IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
August 11, 2015 Session
KATHLEEN N. BARRETT, ET AL. v. THOMAS M. CHESNEY, MD
Appeal from the Circuit Court for Shelby County
No. CT00084913 Robert Samual Weiss, Judge
________________________________
No. W2014-01921-COA-R9-CV – Filed September 28, 2015
_________________________________
This interlocutory appeal arises from a health care liability action and concerns the question
of proper venue. Plaintiff filed her original lawsuit in Shelby County against the Appellants,
a pathology group located in Shelby County. Appellants answered the complaint and raised,
as an affirmative defense, the comparative negligence of Appellees, plaintiff‟s primary care
physician and his employer, who are residents of Sumner County. Plaintiff then moved,
under Tennessee Code Annotated Section 20-1-119, for leave to amend her complaint to add
the Sumner County residents to the lawsuit. Leave was granted, and plaintiff filed an
amended complaint under Tennessee Rule of Civil Procedure 15.01. Appellees answered the
complaint and averred that venue was improper in Shelby County under Tennessee Code
Annotated Section 20-4-101(b). Appellees asked for dismissal of the lawsuit; however,
rather than dismissing the lawsuit, the Shelby County court transferred the case to Sumner
County. Appellants appeal. We affirm and remand.
Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Circuit Court is
Affirmed and Remanded
KENNY ARMSTRONG, J., delivered the opinion of the Court, in which J. STEVEN STAFFORD,
P.J., W.S., and BRANDON O. GIBSON, J., joined.
Albert C. Harvey and Justin N. Joy, Memphis Tennessee, for the appellants, Trumbull
Laboratories, LLC, Thomas M. Chesney, and Pathology Group of the Midsouth, PC.
John F. Floyd, Nashville, Tennessee, for the appellant, Kathleen N. Barrett.
Marty R. Phillips and John O. Alexander, IV, Memphis, Tennessee, for the appellees,
Michael Kellogg, Portland Primary Care, LLC, Portland Primary Care, LLC d/b/a Tristar
Medical Group-Fairvue, and Portland Primary Care, LLC d/b/a Tristar Medical Group-
Fairvue Primary Care.
OPINION
I. Background
On or about April 12, 2011, Appellant Kathleen N. Barrett, who is a resident of
Sumner County, Tennessee, underwent a biopsy of a lesion on her right calf. Ms. Barrett‟s
primary care physician, Dr. Michael S. Kellogg, performed the biopsy. Dr. Kellogg sent the
biopsied specimen to American Esoteric Laboratories, Inc. Thereafter, American Esoteric
Laboratories transferred the specimen to Trumbull Laboratories, Inc., where it was analyzed
by Dr. Thomas M. Chesney, an employee of Pathology Group of the Midsouth, P.C. (together
with Dr. Chesney and Trumbull Laboratories, Inc., the “Pathology Group Appellants”). The
Pathology Group Appellants are located in Shelby County, Tennessee. Dr. Chesney prepared
a pathology report, wherein he diagnosed Ms. Barrett‟s specimen as non-cancerous. In light
of the pathology report, Ms. Barrett did not immediately seek further treatment for the lesion
on her calf.
On or about January 30, 2012, Ms. Barrett returned to Dr. Kellogg because the lesion
on her leg had changed in appearance. Dr. Kellogg took another biopsy, which he sent to
Quest Diagnostics. The reviewing physician at Quest Diagnostics concluded that the biopsy
was positive for malignant melanoma. Thereafter, Ms. Barrett commenced treatment at
Vanderbilt University Medical Center. Ms. Barrett‟s Vanderbilt doctors obtained the original
April 12, 2011 specimen. On review of the specimen, a Vanderbilt dermatopathologist
concluded that the original specimen was positive for malignant melanoma.
On February 26, 2013, Ms. Barrett (“Appellant”) filed a health care liability complaint
against the Pathology Group Appellants,1 and American Esoteric Laboratories, Inc.2 Because
the Pathology Group Appellants were located in Shelby County, Ms. Barrett filed her
complaint in the Shelby County Circuit Court. On April 5, 2013, the Pathology Group
Appellants filed a joint answer, denying the material allegations contained in the complaint.
In the answer, the Pathology Group Appellants also asserted, as an affirmative defense,
negligence on the part of Ms. Barrett for failure to “follow up or seek medical treatment, and
1
We note that the original complaint was filed by Ms. Barrett and her husband Rickey J.
