                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                 August 25, 2010 Session

  PATSY FREEMAN, INDIVIDUALLY AND AS ADMINISTRATRIX OF
      THE ESTATE OF JOHN R. FREEMAN, DECEASED v. CSX
    TRANSPORTATION, INC., A FLORIDA CORPORATION, ET AL.

                 Appeal from the Circuit Court for Rutherford County
                         No. 49982    J. Mark Rogers, Judge


               No. M2009-02403-COA-R3-CV - Filed November 3, 2010


P ATRICIA J. C OTTRELL, P.J., M.S., dissenting.

        I must respectfully dissent from the majority opinion’s conclusion that Rutherford
County was an appropriate venue for this action and, consequently, that the Rutherford
County court had subject matter jurisdiction. In particular, I disagree with the majority’s
statement that “unless the plaintiff and at least one ‘material defendant’ reside in the same
county and that county is where the cause of action accrued” the common county rule does
not apply. Essentially, the majority holds that the venue statute does not apply, a conclusion
that I believe is erroneous.

        The majority opinion thoroughly discusses the basic principles applicable to questions
of venue as jurisdictional. See also Pack v. Ross, 288 S.W.3d 870 (Tenn. Ct. App. 2008).
Essentially, the legislature has localized otherwise transitory actions through enactment of
Tenn. Code Ann. § 20-4-101. Where venue is localized, it is jurisdictional, and where
jurisdiction is missing, all orders of the court are void.

       In this case, the plaintiff and one material defendant (CSX) resided in Coffee County.
According to Tenn. Code Ann. § 20-4-101(b) and the cases dealing with the rule as applied
to several defendants who do not all reside in one county, those facts to require that the
lawsuit be brought either in Coffee County or in Bedford County, the county where the
cause of action arose.

        The statute provides that if “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.” Tenn. Code Ann. § 20-4-101(b). Decisional law
has addressed the situation where there is more than one defendant and not all the defendants
live in the same county, since the statute itself does not specifically address it. Our courts
have determined that, for the purpose of establishing a common county of residence for
application of the venue statute, a defendant need only be a “material” defendant. Herein,
no one argues that CSX is not a material defendant. Therefore, venue under the statute
would be proper in either the common county of residence, Coffee County, or the county
where the cause of action arose, Bedford County. Rutherford County is not an available
venue, and the court of that county lacked subject matter jurisdiction.

        In Tims v. Carter, a case relied upon by the majority, the plaintiff and at least one of
the material defendants lived in the county where the cause of action arose. In that situation,
the action must be brought in that county. See Mays v. Henderson, 1992 WL 117058 (Tenn.
Ct. App. June 3, 1992) (explaining Tims as holding that a suit involving a transitory action
must be filed in the county where the cause of action arose if the plaintiff and at least one
material defendant resides there). See also Bing v. Baptist Memorial Hospital-Union City,
937 S.W.2d 922, 924 (Tenn. Ct. App. 1996) (describing Tims as addressing the situation
where one of the defendants and the plaintiff reside in the same county where the cause of
action arose).

        Because in the case before us neither the plaintiff nor any defendant resides in
Bedford County, the county where the accident happened, the holding in Tims does not apply.
That does not mean, however, that the statute localizing the action does not apply, which
appears to be the position of the majority. The clear language of Tenn. Code Ann. § 20-4-
101(b) requires that this lawsuit be brought either in the county of common residence of the
plaintiff and one material defendant or in the county where the cause of action arose.
Rutherford County is neither of those.

       Accordingly, I would hold that the Rutherford County court did not have subject
matter jurisdiction. This conclusion would lead to the conclusion that the order assessing
statutory discretionary costs is void.




                                                    __________________________________
                                                    PATRICIA J. COTTRELL, PRESIDING
                                                    JUDGE, M.S.




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