Frank Mills v. Luis Wong

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
MAY 2000 Session

FRANK FETZER MILLS, JR., ET AL. v. LUIS L. WONG, M.D.

Interlocutory Appeal from the Circuit Court for Shelby County
No. 300304 T.D.; The Honorable Robert A. Lanier, Judge

No. W1999-00665-COA-R9-CV - Filed September 15, 2000

This appeal presents a dispute over proper venue arising out of a medical malpractice suit against
multiple defendants. The Shelby County Circuit Court denied the Defendant’s motion to dismiss
for improper venue. The case is before this court on an interlocutory appeal.

Tenn. R. App. P. 9; Interlocutory Appeal; Judgment of the Circuit Court Reversed and
Dismissed

ALAN E. HIGHERS , J., delivered the opinion of the court, in which CRAWFORD , P.J., W.S., and
FARMER , J., joined.

DeWitt M. Shy, Jr., Wendy Coven Feild, Memphis, for Appellant

Richard J. Myers, Memphis, for Appellees

OPINION

Luis D. Wong appeals from the trial court’s denial of his motion to dismiss for improper venue. For
the reasons stated herein, we reverse the trial court decision.

Facts and Procedural History

Frank Fetzer Mills, Jr. and Rebecca Smith Mills (“Appellees”) are husband and wife and
reside in Lauderdale County, Tennessee. Luis D. Wong (“Appellant”) is a physician who also
resides in Lauderdale County.
 The Appellees filed a medical malpractice complaint against the Appellant arising out of two
separate visits by Mr. Mills to the Appellant’s office in Lauderdale County. 1 As part of the same
suit, the Appellees sued four other individuals and three facilities, alleging that each Defendant was
guilty of separate acts of medical malpractice.2 The complaint alleges that all Defendants other than
Wong reside or have their principal places of business in Shelby County, Tennessee. The Appellees
also allege that all causes of action, except that against Wong, arose in Shelby County.

The Appellees filed their complaint against the Appellant and the other Defendants in Shelby
County Circuit Court. The Appellant filed a motion to dismiss for improper venue, arguing that
Tenn. Code Ann. § 20-4-101(b) required that the action against him be brought in Lauderdale
County. The trial court denied the Appellant’s motion to dismiss by order dated June 23, 1999. The
Appellant then filed a motion and memorandum for permission for interlocutory appeal pursuant to
Rule 9 of the Tennessee Rules of Appellate Procedure. The trial court granted the motion for
interlocutory appeal, and this court granted a similar motion on November 12, 1999.

Law and Analysis

As an initial matter, we note that if the complaint had named only the Appellant as a
Defendant, the proper venue would be in Lauderdale County as it is clearly a “localized” action. See
Tenn.Code Ann. § 20-4-101(b). However, this case presents a scenario in which multiple defendants
residing in or having their principal places of business in multiple counties are sued for separate acts
of medical malpractice as part of a single action. The situation is further complicated by the fact that
the plaintiffs and one defendant reside in the same county, and the claim against that defendant arose
in that county, namely Lauderdale County. The Appellant argues that the claim against him can
only be brought in Lauderdale County, while the Appellees argue that the Appellant can be sued in
Shelby County because he was properly joined under Rule 20 of the Tennessee Rules of Civil
Procedure. The critical issue is whether, by virtue of the fact there are multiple defendants from
multiple counties, proper joinder of a party under Rule 20 changes the venue analysis.

Under the facts of the present case, we do not believe that joinder under Rule 20 can change
the fact that the proper venue for the claim against the Appellant is Lauderdale County. In relevant
part, Tenn.Code Ann. § 20-4-101(b) provides: “If, however, the plaintiff and defendant both reside
in the same county in this state, then such action shall be brought either in the county where the
cause of action arose or in the county of their residence.” (Emphasis added). Pursuant to this section,
Lauderdale County is the only proper venue for the action against the Appellant. Both the Appellees
and the Appellant reside in Lauderdale County and the cause of action against the Appellant arose
in Lauderdale County.