Barrett. However, an order of dismissal as to Mr. Barrett was entered on September 30, 2013.
2
On July 23, 2013, the trial court entered an order of voluntary non-suit without prejudice as
to American Esoteric Laboratories, Inc.
2
fail[ure] to follow medical instructions.” On October 11, 2013, the trial court entered an
agreed order, wherein the Pathology Group Appellants were required to “identify all
individuals and/or entities they believe are comparatively at fault in this matter, and [to]
disclose the basis for such fault.” On November 26, 2013, the Pathology Group Appellants
filed a motion for leave to amend their answer. The trial court granted the motion, and, on or
about December 4, 2013, the Pathology Group Appellants filed their first amended answer.
Therein, the Pathology Group Appellants raised, as an affirmative defense, the comparative
negligence of Dr. Michael Kellogg, Portland Primary Care, LLC, Portland Primary Care,
LLC d/b/a Tristar Medical Group-Fairvue, and Portland Primary Care, LLC d/b/a Tristar
Medical Group-Fairvue Primary Care (together, “Appellees”). Specifically, the Pathology
Group Appellants alleged that Dr. Kellogg was negligent in “not communicating to [Ms.
Barrett] Dr. Chesney‟s April 2011 recommended course of treatment that the lesion on [her]
leg „should be completely excised.‟” In addition, the Pathology Group Appellants alleged
that Dr. Kellogg‟s treatment of Ms. Barrett failed to comply with the recognized standard of
acceptable professional care in that he allegedly failed to “offer. . . and/or carry out the
recommended course of treatment within a reasonable time, despite numerous office visits
after the April 2011 recommendation from Dr. Chesney.”
On January 6, 2014, “pursuant to Tennessee Code § 20-1-119 and Tennessee Rule of
Civil Procedure 15,”3 Ms. Barrett filed a motion for leave to amend her complaint. Therein,
she noted the Pathology Group Appellants‟ affirmative defense of comparative fault on the
part of Appellees and requested leave to amend her complaint to add Appellees as defendants
in the health care liability action. The trial court granted Ms. Barrett‟s motion by order of
January 14, 2014. On January 24, 2014, Ms. Barrett filed her “First Amended Complaint,”
3
Tennessee Code Annotated Section 20-1-119 provides, in pertinent part, that:
(a) In civil actions where comparative fault is or becomes an issue, if a defendant
named in an original complaint initiating a suit filed within the applicable statute of
limitations, or named in an amended complaint filed within the applicable statute of
limitations, alleges in an answer or amended answer to the original or amended
complaint that a person not a party to the suit caused or contributed to the injury or
damage for which the plaintiff seeks recovery, and if the plaintiff's cause or causes of
action against that person would be barred by any applicable statute of limitations but
for the operation of this section, the plaintiff may, within ninety (90) days of the
filing of the first answer or first amended answer alleging that person's fault, either:
(1) Amend the complaint to add the person as a defendant pursuant to Tenn. R. Civ.
P. 15 and cause process to be issued for that person. . . .
3
naming the Pathology Group Appellants and the Appellees as defendants. On February 26,
2014, Appellees filed an answer, wherein they averred that “[v]enue is not proper in Shelby
County.” Specifically, Appellees alleged that Ms. Barrett and Dr. Kellogg reside in Sumner
County and that the cause of action between them arose in Sumner County. Therefore,
relying on the Tennessee Venue Statute, Tennessee Code Annotated Section 20-4-101,
Appellees asserted that proper venue lay in Sumner County. On March 17, 2014, Appellees
moved for dismissal on the ground of improper venue. Ms. Barrett opposed the motion in
her response filed on April 30, 2014. Likewise, on May 22, 2014, the Pathology Group
Appellants filed a response in opposition to the Appellees‟ motion to dismiss.
The trial court heard Appellees‟ motion to dismiss for lack of proper venue on June
20, 2014. By order of June 30, 2014, the trial court held that, “[r]ather than dismissing the
case against [Appellees] for improper venue,” it had “discretion to transfer the matter to the
Sumner County Circuit Court under Tennessee Code Annotated § 16-1-116. . . .”
