

               1. Did the trial court err in ruling that venue was proper in
               Davidson County;

               2. In granting Vanderbilt’s motion for summary judgment.

       For the reasons hereinafter stated, we are of the opinion that the action of this Court in

regard to County’s first issue is dispositive of this litigation, and thus we are not compelled to

dispose of County’s second issue. As for County’s first issue, in its answer to Vanderbilt’s

complaint, County contended that the venue of this suit in Davidson County is improper and that

if Vanderbilt had a cause of action, venue would lie in Macon County. For the reasons

hereinafter set forth, we agree, and accordingly dismiss Vanderbilt’s suit against County.

       The basic facts are all that we need. One, James Denkoff(sp) was a prisoner in the

Macon County jail in LaFayette. While a prisoner, he suffered injuries of a serious nature that

resulted in his being transported from jail to the Macon County General Hospital for treatment.

Because of the severity of his injuries, he was later moved by helicopter to Vanderbilt University
Medical Center. He died two days later, after incurring medical expenses in the amount of

$20,671.95. Subsequently, Vanderbilt filed a complaint for a debt based upon sworn account

in the Chancery Court of Davidson County. In its answer, County contended that venue did not

lie in Davidson County.

        Following a bench trial, the chancellor rendered judgment in favor of Vanderbilt against

County. The chancellor ruled on the defense of improper venue as follows:

                      Venue is proper in Nashville, Davidson County,
               Tennessee, due to the fact that the treatment was rendered in
               Davidson County, Tennessee, and the debt was incurred and due
               in Davidson County, Tennessee.

        As we have already noted, the dispositive issue is whether or not the chancellor erred in

so ruling.

        Long ago, the courts of this state recognized that counties were public corporations,

invested by positive law with express powers essential to their existence. Tennessee Code

(1858), §§ 402-403; H. C. Beck v. Puckett, County Judge, et al, 2 Tenn. Cases 490, 2 Shannons

490 (1877).

        Stated another way, the heart of this issue is whether or not the action brought by

Vanderbilt against County was a transitory or local action. One of the early cases in our state

addressing this issue is that of Mayor, etc., of Nashville v. Webb, et al, 85 S.W. 404 (Tenn.

1905). The facts were these: The complaint in Webb was filed in Davidson County to enjoin the

execution of a judgment rendered against the City of Nashville in the Circuit Court of Wilson

County. Previously, Webb had filed suit in the Circuit Court of Wilson County against two

railroads and the City of Nashville. One railroad was served with process at its local office in

Wilson County with the counter-part being issued to Davidson County for the other two

defendants. The mayor of the City of Nashville was served in this fashion. Nashville did not

make an appearance or defense to the suit resulting in a default judgment against it in favor of

Webb.

        Following the judgment, execution was issued to Davidson County. While in the hands

of the Davidson County Sheriff it was enjoined by the complaint in this cause. In support of the

injunction, counsel for Nashville insisted that the Circuit Court of Wilson County acquired no

jurisdiction by the service of the counter-part writ above referred to, thus the judgment was void.



                                                2
This conclusion was reached by the Chancery Court of Davidson County and also by the court

of chancery appeals.

       In affirming two courts, our Supreme Court stated:

                        It is true, there is no statute which makes an action
               brought against a municipal corporation a local action: nor could
               there ever be a necessity for such statute. Actions may be made
               by statute either transitory or local. Transitory actions are such
               as are said to follow the person of the defendant wherever he may
               be found. Carlisle v. Cowan, 85 Tenn. 165, 2 S.W. 26. Such, in
               general, are personal actions. Actions concerning realty may be
               regarded in a sense as personal, inasmuch as the title thereto rests
               in the owner, whoever he may be, yet, in obedience to a wise
               public policy, such actions are usually made local by statute. But
               actions against municipal corporations are inherently local. These
               bodies cannot change their situs or their place of abode. They
               cannot remove from one place to another, and sojourn for a time
               at this point or that. They remain stationary; hence they must be
               sued where they are found - that is, in the county of their location.
               It is a misnomer, a misapplication of terms, to speak of an action
               against such a body as transitory, no matter what the ground may
               be on which the right of action rests. Such actions are not only
               inherently local, but it is of the greatest importance to the welfare
               of such bodies, and of the citizens whom they serve, that their
               officers should be permitted to remain at home and discharge
               their public duties, instead of being called hither and thither over
               different parts of the state to attend litigation brought against the
               city through the agency of counterpart writs. (citations omitted).