1
There is no dispute that the entire rela tionship b etween the parties to th is appeal to ok place in Laud erdale
County.

2
All of the claims involve the failure to properly diagnose.

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 The cases cited by the Appellee, specifically Commercial Truck and Trailor Sales v.
McCampbell, 580 S.W.2d 765 (Tenn. 1979), Woods v. Fields, 798 S.W.2d 239 (Tenn. Ct. App.
1990), and Fred’s Finance v. Fred’s of Dyersburg, 741 S.W.2d 903 (Tenn. Ct. App. 1987), do not
present a factual scenario similar to the present case in that none of those cases has a plaintiff,
defendant, and cause of action which are confined to one county. The critical point of this fact is that
T.C.A. § 20-4-101(b) is not at issue in those cases. Therefore, those courts were not faced with the
specific question of whether joinder of a party served to overcome the special venue rule applicable
to a purely localized action. Therefore, to the extent the Appellees present those cases as dispositive
of the present dispute, we believe that reliance is misplaced.

In Tims v. Carter, 241 S.W.2d 501 (Tenn. 1951), our Supreme Court stated:

We ... conclude that where the plaintiff and a material defendant or
defendants reside in the same county, this county being the county
where the cause of action accrued, that then the county of the
residences of those parties should be the county of action for venue
purposes.

Tims, 241 S.W.2d at 503. We recognize that the Tims case presents a factual distinction insofar as
there was only one cause of action in that case as opposed to the present case in which the causes of
action accrued in both Lauderdale County and Shelby County. However, the Tims decision clearly
states that when the critical factors converge in one county, that county is the proper venue.3 We
believe the rule espoused in Tims is equally applicable in the present case. The language of
Tenn.Code Ann. § 20-4-101(b) is mandatory and has been consistently recognized as such. In his
book, Tennessee Circuit Court Practice, Professor Lawrence Pivnick notes that Tennessee courts
have adopted several ancillary venue rules. He states:

First, if venue is proper as to one of several defendants who is a material party, venue
is proper as to all properly joined defendants, even if venue would not be proper as
to the other defendants if sued individually. An exception, however, applies as to a
defendant having common county residence with the plaintiff.

Lawrence A. Pivnick, Tennessee Circuit Court Practice § 6-2 (1999)(emphasis added)(citations
omitted). In support of the exception, Professor Pivnick cites Tenn.Code Ann. § 20-4-101(b).
Professor Pivnick also notes that the Tennessee Rules of Civil Procedure specifically defer to
Tennessee statutes with respect to venue. See Lawrence A. Pivnick, Tennessee Circuit Court
Practice § 6-1 (1999)(citing Tenn. R. Civ. P. 4.01). If this case were simply the Appellees suing the

3
The only issue before this court is whether Shelby County is the proper venue in whi ch to s ue D r. W ong.
Although we find th at Shelby County is not the proper venue, we exp ress no op inion as to w hether the Shelby County
defend ants may b e sued in L auderd ale Coun ty as that issue is not before the court. H owev er, we w ould no te that this
question does not involve a scenario where the plaintiffs and defendants reside in the same county. In that regard, the
analysis w ould be different.

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Appellant, Lauderdale County would be the proper venue pursuant to T.C.A. § 20-4-101(b). We find
nothing which would lead us to conclude that the addition of the Shelby County defendants does
anything to change that fact.4 As such, the trial court erred in not granting the Appellants motion to
dismiss for improper venue.

Conclusion

For the aforementioned reasons, the decision of the trial court is reversed and the complaint
against the Appellant, Luis Wong, is dismissed for improper venue. Costs of this appeal are taxed
to the Appellees, Frank and Rebecca Mills, for which execution may issue if necessary.

___________________________________
ALAN E. HIGHERS, JUDGE

4
Specifically , we do n ot believe th at joinder u nder Ru le 20 can cure wh at would otherwise be an improper
venue. We would no te, however, that our holding should not be extended o utside the context of a case involving T.C.A.
§ 20-4- 101(b ).

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