Accordingly, the court held that “[t]he Sumner County Circuit Court is the only court with
jurisdiction to hear this entire action” and ordered that the case would be transferred “in its
entirety as to all Defendants to the Sumner County Circuit Court.”
On September 22, 2014, the trial court granted Appellants‟ motion for permission to
seek interlocutory appeal under Tennessee Rule of Appellate Procedure 9. This Court
granted the interlocutory appeal by order of December 9, 2014.
II. Issues
We perceive the dispositive issue in this case as whether the amendment to a
complaint to add defendants that reside in the plaintiff‟s county of residence negates venue in
the Shelby County court under Tennessee Code Annotated Section 20-4-101(b).
III. Standard of Review
The sole issue on appeal is whether the Shelby County trial court erred in transferring
the case for improper venue. The determination of whether venue is proper is a question of
law, which we review de novo with no presumption of correctness. Lanius v. Nashville Elec.
Serv., 181 S.W.3d 661, 663 (Tenn. 2005).
IV. Analysis
4
As an initial matter, we note that, in its June 30, 2014 order, the trial court appears to
use the terms “venue” and “jurisdiction” synonymously, i.e., the order states “[r]ather than
dismissing the case against [Appellees] for improper venue,” and also states that “[t]he
Sumner County Circuit Court is the only court with jurisdiction to hear this entire action.”
Subject-matter jurisdiction addresses a court‟s authority to adjudicate a dispute brought
before it. See Northland Ins. Co. v. State, 33 S.W.3d 727, 729 (Tenn. 2000). It is
dependent on the nature of the controversy as well as the relief sought. Id. Venue, on the
other hand, does not affect the court‟s authority to rule on matters before it; rather, it relates
“to the appropriateness of the location of the action.” Meighan v. U.S. Sprint Commc’n Co.,
924 S.W.2d 632, 639 (Tenn. 1996). Here, we are concerned only with the question of proper
venue.
“Tennessee venue rules are largely statutory and are intended to provide the criteria
for determining where a lawsuit may or should be filed.” Mays v. Henderson, No. 01-A-
019103CV00115, 1992 WL 117058, *2 (Tenn. Ct. App. June 3, 1992) (citing Metropolitan
Dec. & Hous. Agency v. Brown Stove Works, Inc., 637 S.W.2d 876, 880 (Tenn. Ct. App.
1982)). These statutes provide a defendant a personal privilege to be sued in a particular
county or counties. Id. (citing Turpin v. Conner Bros. Excavating Co., 761 S.W.2d 296,
297 (Tenn. 1988); Corby v. Matthews, 541 S.W.2d 789, 791 (Tenn. 1976)). “However, when
the venue statutes permit an action to be filed in more than one place, it is the plaintiff, not
the defendant, who may choose where the suit will be filed.” Id. (citing Dealer Serv. Plan,
Inc. v. Chabarria, 543 S.W.2d 740, 742 (Tex. Civ. App. 1976); Florida Farms, Inc. v.
Barkett Computer Servs., Inc., 311 So.2d 730, 731 (Fla. Dist. Ct. App. 1975)).
It is undisputed that the instant case is transitory in nature. “Actions are either local or
transitory in nature, and the subject matter of the action determines its classification.”
Nickell, Inc. v. Psillas, et al., No. M2004-02975-COA-R3-CV, 2006 WL 1865018, *2, f n. 3
(Tenn. Ct. App. June 30, 2006) (citing State ex rel Logan v. Graper, 4 S.W.2d 955 (Tenn.
Ct. App. 1927); Burns v. Duncan, 133 S.2d 1000 (Tenn. Ct. App. 1939)). “Transitory
actions are those that could have arisen anywhere.” Id. (citing Curtis v. Garrison, 364
S.W.2d 933, 934 (Tenn. Ct. App. 1963)). In other words, “[a] transitory action is one for
which the injury occurred to a subject not having an immovable location.” Id. (citing Five
Star Express, Inc. v. Davis, 866 S.W.2d 944, 945 (Tenn. Ct. App. 1993)). Although, at
common law, a plaintiff could file a transitory action wherever the defendant could be found,
“[a]lmost two hundred years ago, the General Assembly modified the common law rule by
enacting statutes intended to localize transitory causes of action.” Mays, 1992 WL 117058,
*2 (citing White v. Garner, 241 S.W.2d 518, 519-20 (Tenn. 1951); Haynes v. Woods, 268
S.W. 632, 633 (Tenn. 1925)).
