                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                                    February 19, 2004 Session

           KAREN THOMAS v. ROBERT D. MAYFIELD, M.D., ET AL.

                       Appeal from the Circuit Court for Montgomery County
                             No. C13-175      James E. Walton, Judge



                      No. M2000-02533-COA-R3-CV - Filed April 27, 2004


This appeal challenges the trial court’s dismissal of the Plaintiff’s action, re-filed after the expiration
of the initial statutory period of limitation. We affirm the trial court and deny Appellant’s Motion
for Transfer pursuant to Tennessee Code Annotated section 16-1-116.

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

WILLIAM B. CAIN , J., delivered the opinion of the court, in which PATRICIA J. COTTRELL, and FRANK
G. CLEMENT , JR., JJ., joined.

Donna Keene Holt, Knoxville, Tennessee, for the appellant, Karen Thomas.

Daniel Lynch Nolan, Jr., Jason Matthew Miller, Clarksville, Tennessee, for the appellee, Robert D.
Mayfield, MD, Robert D. Mayfield, MD, PC.

                                               OPINION

        This appeal results from a medical malpractice claim originally filed in Cumberland County,
Tennessee in 1993. The suit remained pending in Cumberland County Circuit Court until July of
1997 when the plaintiff voluntarily nonsuited the claim. Pursuant to Tennessee Code Annotated
section 28-1-105, the plaintiff had one year from the nonsuit to refile before the cause was time-
barred. On the last day of the statutory period, July 1, 1998, the plaintiff filed suit in Montgomery
County Circuit Court alleging the same previously nonsuited cause of action against Robert D.
Mayfield, M.D. and Robert D. Mayfield, M.D., P.C. At the time the suit was refiled, Dr. Mayfield’s
practice had relocated to Erin, Tennessee in Houston County. The defendants filed a Motion to
Dismiss for Improper Venue and answered, relying on improper venue. The trial court granted the
motion on June 18, 1999.
       The plaintiff filed motions to alter or amend and for additional factual findings which
motions were denied by the trial court by order entered June 12, 2000.1 The plaintiff filed her notice
of appeal on October 9, 2000. Thirty-seven months after filing her notice of appeal Appellant, on
November 3, 2003, filed her “Motion for Remand with Directions to Transfer” seeking to have this
Court remand the case to the trial court with orders to transfer the case to the Circuit Court of
Cumberland County pursuant to Tennessee Code Annotated section 16-1-116 (Supp. 2000).

        This statute, effective May 23, 2000, was apparently passed in response to the invitation of
the supreme court in Norton v. Everhart, 895 S.W.2d 317 (Tenn. 1995); see Hawkins v. Dep’t of
Corrections, 127 S.W.3d 749 (Tenn.Ct.App. 2002). Both Norton and Hawkins were cases involving
lack of subject matter jurisdiction. In Norton, plaintiff had filed a pro se petition for writ of habeas
corpus in the Morgan County Criminal Court. Subject matter jurisdiction of cases seeking to review
the actions of a state agency is localized in the courts of Davidson County. Tennessee Real Estate
Comm’n v. Potts, 428 S.W.2d 794 (Tenn. 1968). Norton held that no power existed in the Circuit
Court of Morgan County to transfer the case to Davidson County. Hawkins involved a petition for
writ of certiorari filed by an inmate of the West Tennessee State Penitentiary at Henning with the
petition being filed in the Davidson County Circuit Court. The petition was dismissed by the Circuit
Court of Davidson County for lack of subject matter jurisdiction under Tennessee Code Annotated
section 41-21-801, et seq. with this Court affirming the action of the trial court on the basis that
section 41-21-801 effectively localized transitory actions filed by state prisoners to the county in
which the prison facility was located. Since Mr. Hawkins had filed his petition on November 8,
2000, subsequent to the effective date of Tennessee Code Annotated section 16-1-116, this Court
chose to remand the case to the Circuit Court of Davidson County with instructions to transfer it to
the appropriate court in the county in which the West Tennessee State Penitentiary was located.

