                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                  March 18, 2002 Session

                    CALVIN TANKESLY v. SGT. PUGH, ET AL.

                    Appeal from the Chancery Court for Davidson County
                      No. 00-135-III   Ellen Hobbs Lyle, Chancellor



                    No. M2000-01520-COA-R3-CV - Filed June 27, 2002



WILLIAM C. KOCH, JR., J., dissenting.

       While I do not necessarily disagree with the substantive conclusions in the majority’s
opinion, I have prepared this dissent because neither the trial court nor this court should have
addressed the merits of Mr. Tankesly’s petition. It was filed in the wrong court.

        In 1996, the Tennessee General Assembly enacted a statute specifically addressing the venue
of lawsuits filed by prisoners seeking review of prison disciplinary proceedings. Tenn. Code Ann.
§ 41-21-803 (1997) states that these actions must “be filed in the county in which the facility is
located.” Even though venue is a personal privilege that can be waived if not raised in a timely
manner, Metropolitan Dev. & Hous. Agency v. Brown Stove Works, Inc., 637 S.W.2d 876, 880
(Tenn. Ct. App.1982), waiver does not apply when a transitory action has been localized by statute.
In that circumstance, venue is intertwined with the trial court’s subject matter jurisdiction which
cannot be conferred by waiver or consent. Curtis v. Garrison, 211 Tenn. 339, 344, 364 S.W.2d 933,
935 (1963); Terminix Int’l Co. v. Tapley, No. 02A01-9701-CH-00028, 1997 WL 437222, at *5
(Tenn. Ct. App. Aug. 4, 1997) (No Tenn. R. App. P. 11 application filed). Accordingly, we have
previously dismissed lawsuits filed by prisoners when they have been filed in the wrong county.
Howse v. Campbell, No. M1999-01580-COA-R3-CV, 2001 WL 459106, at *4 (Tenn. Ct. App. May
2, 2001) (No Tenn. R. App. P. 11 filed).

       Appellate courts must take up issues of subject matter jurisdiction even when they have not
been raised by the parties. Tenn. R. App. P. 13(b). Mr. Tankesly was incarcerated at the
Southeastern Tennessee Regional Correctional Facility in Pikeville when he was disciplined.
Therefore, Tenn. Code Ann. § 41-21-803 required him to file his petition in Bledsoe County, not
Davidson County. Even though the Attorney General and Reporter has not invoked Tenn. Code
Ann. § 41-21-803, we must. This complaint should have been summarily dismissed.



                                                     _____________________________
      WILLIAM C. KOCH, JR., JUDGE




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