Tennessee Code Annotated Section 20-4-101 is Tennessee‟s primary localizing statute
for transitory actions. It provides, in relevant part:
5
(a) In all civil actions of a transitory nature, unless venue is otherwise
expressly provided for, the action may be brought in the county where the
cause of action arose or in the county where the individual defendant resides.
(b) If, however, 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.
As discussed in Mays:
Under Tenn. Code Ann. § 20-4-101, either the place where the cause of
action occurred or where the defendant resides dictates where the suit may be
filed. Residence, as a venue influencing criterion, refers not to a defendant‟s
residence when the cause of action occurs but rather to the defendant's
residence when the plaintiff files suit. Northcott v. Holloway, 225 Tenn. 141,
145, 464 S.W.2d 551, 553 (1971).
In cases where both the plaintiff and the defendant reside in the same
county, Tenn. Code Ann. § 20-4-101(b) clearly requires the suit to be filed
either in the county where the cause of action arose or in the county where
both parties reside. Localizing a transitory cause of action to the county where
both parties reside was intended to prevent the plaintiff from surprising the
defendant away from home in a forum where it would have been more difficult
or less convenient to defend. Haynes v. Woods, 151 Tenn. at 167, 268 S.W. at
633; S. Gilreath & B. Aderholt, Caruthers' History of a Lawsuit § 41, at 44 (8th
ed. 1963).
Tenn. Code Ann. § 20-4-101(b) is couched in singular terms, and thus
its application to cases involving multiple defendants is not readily apparent. . .
. [W]here all the parties reside in the same county. . . it is reasonable to
conclude that both prosecuting and defending the case will be most convenient
in the county where all the parties reside. The same may not hold true in cases
where one or more of the material defendants reside in different counties.
In cases where all the defendants do not reside in the same county, the
majority rule is that venue is proper wherever any one of the material
defendants against whom substantial relief is sought resides. See 77 Am.Jur.2d
Venue § 33 (1975); 92 C.J.S. Venue § 93(a) (1955). Tennessee, however, does
not follow the majority rule. The Tennessee Supreme Court has held that a suit
6
involving a transitory cause of action must be filed in the county where the
cause of action arose if the plaintiff and at least one material defendant resides
there. Tims v. Carter, 192 Tenn. 386, 391, 241 S.W.2d 501, 503 (1951).
Mays, 1992 WL 117058, *2-*3. In Tims, our Supreme Court specifically held:
We, therefore, 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 these parties
should be the county of action for venue purposes.
Tims v. Carter, 241 S.W.2d 501, 503 (Tenn. 1951).
In its June 30, 2014 order, the trial court determined that venue lies in Sumner County
and reasoned that
the action against [Appellees] is localized to Sumner County under Section 20-
4-101(b). . . and case law construing it to include Mills v. Wong, 39 S.W.3d
188 (Tenn. Ct. App. 2000). . . .
Section 20-4-101(b) 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.”
Under Mills, “when the critical factors converge in one county, that county is
the proper venue.” Id. at 189. Mills also provides that Section 20-4-101(b) is
“mandatory” and applies when the “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.” Id. at 189-90.
It is undisputed that Plaintiff, Kathleen Barrett, resides in Sumner
County and has resided there at all time pertinent; that [Appellees] reside in
Sumner County and have resided there at all times pertinent; and that the cause
of action brought by Plaintiff against [Appellees] arose in Sumner County.
Therefore, venue is not proper in Shelby County as against [Appellees]. The
only proper venue for the cause of action against [Appellees] is Sumner
County.
As noted by this Court in Mays, Tennessee Code Annotated Section 20-4-101(b) “is
couched in singular terms, and thus its application to cases involving multiple defendants is
7
not readily apparent.” Mays, 1992 WL 117058, at *3. In the Mills case, upon which the
trial court relied, the plaintiffs were residents of Lauderdale County, Tennessee. Mills v.
