Southwest Williamson County Community Ass'n v. Saltsman

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
August 7, 2001 Session

SOUTHWEST WILLIAMSON COUNTY COMMUNITY ASS’N, ET AL. v. J.
BRUCE SALTSMAN, SR., Commissioner, Tennessee Department of
Transportation

Appeal from the Chancery Court for Williamson County
No. 27,222 J. Russ Heldman, Judge

No. M2001-00943-COA-R3-CV - Filed August 28, 2001

Being dissatisfied with the State’s concept of, and planning for, the extension of State Route 840
through southwest Williamson County, three residents in the County, two nonprofit corporations,
and a partnership that owns property in the County, sued J. Bruce Saltsman, Sr. (“the
Commissioner”), in his official capacity as Commissioner of the Tennessee Department of
Transportation (“TDOT”). Following a bench trial, the court below entered a final judgment
including (1) a writ of mandamus ordering the Commissioner to perform a number of “duties” in
connection with Route 840; and (2) a permanent injunction enjoining him from moving forward
with the planning and construction of Route 840 through Williamson County until he complies with
the trial court’s order. The Commissioner appeals. In addition to other bases for reversal, he asserts
that the trial court lacked subject matter jurisdiction of this controversy. We agree with the appellant
that the trial court was without subject matter jurisdiction. Accordingly, we reverse the judgment
below in its entirety and dismiss the petition.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Reversed; Petition
Dismissed; and Case Remanded

CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which HOUSTON M. GODDARD ,
P.J., and HERSCHEL P. FRANKS , J., joined.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Michael
W. Catalano, Associate Solicitor General; and Phyllis A. Childs, Assistant Attorney General, for the
appellant, J. Bruce Saltsman, Sr., Commissioner, Tennessee Department of Transportation.

David E. Lemke, Nashville, Tennessee, for the appellees, Southwest Williamson County Community
Association, Inc., Micaro Properties, Billie Rutledge, Dorothy Beard, and William B. Caldwell.

Julian L. Bibb and Robert C. Hannon, Nashville, Tennessee, for the appellee-intervenor, Heritage
Foundation of Franklin and Williamson County, Tennessee.
William L. Penny, Lyle Reid, and Jonathan D. Rose, Nashville, Tennessee, for amicus curiae,
Tennessee Road Builders Association.

OPINION

I.

This litigation was commenced by the filing of a “Verified Petition for Writ of Mandamus
and Injunctive Relief” in the Williamson County Chancery Court. The original petitioners were
Southwest Williamson County Community Association, Inc., a Tennessee nonprofit corporation;
Micaro Properties, a Tennessee partnership that owns real property in Williamson County; and three
individuals, all of whom reside or own property in the County. They were later joined by another
nonprofit corporation, Heritage Foundation of Franklin and Williamson County, Tennessee, which
the trial court permitted to intervene as a petitioner.

The sole respondent in the suit is the Commissioner. The original petition alleges the
following with respect to him and the Department he heads:

The Tennessee Department of Transportation (“TDOT”) is a political
subdivision and agency of the executive branch of the State of
Tennessee. TDOT’s principal office is located at Suite 700, James K.
Polk Building, Nashville, Tennessee 37243. Respondent J. Bruce
Saltsman, Sr., is the Commissioner of TDOT; his principal office is
located at the same address as TDOT.

The petition focuses on TDOT’s involvement with State Route 840, especially as it pertains
to the portion of the highway to be built in Williamson County:

TDOT is engaged in the planning, design, right-of-way acquisition,
financing, and construction of a four-lane, access controlled highway
running from Interstate 40 East (Wilson County) to Interstate 40 West
(Dickson County) through Wilson, Rutherford, Williamson,
Hickman, and Dickson Counties (the “Southern Loop”), which
highway TDOT from time to time calls Interstate 840, I-840, State
Route 840, SR 840, or Route 840 (hereinafter “Route 840" or the
“Project”).

The Project is in various stages of construction. The Project is
currently constructed and opened from Interstate 40 East to Interstate
24 East only. TDOT is only in various stages of planning, design,
right-of-way acquisition, financing, excavation, and construction on
the remainder of the Project.