         Tennessee Code Annotated section 16-1-116 provides:

                  Transfer of actions or appeals. -Notwithstanding any other provision
                  of law or rule of court to the contrary, when an original civil action,
                  an appeal from the judgment of a court of general sessions, or a
                  petition for review of a final decision in a contested case under the
                  Uniform Administrative Procedures Act, compiled in title 4, chapter
                  5, is filed in a state or county court of record or a general sessions
                  court and such court determines that it lacks jurisdiction, the court
                  shall, if it is in the interest of justice, transfer such action or appeal to
                  any other such court in which the action or appeal could have been
                  brought at the time it was originally filed. Upon such a transfer, the
                  action or appeal shall proceed as if it had been originally filed in the
                  court to which it is transferred on the date upon which it was actually
                  filed in the court from which it was transferred.


         1
           The trial court rendered an opinion on May 12, 2000 requesting the defendant to draft the final order. That
order was entered on June 12.

                                                         -2-
Tenn.Code Ann. § 16-1-116 (Supp. 2000).

        The statute does not distinguish between subject matter jurisdiction, in personam jurisdiction,
and venue. In cases where venue has been localized in a particular county, the courts of Tennessee
have long held that venue and subject matter jurisdiction are synonymous. Inter-Southern Life Ins.
Co. v. Pierce, 161 Tenn. 346, 31 S.W.2d 692 (1930); Nashville v. Webb, 114 Tenn. 432, 85 S.W. 404
(1905); Curtis v. Garrison, 364 S.W.2d 933 (Tenn. 1963); Norton v. Everhart, 895 S.W.2d 317
(Tenn. 1995).

        In general terms, our courts have maintained the clear distinction between subject matter
jurisdiction, jurisdiction of the person and venue. See Meighan v. U.S. Sprint Communications Co.,
924 S.W.2d 632 639 (Tenn. 1996); Davis v. Mitchell, 178 S.W.2d 889, 900 (Tenn.Ct.App. 1943).

        Whether or not, in this case involving a transitory action not localized, the word
“jurisdiction,” as used in Tennessee Code Annotated section 16-1-116, is construed to mean both
in personam jurisdiction and venue, is not necessary to a decision in this case though the separate
nature of in personam jurisdiction as opposed to venue is very much alive and well. See Leroy v.
Great Western United Corp., 443 U.S. 173, 61 L.Ed.2d 464, 99 S.Ct. 2710 (U.S. 1979).

        In this case, despite the fact that Tennessee Code Annotated section 16-1-116 became
effective while this case was still in the bosom of the trial court,2 no effort was ever made by
Appellant to bring the statute to the attention of the trial court prior to filing of the notice of appeal
on October 9, 2000 and, indeed, the statute is not relied upon by Appellant until the filing in this
Court of her “Motion for Remand with Direction to Transfer” on November 3, 2003. The motion
seeks transfer of the case to the Circuit Court of Cumberland County which, by the very allegations
of the complaint, does not have venue since, on July 1, 1998, Robert D. Mayfield was admittedly not
a resident of Cumberland County, Tennessee and, indeed, alleged by the complaint to be a resident
of Montgomery County, Tennessee. This case was, for all practical purposes, concluded in the trial
court before section 16-1-116 was enacted. No reason is evidenced by this record as to why the
matter was not timely brought to the attention of the trial court which had the primary responsibility
under Tennessee Code Annotated section 16-1-116 to determine whether or not any transfer would
be “in the interest of justice” to be allowed to make such determination. Finally, the motion
belatedly filed in this Court does not seek transfer to Houston County, where Dr. Mayfield insists
that he resided on July 1, 1998, but rather seeks a transfer to Cumberland County, the one place in
which venue cannot lie under the very allegations of the complaint.

       If Tennessee Code Annotated section 16-1-116 were otherwise applicable under the time
sequence in this case, Appellant has effectively waived her right to rely on the statute. Tenn. R. App.
P. 36.



        2
          The trial court had pronounced its judgment on May 12, 2000, but same was not entered until June 12, 2000.
Tennessee Code Annotated section 16-1-116 became effective May 23, 2000.

                                                        -3-
        The motion to remand is respectfully denied.