Wong, 39 S.W.3d 188 (Tenn. Ct. App. 2000), perm. app. denied (Tenn. March 5, 2001). The
Mills plaintiffs filed a health care liability complaint in Shelby County against four
defendants, who were all residents of Shelby County. Id. The causes of action against the
Shelby County defendants arose in Shelby County. After filing the lawsuit, the plaintiffs
were granted leave, under Tennessee Rule of Civil Procedure 20,4 to join Dr. Luis Wong as a
defendant in the lawsuit. Id. at 189. Dr. Wong was a resident of Lauderdale County, and the
causes of action against him arose in Lauderdale County. After he was joined in the lawsuit,
Dr. Wong filed a motion seeking dismissal of the plaintiffs‟ case against him on grounds that
venue in Shelby County was improper. Id. The trial court denied Dr. Wong‟s motion, and
this Court granted an interlocutory appeal to address the venue question. Id. On appeal,
this Court framed the issue as “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.”
Id.
In Mills, this Court reversed the trial court and dismissed the complaint against Dr. Wong for
improper venue. Id. at 190. In so ruling, we relied on the Tims holding, supra, for the
proposition that “[t]he language of Tenn. Code Ann. § 20-4-101(b) is mandatory and has
been consistently recognized as such.” Id. at 190. In addition to Tims, the Mills court relied
on Professor Pivnick‟s Tennessee Circuit Court Practice, stating:
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
4
Tennessee Rule of Civil Procedure 20.01 governs permissive joinder of parties. The Rule
provides:
All persons may join in one (1) action as plaintiffs if they assert any right to relief
jointly, severally, or in the alternative in respect of or arising out of the same
transaction, occurrence, or series of transactions or occurrences and if any question of
law or fact common to all these persons will arise in the action. All persons may be
joined in one (1) action as defendants if there is asserted against them jointly,
severally, or in the alternative, any right to relief in respect of or arising out of the
same transaction, occurrence, or series of transactions or occurrences and if any
question of law or fact common to all defendants will arise in the action. A plaintiff
or defendant need not be interested in obtaining or defending against all the relief
demanded. Judgment may be given for one or more of the plaintiffs according to their
respective rights to relief, and against one or more defendants according to their
respective liabilities.
8
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.
Mills, 39 S.W. 3d at 190 (quoting Lawrence A. Pivnick, Tennessee Circuit Court Practice §6-
2 (1999) (citations omitted)) (emphasis in original). Based on these authorities, we
concluded that, “[i]f this case were simply the [plaintiffs] suing [Dr. Wong], 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.” Id. We clarified this holding in a footnote, stating “[s]pecifically, we do
not believe that joinder under Rule 20 can cure what would otherwise be an improper venue.
We note, however, that our holding should not be extended outside the context of a case
involving T.C.A. §20-4-101(b).” Id. at 190, fn. 4.
In this case, Ms. Barrett did not add the Appellees to the lawsuit by permissive joinder
under Tennessee Rule of Civil Procedure 20. Here, Ms. Barrett added the Appellees by
amending her complaint under Tennessee Rule of Civil Procedure 15.01 and pursuant to
Tennessee Code Annotated Section 20-1-119, see footnote 3. In this regard, the Mills case is
distinguishable from the instant appeal, which is more closely aligned with the case of
Hutchings v. Methodist Hospital of McKenzie, W2001-01269-COA-R9-CV, 2000 WL
33774484 (Tenn. Ct. App. June 2, 2000).
In Hutchings, Judge (now Justice) Kirby, writing for this Court, draws a distinction
between the filing of an amendment to a complaint and the filing of an amended complaint as
those distinct actions bear on the question of venue. An “amended complaint,” complete in
itself without adoption or reference to original, supersedes and destroys the original
complaint as a pleading, while an “amendment” to a complaint merely modifies the existing
complaint, which remains before the trial court as modified. McBurney v. Aldrich, 816
S.W.2d 30 (Tenn. Ct. App. 1991) (citing Louisville & N.R. Co. v. House, 104 Tenn. 110, 56
S.W. 836 (1900)), perm. app. denied (Tenn. Sept. 3, 1991). In Hutchings, Plaintiff/Appellee
John Hutchings, a Weakley County resident, was treated in the emergency room at
Defendant/Appellee Methodist Hospital of McKenzie, which is located in Carroll County.
Id. at *1. Defendant/Appellee Dr. John Freeman examined Mr. Hutchings at Methodist
McKenzie and determined that he suffered from a vascular insufficiency in his right leg. Id.