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 TDOT has created numerous, separate projects for different segments
and parts of Route 840 from I-40(E) to I-40(W). Each separate
project has been given a separate project number by TDOT. Attached
as Exhibit A to this Petition is a copy of a document prepared by
TDOT dated July 23, 1997, which identifies some of the various
projects and project numbers that make up the entire Route 840.

Those segments of the Project that are proposed to run through the
Southwest Community are identified by TDOT on Exhibit A by the
County name “Williamson.”

No construction has begun on those segments of the Project which are
proposed to run from east of Thompson Station Road to southeast of
State Route 100 through Williamson County. Moreover, no right-of-
way acquisition has even occurred on that segment of the Project
proposed to run from east of Thompson Station Road to west of
Bending Chestnut Road.

TDOT estimates the Project will not be completed any sooner than
the year 2008. Attached as Exhibit B to the Petition is a copy of a
document in which TDOT states the foregoing estimate of the date of
completion.

TDOT has announced recently its plans to begin the right-of-way
acquisition phase of that segment of the Project identified by TDOT
as “State Project No. 94840-2221-04 Williamson County,” which is
proposed to run from east of Thompson Station Road to west of
Bending Chestnut Road.

TDOT has also announced recently its plans to solicit bids and let the
contracts on that segment of the Project proposed to run from west of
Bending Chestnut road to southeast of State Route 100.

Petitioners are informed TDOT has already acquired right-of-way and
begun construction on the remaining segments of the Project
proposed to run through the Southwest Community.

(Numbering in petition omitted).

The petition, as later amended on two occasions, alleges that the Commissioner has certain
“non-discretionary” duties that he must perform in connection with Route 840. The amended
petition goes on to allege that “even if [the aforesaid duties] are discretionary,” the Commissioner

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and TDOT “may not perform or fail to perform those duties in an arbitrary and oppressive manner,
nor may they abuse their discretion in deciding whether or not to perform such duties.”

The petition identifies the “non-discretionary” duties of the Commissioner as those set forth
in (1) T.C.A. § 54-1-1051; (2) “the Procedure Manual for Highway Location Studies”; (3) TDOT’s
“Right-of-Way Manual”; and (4) T.C.A. § 4-33-1042 pertaining to an “economic impact statement.”
The amended petition goes on to allege that the Commissioner has failed to perform his duties and
meet his responsibilities and, as a result, the petitioners “are adversely affected and their rights are
impaired and interfered with by the [Commissioner’s] and TDOT’s failure and refusal to perform

1
T.C.A. § 54-1-105 (1998) sets forth the duties of the C ommission er, including, as particularly pertinent to the
petitioners’ claim s, the duty to

establish standards for the construction and maintenance of highways in the
counties, giving due regard to topography, natural conditions, availability of road
material, prevailing traffic conditions, and ways and means of the counties to meet
their portion of the cost of building and maintaining roads under the provisions of
this chapter and chapters 2 and 5 of this title.

2
T.C.A. § 4-33 -104 (1998 ) provides as follows:

(a) Upon written request by the commissioner or head of any agency, or by any
member of the general assembly, each agency shall within a reasonable time justify
a proposed action by preparing an economic impact statement using professiona lly
accepted methodo logy, with quantification of data to the extent practicable, giving
effect to both short-term and long-term consequences; provided, that the provisions
of this section shall not apply to any action o f the departm ent of transpo rtation in
which federal-aid matching funds are used.
(b) The economic impact statement shall include the following information:
(1) A description of the action proposed, the purpose of the action, the legal
authority for the action and the plan for implementing the action;
(2) A determination that the action is the least-cost method for achieving the stated
purpose;
(3) A comparison of the cost-benefit relation of the action to nonaction;
(4) A determination that the action represents the most efficient allocation of public
and private resources;
(5) A determination of the effect of the action on competition;
(6) A determination of the effect of the action on the cost of living in the
geographical area in which the action would occur;
(7) A determination of the effect of the action on employment in the geographical
area in which the action would occur;
(8) The source of revenue to be used for the action; and
(9) A conclusion as to the economic impact upon all persons substantially affected
by the action, including an analysis containing a description as to which persons
will bear the costs of the action and which persons will benefit directly and
indirectly from the action.
(c) If, during the course of an agency actio n, information required b y the econo mic
impact statement materially changes, the agency shall amend the statement with the
correct information.