Id. at 405.

        The Court noted that defendant’s counsel contended that service was properly had upon

Nashville pursuant to the provisions of § 4526 of Shannon’s Code which provided in substance

that where there were two or more defendants in a suit, plaintiff could cause counterpart

summons to be issued in any county where any of the defendants were likely to found, with

counterpart process issuing in the same suit. When returned, the case should be docketed as if

only one process had been issued.

        To this argument, the Court stated:

                       It needs no argument to show that section 4526 has no
               application to local actions. It is perfectly obvious that a local
               action could not be turned into a transitory one, or one in effect
               transitory, by the device of uniting another person in the action,
               and by serving process on that person in the county in which it
               was desired to begin the litigation, and then issuing a counterpart
               writ to the locality of a defendant who could not otherwise be
               affected, save by an action brought in the latter county. Actions
               are either transitory or local, and their nature cannot be changed
               by the form of the process used to institute them.

Id. at 405.


                                                3
        In Piercy v. Johnson City, 169 S.W. 765 (Tenn. 1914), plaintiff filed suit against Johnson

City in the Circuit Court of Unicoi County seeking damages to his lands located in Unicoi

County. City defended on the ground that it was not subject to be sued out of the county of its

situs. The circuit court agreed and dismissed the suit. The circuit court’s judgment was reversed

by the court of civil appeals. In reversing the court of civil appeals, the Supreme Court said in

part:

                       While it must be admitted that it is held in a great majority
               of English and American cases that an action for damages to real
               property is local, that doctrine was established over the opinion
               of Lord Mansfield to the contrary (Mostyne v. Fabrigas, Cowp.,
               161) and the views of Chief Justice Marshall in Livingston v.
               Jefferson, 1 Brock, 203, Fed. Cas. No. 8,411. In arguing against
               the soundness of the rule Chief Justice Marshall there said
               touching the lack of reason to support it: “I have yet to discern a
               reason other than a technical one which can satisfy my
               judgment.”

Id. at 766.

        The Piercy Court then concluded that its ruling was based on public policy.

        In Putnam County v. White County, 203 S.W. 334 (Tenn. 1918), the controversy in this

litigation evolved over a boundary dispute between Putnam County and White County. The suit

was filed in Putnam County. The chancellor’s decree was not satisfactory to either party, and

both parties appealed. In considering the issue relevant to the issue in the case herein under

consideration, the Supreme Court stated:

                      White County demurred to the original bill filed by
               Putnam County in the chancery court of Putnam County on the
               ground that a municipal corporation such as White county could
               only be sued in the county in which it was located. Such is the
               general rule. Peircy v. Johnson City, 130 Tenn. 231, 169 S.W.
               765, L.R. A. 1915F, 1029; Nashville v. Webb, 114 Tenn. 432, 85
               S.W. 404, 4 Ann. Cas. 1169.

                       An apparent exception is made to this rule in the case of
               a suit by one county to recover disputed territory from an
               adjoining county or to prevent an encroachment under an invalid
               statute. Such suits have uniformly been brought and entertained
               in the courts of the complaining county. (citations omitted).

Id. at 337.

        Based upon the practice established by the above-noted cases, the court resolved this

assignment of error in favor of Putnam County.

        Courts from other jurisdictions have likewise recognized that, absent compelling



                                                4
circumstances, a suit against a county must be brought in that county. In Babylon Assoc. v.

County of Suffolk, App. Div., 454 N.W.2d 713 (1992), Babylon sued Suffolk for breach of

contract in New York County, where Babylon had their principal place of business. This was

done, notwithstanding the existence of a New York statute, CPLR No. 504, which provides that

a county must only be sued in that county. The Babylon court noted that “the purpose of the

venue requirement of CPLR § 504, Subd. 1, is to protect a county and its officials from

inconvenience. In the absence of compelling circumstances, venue should remain in the county

that is sued.”