Dr. Freeman advised Mr. Hutchings to go home and to schedule an appointment the
following day with his family physician, Defendant/Appellant Dr. Sidney Ray, a Carroll
County resident. Id. Dr. Ray examined Mr. Hutchings the following day and advised him to
return home while Dr. Ray‟s office made an appointment for Mr. Hutchings to be examined
by a specialist. Id. Two days later, Dr. Ray‟s office contacted Mr. Hutchings and told him to
go immediately to Methodist Hospital of Memphis in Shelby County. Id. Mr. Hutchings was
9
subsequently admitted to the emergency room at Methodist Memphis. Id. On October 3,
1994, his right leg was amputated at Methodist Memphis. Id.
Mr. Hutchings filed suit in Shelby County against Methodist McKenzie, Methodist
Memphis, Dr. Freeman, and his treating physicians in Memphis. Id. Three days later, Mr.
Hutchings filed an identical lawsuit in Carroll County. Id. Dr. Ray was not named as a
defendant in either lawsuit. Id. Mr. Hutchings subsequently filed a motion asking the
Carroll County court to transfer the Carroll County lawsuit to Shelby County. Id. at *2. At
the same time, Mr. Hutchings filed a motion to amend his Carroll County complaint by
deleting Methodist Memphis and the other Shelby County defendants. Id. Mr. Hutchings
ultimately non-suited his Carroll County lawsuit.
Thereafter, a series of agreed orders were entered in Shelby County, dismissing all of
the Shelby County physicians from the Shelby County lawsuit except Dr. Alan Hammond.
Id. Likewise, Methodist Memphis was dismissed from the lawsuit by grant of summary
judgment, thus leaving Dr. Hammond as the sole Shelby County defendant. Id.
Within one year of entry of the non-suit in the Carroll County lawsuit, Mr. Hutchings
filed a second lawsuit in Carroll County. Id. This lawsuit named only Methodist McKenzie
and Dr. Freeman as defendants. Id. Shortly thereafter, in the Shelby County lawsuit,
Methodist McKenzie and Dr. Freeman filed an amended answer, in which they identified Dr.
Ray and Dr. Hammond as potentially liable parties. Id. Methodist McKenzie and Dr.
Freeman filed a similar amended answer in the Shelby County lawsuit. The Shelby County
trial court granted Mr. Hutchings permission to amend his complaint; a virtually identical
order was entered in Carroll County. Id. at *3. Mr. Hutchings amended his complaints, in
both Shelby County and Carroll County, to name Methodist McKenzie, Dr. Freeman, and Dr.
Ray as defendants. Id. At that point, all defendants resided in Carroll County, and the
negligent conduct alleged occurred in Carroll County. Id. Dr. Ray filed a motion to dismiss
for improper venue in Shelby County. Id. Mr. Hutchings filed a motion to transfer the
Shelby County lawsuit to Carroll County for consolidation with the Carroll County lawsuit.
Id.
The Shelby County court issued an order holding that venue in Shelby County was
proper when Mr. Hutchings originally filed his action there; that Dr. Ray was properly added
as a defendant in the case; and that the case was transferable to Carroll County. Id.
Accordingly, the Shelby County court denied Dr. Ray‟s motion to dismiss and granted Mr.
Hutchings‟ motion to transfer the Shelby County lawsuit to Carroll County. Id. The Carroll
County court issued an order accepting the transfer. Id. The Carroll County court found that
Mr. Hutchings had properly and timely amended his complaint under Tennessee Code
Annotated Section 20-1-119 to add Dr. Ray as a defendant to his Shelby County action and
10
that the case was transferrable to Carroll County. Id.
After granting interlocutory appeal under Tennessee Rule of Appellate Procedure 9,
we reviewed the question of proper venue and noted:
In this case, Hutchings‟ original Shelby County complaint contained
allegations of negligent conduct occurring in both Shelby County and Carroll
County. Therefore, for purposes of determining venue, his cause of action
arose in Shelby County and Carroll County. The original Shelby County
complaint named defendants residing in both Shelby County and Carroll
County. . . .
Hutchings filed his amended Shelby County complaint. . . to add Dr.
Ray as a defendant under Tennessee Code Annotated § 20-1-119. See Tenn.