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their duties as outlined above, inasmuch as Petitioners are not receiving the protections and benefits,
including the environmental, safety, and economic benefits they would be afforded, and to which
they are entitled, if [the Commissioner] and TDOT were performing their duties with respect to
Route 840 as it pertains to Williamson County.”

The petition concludes by seeking a writ of mandamus as to the various alleged duties and
responsibilities of the Commissioner “with respect to those segments of [Route 840] proposed to run
through Williamson County.” It also prays

[t]hat a temporary, preliminary and permanent injunction be issued
prohibiting [the Commissioner] and TDOT from undertaking any
further design, planning, financing, contract letting, right-of-way
acquisition, surveying, excavation, or construction of any part of
[Route 840] proposed to run through the Southwest Community [of
Williamson County], until such time as the [Commissioner] and
TDOT have performed all their non-discretionary duties as set forth
in the writ;...

At the conclusion of a bench trial below, the court filed a 110-page memorandum opinion
with findings of fact and conclusions of law that it later incorporated into a “Final Judgment, Writ
of Mandamus, and Permanent Injunction” that “grant[ed] the [p]etition in its entirety.” In its final
judgment, the trial court directed the performance of numerous specified duties and responsibilities
found by it to be incumbent upon the Commissioner. After enjoining the Commissioner and others
from doing various and sundry things with respect to Route 840, the judgment concludes that the
Commissioner and TDOT,

its officers, agents, attorneys, designees, employees, contractors,
subcontractors, and any other persons acting in concert or
participation with him or under his control, as well as their respective
successors, shall be and hereby are enjoined from engaging in any
further contract letting, right-of-way acquisition, excavating,
constructing, or building of [Route] 840 in the Southwest Community
[of Williamson County] until [the Commissioner] complies with the
requirements of this Order.

This appeal followed.

II.

The Commissioner makes a number of assertions on appeal:

1. The Williamson County Chancery Court did not have subject
matter jurisdiction of the petition filed against the Commissioner.

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 2. The proof at trial did not establish the necessary factual predicate
for the issuance of a writ of mandamus.

3. Because of a previously-filed suit by the petitioners in Davidson
County, they are precluded – by virtue of the doctrine of prior suit
pending – from raising the issue of whether T.C.A. § 67-3-2003(b)(1)
requires the Commissioner to plan, design, finance and construct
State Route 840 as an interstate highway.

4. The trial court erred in holding that T.C.A. § 67-3-2003(b)(1)
requires the Commissioner to plan, design, finance, and construct
State Road 840 as an interstate highway and to comply with all
federal environmental statutes and regulations as a result thereof in its
construction.

We have determined that the first issue is dispositive of this appeal. Since this issue – subject matter
jurisdiction – is a question of law, our review is de novo with no presumption of correctness as to
the trial court’s conclusion as to this matter. Nelson v. Wal-Mart Stores, Inc., 8 S.W.3d 625, 628
(Tenn. 1999).

In view of our determination that the trial court lacked subject matter jurisdiction to hear this
petition against the Commissioner, we pretermit consideration of the other issues.

III.

In assuming jurisdiction of this controversy in the face of the Commissioner’s argument that
he could not be sued on the cause of action alleged in the petition except in an appropriate court in
Davidson County, the Williamson County Chancery Court found that this was a controversy about
land:

Clearly the land and waters in the wake of proposed 840 in
Williamson County are the subject of the controversy because but for
the land and waters, the Commissioner’s alleged refusal either to
“establish” proper “construction and maintenance” standards or to
follow such standards under T.C.A. 54-1-105(b)’s mandate would be
of no consequence or impact to the Petitioners.

* * *

Venue is proper in this Court under two alternative Tennessee statutes
– T.C.A. 29-25-103 and T.C.A. 20-4-107.

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 * * *

Though the Petitioners are seeking a writ of mandamus requiring
Commissioner Saltsman to perform certain duties, those duties have
a direct relationship to and impact on the land owned by the
Petitioners. In the case of the Association and the Heritage
Foundation, a direct impact on land that the Association and the
Heritage Foundation have an interest in protecting based upon their
stated purposes.

The construction of 840 will have a direct impact on specific property
in which Petitioners have a specific interest. As a result, there is
specific property to which this action relates, and T.C.A. 29-25-103
applies to the determination of proper venue for this action.