        While the court noted that under New York law if it is shown that an impartial trial might

not be had in a particular county, then a court has discretion to change venue under another

statute. The New York Supreme Court held that Babylon failed to show that an impartial trial

could not be had in Suffolk, thereby reversing the order of the trial court and transferring venue

to Suffolk. While the issue in Babylon involved a state statute, nonetheless, it reflects that the

rationale of such a ruling, be it statute or common law, is the same.

        While one might contend that the term “municipality” would apply only to a city and not

to a county, the case law of this state reveals that in our statutes and in our common law

treatment of this issue the terms “county,” “municipality,” and “city” are treated alike as far as

the localization of the causes of action. In Chapman v. Sullivan County, 608 S.W.2d 580

(Tenn. 1980), the issue presented there involved the construction of the term “municipality” as

it appears in T.C.A. § 23-3314, better known as the Governmental Tort Liability Act. In the first

paragraph of § 23-3314, the statute refers to “a claim against governmental entity . . . .” In the

second paragraph of the same section, the statute refers to an incident “where the municipality

has been reasonably apprised of the occurrence of the incident. . . .” Sullivan County moved for

summary judgment, because plaintiff had failed to file notice with the chief administrative office

of the county within 120 days as required by the first paragraph of the aforesaid statute. Both

the trial court and the Court of Appeals held that plaintiff could not rely upon the second

paragraph of the statute, holding that since the word “county” is not synonymous with the word

“municipality,” paragraph two did not apply to Sullivan County. In reversing the Court of

Appeals, the Supreme Court found that there is not an ordinary meaning for this term. It stated:

                       We find it significant that the term “municipality” is


                                                5
               defined differently in different parts of the Code. In some places
               the legislation’s definition coincides with Webster’s and that it is
               confined to cities or towns (citations omitted). In other parts of
               the Code, “municipality” is defined so as to include counties as
               well. (citations omitted). As used in this statute, then, it cannot
               be said that the legislature intended one or the other of these
               definitions to apply. Even if we were to assume that there is an
               ordinary meaning of this term, it is clear that when used in our
               Code it means different things in different context.

Chapman at 582.

       The Court then turned to the legislative history of the statute for guidance. It noted “that

the act was passed in an attempt to avoid the confusion experienced by states that had judicially

revoked the doctrine of sovereign immunity. It was intended to apply to uniformly to cities and

counties, but not to the State of Tennessee.” Id.

       The Court then concluded that the term “municipality” as used in the second paragraph

of § 23-3314 includes all governmental entities covered by the Act.

       A case very nearly in point is that of O’Neal v. DeKalb County, 531 S.W.2d 296 (Tenn.

1975). In O’Neal, a resident of Hamilton County filed suit in the Circuit Court of that county

against DeKalb County, the county sheriff, deputy sheriff, and surety on personal bonds of the

sheriff and deputy for false arrest, false imprisonment, battery, and outrageous conduct. The

gravamen of the action is that a deputy sheriff of DeKalb County arrested plaintiff, a resident of

Hamilton County, in Hamilton County under an arrest warrant issued for another named party.

It was further alleged that the deputy acted under color of office, in the scope of his employment

by the sheriff of DeKalb County, and that defendant, Aetna Insurance, was the surety upon the

personal bonds of the deputy and the sheriff for any wrongs, etc., committed by the deputy.

       The trial court sustained the motion to dismiss of defendant, Aetna, pursuant to the

provisions of T.C.A. § 56-1412, holding that the venue provisions thereof were mandatory and

that “venue in an action against a foreign corporation as surety on a county official’s bond, is

exclusively in the county where the bond was made.”