        We must now determine whether or not the trial court erred in granting Appellee’s Motion
to Dismiss because of improper venue. Venue generally is governed by Tennessee Code Annotated
section 20-4-101, et seq. Appellant asserts venue based on the alternative assertions that:

1.      At the time of filing suit in Montgomery County on July 1, 1998, Defendant was in fact a
        resident of Montgomery County.
2.      That if Defendant was not in fact a resident of Montgomery County, Tennessee on July 1,
        1998, he was in fact “found” in Montgomery County, Tennessee at the time process was
        alleged to have been personally served upon Robert D. Mayfield on July 24, 1998.

      Defendants, by both answer and Tenn. R. Civ. P. Rule 12.02(3) motion, challenge venue in
Montgomery County.

        It is first necessary to settle the standards to be applied in the trial court and on appeal when
disposing of a Tennessee Rule of Civil Procedure 12.02(3) motion challenging venue. We start with
the observation that a Rule 12.02(3) motion, unlike a Rule 12.02(6) motion to dismiss for failure to
state a claim upon which relief can be granted, is not converted into a Tennessee Rule of Civil
Procedure rule 56 motion by the receipt of extraneous evidence. McKinney v. Widner, 746 S.W.2d
699 (Tenn.Ct.App. 1987). While authority in Tennessee is sparse relative to this matter, Tennessee
Rule of Civil Procedure 12.02(3) and Federal Rule of Civil Procedure 12(b)(1) are identical, thus
making federal law persuasive in construing the Tennessee rule. Gamble v. HCA, 676 S.W.2d 340,
341 note 1 (Tenn.Ct.App. 1984); March v. Levine, 115 S.W.3d 892 (Tenn.Ct.App. 2003).

       Two federal opinions are enlightening. First is Osburn v. U.S., 918 F.2d 724 (8th Cir. 1990).
This was a case involving subject matter jurisdiction in which the court on appeal held:

        Arguing that the court lacked subject matter jurisdiction, the government moved for
        summary judgment under Fed.R.Civ.P. 56 and so captioned its motion. In supporting
        exhibits and memoranda, the government urged that the statute of limitations barred
        the Osburns’ claim. On appeal the government renewed, with the Osburns’
        concurrence, its argument that summary judgment standards should be applied to the
        review of the district court’s decision.
                 The district court rejected the government’s characterization of its motion and
        explicitly treated the motion as one to dismiss for lack of subject matter jurisdiction
        under Fed.R.Civ.P. 12(b)(1). 713 F.Supp. At 341 n. 2. The court did not restrict
        itself to deciding whether or not the jurisdictional issue presented a question for the
        trier of fact. Rather, the court carefully considered the whole record, consisting of
        numerous depositions and exhibits, then decided by a preponderance of the evidence
        that the Osburns’ claim accrued more than two years before its filing and therefore
        failed to satisfy the jurisdictional requirement.



                                                  -4-
                Because the district court looked to matters outside the pleadings on a motion
       that it construed as one for dismissal under Rule 12(b)(1), two questions arise: (1)
       What standard governs the district court’s determination of a motion under Rule
       12(b)(1) when matters outside the pleadings are considered; and, (2) What is the
       proper standard of review on appeal?
                The district court was correct in recognizing the critical differences between
       Rule 12(b)(1), which governs challenges to subject matter jurisdiction, and Rule 56,
       which governs summary judgment. Rule 12 requires that Rule 56 standards be
       applied to motions to dismiss for failure to state a claim under Rule 12(b)(6) when
       the court considers matters outside the pleadings. Fed.R.Civ.P. 12(b) & (c);
       Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977)
       (Motion under Rule 12(b)(6) raising matters outside pleadings is converted to a Rule
       56 motion). Rule 12 does not prescribe, however, summary judgment treatment for
       challenges under 12(b)(1) to subject matter jurisdiction where a factual record is
       developed. Nonetheless, some courts have held that Rule 56 governs a 12(b)(1)
       motion when the court looks beyond the complaint. In re Swine Flu Immunization
       Prod. Liab. Litig., 880 F.2d 1439, 1442-43 (D.C. Cir. 1989); In re Swine Flu Prod.
       Liab. Litig., 764 F.2d 647, 642 (9th Cir. 1985). We agree, however, with the majority
       of circuits that have held to the contrary. See, e.g., Mortensen, 549 F.2d at 891
       (disputed issues of material fact will not prevent trial court from deciding for itself
       merits of jurisdictional claims); Mims v. Kemp, 516 F.2d 21, 23 (4th Cir. 1975) (only
       motion under Rule 12(b) that can properly be converted to one for summary
       judgment is a motion filed under 12(b)(6)); Williamson v. Tucker, 645 F.2d 404, 413
       (5th Cir.) (district court has power to decide disputed factual issues in a motion under
       Rule 12(b)(1)), cert. denied, 454 U.S. 897, 102 S.Ct. 396, 70 L.Ed.2d 212 (1981);
       Crawford v. United States, 796 F.2d 924, 928 (7th Cir. 1986) (jurisdictional issue
       must be resolved before trial); Wheeler v. Main Hurdman, 825 F.2d 257, 259 (10th
       Cir.) (as a general rule, 12(b)(1) motion may not be converted to one for summary
       judgment), cert. denied, 484 U.S. 986, 108 S.Ct. 503, 98 L.Ed.2d 501 (1987).