T.C.A. 29-25-103 is one of the statutory exceptions to the general rule
that a commissioner or head of a department of state government may
only be sued in Davidson County. T.C.A. 29-25-103 sets forth the
proper venue for which a writ of mandamus is returnable and is
controlling on this issue.

Williamson County is the proper venue for this action since the
subject of the controversy is land located in Williamson County.

Moreover, T.C.A. 20-4-107 sets forth the proper venue for cases
involving real property in which the State of Tennessee, or any state
agency, is a party, as follows:

Notwithstanding any other provision of law or rule of
procedure to the contrary, any action the subject
matter of which involves real property in which the
state of Tennessee, or any agency thereof, is a party,
may be properly instituted in any county in which
such property is located.

The present action does in fact relate to specific property, i.e., the
property on which Petitioners live and recreate and which will be
taken and adversely impacted by the Commissioner of
Transportation’s failure to establish and follow proper standards
under T.C.A. 54-1-105(b). The nonperformance of these duties prior
to or during the construction of 840 have [sic] a direct relationship to
an[d] impact on specific property in which the Petitioners have a
specific interest. Petitioners want TDOT to consider the economic,

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 environmental, historical, and social impacts on the water, land,
homes and communities which 840 will affect and on which
Petitioners[] live. As a result, T.C.A. 20-4-107 is another basis for
this Court to find that Williamson County is the proper venue for this
action.

(Numbering in memorandum opinion omitted).

IV.

In arguing that he cannot be sued in Williamson County, the Commissioner points to T.C.A.
§ 4-4-104(a) (1998), which provides as follows:

Each department shall maintain a central office at the capitol, which
shall be the official residence of each commissioner, or head of
department.

He contends that the cases have construed this provision to mean that a commissioner of a
department of state government, in his or her official capacity, can only be sued in Davidson County,
i.e., his official residence. Hence, so the argument goes, the Williamson County Chancery Court did
not have subject matter jurisdiction over the instant suit, which is admittedly a suit against
Commissioner Saltsman in his official capacity.

The petitioners contend that other statutes vest the Williamson County Chancery Court with
subject matter jurisdiction over the issues raised in the subject controversy. They rely upon T.C.A.
§ 29-25-101 (2000) (“Circuit judges and chancellors have power to issue writs of mandamus upon
petition or bill, supported by affidavit.”); T.C.A. § 29-25-103 (2000) (“The writ is returnable to the
court of the county in which the land lies, in all cases where land is the subject of controversy, and
in all other cases to the court of the county where the defendant resides, or, if against a public officer
or corporation, in the county in which the office is kept or corporation does business.”); and T.C.A.
§ 20-4-107 (“Notwithstanding any other provision of law or rule of procedure to the contrary, any
action the subject matter of which involves real property in which the state of Tennessee, or any
agency thereof, is a party, may be properly instituted in any county in which such property is
located.”) Finally, the petitioners contend that T.C.A. § 4-4-104(a) (1998), the statute upon which
the Commissioner relies to support his lack of jurisdiction argument, addresses the concept of venue,
and not that of subject matter jurisdiction. They argue that the Commissioner failed to raise the issue
of lack of venue on appeal and, as a consequence of that failure, cannot now rely upon it.

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 V.

A.

We first examine the petitioners’ asserted bases to justify the placing of this lawsuit in the
Williamson County Chancery Court.

B.

The petitioners contend that this suit is about real property; that the real property is located
in Williamson County; and that T.C.A. § 20-4-107 – with its reference to “any action the subject
matter of which involves real property” – and T.C.A. § 29-25-103 – with its reference to returning
“[t]he writ...to the county in which the land lies, in all cases where land is the subject of the
controversy,” – vest the Williamson County Chancery Court with subject matter jurisdiction of this
case. We believe this argument must fail because, as we construe the allegations of the petition and
the relief sought – and granted in its entirety by the trial court – the controversy in this case is not
about “real property,” see T.C.A. § 20-4-107, or “land,” see T.C.A. § 29-25-103.

T.C.A. § 20-4-107 has been alluded to by the appellate courts of this state on a number of
occasions. None of those cases support the petitioners’ reliance on that statute to justify the filing
of the instant action in the Williamson County Chancery Court.