       The Supreme Court applied the following rationale in considering the motion of

defendant DeKalb County:

                      The trial court sustained the motion to dismiss filed by
               defendant DeKalb County on the basis of the common-law rule
               that venue in actions against counties and municipalities lies
               exclusively in the county which is the situs of the defendant
               governmental entity. See Nashville v. Webb, 114 Tenn. 432, 85


                                                6
S.W. 805 (1904). Plaintiff argues that this common-law rule has
been changed by statute in Tennessee. Specifically, plaintiff
insists that Tennessee Code Annotated Sections 8--833 and
20--401 support the proposition that venue in this action is
properly in Hamilton County where the cause of action arose.
Section 8--833 provides as follows:

               'Anyone incurring any wrong,
               injury, loss, damage or expense
               resulting from any act or failure to
               act on the part of any deputy
               appointed by the sheriff may bring
               suit against the county in which
               the sheriff serves; provided that
               the deputy is, at the time of such
               occurrence, acting by virtue of, or
               under color of his office.'

       Section 20--401 provides in pertinent part as follows:

               '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 defendant
               resides or is found. . . .' (Emphasis
               added.)

        Plaintiff argues that since her complaint alleges a
transitory cause of action (false arrest, false imprisonment,
battery, and outrageous conduct) and since a specific venue
provision is not included in section 8--833, the general venue
provisions of section 20--401 allow this suit to be brought in
Hamilton County where the cause of action arose.

        We cannot accept this argument since the failure to
include a specific venue provision in section 8--833 does not
necessarily indicate a legislative intent to depart from the
common-law rule that counties and municipalities may be sued
only in the county of their situs regardless of the nature of the
cause of action. Section 8--833 sanctions suits against counties
for the misconduct of deputies represents a waiver of
governmental immunity. See Tennessee Code Annotated Section
8--834. Thus, section 8--833 is analogous to the more
comprehensive provisions of the Governmental Tort Liability
Act, Tennessee Code Annotated Sections 23--3301 to 3331. In
actions brought pursuant to that act, venue lies exclusively in the
county which is the situs of the defendant governmental entity.
Tennessee Code Annotated Section 23--3320. This provision
represents the legislature's specific adoption of the common-law
rule of venue with respect to a county or a municipality. To
accept plaintiff's argument would thus establish two separate
venue rules applicable to actions brought against counties. In
actions for the misconduct of deputies under section 8--833, the
application of the general venue provisions of section 20--401
would allow proper venue in any county in which the cause of
action arises or where defendant resides or is found. On the other
hand, in actions for negligence brought under the provisions of


                                7
               the Governmental Tort Liability Act, section 23--3320 would fix
               venue exclusively in the defendant county. We do not discern
               any significant distinction between the two types of actions which
               warrants the application of different rules of venue.

                       While we recognize that the rule localizing suits against
               a county is judicial rather than legislative in origin, the legislature
               has now adopted that rule in actions against a county from which
               the Governmental Tort Liability Act has removed the defense of
               governmental immunity. Accordingly, we are constrained to
               avoid a construction of Tennessee Code Annotated Section
               8--833, itself a limited revocation of governmental immunity,
               which would result in the application of inconsistent rules of
               venue in actions brought against a county. We hold therefore that
               in suits against a county for the misconduct of deputies under
               Tennessee Code Annotated Section 8--833 the common-law rule
               applies to fix venue exclusively in the situs of the defendant
               county. We therefore affirm the trial court's dismissal as to
               defendant DeKalb County on the ground of improper venue.

       For the above reasons, this Court is of the opinion that the chancellor was in error in

finding that Davidson County was the proper venue and not ruling that plaintiff’s complaint

should have been filed in Macon County. Inasmuch as the judgment obtained in the wrong

county is void, and inasmuch as our ruling as to this issue results in a dismissal of Vanderbilt’s

suit, we pretermit the second issue raised by Macon.

       The judgment of the chancellor is reversed, and the complaint is dismissed. Costs of this

cause on appeal are taxed to Vanderbilt, for which execution may issue, if necessary. This cause

in remanded to the Chancery Court of Davidson County for such other proceedings as may be

necessary.

                                                        __________________________________
                                                        HEWITT P. TOMLIN, JR.
                                                        SPECIAL JUDGE

CONCUR:


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

__________________________________
DAVID R. FARMER, JUDGE




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