R. Civ. P. 15.01. In the amended Shelby County complaint, Hutchings named
as defendants Dr. Ray, Methodist McKenzie and Dr. Freeman, all Carroll
County residents. The negligent conduct alleged against these defendants in
the amended complaint occurred in Carroll County. As noted above,
Tennessee Code Annotated §20-4-101 provides that venue is proper “in the
county where the cause of action arose or in the county where the defendant
resides or is found.” Id. Consequently, venue in Shelby County was improper
as to Dr. Ray if based only on the amended complaint because the amended
complaint did not name a Shelby County resident as a defendant nor did it
allege negligent conduct against the defendants named in the amended
complaint occurring in Shelby County.
In his original Shelby County complaint, Hutchings named Dr. Alan
Hammond, a Shelby County resident, as a defendant. The record contains no
order dismissing Dr. Hammond from the suit; however, he is not named as a
defendant in the Shelby County amended complaint. . . . If the amended
complaint was intended to supplement the original complaint instead of
completely replacing it, and if Dr. Hammond was a defendant in the case when
the amended complaint was filed, venue in Shelby County was proper as to Dr.
Ray when the amended complaint was filed. . . . As noted above, whether
venue was proper as to Dr. Ray at the time the amended complaint was filed
hinges on whether Dr. Hammond, the lone remaining named Shelby County
defendant, was a defendant when the amended complaint was filed. This
depends on whether. . . the amended complaint was intended to replace or
supplement the original complaint.
Hutchings, 2000 WL 33774484, at *5-*6. Because we could not determine whether “the
amended complaint was intended to replace or supplement the original complaint,” we
11
remanded “the case to the Carroll County trial court for a determination of whether the
amended Shelby County complaint was intended to supplement or replace the original
complaint. . . .” Id. at *6. Although procedurally convoluted and distinguishable from the
instant case, the Hutchings case does indicate that, in cases such as the one at bar, where a
party is added by some amendment to the complaint, the question of proper venue rests on
whether the Rule 15.01 amendment was meant to supersede and replace the original
complaint (i.e., amended complaint), or whether the amendment was meant only to change or
supplement the original (i.e., amendment to the complaint). As noted by the Hutchings
Court, “[i]f the amended complaint was intended to supplement the original complaint
instead of completely replacing it, and if Dr. Hammond[, a Shelby County resident,] was a
defendant when the amended complaint was filed, venue in Shelby County was proper as to
Dr. Ray.” Because an amendment to a complaint merely modifies the original complaint, the
original complaint still forms the basis for a determination of proper venue. However, the
inverse is also true: if the amended complaint is meant to replace and supersede the original
complaint, then the trial court must determine venue based on the amended complaint. So,
here, the question is whether Ms. Barrett‟s First Amended Complaint is, indeed, an amended
complaint, which replaces the original, or whether it is merely an amendment to the original
complaint. We now turn to address that question.
As set out above, in Hutchings, this Court looked to the order granting the amendment to the
complaint in order to determine whether the amended complaint was a superseding complaint
or merely a modification of the original. Specifically, the Hutchings Court states that “[t]he
amended Shelby County complaint could be construed as a substitute, intended to replace the
original complaint. However, the amended complaint was filed pursuant to the trial court‟s
order granting leave to amend. This order does not grant leave to file an amended or
substitute complaint; rather, it states that Hutchings was “allowed to amend” his original
complaint, i.e., to change or supplement the original complaint.” Likewise, in the instant
case, the trial court‟s order of January 14, 2014 allows Ms. Barrett to “amend her Complaint
to add additional Defendants . . . .” Importantly, the Hutchings case was decided in 2000,
which was prior to the 2007 amendment to Tennessee Rule of Civil Procedure 15.01, see
footnote 5, infra.
Tennessee Rule of Civil Procedure 15.01 currently provides, in relevant part, that,
“[f]or amendments adding defendants pursuant to Tenn. Code Ann. § 20-1-119. . . written
consent of the adverse party or leave of the court is not required.” The Advisory
Commission Comment to Rule 15.01 clarifies that, “[b]ecause Tenn. Code Ann. §20-1-119
allows potential comparative tortfeasors pleaded in the answer to be added to the complaint,
there is no reason to trouble the trial court with permission to amend.”5 Although not
5
Before the 2007 amendment to Tennessee Rule of Civil Procedure 15.01, which added the
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required under Rule 15.01, here, Ms. Barrett did file a motion “for leave to amend her
complaint.” The trial court granted her motion by order of January 14, 2014. Specifically,
the court granted Ms. Barrett leave to “amend her complaint to add additional Defendants. . .