In Carter v. Olsen, 660 S.W.2d 483 (Tenn. 1983), the Supreme Court reviewed a case
involving the collection of inheritance taxes on a tract of land located in Franklin County, belonging
to a deceased resident of Texas. Id. at 483. When the Commissioner of Revenue sent a final
demand for payment ordering the plaintiffs to pay the tax assessment or suffer seizure of the
property, the plaintiffs filed a complaint in the Franklin County Chancery Court against the
commissioner. Id. at 484. The complaint alleged, among other things, that the commissioner
assured the plaintiffs that the Department of Revenue would not pursue collection during the
administrative appeal process. Id. The trial court found “that allowing the commissioner to collect
the taxes, which could only be done by selling a large portion of the property, before any of the legal
questions had been resolved would result in irreparable harm to the Plaintiffs.” Id. At trial, in the
face of the commissioner’s argument that the Franklin County Chancery Court lacked jurisdiction,
the trial court relied upon T.C.A. § 20-4-107 as statutory authority for its jurisdiction. Id. On
appeal, the Supreme Court held that the commissioner “was without authority…to levy against the
Plaintiff’s property until Plaintiff exhausted his administrative remedy as required by law to do.”
Id. at 486. Except for the portion of the opinion relating the history of the case in which the
Supreme Court noted the trial court’s claimed basis of jurisdiction, the Supreme Court did not
address the question of subject matter jurisdiction and did not take a position on that matter.

In Barry v. Commissioners of Commerce & Insurance, et al., C/A No. 01A01-9404-CH-
00156, 1994 WL 485588, (Tenn. Ct. App. W.S., filed September 9, 1994), the plaintiff was
constructing, without the benefit of a licensed architect or engineer, a three-story addition to a

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building he owned in Wilson County. Id. at *1. Upon receiving an order to cease the unlicensed
practice of architecture and engineering, the plaintiff brought suit in the Wilson County Chancery
Court against the Commissioner of Commerce & Insurance and the State Board of Architectural and
Engineering Examiners, seeking a declaratory judgment and injunctive relief. Id. The trial court
dismissed the complaint for lack of venue. Id. The issue on appeal was “whether venue is proper
in Wilson County pursuant to T.C.A. § 20-4-107 as asserted by plaintiff, or whether venue is proper
in Davidson County because plaintiff’s lawsuit is against a state officer in his official capacity.” Id.
We found that the case did not involve real property within the meaning of T.C.A. § 20-4-107 and
that “the gravamen of [the plaintiff’s] complaint is his right to practice unlicensed architecture or
engineering.” Id. at *2, *1. We relied upon T.C.A. § 4-4-104(a) and upon the “well settled [rule]
that a lawsuit brought against a state officer in his or her official capacity must be brought in the
county of the officer’s official residence,” in affirming the trial court’s dismissal predicated on that
court’s finding that the case had to be brought in Davidson County. Id. at *2.

In Bowden Building Corporation v. Tennessee Real Estate Commission, 15 S.W.3d 434,
447-48 (Tenn. Ct. App. 1999), perm. app. denied February 14, 2000, the plaintiff was a corporation
“engaged in the business of acquiring and selling real estate for its own account in Shelby County,
Tennessee, through...corporate representatives, some of which [were] not licensed real estate
brokers.” Id. at 436 (internal quotation marks omitted). Subsequent to receiving an order to cease
and desist, the plaintiff brought suit in the Shelby County Chancery Court against the Tennessee Real
Estate Commission, its members, and the Attorney General. Id. at 436-37. The complaint pertained
“to the construction, enforcement, and constitutionality of particular provisions of the Tennessee
Real Estate Broker License Act of 1973,” and sought, among other things, declaratory relief. Id. at
436. The defendants moved to dismiss the complaint on the ground that the plaintiff failed to seek
relief in the Davidson County Chancery Court in accordance with the Uniform Administrative
Procedures Act (“UAPA”). Id. at 437. The trial court relied upon T.C.A. § 20-4-107 in denying the
motion. Id. at 438. Upon appeal, we found that the gravamen of the complaint did not involve real
property but rather the right of the plaintiff’s employees to engage in unlicensed real estate
brokering. Id. at 448. We accordingly found that Davidson County was the proper site of the
litigation under T.C.A. § 4-5-225 of the UAPA. Id.