Osburn v. U.S., 918 F.2d 724, 728-29 (8th Cir. 1990) (footnotes omitted).

        The discussion by the Sixth Circuit Court of Appeals in Ohio Nat. Life Ins. Co. v. U.S. is
likewise explanatory. This case also involved subject matter jurisdiction relative to a statute of
limitations defense. Said the court:

                However we characterize the IRS’s motion to dismiss, it is apparent that the
       district court resolved the factual issue of whether a waiver had been filed. Rule
       12(b)(1) motions to dismiss based upon subject matter jurisdiction generally come
       in two varieties. A facial attack on the subject matter jurisdiction alleged by the
       complaint merely questions the sufficiency of the pleading. In reviewing such a
       facial attack, a trial court takes the allegations in the complaint as true, which is a
       similar safeguard employed under 12(b)(6) motions to dismiss. On the other hand,


                                                 -5-
       when a court reviews a complaint under a factual attack, as here, no presumptive
       truthfulness applies to the factual allegations. Such a factual attack on subject matter
       jurisdiction commonly has been referred to as a “speaking motion.” See generally
       C. Wright & A. Miller, Federal Practice and Procedure § 1364, at 662-64 (West
       1969). When facts presented to the district court give rise to a factual controversy,
       the district court must therefore weigh the conflicting evidence to arrive at the factual
       predicate that subject matter jurisdiction exists or does not exist. In reviewing these
       speaking motions, a trial court has wide discretion to allow affidavits, documents and
       even a limited evidentiary hearing to resolve disputed jurisdictional facts. See
       Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981); Mortensen v. First Fed. Sav.
       & Loan Ass’n, 549 F.2d 884, 891 (3rd Cir. 1977).
                Motions to dismiss under 12(b)(6) for failure to state a claim generally are
       distinct, procedurally and substantively, from motions to dismiss under 12(b)(1).
       When a party files a motion to dismiss under 12(b)(6), the district court is instructed
       to treat the motion as one for summary judgment if either party submits additional
       materials “outside the pleadings.” The court therefore must take the plaintiff’s
       allegations as true, and must also determine that no genuine issue of material fact
       exists when a Rule 56 motion is granted. Since a 12(b)(6) motion operates as a
       ruling on the merits, the Rule 56 conversion provides the non-moving party an
       additional safeguard.

Ohio Nat. Life Ins. Co. v. U.S., 922 F.2d 320, 325 (6th Cir. 1990).

        While both Osburn and Ohio Nat. Life Ins. Co. dealt with subject matter jurisdiction, it is
clear that the same rules apply to both in personam jurisdiction and venue. In Leroy v. Great
Western United Corp., 443 U.S. 173, 61 L.Ed.2d 464, 99 S.Ct. 2710 (U.S. 1979), the defendant
appeared specially to contest both in personam jurisdiction and venue. Said the United States
Supreme Court:

       Without reaching either the merits or the constitutional question arising out of the
       attempt to assert personal jurisdiction over appellants, we now reverse because venue
       did not lie in the Northern District of Texas.
                                                    I
                The question of personal jurisdiction, which goes to the court’s power to
       exercise control over the parties, is typically decided in advance of venue, which is
       primarily a matter of choosing a convenient forum. See generally C. Wright, A.
       Miller, & E. Cooper, Federal Practice and Procedure § 3801, pp 5-6 (1976)
       (hereafter Wright, Miller & Cooper). On the other hand, neither personal jurisdiction
       nor venue is fundamentally preliminary in the sense that subject-matter jurisdiction
       is, for both are personal privileges of the defendant, rather than absolute strictures on
       the court, and both may be waived by the parties. See Olberding v. Illinois Central
       R. Co., 346 U.S. 338, 340, 98 L.Ed. 39, 74 S.Ct. 83; Neirbo Co. v. Bethlehem Corp.,
       308 U.S. 165, 167-168, 84 L.Ed. 167, 60 S.Ct. 153, 128 ALR 1437. Accordingly,


                                                 -6-
         when there is a sound prudential justification for doing so, we conclude that a court
         may reverse the normal order of considering personal jurisdiction and venue.
                   Such a justification exists in this case. Although for the reasons discussed in
         Part II, infra, it is clear that § 27 of the 1934 Act does not provide a basis for personal
         jurisdiction, the question whether personal jurisdiction was properly obtained
         pursuant to the Texas long-arm statute is more difficult. Indeed, because the Texas
         Supreme Court has construed its statute as authorizing the exercise of jurisdiction
         over nonresidents to the fullest extent permitted by the United States Constitution,
         resolution of this question would require the Court to decide a question of
         constitutional law that it has not heretofore decided. As a prudential matter it is our
         practice to avoid the unnecessary decision of novel constitutional questions. We find
         it appropriate to pretermit the constitutional issue in this case because it is so clear
         that venue was improper under either § 27 of the 1934 Act or under § 1391(b) of the
         Judicial Code.

443 U.S. 173, 180-181, 61 L.Ed.2d 464, 471-72 (footnotes omitted).

        The only apparent difference in the application of these rules as to the question of venue
rather than in personam jurisdiction is the question of where the burden of proof lies. Moore’s
Federal Practice asserts a division of authority on this question.

         Plaintiff is not required to include in his complaint an allegation showing proper
         venue. Venue, unlike jurisdiction, involves a privilege personal to one defending a
         claim; and is waived unless timely objection is made. If the matter is properly raised
         who has the burden of establishing that venue is proper? Improper venue is an
         affirmative dilatory defense, and authority supporting this position places the burden
         of establishing improper venue upon the defendant. There is, however, authority that
         once the defendant has properly challenged venue, the burden of establishing proper
         venue is upon the plaintiff. This result is often reached without distinguishing
         between jurisdiction and venue. With deference, we suggest that this latter line of
         authority is unsound, except in limited situations. The Rules, as we have seen, treat
         improper venue as an affirmative dilatory defense; and, to our mind, properly so, as
         a general proposition. Normally, it is not too much to require one who would abate
         an action because of a privilege personal to himself to establish his privilege.

Moore’s Federal Practice, Vol. 1A, sec. 0.340 [1.-4] (2nd ed.) (footnotes omitted).3



         3
           Professor Moore does not distinguish between subject matter jurisdiction and in personam jurisdiction in this
discussion. If his observations are sound then such observations should apply with equal vigor to both venue and in
personam jurisdiction, since Leroy v. Great Western United Corp. observes that “neither personal jurisdiction nor venue
is fundamentally preliminary in the sense that subject-matter is, for both are personal privileges of the defendant, rather
than absolute strictures on the court, and both may be waived by the parties.” 61 L.Ed.2d at 472.

                                                           -7-
          While Professor Moore prefers to cast the burden of proof upon the defendant as to venue
it is to be noted that the division of authority on this question is wide spread with Tennessee Federal
cases apparently joining those jurisdictions placing the burden of proof on the plaintiff. Fayette v.
Volkswagen of America, Inc., 273 F.Supp. 323 (W.D. Tenn. 1967); Dixie Portland Flower Mills, Inc.
v. Dixie Feed and Seed Co., 272 F.Supp. 826 (W.D. Tenn. 1965), aff’d 382 F.2d 830 (6th Cir. 1967).