.” If the trial court‟s permission had been necessary under Rule 15.01, then we would
possibly be faced with the same problem that required remand in the Hutchings case, i.e.,
whether the trial court allowed the plaintiff to file an amended complaint, which would
supersede and replace the original complaint, or whether she was allowed to file only an
“amendment to” her original complaint, which would merely modify the original complaint,
not replace it. Under the holding in Hutchings, supra, the distinction between an amended
complaint and an amendment to a complaint affects the question of venue. However, since
the Hutchings decision, Rule 15.01 has been amended to clarify that a party seeking to
amend his or her complaint pursuant to Tennessee Code Annotated Section 20-1-119 does
not have to seek permission from the trial court. Because Ms. Barrett was not required to
seek permission from the trial court, its order allowing the amendment is not dispositive of
the question of whether the actual amended document supersedes the original complaint or
merely adds another set of defendants to the original complaint. Rather, we look to the
substance of Ms. Barrett‟s First Amended Complaint to determine whether it supersedes and
replaces the original complaint or merely modifies it. “[I]t is well established that the courts
of this state look to the substance rather than the form of pleadings in determining their
nature and effect. Morgan v. Layne, 56 S.W.2d 161, 162 (Tenn. 1933); Rawlings v. John
Hancock Mut. Life Ins. Co., 78 S.W.3d 291, 300 (Tenn. Ct. App. 2001).
As noted above, an “amended complaint,” which supersedes and destroys the original
complaint as a pleading, is complete in itself without adoption or reference to the original,
while an “amendment” to a complaint merely modifies the existing complaint, which remains
before the trial court as modified. McBurney v. Aldrich, 816 S.W.2d 30 (Tenn. Ct. App.
1991) (citation omitted). Turning to the record, Ms. Barrett‟s First Amended Complaint
makes no reference to her original complaint. Furthermore, the document is complete in
itself in that it contains the names of all defendants, including the added defendants, in its
heading. Moreover, the First Amended Complaint sets out the causes of action against each
defendant without reference to the original complaint. From the substance of this pleading,
we can only conclude that Ms. Barrett‟s First Amended Complaint is just that: an amended
complaint, which supersedes and destroys her original complaint. As such, and under the
holding in Hutchings, we conclude that the trial court was required to revisit the question of
venue in light of the parties and causes of action included in the First Amended Complaint.
Here, our analysis merges with the trial court‟s reasoning as set out in its June 30, 2014 order.
language that “written consent . . . or leave . . . is not required,” there was some ambiguity as to
whether such leave or consent was required. See Jones v. Professional Motorcycle Escort Service,
LLC, 193 S.W.3d 564 (Tenn. 2006).
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Tennessee Code Annotated Section 20-4-101(b) 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.” Ms. Barrett is a
resident of Sumner County. Likewise, the Appellees, who were added to the lawsuit in the
First Amended Complaint, are residents of Sumner County. The trial court found that Ms.
Barrett‟s cause of action arose in Sumner County; this finding is not contested on appeal. “In
cases where both the plaintiff and the defendant reside in the same county, Tenn. Code Ann.
§ 20-4-101(b) clearly requires the suit to be filed either in the county where the cause of
action arose or in the county where both parties reside.” Mays, 1992 WL 117058, *2; accord
Tims, 241 S.W.2d at 503 (holding that a suit involving a transitory cause of action must be
filed in the county where the cause of action arose if the plaintiff and at least one material
defendant resides there.). Because the cause of action in this case arose in Sumner County
and because both Ms. Barrett and the Appellees reside in Sumner County, we conclude that
venue is proper in Sumner County under Tennessee Code Annotated Section 20-4-101(b).
Accordingly, the Shelby County trial court did not err in transferring the case to Sumner
County.
V. Conclusion
For the foregoing reasons, we affirm the order of the trial court. The case is remanded
for such further proceedings as may be necessary and are consistent with this opinion. Costs
of the appeal are assessed against the Appellants, Trumbull Laboratories, LLC, Thomas M.
Chesney, Pathology Group of the Midsouth, PC., and their surety, for all of which execution
may issue if necessary.
_________________________________
KENNY ARMSTRONG, JUDGE
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