In the instant case, it is clear beyond any doubt that the petition, as amended, seeks an order
from the trial court directing the Commissioner to perform the duties alleged to be incumbent upon
him as they pertain to the planning for, and the construction of, Route 840 through southwest
Williamson County. The trial court recognized the thrust of the petition – a petition that it granted
“in its entirety.” It agreed with the petitioners that the Commissioner had certain legal duties
pertaining to Route 840 in Williamson County and that he was not meeting his responsibilities with
respect to those duties. The trial court remedied this perceived breach of duty by ordering the
Commissioner to properly perform his duties and, to the extent his duties are discretionary in nature,
to perform them without abusing his discretion. The court then halted all work on Route 840 in
Williamson County until the Commissioner had done that which he was ordered to do.

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 This is not a suit about real property. It is a suit seeking to require a commissioner of a
department of the State of Tennessee to do his job. Therefore, the Williamson County Chancery
Court cannot rely upon T.C.A. § 20-4-107 or T.C.A. § 29-25-103 to sustain its jurisdiction in this
case. Those statutes simply do not apply to the cause of action attempted to be asserted in the
petition.

It goes without saying that if and when Route 840 is extended through southwest Williamson
County, it will impact property in that county. Some property in the county probably will be
purchased while other tracts will have to be condemned. Other property, not acquired to
accommodate Route 840's right-of-way, probably will also be affected, albeit in varying degrees.
None of this means, however, that this lawsuit – this controversy – is an action “the subject matter
of which involves real property.” T.C.A. § 20-4-107. The relief granted in this case – which is a
hundred percent of that sought in the petition – would not, upon execution, directly impact the
ownership or enjoyment of a single, identified piece of property. As previously noted, the subject
matter of this lawsuit focuses on the Commissioner’s duties with respect to Route 840 through
southwest Williamson County, nothing more and nothing less. If and when the Commissioner
decides to condemn property in this part of Williamson County in order to build Route 840, the
condemnation lawsuits required to achieve this objective will be suits “the subject matter of which
involves real property.” Those suits will have to be filed in an appropriate court in Williamson
County.

C.

As an alternative basis of power, the petitioners rely upon T.C.A. § 29-25-101 (2000), which
grants to “chancellors” the “power to issue writs of mandamus.” While there can be no question that
a chancellor has the power, in a case properly before that chancellor, to issue a writ of mandamus
when the requesting party makes out a case for such relief, that statute, by itself, does not grant
subject matter jurisdiction in the instant case. T.C.A. § 29-25-101 identifies a type of remedy that
a chancellor is empowered to grant; it does not identify a type of controversy that he or she is
empowered to hear.

Even if we were to construe T.C.A. § 29-25-101 as a grant of subject matter jurisdiction, it
is a general statute that must give way to a specific statute – such as T.C.A. § 4-4-104, the statute
upon which the Commissioner relies. As we will see, that statute has been construed to require suits
against commissioners of departments of state government to be filed in Davidson County. “A
specific statute prevails over a general one.” Morris v. Snodgrass, 871 S.W.2d 484, 487 (Tenn. Ct.
App. 1993).

VI.

The Tennessee Constitution mandates that the State can only be sued as the General
Assembly directs by law. Art. I, Section 17, Tennessee Constitution. We believe that the General

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Assembly has clearly prescribed that a suit against a commissioner in his or her official capacity, i.e.,
a suit against the State, must be brought in Davidson County.

As we have seen, T.C.A. § 4-4-104(a) provides as follows:

Each department shall maintain a central office at the capitol, which
shall be the official residence of each commissioner, or head of
department.

This statute “locates each department, and fixes the commissioner’s official residence, at the capitol
in Nashville, Davidson County.” Delta Loan & Finance Co. v. Long, 206 Tenn. 709, 713, 336
S.W.2d 5, 6 (1960) (construing T.C.A. § 4-404, the precursor of T.C.A. § 4-4-104). “The situs of
such department and official residence is, therefore, local like that of a municipal corporation.” Id.
(emphasis added). The Commissioner is the head of TDOT pursuant to T.C.A. § 4-3-2302(a)
(1998).

