                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                            Assigned on Briefs February 22, 2002

    THOMAS DYER v. TENNESSEE DEPARTMENT OF CORRECTION

                     Appeal from the Chancery Court for Davidson County
                                      No. 01-885-I


                   No. M2001-01446-COA-R3-CV - Filed September 5, 2002


WILLIAM C. KOCH , JR., concurring.

       I do not differ with the court’s disposition of issues raised by Mr. Dyer in this case.
However, I have prepared this separate opinion to explain why we have not decided this case based
on procedural grounds in a manner consistent with Hawkins v. Tennessee Dep’t of Corr., No.
M2001-00473-COA-R3-CV, 2002 Tenn. App. LEXIS 536 (Tenn. Ct. App. July 25, 2002).

       Less than one month ago, this court upheld a trial court’s dismissal of a petition for common-
law writ of certiorari filed by a prisoner because it was not filed in the county in which the institution
housing the prisoner is located. We construed Tenn. Code Ann. § 41-21-803 (1997) to require that
a lawsuit for a cause of action accruing while a prisoner is incarcerated must be brought in the county
where the facility housing the prisoner is located. Hawkins v. Tennessee Dep’t of Corr., 2002 Tenn.
App. LEXIS 536, at *39.

        This lawsuit was not filed in the county where the institution housing the prisoner is located.
Accordingly, it was filed in the wrong court based on our interpretation of Tenn. Code Ann. § 41-21-
803. If our decision in Hawkins v. Tennessee Department of Correction applied here, the proper
remedy would be to vacate the judgment and remand the case with directions that it be transferred
to the proper court for disposition in accordance with Tenn. Code Ann. § 16-1-116 (Supp. 2001).
However, as our decision in this case should demonstrate, we have determined that Hawkins applies
prospectively to all cases filed after Hawkins was decided and to all cases filed before Hawkins was
decided in which the application of Tenn. Code Ann. § 41-21-803 has been raised. It does not apply
to cases filed before Hawkins was decided in which the application of Tenn. Code Ann. § 41-21-803
was not raised.

        This case was filed before our decision in Hawkins was filed, and neither party raised the
application of Tenn. Code Ann. § 41-21-803 either in the trial court or on appeal. Accordingly, we
need not, in the absence of prejudice to the judicial process, grant relief to parties who failed to take
timely, reasonably available action to nullify any harmful effect caused by failing to heed Tenn. Code
Ann. § 41-21-803.


                                                         ___________________________________
                                                         WILLIAM C. KOCH, JR., JUDGE