        The burden of proof question is academic in this case as the trial court accepted the proof
offered by the defendant that he was not a resident of Montgomery County on July 1, 1998, and that
he was not “found” in Montgomery County on July 24, 1998 when Plaintiff alleges that he was
served with process while on the property of Robert K. Mayfield. Even if the defendant was in
Montgomery County on July 24, 1998, this would not suffice to vest venue in the courts of
Montgomery County.

                This was a transitory action, and section 8640 [T.C.A. 20-4-101] of the Code
       provides that such right of action “follows the person of the defendant, unless
       otherwise expressly provided.” The chancery court in Hamilton county had no
       jurisdiction of this action until the defendant came into that county. His presence in
       the county conferred jurisdiction upon the court. It has been repeatedly said by this
       court that, under section 8640 [T.C.A. 20-4-101] of the Code, a transitory right of
       action follows the person of defendant into a particular jurisdiction–does not precede
       the defendant into that jurisdiction. If the defendant, instead of coming into
       Hamilton county from Georgia, had come into Hamilton county from another county
       of Tennessee, it is conceded the plea in abatement herein would have been good.
       Carlisle v. Cowan, 85 Tenn. 165, 2 S.W. 26, 28; Haynes v. Woods, 151 Tenn. 163,
       268 S.W. 632; Inter-Southern Life Insurance Co. v. Pierce, 161 Tenn. 346, 31
       S.W.2d 692.
                It is urged, however, that a different rule should be applied to nonresidents of
       the state. We cannot follow this argument. It is the presence of a defendant in the
       county that confers jurisdiction of such actions on the courts of that county. It is
       immaterial where the defendant comes from–whether another state or another county.
       If not in the county when sued, service of process on him at some later date, when he
       may come into the county, does not help the plaintiff. This is true because “the
       service of the summons relates back to the date of the issuance of the writ, and he is
       sued as of the day of the institution of the suit.” Carlisle v. Cowan, supra.

Hamilton Nat. Bank v. Watkins, 110 S.W.2d 311, 312 (Tenn. 1937).

        Contrary to Appellant’s argument, the limited appearance filed on the defendants’ behalf, the
answer’s assertions regarding residence and the motion to dismiss with supportive affidavits left no
doubt that the venue of the Montgomery County Circuit Court was squarely at issue. Appellant cites
Faulks v. Crowder, 99 S.W.3d 116, 126 (Tenn.Ct.App. 2002) for the proposition that the defense
of insufficiency of process must be timely raised just as the venue objection must be timely asserted.
See also Tenn.R.Civ.P. 12.02 and 12.08. However, the two year delay taken by the defendant in


                                                 -8-
Faulks is distinguishable from the facts at bar. In his answer, Dr. Mayfield affirmatively pled his
residence in Houston County. By motion only sixty days later, the defendant Mayfield specifically
raised improper venue as ground for dismissal. See Toller v. City of Cookeville, 952 S.W.2d 831,
835 (Tenn.Ct.App. 1997). Under the circumstances the trial court correctly concluded that the venue
objection was raised in a timely fashion.

        The trial court specifically found that Defendant’s practice was outside of Montgomery
County and that the defendant did not reside in Montgomery County. These findings were amply
supported by the affidavits of the defendant as well as his testimony in the deposition taken for the
limited purpose of determining propriety of venue. Despite Appellant’s argument that the affidavit
of independent service processor Joe Heatherly was not properly considered as establishing personal
service, the trial court considered that affidavit as well as the affidavit and deposition testimony of
Robert D. Mayfield, and determined, as is his province, the credibility to be assessed to each witness
rendering testimony directly and by affidavit before the court. Consistent with our standard of
review as established under Tenn. R. App. P. Rule 13(d), we cannot reverse these amply supported
factual findings. See Airline Constr. v. Barr, 807 S.W.2d 247 (Tenn.Ct.App. 1990). The evidence
does not preponderate against the finding of the trial court that the defendants were neither residents
of Montgomery County nor found in Montgomery County on July 1, 1998. The case was properly
dismissed because of improper venue. The decision of the trial court is affirmed in all respects.
Appellant’s renewed motion to amend the record is denied. Costs on appeal are taxed against
Appellant for which execution may issue.


                                                       ___________________________________
                                                       WILLIAM B. CAIN, JUDGE




                                                 -9-