Cases interpreting T.C.A. § 4-4-104 or its substantially similar predecessor have found that
the general rule “is that a commissioner or head of a department of state government may be sued
as such only in the county of his official residence….” Delta Loan, 206 Tenn. at 713, 336 S.W.2d
at 6.3 See also Morris, 871 S.W.2d at 485 (“T.C.A. § 4-4-104, as interpreted by the courts of this
state for many years, establishes venue for suits against state officials such as these defendants in
Davidson County.”); Barry, 1994 WL 485588 at *2 (Tenn. Ct. App. 1994) (“It is well settled that
a lawsuit brought against a state officer in his or her official capacity must be brought in the county
of the officer’s official residence.”) (citing Delta and Morris). See also T.C.A. § 29-25-103 (The
writ [of mandamus] is returnable..., if against a public officer..., in the county in which the office is
kept....).

The effect of T.C.A. § 4-4-104(a) in the instant case is to establish the Commissioner’s
official residence at the “central office” of TDOT “at the capitol” in Davidson County. The petition
acknowledges, as it must, that the Commissioner’s “principal office is located at the same address

3
Delta Loan relied upo n the case of City of Nashville v. Webb, 114 Tenn. 432, 85 S.W. 404 (1905), which
gives a glimpse into a possible rationale for this rule:

[A]ctions against municipal corporations are inherently local. These bodies cannot
change their situs or their plac e of abod e. They ca nnot remo ve from on e place to
another, and sojourn for a time at this point or that. They rem ain stationary; hence
they must be sued where they are found – tha t is, in the county of the ir
location….Such actions are no t only inherently loc al, 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 perm itted to rema in at home an d discharg e their public
duties, instead of being called hither and thithe r over differe nt parts of the state to
attend to litigation brought against the city through the agency of counterpart writs.

City of N ashville , 114 Tenn. at 435, 85 S.W. at 405.

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as TDOT,” which latter address the petition identifies as “Suite 700, James K. Polk Building,
Nashville, Tennessee 37243.”

The petitioners, recognizing the import of T.C.A. § 4-4-104(a), argue that it pertains to
venue, and not subject matter jurisdiction. They then argue that the Commissioner did not expressly
raise the issue of venue on appeal and is, therefore, precluded from arguing it now.

We recognize that some of the reported cases have tended to blur the line between the
concepts of subject matter jurisdiction and venue. Loose language in some of the cases has
contributed to the confusion surrounding the distinction between these concepts. This subject was
clarified by the Supreme Court in the 1996 case of Meighan v. U.S. Sprint Communications, 924
S.W.2d 632 (Tenn. 1996), wherein the High Court said the following:

Subject matter jurisdiction and venue are two separate concepts.
Subject matter jurisdiction concerns the authority of a particular court
to hear a particular controversy. It relates to the nature of the cause
of action and the relief sought. It is generally defined by the
constitution or statute and conferred by the authority that organizes
the courts….

Venue, on the other hand, is a concept based on privilege of and
convenience to the parties. It is generally not a condition precedent
to the court’s power, but relates instead to the appropriateness of the
location of the action. While there is much debate regarding the
connectedness between the two concepts, our rules of civil procedure
have clearly distinguished between the two. Improper venue is a
matter which is waived unless contested in the first pleading. Subject
matter jurisdiction, on the other hand, cannot be waived, because it
is the basis for the court’s authority to act.

Id. at 639 (citations omitted).

In our judgment, the issue before us is the “authority of [the Williamson County Chancery
Court] to hear a particular controversy,” that is, a suit against the Commissioner to compel him to
perform the duties of his office as they pertain to Route 840 in southwest Williamson County. The
General Assembly has exercised its constitutional grant of authority to prescribe that such a
controversy must be litigated in an appropriate court in Davidson County. This is a question of
subject matter jurisdiction, not one of venue.

VII.

In summary, we find and hold that the Williamson County Chancery Court was without
subject matter jurisdiction, i.e., without power, to hear the instant case. Because a court cannot

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exercise jurisdiction that has not been expressly, or by necessary implication, conferred upon it, it
follows that the judgment of the Williamson County Chancery Court in the instant case is void and
of no effect. See Dishmon v. Shelby State Community College, 15 S.W.3d 477, 480 (Tenn. Ct.
App. 1999), perm. app. denied April 10, 2000.

VIII.

The judgment of the trial court is reversed in its entirety and the petition is dismissed. Costs
at the trial court level and on appeal are taxed to the petitioners. This case is remanded to the trial
court for collection of costs of the trial court, pursuant to applicable law.

___________________________________
CHARLES D. SUSANO, JR., JUDGE

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